Appeals 2006-1443 and 2006-1465
Reexamination Control Nos. 90/004,950 and 90/005,200
1 thereunder, its validity may be sustained.” (Emphasis and numbers in
2 brackets added).
3 One of the “foregoing and other authorities” referred to by the Miller court is
4 Mosler Safe & Lock Co. v. Mosler, Bahmann & Co., 127 U.S. 354, 8 S.Ct. 1148 (1888).
5 According to the Miller court, in Mosler “it was held that, a patent having issued for a
6 product as made by a certain process, a later patent could not be granted for the process
7 which results in the same product.” 151 U.S. at 197, 14 S.Ct. at 315.
8 4.
9 Appellants present two arguments, using the rubric “independent and distinct”, in
10 an attempt to fit their case for reversal into the “distinct and separate” category mentioned
11 in Miller.
12 Appellants’ first “independent and distinct” argument is based in part on a
13 restriction requirement made in a different Ochiai application by former Examiner
14 Nicholas Rizzo. At the same time, Appellants candidly acknowledge that “[n]o claim is
15 made for the statutory shield of 35 U.S.C. § 121 ***.” See the last three lines on page 12
16 of the Appeal Brief.
17 Appellants’ second “independent and distinct” argument is based in part on their
18 opinion that there are methods other than the method of Ochiai ‘216 for making the
19 cephems of expired Ochiai ‘606.
17
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