SAMSUNG ELECTRONICS CO. LTD.Download PDFPatent Trials and Appeals BoardDec 10, 20202020002839 (P.T.A.B. Dec. 10, 2020) Copy Citation 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. 13/646,589 10/05/2012 Seung Hyun LEE 711259 9097 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, KWANG HO CHEONG, KYUNG AH KIM, HO YEONG SONG, GEUN WOONG KIM, HYE WON PARK, YOUNG MI OH, SAET BYOUL LEE, JI MIN LEE, YUN JU JEONG, MI YOUNG CHO, JAE HYUN CHOI, YOON AA CHOI, and YUN JEONG SONG _________________ Appeal 2020-002839 Application 13/646,589 Technology Center 1600 _________________ Before ERIC B. GRIMES, DEBORAH KATZ, and JOHN G. NEW, Administrative Patent Judges. KATZ, Administrative Patent Judge. DECISION ON APPEAL Appeal 2020-002839 Application 13/646,589 2 Appellant1 seeks our review2, under 35 U.S.C. § 134(a), of the Examiner’s decision to reject claims 8–11, 13, 18–20, 25, 43, and 44. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The only rejections before us in this appeal3 are under the judicially created doctrine of obviousness-type double-patenting against all of Appellant’s claim 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. 7–8.) 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. 3–4.) Appellant’s currently pending claims recite an anti-human c-Met antibody or an antigen-binding fragment thereof having CDRs comprising various recited SEQ ID NOs. (See Appeal Br. 13–16.) The claims of the ’641 and ’878 patents are drawn to methods of treating cancer with anti-c- Met antibodies or antigen-binding fragments along with an ITGB3 inhibitor 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 19, 2019 (“Non- Final Act.”), the Appeal Brief filed October 21, 2019 (“Appeal Br.”), the Examiner’s Answer issued on January 21, 2020 (“Ans.”), the Reply Brief filed March 2, 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 14/081,917 is also on appeal. (See Appeal No. 2020-002836.) The issues in that appeal is very similar to the issue in this appeal, being based on similar obviousness-type double-patenting rejections. Appeal 2020-002839 Application 13/646,589 3 or with an EGFR inhibitor, respectively. (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.) 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 or in the ’641 and ’878 patents are sufficient to overcome the rejection. (See Appeal Br. 5–6, 9, and 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 October 5, 2012, with a claim of benefit to Korean applications. 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. Appeal 2020-002839 Application 13/646,589 4 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 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 Appeal 2020-002839 Application 13/646,589 5 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.) 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 Appeal 2020-002839 Application 13/646,589 6 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, 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 Appeal 2020-002839 Application 13/646,589 7 application, there is no statutory or other legal authority for the Examiner’s rejection. (See Appeal Br. 6–7.) 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 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.) The 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 Appeal 2020-002839 Application 13/646,589 8 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 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. 4.) Appellant cites to MPEP § 804(I)(B)(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. at 4– 5.) 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. Appeal 2020-002839 Application 13/646,589 9 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, 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 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 multiple Requests for Continued Examination on September 29, 2014, March 16, 2016, August 11, 2017, and September 13, 2018, and requested several extensions of time on March 24, 2014, August 11, 2017, January 30, 2018, September 13, 2018, and October 21, 2019. (See Ans. 10.) Appeal 2020-002839 Application 13/646,589 10 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. 6–7.) 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- expiring patent. (See Appeal Br. 7.) 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 Appeal 2020-002839 Application 13/646,589 11 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. 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. 5.) 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 Appeal 2020-002839 Application 13/646,589 12 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 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. 4.) 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. 10–11.) We agree in regard to a terminal disclaimer filed under Appeal 2020-002839 Application 13/646,589 13 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 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. Appeal 2020-002839 Application 13/646,589 14 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 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 Appeal 2020-002839 Application 13/646,589 15 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 Ans. 11–12.) 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. 11–12; 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). Appeal 2020-002839 Application 13/646,589 16 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 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).”). Appeal 2020-002839 Application 13/646,589 17 Conclusion Upon consideration of the record and for the reasons given, we affirm the Examiner’s rejection. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 8–11, 13, 18– 20, 25, 43–44 Obviousness-type Double-Patenting over claims 1–6 of the ’641 patent 8–11, 13, 18–20, 25, 43–44 8–11, 13, 18– 20, 25, 43–44 Obviousness-type Double-Patenting over claims 1–13 of the ’878 patent 8–11, 13, 18–20, 25, 43–44 Overall Outcome 8–11, 13, 18–20, 25, 43–44 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136. AFFIRMED Copy with citationCopy as parenthetical citation