Sad error for applicant not to respond to double patenting rejection?

from within Ex parte Gregory


In the final Office action dated March 23, 2010, claims 1, 4-13, 15-24
and 26-31 were rejected under the judicially created doctrine of
obviousness-type double patenting over claims 1-25 of U.S. Patent No.
Gregory. Final Rej. 8. The Notice of Appeal filed July 23, 2010 is silent as
to the specific claims being appealed. In the Appeal Brief, Appellants state
that claims 1, 4-13, 15-24, and 26-31 constitute the subject matter of the
appeal (see App. Br. 5), but have not addressed, or even acknowledged, the
double patenting rejection. In the Reply Brief, Appellants state that “[t]he
Examiner's Answer (pp. 7-8) also raises a double patenting rejection, which
was not an issue for appeal.” Reply Br. 1.
Since Appellants do not argue the ground of rejection of claims 1, 4-
13, 15-24 and 26-31 over claims 1-25 of U.S. Patent No. 7,325,753, we
summarily affirm the rejection.

DECISION

The Examiner’s rejection of claims 1, 4-11, 15-19, 21-24 and 29-31 as
anticipated by Thompson is REVERSED.
The Examiner’s rejection of claims 1, 4-13, 15-24 and 26-31 under
the judicially created doctrine of double patenting is AFFIRMED.