Appeal No. 2000-0526
Application No. 08/818,958
an application defines merely an obvious variation of an
invention disclosed and claimed in a patent under the doctrine
of obviousness-type double patenting, it is permissible to use
a tangible embodiment set forth in the disclosure which falls
within the scope of a patent claim to determine whether a
claim in the application defines merely an obvious variant of
the subject matter of the patent claim. See In re Vogel, 422
F.2d 438, 441, 164 USPQ 619, 622 (CCPA 1970). In this5
instance, as clearly illustrated in Figures 1-4 of the Farris
I patent, in the tangible embodiment of the method of claims
13 and 14, the gas trap chamber (22) is remote (distant in
space, far off, far away) from the liquid outlet (18a).6
Thus, the location of the air trap remote from the fluid
outlet, as recited in the claims on appeal, does not
distinguish over the method of patent claims 13 and 14.
As explained in Vogel, such use of the patent disclosure is permitted,5
and frequently required, because it is difficult, if not meaningless, to try
to say what is or is not an obvious variation of a claim, which is merely a
group of words defining only the boundary of the patent monopoly. The patent
claim may not describe any physical thing and indeed may encompass physical
things not yet dreamed of. See id.
6Webster's New World Dictionary, Third College Edition (Simon &
Schuster, Inc. 1988).
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