Appeal No. 1999-1924 Page 12
Application No. 08/486,545
Rich in Kaplan, 789 F.2d at 1577-78, 229 USPQ at 681-82, set
forth the Courts opinion that "[d]omination is an irrelevant
fact." In any event, it is our view that Schneller did not
establish a rule of general application and thus is limited to
the particular set of facts set forth in that
decision. In fact, the Court in Schneller, 397 F.2d at 355,
158 USPQ at 215, cautioned against the tendency to freeze into
rules of general application what, at best, are statements
applicable to particular fact situations.
Accordingly, the question before us in this appeal is
whether the application claims are patentably distinct from
claim 1 of U.S. Patent No. 5,684,776, claim 1 of U.S. Patent
No. 5,703,857; claim 1 of U.S. Patent No. 5,724,331; and claim
1 of copending Application No. 08/482,052.
With respect to the rejections before us, the examiner
has stated the following:
8(...continued)
the second patent or application.
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