Appeal 2006-2179
Application 10/735,369
the issued patent.”)). The fundamental reason for the doctrine of
obviousness-type double patenting is to prevent unjustified timewise
extension of the right to exclude granted by a patent, regardless of how the
extension arose. Eli Lilly, 251 F.3d at 967-68, 58 USPQ2d at 1878.
To determine whether obviousness-type double patenting exists
between claims, we must compare claim elements in a side-by-side fashion.
See, e.g., Georgia Pacific Corp. v. U.S. Gypsum Co., 195 F.3d 1322,
1326-29, 52 USPQ2d 1590, 1593-96 (Fed. Cir. 1999). We must keep in
mind that “a double patenting rejection of the obviousness type rejection is
‘analogous to a [failure to meet] the nonobviousness requirement of
35 U.S.C. § 103.” Longi, 759 F.2d at 892 n.4, 225 USPQ at 648 n.4.
Here, representative claim 1 on appeal recites:
1. A method for preparing a protected article, comprising the
steps of providing the article;
depositing a bond coat onto an exposed surface of the
article; and
producing a thermal barrier coating on an exposed surface
of the bond coat, wherein the step of producing the thermal
barrier coating includes the steps of
depositing a primary ceramic coating onto an exposed
surface of the bond coat, and
depositing a stabilization composition onto an exposed
surface of the primary ceramic coating, wherein the
stabilization composition comprises a first element
selected from Group 2 or Group 3 of the periodic table,
and a second element selected from Group 5 of the
periodic table, and wherein the atomic ratio of the amount
of the first element to the amount of the second element is
at least 1:3.
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