¶ 8.34 Rejection, Obviousness Type Double Patenting - No Secondary Reference(s)
Claim [1] rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim [2] of U.S. Patent No. [3]. Although the conflicting claims are not identical, they are not patentably distinct from each other because [4].
Examiner Note:
1. This form paragraph is used for obviousness-type double patenting rejections based upon a patent.
2. If the obviousness-type double patenting rejection is based upon another application, do not use this form paragraph. A provisional double patenting rejection should be made using form paragraph 8.33 and either form paragraph 8.35 or 8.37.
3. This form paragraph may be used where the conflicting invention is claimed in a patent which is:
(a) by the same inventive entity, or
(b) by a different inventive entity and is commonly assigned even though there is no common inventor, or
(c) not commonly assigned but has at least one inventor in common, or
(d) made as a result of activities undertaken within the scope of a joint research agreement.
4. Form paragraph 8.33 must precede any one of form paragraphs 8.34 to 8.39 and must be used only ONCE in an Office action.
5. In bracket 3, insert the number of the patent.
6. If evidence indicates that the conflicting patent is prior art under 35 U.S.C. 102(f) or (g), a rejection should additionally be made under 102(f) /103(a) or 102(g) /103(a) using form paragraph 7.21, unless the patent is disqualified under 35 U.S.C. 103(c) as prior art in a 35 U.S.C. 103(a ) rejection.
7. If the patent is to a different inventive entity and has an earlier effective U.S. filing date, a rejection under 35 U.S.C. 102(e) /103(a) may be made using form paragraph 7.21.02. 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.