Ex Parte Kneen et al

Patent Trial and Appeal Board

Feb 16, 2016

11629982 (P.T.A.B. Feb. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111629,982 11/01/2007
26111 7590 02/17/2016
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK A VENUE, N.W.
WASHINGTON, DC 20005
GeoffKneen
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2400.1340000/RWE/SLE 1111
EXAMINER
BROWN, COURTNEY A
ART UNIT PAPER NUMBER
1617
MAILDATE DELIVERY MODE
02/17/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEOFF KNEEN, ANNE SUTY-HEINZE, PETER DAHMEN,
YASUO ARAKI, TAKUMA SHIGYO, and HANS-LUDWIG ELBE
Appeal2013-004485
Application 11/629,982
Technology Center 1600
Before DEMETRA J. MILLS, JOHN G. NEW, and
ROBERT A. POLLOCK, Administrative Patent Judges.
MILLS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal2013-004485
Application 11/629,982
STATEMENT OF CASE
According to the Specification, the "active compounds according to
the invention have very good fungicidal properties and, in seed treatment,
are particularly suitable for controlling phytopathogenic fungi, such as
Ascomycetes and Basidiomycetes." Spec. 14.
The following claim is representative.
7. A method of dressing seed for controlling Rhizoctonia solani
comprising: treating said seed with N-[2-(l ,3-dimethylbutyl)phenyl]-5-
fluoro-1,3-dimethyl- lH-pyrazole-4-carboxamide (I-2) at a rate of from 1 g to
50 g per 100 kg of seed, wherein said seed is rice seed.
Cited References
Elbe et al.
Elbe et al.
US 2004/0204470 Al Oct. 14, 2004
(hereinafter "Elbe '4 70")
WO 03/010149 Al Feb. 6, 2003
(hereinafter "Elbe '149")
Howell et al., Induction of Terpenoid Synthesis in Cotton Roots and
Control of Rhizoctonia solani by Seed Treatment with Trichoderma virens,
90 PHYTOPATHOLOGY 248-252 (2000) (hereinafter "Howell").
Application No. 11/912,773 (hereinafter '773)
Application No. 12/831,990 (hereinafter '990)
Grounds of Rejection
1. Claims 7, 8, 15, 29, 33 and 34 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Elbe' 149 (see equivalent translated
document (Elbe '470)) in view of Howell.
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2. Claim 7 is provisionally rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over
claims 4 and 13 of copending Application No. 11/912,773.
3. Claim 7 is provisionally rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over
claim 1 of copending Application No. 12/831,990.
FINDINGS OF FACT
The Examiner's findings of fact (FF) are set forth in the Final Action
dated April 25, 2012, pages 3-15 and Answer at pages 2-12.
The following facts are highlighted.
1. Elbe '4 7 0 teaches the compound of instant formula I-a wherein
R=hydrogen, R 1=hydrogen, R2=methyl, R3=methyl and R4=fluorine
(see compound 1-21 (N-[2-(l,3-dimethylbutyl)phenyl]-5-fluoro-1,3-
dimethyl- lll-pyrazole-4-carboxamide) [penflufen] on page 20,
[0041] of corresponding document, US 2004/0204470). Ans. 9.
2. Elbe '470 teaches that the active compounds can be used in
compositions to treat all plants and parts of plants which are to be
understood as meaning all above-ground and below-ground parts and
organs of plants, such as fruits and seeds and also roots, tubers and
rhizomes as well as harvested plants and vegetative and generative
propagation material, for example seedlings, tubers, rhizomes,
cuttings and seeds (see i-f 224). Ans. 9.
3. Elbe '470 teaches (i-f 385) that the transgenic plants or plant cultivars
which are preferably treated according to their invention include
important crop plants, such as cereals (wheat, rice), maize, soya
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beans, potatoes, cotton (i-f 3 85). Ans. 9.
4. In addition,
Elbe [ '4 7 0] teach[ es] that the compounds of the formula
(I) according to their invention also have very good
antimycotic activity. They have a very broad antimycotic
activity spectrum in particular against dermatophytes and
yeasts, molds and diphasic fungi, (for example against
Candida species, such as Candida albicans, Candida
glabrata ), and Epidermophyton jloccosum, Aspergillus
species, such as Aspergillus niger and Aspergillus
fumigatus, Trichophyton species, such as Trichophyton
mentagrophytes, Microsporon species such as
Microsporon canis and audouinii. The list of these
fungi by no means limits the mycotic spectrum covered,
but is only for illustration.
i1379; Final Act. 10.
5. "Elbe ['470] teach[ es] that the list of these fungi by no means limits
the mycotic spectrum covered, but is only for illustration ([0379]). For
seed dressing, the active compound application rates are generally
between 0.001 and 50 g per kilogram of seed, preferably between 0.01
and 10 g per kilogram of seed ([0381 ])." Final Act. 10.
6. "Depending on the plant species or plant cultivars, Elbe et al.
teach[ es] their location and growth conditions (soils, climate,
vegetation period, and diet), the treatment according to their invention
may also result in super additive ('synergistic') effects ([0384]."
Final Act. 10.
7. Elbe '4 70 discloses that the substances according to the invention
"have potent microbicidal activity and can be employed for
controlling undesirable microorganisms, such as fungi and bacteria, in
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Application 11/629,982
crop protection and in the protection of material." i-f 184. "Fungicides
can be employed in crop protection for controlling Plasmodio-
phoromycetes, Oomycetes, Chytridiomycetes, Zygomycetes,
Ascomycetes, Basidiomycetes1 and Deuteromycetes."
i-f 185 (emphasis added).
8. Howell teaches that the Rhizoctonia solani is a well-known fungus
which infects cotton seed. Abstract.
9. Howell discloses that it is well known to treat or dress cotton seed to
control Rhizoctonia solani fungal infection. Abstract; Final Action
10.
10. Howell treats cotton seed with Trichoderma virens to control
Rhizoctonia solani fungal infection of cotton seed. Abstract.
PRINCIPLES OF LAW
In making our determination, \'l.;e apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office). The Board "determines the scope of claims in patent
applications not solely on the basis of the claim language, but upon giving
claims their broadest reasonable construction 'in light of the specification as
it would be interpreted by one of ordinary skill in the art.'" Phillips v. AWH
Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (quoting Jn re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
1 Rhizoctonia solani is a basidiomycete.
http://www.extento.hawaii.edu/kbase/crop/type/r_solani.htm
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Application 11/629,982
"In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant." In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993) (citations omitted). In order to determine whether a prima facie
case of obviousness has been established, we consider the factors set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content
of the prior art; (2) the differences between the prior art and the claims at
issue; (3) the level of ordinary skill in the relevant art; and ( 4) objective
evidence of nonobviousness, if present.
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). In KSR, the
Supreme Court also addressed the "obvious to try" issue:
\X/hen there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this
leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might
show that it was obvious under § 103.
Id. at 421.
A prior art patent disclosed genus of 1200 effective combinations of
compounds, including the claimed combination. It was held that the
"[ d]isclos[ ure of] a multitude of effective combinations does not render any
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particular formulation less obvious." Merck & Co., v. Biocraft Labs. Inc.,
874 F.2d 804, 807 (Fed. Cir. 1989).
Rejection 1- Obviousness
We agree with the Examiner's fact finding, statement of the rejection
and responses to Appellants' arguments as set forth in the Final Action and
Answer. We find that the Examiner has provided evidence to support a
prima facie case of obviousness. We provide the following additional
comment to the Examiner's argument set forth in the Final Action and
Answer.
With respect to the Examiner's prima facie case of obviousness,
Appellants contend that:
in view of Elbe, one would have to try all of the 54 individual
pyrazolylcarboxanilides with all "compounds used to control
fungi" disclosed in the art against all parts of plants disclosed in
the art. This is not the "finite number of identified solutions"
that would have made the invention obvious to try, and
therefore obvious under 35 U.S.C. § 103.
App. Br. 22-23. We are not persuaded. Elbe '470 specifically teaches the
claimed antifungal compound, penflufen, compound I-21, page 20. Elbe
'4 70 teaches that penflufen is a known fungicide which can be used for the
treatment of fungal infections which include basidiomycete fungal
infections. FF7. Elbe '4 70 teaches that their disclosed pyrazolylcarbox-
anilides can be used to treat fungal infections of cotton and rice, and that
seeds may be treated with their antifungal compounds, including penflufen.
FF3, 5. While not specifically disclosing the fungal strain Rhizoctonia
solani, Elbe '470 discloses that the provided list of fungi which can be
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Application 11/629,982
treated with their pyrazolylcarboxanilides compounds "by no means limits
the mycotic spectrum covered, but is only for illustration." Elbe '470 i-f379.
Howell discloses that Rhizoctonia solani is known to infect cotton and that it
is known in the art to treat cotton seed with antifungals against Rhizoctonia
Solani. Therefore, we conclude that it would have been obvious to one of
ordinary skill in the art at the time of the invention to use penflufen as an
antifungal to address fungal infections of rice and cotton plants and to dress
the seed of the rice and cotton plants with the antifungal, penflufen. The
disclosure a multitude of effective fungal compounds in Elbe '4 7 0 does not
render any particular fungal compound less obvious. Merck & Co., 87 4 F .2d
at 807. Moreover, when there is a market pressure to solve a problem such
as fungal infection of crop plants and there are a finite number of identified,
predictable solutions, such as the use of a known penflufen fungicide, a
person of ordinary skill has good reason to pursue the known options within
his or her technical grasp. If this leads to the anticipated success, it is likely
the product not of innovation but of ordinary skill and common sense. In
that instance the fact that a combination was obvious to try might show that
it was obvious under§ 103. KSR, 550 U.S. at 421.
Appellants have presented no evidence that one of ordinary skill in the
art would not have expected broad spectrum fugicidal activity from the
penflufen fungicide disclosed in Elbe '470, including fungicidal activity
against basidiomycete infections disclosed therein. FF7.
Appellants also argue that they have provided clear evidence of
unexpected results to rebut any prima facie case of obviousness presented by
the Examiner. App. Br. 23. In particular, Appellants rely on data of
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Application 11/629,982
unexpected results presented in the Declaration of Dr. Daniela Portz dated
May 17, 2011.
Dr. Portz Declaration provides the following Table at page 3.
The Table compares efficacy of penflufen (compound disclosed in
Elbe '470 and presently claimed) for the treatment of Rhizoctonia solani
infection of cotton seed as compared with another antifungal compound of
similar structure. Notably, the Table 3 example does not show the treatment
of Rhizoctonia solani infection of rice seed, as claimed, and penflufen
(bottom compound in Table) is clearly disclosed in Elbe '470. Therefore it
is not immediately clear how the Portz Declaration provides unexpected
results for the treatment of rice infection by Rhizoctonia solani. Moreover,
even if Appellants had provided a clear explanation of the relevance of the
Portz Table data to Rhizoctonia solani infection of rice seed, we agree with
the Examiner that Appellants have not adequately explained how the data in
the Portz Declaration is commensurate in scope with the rate of seed
application claimed. Ans. 15. For example, Table C from the
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Application 11/629,982
Specification, page 31, the only table of record which addresses data with
respect to Rhizoctonia solani infection of rice, shows efficacy of the
application of 200g/1 OOkg of seed, which is outside the claimed range of 1
to 50 g/lOOkg of rice seed.
With respect to claim 15 and its dependent claims, notwithstanding
any improper previous indication by the Examiner that there may have been
a showing of unexpected results for a range of seed application within the
claims (App. Br. 10), a preponderance of the evidence does not support
Appellants' position and the obviousness rejection of the rejected claims is
affirmed for the reasons of record and herein.
Rejection 2-0bviousness-type Double Patenting '773
Claim 7 is provisionally rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 4 and
13 of copending Application No. 11/912,773.
Claims 4 and 13 of copending Application No. 11/912,7732 are
reproduced below.
4. A composition comprising a synergistic active compound
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Application 11/629,982
combination, which comprises N-[2-( 1,3-dimethylbutyl)phenyl]-5-fluoro-
1,3-dimethyl- lH-pyrazole- 4-carboxamide having the following formula:
H3C O
N~-~ I
N H
I
'--\// N
H3C F H3C CH3
and one or more active compounds selected from the group consisting of
(2 .1.1) clothianidin,
(2.1.2) imidacloprid,
(2.1.3) thiacloprid,
(2 .1.4) thiamethoxam,
(2. 1. 5) acetamiprid,
(2 .1. 6) dinotefuran,
(2 .1. 7) nitenpyram,
nithiazine,
(3 .1.1) methiocarb,
(3 .1.2) thiodicarb,
benfuracarb,
carbosulfan,
( 4.1.1) beta-cyfluthrin,
bifenthrin,
cypermethrin,
tefluthrin,
transfluthrin.
(5.1.1) spinosad,
( 6.2.1) fipronil,
(6.2.2) ethiprole,
avermectin,
and
(21.1.1) N2-[l, 1-dimethyl-2-(methylsulphonyl)ethyl]-3-iodo-N1-[2-methyl-
4-[ 1,2,2,2-tetrafluoro-l-( trifluoromethyl)ethyl]phenyl]-1,2-benzene-
dicarboxamide, wherein the weight ratio ofN-[2-(l,3-dimethylbutyl)phenyl]-
5-fluoro-1,3-dimethyl-lH-pyrazole-4-carboxamide to said one or more
active compounds is from 500:1to1:1000.
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Application 11/629,982
13. A method of treating seeds, comprising contacting said seeds with
the composition according to Claim 4.
The Examiner argues that
Copending Application No. 11/912,773 (hereinafter '773) and
the instant application recite the same method of treating seeds
using the compound formula I-a. However, the difference
between the invention of the instant application and that of
copending '773 is that the instant application does not require
the use of a second active compound. However, it is known in
the art that combining pesticides increase the efficacy of a
pesticide such that the maximum level of control or pest control
for a given application rate of a pesticide is increased, or
alternatively, the application rate of a pesticide giving optimum
control or pest control can be reduced. The Examiner maintains
that one would have been motivated not to use a second active
compound when an increase the efficacy of I-a is not desired.
From this extensive overlap of subject matter, one of ordinary
skill in the art would recognize that the same method is taught
in copending application '773.
Ans. 2-3.
The Appellants argue that the Examiner impermissibly considered the
disclosure of the '773 application. We are not persuaded. The record
adequately reflects that Examiner here has compared the claims of the
pending application to those of the '773 application. The Examiner is
arguing that both sets of claims recite the same method of treating seeds in
similar amounts using the compound formula I-a, penflufen. Be that as it
may, we do find the Examiner's obviousness-type double patenting rationale
deficient, in that the Examiner fails to provide evidence on this record to
support the argument that
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Application 11/629,982
it is known in the art that combining pesticides increase the
efficacy of a pesticide such that the maximum level of control
or pest control for a given application rate of a pesticide is
increased, or alternatively, the application rate of a pesticide
giving optimum control or pest control can be reduced. The
Examiner maintains that one would have been motivated not to
use a second active compound when an increase the efficacy of
I-a is not desired.
Ans. 2-3. While the Examiner could have cited a reference to support these
arguments, she did not. We are constrained to reverse this rejection.
The obviousness-type double patenting rejection over '773 is
reversed.
Rejection 3 - Obviousness-type Double Patenting '990
Claim 7 of the present application is provisionally rejected on the
ground of nonstatutory obviousness-type double patenting as being
unpatentable over claim 1 of copending Application No. 12/831,990.
Claim 1 of the '990 application as amended July 14, 2015, is
reproduced below.
1. A method for promoting early emergence of a crop, comprising
applying to one or more seeds in need thereof a compound of
formula (I)
(I)
in an amount effective to promote the early emergence
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Application 11/629,982
of crops, wherein the crop is a soybean crop or a potato crop
and wherein the seed is treated in absence of a pest pressure.
The Examiner argues that:
The copending application and the instant application
recite the same method of treating seeds using the compound of
I-a of the instant application. The difference between the
invention of the instant application and that of copending '990
is that the instant application is drawn to a method for dressing
seed and copending '990 is drawn to a method for increasing
seedling growth and early emergence of a crop. However, both
methods comprise dressing seed. From this extensive overlap of
subject matter, one of ordinary skill in the art would recognize
that the same method is taught in copending application '990.
Final Act. 4--5. Appellants contend, "that it does not necessarily follow that
practicing a method of claim 1 of the '990 application will control
Rhizoctonia solani because the fungus may not be present." Reply Br. 7.
\Ve are not persuaded by 1A .. ppellants' argument. "It is a general rule
that merely discovering and claiming a new benefit of an old process cannot
render the process again patentable." In re Woodruff, 919 F. 2d 1575, 1578
(Fed. Cir. 1990). It is also well settled that discovery of a property inherent
to a prior art process does not render that process patentable, even if the
prior art did not appreciate the property. Verdegaal Bros. Inc. v. Union Oil
Co., 814 F.2d 628, 633 (Fed. Cir. 1987). However, "a limitation or the
entire invention is inherent and in the public domain if it is the 'natural result
flowing from' the explicit disclosure of the prior art." Schering Corp. v.
Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003).
Pending claims either "read on" or do not "read on" the prior art.
Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772 (Fed. Cir. 1983). In the
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case of obviousness-type double patenting, the pending claims must "read
on" or be obvious in view of the claims of the copending application.
As a general rule, obviousness-type double patenting determinations
tum on a comparison between a patentee's earlier and later claims,
with the earlier patent's written description considered only to the
extent necessary to construe its claims. E.g., In re Avery, 518 F.2d
1228, 1232 [186 USPQ 161] (CCPA 1975). This is so because the
non-claim portion of the earlier patent ordinarily does not qualify as
prior art against the patentee and because obviousness-type double
patenting is concerned with the improper extension of exclusive
rights-rights conferred and defined by the claims. The focus of the
obviousness-type double patenting doctrine thus rests on preventing a
patentee from claiming an obvious variant of what it has previously
claimed, not what it has previously disclosed. See generally Gen.
Foods, 972 F.2d at 1280-82.
Eli Lilly and Co. v. Teva Parenteral Medicines Inc., 689 F.3d 1368, 1378-
1379 (Fed. Cir. 2012).
There is a limited exception to this customary framework. In In re
Eyck, 48 F.2d 665 (CCPA 1931),
our predecessor court considered obviousness-type double
patenting rejections against claims to an insulated coil made up of a
conductive winding material coated with an "infusible, flexible,
phenol-fatty oil composition." 48 F.2d at 665. The patent applicant,
Byck, had earlier obtained a patent claiming the same phenol-oil
composition, and the prior art disclosed similar coils coated with other
insulating compositions. Id. at 665-66. Moreover, Byck's earlier
patent had discussed using his phenol-oil composition to produce
adherent insulating films on metal substrates. Id. at 666. The court
concluded that, in view of the prior art and Byck's earlier patent, the
pending claims were drawn not to a second, distinct invention "but
only ... an obvious use of the composition there patented." Id. The
court explained:
It would shock one's sense of justice if an inventor could receive a
patent upon a composition of matter, setting out at length in the
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specification the useful purposes of such composition, manufacture
and sell it to the public, and then prevent the public from making any
beneficial use of such product by securing patents upon each of the
uses to which it may be adapted. Id. Thus, even though Byck's earlier
patent was not prior art, the court held that its disclosure of an
intended use for the previously claimed phenol-oil composition could
be used in the obviousness-type double patenting analysis to reject a
later claim directed to that use of the same compound. Id. at 667.
Eli Lilly and Co. v. Teva Parenteral Medicines Inc., 689 F.3d 1368, 1379
(Fed. Cir. 2012). Alternatively,
There are [additional] "certain instances" where the specification of
an earlier patent may be used in the obviousness-type double
patenting analysis .... Specifically, the specification's disclosure may
be used to determine whether a claim "merely define[s] an obvious
variation of what is earlier disclosed and claimed," "to learn the
meaning of [claim] terms," and to "interpret[] the coverage of [a]
claim."
Sun Pharm. Indus., Ltd v. Eli Lilly and Co., 611F.3d1381, 1387 (Fed. Cir.
2010). Thus, the Board may look to the disclosure of the '990 application
for either a definition of the term "crop" as set forth in claim 1 ('990), or as
to the disclosure of uses of the methods of dressing seed, therein. We
further note that there is no evidence of a restriction requirement in the '990
application or in the pending application.
Thus, we, under these limited circumstances, look to the disclosure of
the '990 application to the uses of the penflufen compound and method of
use of dressing seed disclosed therein. The '990 application defines "crops"
to include rice and discloses method of treating crops and seeds, including
rice seed. Page 7, 11. 12-20.
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The '990 application claims methods of treating crop seed with
penflufen, and limited use of its disclosure defines that "crops" and "seeds"
used in the disclosed method include rice seed. As in Ely Lilly, we agree
that it would shock one's sense of justice if an inventor could receive a
patent setting out at length in the specification of the '990 application
methods of treating seed with penflufen and then prevent the public from
making any beneficial use of such product or disclosed process by securing
patents upon each of the specific seed uses to which it may be adapted.
We further find that one of the natural results flowing from the
dressing of seed with penflufen within the scope of claim 7 of the pending
application and claim 1 of the '990 application, may be the inherent,
recognized or unrecognized, result of treatment of Rhizoctonia solani
infection. Furthermore, even if it was unappreciated that rice seed could be
treated in view of the soy or potato seed dressed in pending claim 1 of the
'990 application a nev,rly-discovered property of the prior art process cannot
support a patent on that same art, is not avoided if the patentee explicitly
claims that property. In other words, the mere discovery and claiming a new
benefit, treatment of Rhizoctonia solani infection, of an old process
(dressing a seed with the compound, penflufen, including for promotion of
early emergence of certain crops) cannot render the process of dressing a
seed with penflufen again patentable. Woodruff, 919 F .2d at 1578. "The
general principle that a newly-discovered property of the prior art cannot
support a patent on that same art is not avoided if the patentee explicitly
claims that property." Abbott Labs. v. Baxter Pharm. Products, Inc., 471
F.3d 1363, 1368 (Fed. Cir. 2006).
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The obviousness-type double patenting rejection over the '990
application is affirmed for the reasons herein and of record.
CONCLUSION OF LAW
The cited references support the Examiner's obviousness rejection,
and obviousness-type double patenting rejection over the '990 application,
which are affirmed. The obviousness-type double patenting rejection over
the '773 patent is reversed.
AFFIRMED
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