Appeal 2007-0393
Reexamination Control 90/006,786
Patent 6,497,843
1 configured to “solely wick up” the backing member rather than a wicking
2 material bent over the top of the backing member
3 Precedent
4 Obviousness-type double patenting is a judicially created doctrine
5 grounded in public policy. One policy is to prevent the extension of the term
6 of a patent, by prohibiting the issuance of the claims in a second patent not
7 patentably distinct from the claims of the first patent. In re Longi, 759 F.2d
8 887, 892, 225 USPQ 645, 648 (Fed. Cir. 1985); Carmen Industries Inc. v.
9 Wahl, 724 F.2d 932, 220 USPQ 481 (Fed. Cir. 1983); In re Thorington, 418
10 F.2d 528, 163 USPQ 644 (CCPA 1969). Fundamental to this doctrine is the
11 policy that upon expiration of a patent, the public should be able to use the
12 invention and its obvious variants:
13 The public should * * * be able to act on the assumption
14 that upon the expiration of the patent it will be free to use
15 not only the invention claimed in the patent but also
16 modifications or variants which would have been obvious
17 to those of ordinary skill in the art at the time the
18 invention was made, taking into account the skill of the
19 art and prior art other than the invention claimed in the
20 issued patent. (Emphasis in original.)
21 Longi, 759 F.2d at 892-93, 225 USPQ at 648, quoting In re Zickendraht, 319
22 F.2d 225, 232, 138 USPQ 23, 27 (CCPA 1963) (Rich, J., concurring). Thus,
23 the inquiry in obviousness-type double patenting, is whether the claimed
24 invention in the application for the second patent would have been obvious
25 from the subject matter of the claims in the first patent, in light of any prior
26 art. Longi, 759 F.2d at 893, 225 USPQ at 648; Carmen Industries, 724 F.2d
27 at 940, 220 USPQ at 487.
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