Appeal Number: 2006-3321
Application Number: 09/843,381
Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d
937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619
(CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
The issue under contention is whether any of the claims under rejection are
patententably indistinct from claim 1 in either of the ‘880 and ‘631 patents. (See
Br. 5-6, Answer 4-9 and Reply Br. 6).
All of the independent claims in the present application require that a consumer
product be prepared according to available selections made by a consumer of one
or more components of said consumer products having product characteristics
chosen by the consumer. This feature is not present in either of the ‘880 and ‘631
patents’ claim 1. Therefore, no claim in the present application is patentably
indistinct from claim 1 in each of the ‘880 and ‘631 patents. Therefore, we find
the examiner's arguments to be unpersuasive.
Accordingly we do not sustain the examiner's rejection of claims 1-18 under
the judicially recognized doctrine of obviousness type double patenting for
claiming an obvious variation of the subject matter claimed in another U.S. Patent.
Claims 1, 2, 3, 6, 14 and 16 rejected under 35 U.S.C. § 102(e) as anticipated by
Seo.
The issues under contention are
• whether Seo’s vending machine prepares customisable consumer products
according to available selections made by a consumer of one or more
components of those consumer products having product characteristics
chosen by the consumer
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