Appeal No. 2002-0679 9
Application No. 08/684,351
possess the relied-upon characteristics of appellants' claimed product. In re Fitzgerald, 619
F.2d 67, 70, 205 USPQ 594, 597 (CCPA 1980); In re Best, 562 F.2d 1252,
1255-56, 195 USPQ 430, 433-34 (CCPA 1977). We conclude that inasmuch as the
laminate of Mitchell is prepared from the identical materials and has the requisite contact,
“which consists essentially of hydrogen bonding,” the claimed limitation likewise requiring
contact which “consists essentially of hydrogen bonding,” is met. Furthermore, the
appellants have not argued that the laminate of the claimed subject matter differs from that
of Mitchell let alone provided evidence that the product of the claimed subject matter
differs from the product of the Mitchell patent. Accordingly, we find no more than an
obvious variation between the claimed subject matter and that of the claims of Mitchell.
The appellants further argue that the claims are of a different scope stating that,
“there must be evidence that the variation of the narrower claims is obvious over the
broader claims to find a double patenting problem.” See Brief, page 18. We do not find
any patentable distinction in scope between the claims of the Mitchell patent and that of
the claimed subject matter. We acknowledge that the claims of Mitchell are directed to a
cushioning device. The appellants at least imply that the scope of a cushioning device is
broader than the scope of the sealed bladder of the instant claimed subject matter. In this
respect, we find that claim 25 of the patent is directed to a membrane “useful as a
cushioning device.” We find no unequivocal distinction between the membrane of claim
25 and the bladder of the instant claimed subject matter or for that matter from the
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