Samsung Electronics Co., Ltd.

Patent Trials and Appeals Board

Dec 10, 2020

2020002836 (P.T.A.B. Dec. 10, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/081,917 11/15/2013 Seung Hyun LEE 714350 2989
23460 7590 12/10/2020
LEYDIG VOIT & MAYER, LTD
TWO PRUDENTIAL PLAZA, SUITE 4900
180 NORTH STETSON AVENUE
CHICAGO, IL 60601-6731
EXAMINER
ALLEN, MICHAEL D
ART UNIT PAPER NUMBER
1642
NOTIFICATION DATE DELIVERY MODE
12/10/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
Chgpatent@leydig.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_________________

Ex parte SEUNG HYUN LEE, GEUN WOONG KIM, KYUNG AH KIM,
HYE WON PARK, HO YEONG SONG, YOUNG MI OH, SAET BYOUL
LEE, JI MIN LEE, KWANG HO CHEONG, YUN JU JEONG, MI YOUNG
CHO, JAE HYUN CHOI, YUN JEONG SONG, and YOON AA CHOI
_________________

Appeal 2020-002836
Application 14/081,917
Technology Center 1600
_________________

Before ERIC B. GRIMES, DEBORAH KATZ, and JOHN G. NEW,
Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review2, under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1, 6, 7, 9–11, 16, 17, and 19–22. We
have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 We use the word “Appellant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party-in-interest as Samsung Electronics Co., Ltd., the
reported assignee of record. (Appeal Br. 2.)
2 We consider the Non-Final Office Action issued February 20, 2019 (“Non-
Final Act.”), the Appeal Brief filed October 22, 2019 (“Appeal Br.”), the
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The only rejections before us in this appeal3 are under the judicially
created doctrine of obviousness-type double-patenting against all of
Appellant’s claims over either claims 1–6 of U.S. Patent 9,567,641 B2 (“the
’641 patent”) or claims 1–13 of U.S. Patent 9,572,878 B2 (“the ’878
patent”). (See Non-Final Act. 6.) The Examiner has determined that
although Appellant’s pending claims are not identical to the claims of the
’641 and ’878 patents, the currently pending claims are rendered obvious by
the patented claims. (See Ans. 3.)
Appellant’s currently pending claims recite methods of treating cancer
by administering an anti-human c-Met antibody or an antigen-binding
fragment thereof having CDRs comprising various recited SEQ ID NOs.
(See Appeal Br. 13–15.) The claims of the ’641 and ’878 patents are also
drawn to methods of treating cancer, but these claims recite including an
ITGB3 inhibitor or an EGFR inhibitor, respectively, along with the anti-
human c-Met antibody or an antigen-binding fragment. (See ’641 patent,
151:22–152:52, see ’878 patent 143:31–145:12.) The anti-human c-Met
antibody or an antigen-binding fragment of the claims of the ’641 and ’878
patents require CDRs with various recited SEQ ID NOs that overlap with the
SEQ ID NOs recited in Appellant’s currently pending claims. (See ’641
patent, 151:22–152:52, see ’878 patent 143:31–145:12.)

Examiner’s Answer issued on January 3, 2020 (“Ans.”), the Reply Brief
filed March 3, 2020 (“Reply Br.”) and the oral argument held on November
16, 2020, in reaching our decision.
3 The rejection of the claims of Appellant’s co-pending and related
application 13/646,589 is also on appeal. (See Appeal No. 2020-002839.)
The issues in that appeal is very similar to the issue in this appeal, being
based on similar obviousness-type double-patenting rejections.
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Appellant does not dispute the factual bases of the obviousness
determinations in this appeal.
Appellant argues, instead, that the rejections are procedurally
improper. Specifically, Appellant argues that terminal disclaimers submitted
in the currently pending application and in the ’641 and ’878 patents are
sufficient to overcome the rejection. (See Appeal Br. 5–6, 9, 11.)
Findings of Fact
1. Appellant’s currently pending application is assigned solely to
Samsung Electronics Co., Ltd.
2. Appellant filed the currently pending application on November
15, 2013, as a continuation-in-part of its parent application.
3. Appellant filed a terminal disclaimer in the currently pending
application, which disclaims the term of any patent granted from the
application beyond the expiration date of the full term of the ’641 or ’878
patent. (See Exhibit C.)
4. The ’641 patent is assigned to both Samsung Electronics Co.,
Ltd. and Georgetown University.
5. The application that became the ’641 patent (14/323,642) was
filed July 3, 2014, and claims benefit only to a provisional application.
6. A terminal disclaimer was filed in the ’641 patent disclaiming
the terminal part of the statutory term of the ’641 patent beyond the
expiration date of the full statutory term of any patent granted on the
currently pending application. (Exhibit B.)
7. The terminal disclaimer filed in the ’641 patent states:
The patentee hereby waives the right to separately enforce the
instant patent and any patent granted on the reference
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applications. The patentee agrees that the instant patent and
any patent granted on the reference applications shall be
enforceable only for and during such period that the instant
patent and any patent granted on the reference applications are
not separately enforced. This agreement runs with the instant
patent and is binding upon the patentee, its successors or
assigns.

(Exhibit B.)
8. The ’878 patent is assigned to both Samsung Electronics, Co.,
Ltd. and Samsung Life Welfare Foundation.
9. The application that became the ’878 patent (14/227,759) was
filed March 27, 2014, and claims benefit only to a Korean application.
10. A terminal disclaimer was filed in the ’878 patent disclaiming
the terminal part of the statutory term of the ’878 patent beyond the
expiration date of the full statutory term of any patent granted on the
currently pending application. (See Exhibit A.)
11. The terminal disclaimer filed in the ’878 patent recites the same
language as in the ’641 patent, stating:
The patentee hereby waives the right to separately enforce the
instant patent and any patent granted on the reference
applications. The patentee agrees that the instant patent and
any patent granted on the reference applications shall be
enforceable only for and during such period that the instant
patent and any patent granted on the reference applications are
not separately enforced. This agreement runs with the instant
patent and is binding upon the patentee, its successors or
assigns.

(Exhibit A.)
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12. The currently pending application and the ’641 and ’878 patents
each name Kyung Ah Kim and Ji Min Lee as inventors, along with other
inventors not common to the application and patents.
Analysis
Appellant reports that the currently claimed methods of using anti-c-
Met antibodies to treat cancer were invented by employees of Samsung
Electronics Co., Ltd. (See Appeal Br. 4.) Appellant reports that after these
methods were developed, Samsung Electronics Co., Ltd. entered into a joint
research agreement with Georgetown University to develop methods of
using the antibodies with an EGFR inhibitor to treat cancer, as claimed in
the ’641 patent, and another joint research agreement with Samsung Life
Public Welfare Foundation to develop methods of using the antibodies with
an ITGB3 inhibitor to treat cancer, as claimed in the ’878 patent. (See id.)
The issue before us is whether the Examiner erred in refusing to
withdraw the obviousness-type double-patenting rejections in light of the
terminal disclaimers filed in the currently pending application and in the
’641 and ’878 patents. We begin by reviewing the basis for the rejection.
Obviousness-type double patenting is a judge-made doctrine
that prevents an extension of the patent right beyond the
statutory time limit. It requires rejection of an application claim
when the claimed subject matter is not patentably distinct from
the subject matter claimed in a commonly owned patent. . . . Its
purpose is to prevent an unjustified extension of the term of the
right to exclude granted by a patent by allowing a second patent
claiming an obvious variant of the same invention to issue to
the same owner later.

In re Berg, 140 F.3d 1428, 1431–32 (Fed. Cir. 1998) (citing In re Braat, 937
F.2d 589, 592 (Fed. Cir. 1991)); see also In re Goodman, 11 F.3d 1046,
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1052 (Fed. Cir. 1993).) Double patenting may exist between an issued
patent and an application filed by a different inventive entity having a
common inventor or having a common owner or assignee. See In re
Hubbell, 709 F.3d 1140, 1146–47 (Fed. Cir. 2013) (in the context of an
application and a patent that had two inventors in common, but different
inventive entities and no common owners or assignees, the court held that
complete identity of ownership or inventive entities is not a prerequisite to a
nonstatutory double patenting rejection).
The Examiner rejected Appellant’s currently pending claims as being
rendered obvious by the claims of the ’641 and ’878 patent because the
patented claims are drawn to methods of treating cancer with antibodies
having structures recited in the currently pending claims. (See Ans. 3.)
Appellant argues that the Examiner’s rejections are improper because
they were made “without any consideration as to whether allowing the
instant patent to issue would, in fact, give rise to an unjustified extension of
the rights granted in the first patent, in contradiction of the Office’s own
examination guidelines. MPEP 804(I)(A).” (Appeal Br. 5.) Appellant
argues further that without the public policy concerns of an unjustifiable
extension of patent rights and because the issued ’641 and ’878 patents will
allegedly expire later than a patent issuing from the currently pending
application, there is no statutory or other legal authority for the Examiner’s
rejection. (See Appeal Br. 7.)
In the absence of an argument by Appellant that the claims of the ’641
and ’878 patents do not render obvious the currently pending claims, we are
not persuaded that the Examiner’s rejection is improper, regardless of the
terms of any issued or yet to be issued patents. Appellant argues that it is
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only “tenuous and hypothetical reasoning that the present application might
issue with sufficient patent term extension to extend beyond the later filed
’878 and ’641 patents” (Appeal Br. 6), but Appellant also fails to direct us to
evidence that if the currently pending claims issue, their term will
necessarily expire before the terms of the ’641 and ’878 patents. Because
delays in activities, such as action after appeal, can result in patent term
adjustment, we are not persuaded that the resulting term of a patent issued
with the currently pending claims can be known before it issues. (See 37
C.F.R. § 1.702–1.705.)
Furthermore, we are not persuaded that double-patenting rejections
are proper only after an accounting and comparison of the patent terms of
the pending and patented claims, even though the intent is to prevent
unjustified extension of patent rights. The portion of the MPEP cited by
Appellant states: “Since the inventor/applicant/patent owner has already
secured the issuance of a first patent, the examiner must determine whether
the grant of a second patent would give rise to an unjustified extension of the
rights granted in the first patent.” (MPEP 804(I)(A); see Appeal Br. 5.) This
requirement, though, relates to the determination of common ownership or
inventorship, as discussed in the rest of the section, not to a determination of
the terms of a patent not issued from the pending application and the patent
asserted against it. (See MPEP 804(I)(A) (“Double patenting may exist
between an issued patent and an application filed by the same inventive
entity, a different inventive entity having a common inventor, a common
applicant, and/or a common owner/assignee. . . . Double patenting may also
exist where the inventions claimed in a patent and an application were made
as a result of activities undertaken within the scope of a joint research
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agreement as defined in 35 U.S.C. 102(c) or pre-AIA 35 U.S.C. 103(c)(2)
and (3).”) Appellant does not direct us to a requirement in the MPEP or
elsewhere for an examiner to make a patent term assessment before issuing
an obviousness-type double-patenting rejection and we are not aware of any
such requirement.
Appellant argues further that if the currently pending claims had
issued in the order they were filed, before the ’641 and ’878 patents, there
would not have been an obviousness-type double-patenting rejection. (See
Appeal Br. 5.) Appellant cites to MPEP 804(I)(B)(1)(b)(i) to argue that
when considering copending applications, an examiner must make an
obviousness-type double-patenting rejection in the later-filed application.
(See id.) The section of the MPEP Appellant cites states:
If a provisional nonstatutory double patenting rejection is the only
rejection remaining in an application having the earliest effective U.S.
filing date . . . compared to the reference application(s), the examiner
should withdraw the rejection in the application having the earliest
effective U.S. filing date and permit that application to issue as a
patent, thereby converting the “provisional” nonstatutory double
patenting rejection in the other application(s) into a nonstatutory
double patenting rejection when the application with the earliest U.S.
effective filing date issues as a patent.
We are not persuaded by this argument because it is not relevant to
the facts before us. The cited portion of the MPEP provides that when there
are two provisional double-patenting rejections in two different applications,
the examiner should withdraw the rejection in the application with the
earliest effective filing date and permit that application to issue as a patent,
thereby converting the provisional rejection in the remaining application into
a non-provisional rejection over the issued patent. In the present case,
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Appellant acknowledges that the Examiner did not raise the same
obviousness-type double-patenting rejection in the applications that became
the ’641 or the ’878 patent.4 (See Appeal Br. 5.) Appellant fails to direct us
to instruction in the MPEP for an examiner to consider the filing dates of a
pending application or issued patents when making an obviousness-type
double-patenting rejection only in the pending application.
Appellant argues further that the Examiner does not cite a rule or law
that requires a terminal disclaimer to be filed in the instant earlier-filed
pending application to overcome the obviousness-type double patenting
rejection. (See Appeal Br. 5–6.) Appellant argues that to the contrary,
Gilead Scis., Inc. v. Natco Pharma Ltd., 753 F.3d 1208, 1212–1217 (Fed.
Cir. 2014), requires that a terminal disclaimer should be filed in the later-

4 We note that under certain facts, an obviousness-type double-patenting
rejection is only appropriate when the claims of the pending application are
obvious over the reference patent and the claims of the reference patent are
obvious over the claims of the pending application. This “two-way test” for
obviousness-type double-patenting is “only appropriate in the unusual
circumstance where, inter alia, the United States Patent and Trademark
Office (PTO) is ‘solely responsible for the delay in causing the second-filed
application to issue prior to the first.’” In re Fallaux, 564 F.3d 1313, 1316
(Fed. Cir. 2009) (quoting Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955,
968, n. 7 (Fed. Cir. 2001) and In re Berg, 140 F.3d 1428, 1437 (Fed. Cir.
1998)). Appellant does not dispute the Examiner’s finding that the facts of
currently pending application do not warrant application of a two-way test
because the Office was not solely responsible for delays, Appellant having
contributed to at least some of the delay in prosecution. (See Ans. 10.)
Specifically, Appellant filed a Request for Continued Examination on
September 12, 2016, and requested two extensions of time on October 2,
2017 and April 5, 2018. (Ans. 10.)

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expiring patent. (See Appeal Br. 6.) We note, first that Gilead is the appeal
of a determination of validity of issued patent claims during an infringement
suit and that, therefore, the actual patent terms at issue were known. See
Gilead, 753 F.3d at 1209–10. Thus, the holding in not necessarily related to
examination procedure.
Next, we note that Gilead indicates its holding is not broad, stating
that
[t]his appeal presents a narrow question: Can a patent that
issues after but expires before another patent qualify as a double
patenting reference for that other patent? We conclude under
the circumstances of this case that it can and, therefore, that the
district court erred in excluding the ’375 patent as a potential
double patenting reference for the ’483 patent.
Gilead, 753 F.3d at 1211–12 (see also id. at 1214 (“With those principles of
double patenting in mind [regarding aligning patent terms using a terminal
disclaimer], we now turn to the question presented by this appeal: whether a
later-issued patent can serve as a double patenting reference for an earlier-
issued patent if the later one expires first.”) This holding does not indicate
that the Examiner’s rejection was improper or that the terminal disclaimers
filed are sufficient to overcome the rejection. The Examiner’s rejection is
based on the obviousness of the currently pending claims over the claims of
the ’641 and ’878 patents, which Appellant does not dispute. The issue
before us is not whether the ’641 and ’878 patents were properly cited, but
whether the terminal disclaimers filed are sufficient to overcome the
rejection.
Appellant asserts that “the issued ’878 and ’641 patents were filed
later and would naturally expire later than the instant pending application.
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Thus, the terminal disclaimers are properly filed in the later-expiring patents,
and overcome” the rejections in the currently pending application, under the
holding of Gilead. (Appeal Br. 6.) But, again, the holding of Gilead relates
only to whether an earlier-expiring patent can qualify as an obviousness-type
double patenting reference for a later-expiring patent and is limited to the
facts presented. See Gilead, 753 F.3d at 1217. The Gilead court explains
that in such cases a terminal disclaimer can preserve the validity of the later-
expiring patent by aligning its expiration date with that of the earlier-
expiring patent. (See id.) But this explanation indicates nothing about the
effect of a terminal disclaimer on the opposite fact pattern – where the
alleged later-expiring patent is the reference against pending claims that are
asserted to expire earlier. Gilead does not hold that a terminal disclaimer
filed in the reference patent is ever effective to overcome a double-patenting
rejection entered against pending claims.
Overcoming an obviousness-type double-patenting rejection by filing
a terminal disclaimer to forgo the portion of a patent term from an
application beyond the term of the asserted patent, is usually straightforward
when the currently pending claims and the asserted patent are commonly
owned. See 37 C.F.R. § 1.321(c). As explained by the predecessor of our
reviewing court, “[w]hen a terminal disclaimer causes two patents to expire
together(,) a situation is created which is tantamount for all practical
purposes to having all the claims in one patent.” In re Van Ornum, 686 F.2d
937, 948 (CCPA 1982) (quoting In re Braithwaite, 379 F.2d 594, 601
(CCPA 1967)); see also Gilead, 753 F.3d at 1213–14 (Fed. Cir. 2014)
(“Thus, the Robeson court reasoned that a terminal disclaimer should be a
permissible means to overcome the prohibition on double patenting when it
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aligns the expiration dates of an inventor’s several patents that claim mere
obvious variations of the same invention to create a single term of limited
exclusivity.”)).
Appellant has terminally disclaimed the current application over the
’641 and ’878 patents (see Exhibit C) and also has terminally disclaimed the
’641 and ’878 patents over the current application with a statement that the
right to separately enforce the patents is waived as required in 37 C.F.R.
§ 1.321(d)(3) (see Exhibits A and B). According to Appellant, because
terminal disclaimers were filed in both the pending application and the
patents cited against it, the concern of unjustified extension of the term of
the right to exclude is avoided regardless of whether the term of a patent
issued on the currently pending application or the ’641 or ’878 patents
would have been longer. (See Appeal Br. 7–8, 10; see Reply Br. 3.)
Nevertheless, the Examiner determined that the terminal disclaimer in
the currently pending application (see Exhibit C) is insufficient to overcome
the obviousness-type double-patenting rejection because the currently
pending application is not co-owned with the ’641 and ’878 patents. (See
Ans. 9.) We agree in regard to a terminal disclaimer filed under 37 C.F.R.
§ 1.321(c). This rule provides:
A terminal disclaimer, when filed to obviate judicially created
double patenting in a patent application or in a reexamination
proceeding except as provided for in paragraph (d) of this
section, must:

(1) Comply with the provisions of paragraphs
(b)(2) through (b)(4) of this section;

(2) Be signed in accordance with paragraph (b)(1)
of this section if filed in a patent application or in
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accordance with paragraph (a)(1) of this section if
filed in a reexamination proceeding; and

(3) Include a provision that any patent granted on
that application or any patent subject to the
reexamination proceeding shall be enforceable
only for and during such period that said patent is
commonly owned with the application or patent
which formed the basis for the judicially created
double patenting.

(Emphasis added.) Because a patent granted on the currently pending
application would be owned solely by Samsung Electronics Co., Ltd. and the
’641 and ’878 patents are owned by both Samsung Electronics Co., Ltd. and
Georgetown University or Samsung Life Welfare Foundation, respectively,
the terminal disclaimer filed in the currently pending application cannot
uphold a provision that a patent granted on the application shall be
enforceable only for a period that the patent is commonly owned with the
’641 and ’878 patents. Thus, the terminal disclaimer submitted in the
currently pending application does not comply with 37 C.F.R. § 1.321(c) and
is insufficient to overcome the Examiner’s rejection.
The rules also contemplate using a terminal disclaimer submitted in an
application to overcome an obviousness-type double-patenting rejection
when the patent forming the basis of the rejection is not commonly owned.
Specifically, 37 C.F.R. § 1.321(d) provides:
A terminal disclaimer, when filed in a patent application or in a
reexamination proceeding to obviate double patenting based
upon a patent or application that is not commonly owned but
was disqualified as prior art as set forth in either
§ 1.104(c)(4)(ii) or (c)(5)(ii) as the result of activities
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undertaken within the scope of a joint research agreement,
must:
(1) Comply with the provisions of paragraphs
(b)(2) through (b)(4) of this section;
(2) Be signed in accordance with paragraph (b)(1)
of this section if filed in a patent application or be
signed in accordance with paragraph (a)(1) of this
section if filed in a reexamination proceeding; and
(3) Include a provision waiving the right to
separately enforce any patent granted on that
application or any patent subject to the
reexamination proceeding and the patent or any
patent granted on the application which formed the
basis for the double patenting, and that any patent
granted on that application or any patent subject to
the reexamination proceeding shall be enforceable
only for and during such period that said patent
and the patent, or any patent granted on the
application, which formed the basis for the double
patenting are not separately enforced.
(Emphasis added.) When ownership is not common, the terminal disclaimer
filed in the application of the rejected claims is effective if a joint research
agreement disqualifies the patent forming the basis of the rejection as prior
art. In addition, to be effective the terminal disclaimer must include a
provision waiving the right to separately enforce any patent granted on that
application and the patent forming the basis for the double patenting.
The Examiner determines that 37 C.F.R. § 1.321(d) does not apply to
the current facts and does not provide for a terminal disclaimer over the
current rejection because there was no joint research agreement in place for
activities that led to the subject matter of the currently involved claims. (See
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Ans. 10–11.) Furthermore, the Examiner determines that this rule does not
apply because the ’641 and ’878 patents are not prior art to the currently
pending claims and, thus, are not disqualified as prior art because of the joint
research agreement that led to the subject matter claimed. (See Ans. 11; see
also Appeal Br. 9, 11 (acknowledging that the ’641 and ’878 patents are not
prior art to the pending application).)
We agree that the terminal disclaimers filed in the ’641 and ’878
patents (Exhibits A and B) are not sufficient to overcome the Examiner’s
rejection because they are not filed in the currently pending application,
which presents the rejected claims. In addition, we agree that the terminal
disclaimer filed in the currently pending application (Exhibit C) fails to meet
the requirements of 37 C.F.R. § 1.321(d) because the owners of the currently
involved application do not also solely own the ’641 and ’878 patents. Thus,
the terminal disclaimer filed in the currently pending application (Exhibit C)
cannot include a provision “waiving the right to separately enforce any
patent granted on that application . . . and the patent . . . which formed the
basis for the double patenting, and that any patent granted on that . . . shall
be enforceable only for and during such period that said patent and the
patent . . . which formed the basis for the double patenting are not separately
enforced” as required in 37 C.F.R. § 1.321(d).
In addition, we agree that, because the currently pending application is
solely owned by Samsung Technologies Co., Ltd., the subject matter
claimed was not developed “as the result of activities undertaken within the
scope of a joint research agreement,” the requirements of Rule 1.321(d) are
not met by any of the terminal disclaimers filed. Furthermore, because the
’641 and ’878 patents were filed after the currently pending application, they
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are not prior art to the currently pending application and, thus, the joint
research agreement does not disqualify them as prior art.
We agree that under the technical provisions of the rule, a terminal
disclaimer filed under 37 C.F.R. § 1.321(d) does not obviate an obviousness-
type double-patenting rejection made in the currently pending application.
Although the terminal disclaimers filed in the currently pending
application and in the ’641 and ’878 patents may cause their terms to expire
together, creating a situation that “is tantamount for all practical purposes to
having all the claims in one patent,” as described in Van Ornum (686 F.2d at
948), the rules regarding terminal disclaimers do not permit us to hold the
terminal disclaimers are sufficient to reverse the Examiner’s rejection. See
37 C.F.R. § 1.183 (“In an extraordinary situation, when justice requires, any
requirement of the regulations in this part which is not a requirement of the
statutes may be suspended or waived by the Director or the Director’s
designee, sua sponte, or on petition of the interested party, subject to such
other requirements as may be imposed. Any petition under this section must
be accompanied by the petition fee set forth in §1.17(f).”).

Conclusion
Upon consideration of the record and for the reasons given, we affirm
the Examiner’s rejection.
In summary:

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Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 6–7, 9–
11, 16–
17, 19–22
Obviousness-type
Double-Patenting
over claims 1–6 of
the ’641 patent
1, 6–7, 9–
11, 16–
17, 19–22

1, 6–7, 9–
11, 16–
17, 19–22
Obviousness-type
Double-Patenting
over claims 1–13
of the ’878 patent
1, 6–7, 9–
11, 16–
17, 19–22

Overall
Outcome
1, 6–7, 9–
11, 16–
17, 19–22

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED