Appeal No. 2004-0917
Application No. 09/684,210
III. claim 8 under the judicially created doctrine of
obviousness-type double patenting as unpatentable over
patented claim 4 of Pickett (id.);
IV. claim 10 under the judicially created doctrine of
obviousness-type double patenting as unpatentable over
patented claim 3 of Pickett in view of Le (id.);
V. claim 16 under the judicially created doctrine of
obviousness-type double patenting as unpatentable over
patented claims 3 and 4 of Pickett (id.); and
VI. claim 17 under the judicially created doctrine of
obviousness-type double patenting as unpatentable over
patented claim 12 of Pickett (id.).
We affirm these rejections.1
The judicially-created doctrine of obviousness-type double
patenting prohibits a party from obtaining an extension of the
right to exclude granted through claims in a later patent that
are not patentably distinct from claims in a commonly-owned
earlier patent. Ely Lilly & Co. v. Barr Laboratories, Inc., 251
F.3d 955, 967, 58 USPQ2d 1869, 1877-78 (Fed. Cir. 2001)(citing
1 The appellants submit: “For each ground of rejection that
applies to more than one claim, such additional claims, to the
extent separately identified and argued below, do not stand or
fall together.” (Substitute appeal brief filed Apr. 21, 2003,
paper 17, p. 5.) We will consider claims separately to the
4
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