Appeal No. 2000-0526
Application No. 08/818,958
extension of the "right to exclude" granted by a patent by
prohibiting the issuance of the claims in a second patent not
patentably distinct from the claims of the first patent. See
In re Longi, 759 F.2d 887, 892, 225 USPQ 645, 648 (Fed. Cir.
1985).4
Turning first to claims 1 and 4-8, the examiner concedes
that none of the claims of Farris I recites that the gas trap
is disposed "on said back wall at an opposite end of said body
from said fluid outlet" as required by claims 1 and 4-8 on
appeal. However, the examiner asserts that, in light of the
disclosure in column 4, lines 39-40, of the Farris I patent
that the air trap can be positioned in various locations, "the
broad recitation in the patented claim would therefore cover
all locations for the gas trap or would have directed one of
ordinary skill in the art to moving the air trap to any
location that would still perform the desired result" (answer,
page 7).
A terminal disclaimer in compliance with 37 CFR 1.321(c) may be used4
to overcome an obviousness-type double patenting rejection provided the
conflicting patent is shown to be commonly owned with an application. See 37
CFR § 1.130(b).
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