Appeal No. 2005-1195
Application No. 09/906,984
Moreover, it is irrelevant that the involved claims are related
to the same or different inventive entities. The statutory tests
for determining patentability simply do not include whether the
same or similar claims have been previously allowed by the Patent
and Trademark Office.
Concerning this point, it is appropriate to here emphasize
that the claims of U.S. Patent No. 6,274,291 were allowed based
on prior art which did not include the NA ‘433 reference or the
1964 IBM Technical Disclosure Bulletin applied by the examiner in
the present appeal. Thus, the prior art evidence which
forestalls patentability of the appellants’ claims differs from
the prior art evidence cited in the aforementioned patent. For
this reason, a denial of patentability in the former is not
inconsistent with a grant of patentability in the latter as the
appellants seem to presume.
Finally, it is significant that the appellants have cited no
authority in support of the argument under consideration in their
brief or their reply brief or the instant request for rehearing.
This is not surprising since the argument is based on an
illogical premise, namely, that claims are patentable merely
because they are not patentably distinct from previously allowed
claims. For example, this premise would lead to the illogical
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