¶ 8.28.fti Different Inventors, Common Assignee, Inventions Not Patentably Distinct, No Evidence of Common Ownership at Time of Invention, Examined Under Pre-AIA (First To Invent) Provisions
Claim [1] directed to an invention not patentably distinct from claim [2] of commonly assigned [3]. Specifically, [4].
Examiner Note:
1. This form paragraph should be used when the application being examined is commonly assigned with an application or patent that includes claims patentably indistinct from those in the present application, but there is no indication that they were commonly assigned at the time the invention was made.
2. A rejection under pre-AIA 35 U.S.C. 102(e) /103(a) using form paragraph 7.21.fti, 7.21.01.fti or 7.21.02.fti also should be made, as appropriate. Rejections under pre-AIA 35 U.S.C. 102(e) /103(a) should not be made or maintained if the patent is disqualified under pre-AIA 35 U.S.C. 103(c) as prior art in a pre-AIA 35 U.S.C. 103(a) rejection.
3. In bracket 3, insert the number of the reference patent or application.
4. A nonstatutory double patenting rejection should also be included in the action using one of form paragraphs 8.34 to 8.37.
5. In bracket 4, explain why the claims in the present application and the reference patent or application are patentably indistinct.
6. Form paragraph 8.28.01.fti MUST follow this paragraph.