Appeal No. 2005-2289 Page 7
Application No. 10/064,508
and an engine control 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 and will cause difficulties in the transmission system, and
restricting engine output if the degree of change in rotational state of said shaft is
excessive.
Obviousness-type double patenting is a judge-made doctrine that prevents an
unjustified extension of the patent right beyond the statutory time limit. It requires
rejection of an application claim when the claimed subject matter is not patentably
distinct from the subject matter claimed in a commonly owned patent when the
issuance of a second patent would provide an unjustified extension of the term of the
right to exclude granted by a patent. In order to overcome an obviousness-type double
patenting rejection, an applicant may file a "terminal disclaimer," foregoing that portion
of the term of the second patent that extends beyond the term of the first. In re Berg,
140 F.3d 1428, 1431-32, 46 USPQ2d 1226, 1229 (Fed. Cir. 1998).
Thus, if a claim sought in the application is not identical to yet not patentably
distinct from a claim in an inventor's earlier patent, then the claim must be rejected
under obviousness-type double patenting rejection. See Berg, 140 F.3d at 1431, 46
USPQ2d at 1229; In re Braat, 937 F.2d 589, 592, 19 USPQ2d 1289, 1291-92 (Fed. Cir.
1991); In re Goodman, 11 F.3d 1046, 1052, 29 USPQ2d 2010, 2015 (Fed. Cir. 1993); In
re Vogel, 422 F.2d 438, 441, 164 USPQ 619, 622 (CCPA 1970). In determining
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007