Appeal No. 95-1484
Application 08/070,650
structure, and three dimensional configuration of both
products appear to be the
same or substantially the same. The reticulated cellulose of
Claims 67 and 68 appears to be generic to the patented wet
laid cellulosic sheet produced under conditions of agitation
by fermentation of the same Acetobacter species and
characterized by “thickened branched substantially continuous
cellulose strands that interconnect to form a reticulated
grid-like structure extending in three dimensions” (Claim 1 of
U.S. 4,863,565). The examiner concluded that three
dimensional reticulated cellulose and a wet laid cellulosic
sheet made having a three dimensional reticulated structure
reasonably appear to be patentably indistinct (Ans., p. 4).
We see no error.
As said in Goodman, 11 F.3d at 1053, 29 USPQ2d at 2016,
this case does not require the “two-way” type of analysis that
was required in Braat, 937 F.2d at 593, 19 USPQ2d at 1292-93.
Here, as in Goodman, supra, the PTO’s actions did not dictate
the rate of prosecution of the claimed subject matter, and any
patent issued with claims drawn to the subject matter of
Claims 67 and 68 of this appeal would further exclude others
from making and using the invention claimed in U.S. 4,863,565.
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