Appeal No. 1998-1020 Page 12
Application No. 08/381,423
The judicially created doctrine of double patenting is
grounded in public policy (a policy reflected in the patent
statute) so as to prevent the unjustified or improper timewise
extension of the "right to exclude" granted by a patent by
prohibiting the issuance of 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).
In particular, in determining whether the appellants'
claims are patentably distinct from patent claims 1-13, the
examiner should consider whether the recitation in patent
claims 1-13 "substantially the same position in a longitudinal
direction of the paper web" would have suggested to one of
ordinary skill in the art placement of the wave forming means
at somewhat different positions along the longitudinal
direction of the web (the web traveling direction).
(...continued)8
may be used to overcome an actual or provisional obviousness-type double
patenting rejection provided the conflicting application or patent is shown to
be commonly owned with this application. See 37 CFR 1.130(b).
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