Appeal No. 2000-0002
Application 08/848,477
the claims are not “patentably distinct” is another way of
saying that they define “merely an obvious variation” of an
already patented invention. In re Braat, 937 F.2d 589, 592, 19
USPQ2d 1289, 1291-92 (Fed. Cir. 1991). The Appellants point
to a difference between the conflicting claims for which the
Examiner has provided no convincing explanation as to why the
difference is an obvious variation. I also note that there
are numerous further differences between the conflicting
claims which the Examiner has failed to acknowledge.
As an aside, I agree with my colleagues that the policy
reasons for the judicially created doctrine of obviousness-
type double patenting remain notwithstanding the current
patent term provisions of 35 U.S.C. § 154. Under 35 U.S.C. §
154(b), patent terms may be adjusted based on various delays
occurring due to the actions of the Patent and Trademark
Office. Such an adjustment could very well result in a
difference between expiration dates of copending patents with
the same effective
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