Appeal No. 1996-1838 Page 13
Application No. 08/119,655
the invention; the inventions set forth in the claims of
the instant application and patent No. 5,321,680 are not
independent and distinct from each other. ... These
claims [of the instant application] drawn to a single
disclosed embodiment of the invention are considered to
be mere obvious variant ways of claiming the same
invention within the scope of the meaning of the
judicially created doctrine of "obviousness-type" double
patenting. [Answer, pp. 10-11].
Instant application claims 59 and 61 and patent claim 24
are not patentably distinct over one another. . . . The
subject matter encompassed by instant application claims
59 and 61 and patent claim 24 are obvious variants of one
another. [Answer, p. 14].
Our review of the claims under appeal and claim 24 of
U.S. Patent No. 5,321,680 leads us to conclude that, absent
the presence of additional evidence not before us in this
appeal, the
claims under appeal are patentably distinct from claim 24 of
U.S. Patent No. 5,321,680. In that regard, from a review of
the claims under appeal it is quite clear that only claims in
the present application recite a record medium/optical
disc/disc having a header portion including address
information as set forth in claims 8, 32, 54 and 59 (the
independent claims on appeal). Thus, claims 8, 32, 54 and 59
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