Appeal No. 2005-2289 Page 6
Application No. 10/064,508
Now the rejection which appellants attorney takes the most offense will be
discussed, that of obviousness type double patenting. Where such a rejection is
heaped upon an art rejection, it would invite a challenger to the earlier patent to
state that the art rejections apply to it. There can actually be no alternative. The
MPEP has several sections that deal with full faith and credit, but they all refer to
subsequent actions in the same case. However it is submitted that the same
should apply here. Assuming, however, that the Board, as appellants hope, will
reverse those art rejections on their merits, appellants will discuss this ground of
rejection. It is admitted that the method and apparatus here utilizes an inventive
concept as disclosed in the earlier patent, that does not mean that other
inventors of a common assignee can not make an invention in utilizing the same
principle to solve a totally different problem. In fact most inventions apply
previous features to solve different problems. This does not mean that all uses of
the underlying principal are unpatentable.
The earlier patent relates to control of wheel slippage, but this [is] quite a
different problem than transmission and specifically clutch control. However in
that earlier case, the Examiner cited the art relied upon here and thus it is
submitted that a rejection on art the earlier Examiner felt correctly was overcome
itself should cause the Board to reverse the art rejections applied here.
Claim 10 of Isoda reads as follows:
A vehicle comprised of an internal combustion engine, a transmission
driven by said engine, a driven wheel driven by said transmission, and an engine
control comprised of a single sensor for detecting during engine acceleration
variations in the rotational state of a shaft, determining if the degree of change in
rotational state variation is excessive from the output of said single sensor, and
restricting engine output if the degree of change in rotational state of said shaft is
excessive.
Claim 11 on appeal reads as follows:
A vehicle comprised of an internal combustion engine, a transmission
system driven by said engine, a driven wheel driven by said transmission system
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