Appeal 2007-0616
Application 10/733,689
The judicially-created doctrine of obviousness-type double patenting
prohibits a party from obtaining an extension of the right to exclude granted
through claims in a later patent that are not patentably distinct from claims in
a commonly-owned earlier patent. Eli Lilly & Co. v. Barr Lab., Inc., 251
F.3d 955, 967, 58 USPQ2d 1869, 1877-78 (Fed. Cir. 2001); In re Longi, 759
F.2d 887, 892, 225 USPQ 645, 648 (Fed. Cir. 1985). “[A] double patenting
of the obviousness type rejection is ‘analogous to [a failure to meet] the
nonobviousness requirement of 35 U.S.C. § 103,’ except that the patent
document underlying the double patenting rejection is not considered prior
art.” Longi, 759 F.2d at 892 n.4, 225 USPQ at 648 n.4.
VI. FINDINGS OF FACT AND ANALYSES
ISSUE 1: Claims 13-15, and 17
Appellants do not challenge the Examiner’s factual finding that:
Ruegg et al. teach cleaning of contaminants in a boiler
[corresponding to the claimed surface within an industrial
equipment vessel]. Ruegg teaches introducing a fuel (4) and an
oxidizer (3) into the conduit (1) and igniting the air/fuel to
produce a shockwave that is directed through the conduit and
into the boiler to remove deposits [caking or slag] (Abstract,
paragraphs 4, 11, 36[, and claim 1]). (Compare Answer 4 with
Br. 6-7).
Nor do the Appellants argue that Ruegg does not teach introducing a
pressurized gas at least between cleaning cycles. (Compare Answer 4 with
Br. 6-7). The Appellants’ only argument is that Ruegg’s compressed
(pressurized) gas is not used for “resisting upstream infiltration of a
contaminant” as required by claim 13. (See Br. 6-7). In response, the
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