Appeal No. 1998-1815 Page 6
Application No. 08/684,328
We note the following principles concerning consonance
from Symbol Technologies Inc. v. Opticon Inc., 935 F.2d 1569,
1579,
19 USPQ2d 1241, 1249 (Fed. Cir. 1991).
Consonance requires that the line of
demarcation between the "independent and
distinct inventions" that prompted the
restriction requirement be maintained.
Though the claims may be amended, they must
not be so amended as to bring them back
over the line imposed in the restriction
requirement. Where that line is crossed
the prohibition of the third sentence of
Section 121 does not apply.
Gerber Garment Technology Inc. v. Lectra Systems
Inc., 916 F.2d 683, 688, 16 USPQ2d 1436, 1440 (Fed.
Cir. 1990). The corollary to this Court's statement
in Gerber Garment is that new or amended claims in
a divisional application are entitled to the benefit
of
§ 121 if the claims do not cross the line of demarcation
drawn around the invention elected in the
restriction requirement.
With these principles in mind, we address the obviousness-type
double patenting rejections over claims 5-7, 20-26, and 28-39
of the '282 Application and over claims 8, 9, and 14-50 of the
'183 Application separately.
Obviousness-Type Double Patenting over the '282 Application
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