Interference No. 104,192
Cragg v. Martin v. Fogarty
Furthermore, it should be noted that the terms
“draft structure” defined by appellants’ original
claims 6 and 14, and the terms such as “drawbar-
receiving member” and “bail-receiving member” in the
appealed claims seem to be merely different
expressions for essentially the same apparatus both
structurally and functionally.
The final conclusion of the board in this case
holding that the recitation of the draft structure
in the appealed claims “to be different in scope
from that recited in claim 14" does not appear to
legally establish that such claims are not for
substantially the same subject matter.
In dealing with competing claims, one group of
which was drawn to a spring which assisted in both
lifting and lowering certain plow beams therein
defined, and another group which merely defined the
function of the spring as assisting in the lifting
of said beams, the Supreme Court held that both
groups of claims were for the same combination; . .
. and that such [one group of] claims should they
consist of nothing more than a mere distinction in
breadth or scope when compared to the [other group
of] patented claims, do not define a separate
invention or subject matter which is not
substantially the same. Miller v. Eagle
Manufacturing Co., 151 U.S. 186 [citations omitted].
(Empahsis added.)
Fogarty’s claim 27, the same as original claim 27 in
Fogarty’s parent application 08/255,681 filed on June 8, 1994,
was made within the one-year of November 19, 1996, the date of
issuance of Martin’s Patent No. 5,575,817. Even assuming that
claim 27 includes every feature of Martin’s dependent claim 2,
and therefor it must include every feature of Martin’s
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