Appeal No. 2003-1663
Application 09/975,934
(Paper No. 14) (pages referred to as "RBr__") for a statement of
appellants' arguments thereagainst.
OPINION
Same-invention double patenting under 35 U.S.C. § 101 means
identical subject matter. In re Vogel, 422 F.2d 438, 441,
164 USPQ 619, 621 (CCPA 1970). "A good test, and probably the
only objective test, for 'same invention,' is whether one of the
claims could be literally infringed without literally infringing
the other. If it could be, the claims do not define identically
the same invention." Id. at 441, 164 USPQ at 622. Same-
invention double patenting cannot be overcome by filing a
terminal disclaimer.
Claims 1-15 of the present application are identical to
claims 1-9 and 11-16, respectively, of the '973 patent, except
that independent claims 1, 10, 14, and 15 of the present
application recite an "AND functional circuit" whereas claims 1,
11, 15, and 16, respectively, of the '973 patent recite an "AND
logical circuit." The AND circuit is described in connection
with the pixel array in Fig. 2. The pixel array contains an AND
gate circuit 47 for driving the gate of the TFT switch 48, the
AND gate formed by a CMOS process, where the input terminals of
the AND gate circuit 47 are connected to a vertical direction
gate selection line 50 and a horizontal direction gate selection
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