Appeal No. 2002-0679 10
Application No. 08/684,351
cushioning device of claim 1 of Mitchell.
Our position is supported by Mitchell which in defining the term “cushioning
device," states that “a cushioning device [is] otherwise referred to herein as a membrane
in accordance with the teachings of the present invention.” See Mitchell column 7, lines
48-50. Furthermore, the term “bladder,” utilized in the claimed subject matter, is
ordinarily defined as “a membranous sac in animals that serves as the receptacle of a liquid
or contains gas: something (as the rubber bag inside a football) resembling a bladder.”2
Accordingly, even if the claims of Mitchell are broader than those of the claims subject
matter herein, we conclude that the claims of the instant application are merely an obvious
variation of the claims of the Mitchell patent. See In re Vogel, 422 F.2d 438, 441, 164
USPQ 619, 622 (CCPA 1970).
As such, claims 1 through 3, 5 through 7, 9 through 13, 15 through 19, 21, 23
through 26, 28, 30, 45 and 48 at issue constitute an extension of protection within the
meaning of obviousness-type double patenting and the rejection is sustained as to those
claims.
DECISION
The rejection of claims 1, 2, 5, 11, 12, 16 through 18, 21 and 45 under 35
U.S.C. §102(b) as anticipated by Martin is reversed.
2Webster’s 9th New Collegiate Dictionary, p. 157 (Merriam-Webster Inc., Springfield, MA,
1986).
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