¶ 8.28 Different Inventors, Common Assignee, Obvious Inventions, No Evidence of Common Ownership at Time of Invention
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 a conflicting application or patent, but there is no indication that they were commonly assigned at the time the invention was actually made.
2. A rejection under 35 U.S.C. 102(e) /103(a) using form paragraph 7.21, 7.21.01 or 7.21.02 also should be made, as appropriate. For applications pending on or after December 10, 2004, rejections under 35 U.S.C. 102(e) /103(a) should not be made or maintained if the patent is disqualified under 35 U.S.C. 103(c) as prior art in a 35 U.S.C. 103(a) rejection.
3. In bracket 3, insert the number of the conflicting patent or application.
4. An obviousness-type 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 conflicting cases are not considered to be distinct.
6. Form paragraph 8.28.01 MUST follow this paragraph.