Can the 35 U.S.C. 102(b)(2)(C) exception be used to overcome a double patenting rejection?
No, the 35 U.S.C. 102(b)(2)(C) exception cannot be used to overcome a double patenting rejection. The MPEP clearly states:
The 35 U.S.C. 102(b)(2)(C) exception is not effective to remove a disclosure applied as a basis for a double patenting rejection.
This means that even if subject matter is excepted as prior art under 35 U.S.C. 102(b)(2)(C), it can still be used as the basis for a double patenting rejection, either statutory or nonstatutory (obviousness-type).
It’s important to note that if an amendment under 37 CFR 1.71(g) is submitted to overcome a prior art rejection based on excepted subject matter, the examiner may need to issue a new double patenting rejection. In such cases, the Office action can be made final if no other new grounds of rejection are introduced.
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