Appeal No. 2005-2350
Application No. 10/056,352
Lastly, with respect to the case law precedent cited at the
bottom of page 5 of the principal brief on appeal, it is noted
that identical issues are not present in this appeal. As noted
earlier by the examiner, the claims in the present appeal are
substantially broader than those presented and allowed and
issued in the parent application. Even for situations in which
the patent examiner may attempt to invoke the doctrine of Res
Judicata, it does not apply because the issues are different,
namely the nature and scope of the claimed subject matter is
different. All this presents a new record for consideration and
new issues as a result. Note In re Russell, 439 F.2d 1228, 1230,
169 USPQ 426 (CCPA 1971) and In re Herr, 377 F.2d 610, 611, 153
USPQ 548, 549 (CCPA 1967).
In view of the foregoing, the decision of the examiner
rejecting all claims on appeal under 35 U.S.C. § 103 is affirmed.
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