Appeal 2007-2205
Application 10/396,013
respectively. See also MPEP § 1205.02 (8th ed., Rev. 3, August 2005;
1200-14 – 1200-15).
Here, the Examiner should clarify the record as to whether or not the
Amended Brief was a sufficiently acceptable reply to the earlier Notification
mailed October 13, 2006 to avoid abandonment and, if so, take appropriate
action in accordance with current Office policy to clarify the record
respecting the obviousness-type double patenting rejection. See MPEP
§ 711.02(a) and 714.03 (8th ed., Rev. 5, August 2006).
If the Application is determined to properly be in a pending status, the
Examiner should clarify the record as to whether a separate rejection of the
pending claims under the judicially created doctrine of obviousness-type
double patenting over the U.S. Application No. 10/670,587, the subject of
the provisional obviousness type-double patenting rejection set forth in the
Final Office Action, now issued as U.S. Patent No. 7,241,725 on July 10,
2007, is being maintained. If so, the Examiner should take appropriate
action consistent with current examining practice and procedure to clarify
the substance of that rejection as now being over the issued U.S. Patent
claims and notify Appellant of the deficiency in the Amended Brief with
respect to that maintained grounds of rejection. Because this course of
action can only be taken on the basis that the Amended Brief filed
November 30, 2007 is determined by the Examiner to be a sufficiently
adequate reply to the October 13, 2006 Notification to save the Application
from abandonment, the Examiner, if such a determination is made, should
provide Appellant with the opportunity to cure the Brief with regard to same
in order to avoid abandonment and/or withdrawal of the appeal and its
consequences with respect to all of the affected appealed claims, with a view
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