Appeals 2006-1443 and 2006-1465
Reexamination Control Nos. 90/004,950 and 90/005,200
1 Plueddemann and Dow Corning Corporation successfully sought to vindicate what they
2 felt was their right to a process patent notwithstanding Larsen and Durden and did so
3 prior to enactment of § 271(g). In re Pleuddemann, 910 F.2d 823, 15 USPQ2d 1738
4 (Fed. Cir. 1990). Moreover, in this very case, we note that Appellants, like
5 Pleuddemann, successfully overcame a so-called Durden rejection. In re Ochiai, supra.
6 9.
7 Appellants cited and rely on In re Cady, 77 F.2d 106, 25 USPQ 345 (CCPA
8 1935). According to Appellants, the 1952 Patent Act and subsequent PTO
9 pronouncements codified the holdings of Cady. A first holding was that if a restriction
10 requirement is made, the PTO cannot use double patenting. The holding is codified in
11 35 U.S.C. § 121. Here there was no restriction. A second holding is said to be that if
12 there are two methods of a making a product, the methods might be regarded as
13 independent and distinct from each other and the product. The pre-271(g) Cady holding
14 and any PTO codification of that holding is not applicable to the facts of this case.
15 Appellants have failed to establish that there two “independent and distinct” methods for
16 making the cephems of Ochiai ‘606 which do not involve the use of the Ochiai ‘216
17 process.
18 10.
19 Appellants have discussed In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA
20 1968). We are not at all sure what Schneller has to do with the issues on appeal. We
21 agree with Appellants that Schneller is not controlling. Accordingly, further discussion
22 concerning Schneller would not be productive.
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