Federal Circuit Restricts Ranges for lack of Written Description
Michael Caridi | January 19, 2022
Indivior UK LTD., v. Dr. Reddy’s Labs S.A., Dr. Reddy’s Labs, Inc.
Decided on November 24, 2021
Lourie, Linn and Dyk. Opinion by Lourie. Dissent by Linn.
Summary
The Federal Circuit Court affirmed a Patent Office ruling for an IPR finding that there is lack of written description support in an application for ranges in claims of a continuation patent thereby resulting in the claims being anticipated by prior art. The Court found that the Tables in the application, relied on for support, lacked sufficient clarity as the values therein did not constitute ranges but only specific, particular examples.
Details
Indivior owns USP 9,687,454 (the ’454 patent), directed to orally dissolvable films containing therapeutic agents. The ’454 patent issued as the fifth continuation of an application filed on August 7, 2009 to which Indivior claimed the filing date.
Dr. Reddy’s Labs (DRL) petitioned for inter partes review of claims 1–5 and 7–14 at the PTAB alleging that the polymer weight percentage limitations, added to the claims by amendment, do not have written description support in the application as filed and thus are not entitled to the benefit of its filing date. Specifically, the limitation in question of claim 1 reads:
…. about 40 wt % to about 60 wt % of a water-soluble polymeric matrix;…
Also in question was claim 8’s polymer weight percentage limitation of “about 48.2 wt %,” which the Board found that Tables 1 and 5 in the application disclose formulations from which a polymer weight of 48.2% could be calculated by a person of ordinary skill in the art.
Regarding claims 1, 7 and 12 recitations of polymer weight percentage limitations as ranges: “about 40 wt % to about 60 wt %” (claim 1) and “about 48.2 wt % to about 58.6 wt %” (claims 7 and 12), the Board found that the application does not “discuss or refer to bounded or closed ranges of polymer weight percentages.” The Board also found that a person of ordinary skill would have been led away from a particular bounded range by the application’s teaching that “[t]he film may contain any desired level of self-supporting film forming polymer.” Based thereon, the Board determined that claims 1–5, 7, and 9–14 do not have written description support in the application.
Indivior appealed the Board’s decision as to claims 1, 7 and 12 while DRL cross-appealed as to the Board’s decision as to claim 8.
Discussion
Indivior’s Appeal – Claims 1, 7 and 12
Indivior argued that the Board erred in finding that the polymer range limitations in claims 1, 7, and 12 lack written description support in the application. Indivior specifically argued that Tables 1 and 5 disclose formulations with 48.2 wt % and 58.6 wt % polymer and that the application also discloses that “the film composition contains a film forming polymer in an amount of at least 25% by weight of the composition.” Indivior argued that the combination of these disclosures encompasses the claimed ranges. DRL, countered that the application does not disclose any bounded range, only a lower endpoint and some exemplary formulations from which a skilled artisan would not have discerned any upper range endpoint.
Regarding claim 1, the Court agreed with the Board that there is no written description support in the application for the range of “about 40 wt % to about 60 wt %.” The Court noted that the range was not expressly claimed in the application; nor are the values of “40 wt %” and
“60 wt %” and a range of 40 wt % to 60 wt %.
The CAFC went on to further note that not only was there no express description of these values, various other indications of the polymeric content of the film are present in the application, rendering it even less clear that an invention of “about 40 wt % to about 60 wt %” was contemplated as an aspect of the invention. Most specifically, the Court reiterated the PTAB’s reliance on the application’s paragraph 65 statement that “[t]he film may contain any desired level of . . . polymer.” The Court asserted that this statement is contrary to Indivior’s assertion that the level of polymer should be closed and between “about 40 wt % to about 60 wt %.” of claim 1.
Regarding the disclosures in Tables 1 and 5 of the application, the Court noted that in Table 1 there are four polymer components of the described formulations, polyethylene oxide, NF (MW 200,000); polyethylene oxide, NF (MW 100,000); polyethylene oxide, NF (MW 900,000); and HPMC, and when they are added up, each total is within the “about 40 wt % to about 60 wt %” range. However, the CAFC found that these values do not constitute ranges but only specific, particular examples.
Thus, the Court concluded that this was insufficient written description support for the claimed ranges, stating:
Here, one must select several components, add up the individual values, determine the aggregate percentages, and then couple those aggregate percentages with other examples in the ’571 application to create an otherwise unstated range.
As such the CAFC affirmed that the Board properly determined that claims 1, 7, and 12 do not have written description support in the application and are therefore anticipated by the prior art asserted during the IPR.
DLR’s Cross-Appeal – Claim 8
Regarding claim 8, which the Board had found sufficient written description for, the Court affirmed that determination, even though, as DRL argued, the number “48.2 wt %” is not explicitly set forth in the application. The Court noted that “even though one might see some inconsistency” between this result and their ruling as to claims 1, 7 and 12 since claim 8 does not recite a range, but only a specific amount, this can be derived by selection and addition of the amounts detailed in Tables 1 and 5 of the application.
Dissent
Judge Linn dissented from the majority as to affirming the Board’s decision on Indivior’s appeal, specifically taking exception to the majority’s interpretations of the often-cited written description cases In re Wertheim and Nalpropion.
Linn particularly noted that the majority too narrowly interpreted the disclosures of the application. Specifically, Linn referred to the noted paragraph 65 of the application as a truncated text “[t]he film may contain any desired level of … polymer” to wrongly suggest that the statements about film polymer levels of “at least 25%” or “at least 50%” fail to provide clear support for the claimed “about 40 wt % to about 60 wt %” range. He asserts that the quoted passage is taken out of context and ignores the remaining part of the sentence, which expressly links the aggregate polymer percentage to the key claimed characteristics of mucoadhesion and rate of film dissolution shared by films having the stated polymer levels. He quotes the full text from paragraph 65 noting that it states that “any film forming polymers that impart the desired mucoadhesion and rate of film dissolution may be used as desired.” Linn asserts that this statement does not suggest that any polymer percentage is acceptable but oppositely explicitly identifies the essential desired characteristics possessed by the films of the claimed invention and identifies the polymer levels needed to impart the characteristics.
As to the majority’s treatment of In re Werthiem, Linn notes that the majority cites no authority that written description support for a “closed range” requires a disclosure of a closed range rather than discrete values, and there is no logical reason why such a disclosure should be required as a strict rule to show possession. He remarks that in Wertheim, the CAFC had found “[b]roadly articulated rules are particularly inappropriate in this area.” Wertheim, 541 F.2d at 263-65 (Rich, J.) and an obvious example would be a disclosure with express embodiments of 5%, 6%, 7%, 8%, 9% and 10% of a particular substance, and a continuation application that claims a range of 5-10%. Relating this back to the discussion as to the disclosures of paragraph 65 of the application, he asserts that the paragraph does disclose a closed range of “at least 25%” and “at least 50%” and in light of In re Werthiem, those ranges are no different than if restated as “25%-100%” and “50%-100%,” respectively.
Hence, Linn concludes that he would reverse the Board’s holding that claims 1, 7 and 12 do not have written description support in the application and are thus anticipated by the prior art. Linn did concur-in-part as to the majority finding that Indivior was in possession of a film with 48.2 wt % polymeric matrix as claimed in claim 8.
Takeaway
- Care needs to be taken when patent prosecutors incorporate range limitations into the claims based on disclosures within Examples and Tables. The application should clearly contain evidence that the individual Examples may be formulated into the range claimed.
No Standing and No Vacatur for Patent Licensee Seeking Review of IPR Decisions
Fumika Ogawa | December 28, 2021
Apple Inc. v. Qualcomm Incorporated
Decided on November 10, 2021
Newman, Prost, and Stoll. Opinion by Prost. Dissent by Newman.
Summary
For a second time involving the same parties who had entered a license agreement as part of settlement of global patent litigation, the Federal Circuit denied standing to appeal from the Patent Trial and Appeal Board (PTAB) where the underlying facts were identical to those in the previous case, except for the identity of patents at issue. The Federal Circuit also rejected the licensee’s request to vacate the PTAB decision which was found unappealable for lack of standing. The dissent argued that the mere existence of a license should not negate the licensee’s right to challenge the patent validity in Article III court.
Details
“Flashback” to Apple I
The Opinion begins by referring to Apple Inc. v. Qualcomm Inc., 992 F.3d 1378, 1385 (Fed. Cir. 2021) (“Apple I”), where Qualcomm sued Apple in a district court for infringement of patents; Apple sought an inter partes review (“IPR”) of those patents; the two companies settled all their litigation and entered a license agreement, leading to dismissal of the infringement action with prejudice; thereafter, Apple appealed a final decision of the IPR issued in favor of Qualcomm.
At issue in Apple I was Apple’s standing before the Article III court. There, Apple was found to lack standing because:
- No sufficient evidence or argument was presented that invalidity of any specific patent would change any aspect of the contractual relationship or royalty imposed on Apple.
- Apple’s evidence failed to identify any particular patent or potentially infringing activity that is tied to a risk of litigation after the license has expired.
- Apple’s invocation of the estoppel provision was insufficient to warrant standing.
Rehearing was denied en banc in Apple I.
No Standing in Deference to Apple I
The Federal Circuit dismissed for lack of standing following the precedent. Since “the operative facts are the same,” the difference in the patents between the two cases was “irrelevant.” Further, the court rejected Apple’s assertion that the previous case did not articulate the reason why a threat of litigation that would potentially result from Apple’s failure to pay the license fee and termination of the agreement does not suffice to establish standing.
Vacatur Denied
Apple asserted that if it lacks standing, the PTAB decisions should be vacated, which would otherwise frustrate future litigation involving the same patents. In so doing, Apple relied on the principle in United States v. Munsingwear, Inc., which allows vacatur of a judgement below where the case has become moot on appeal.
The Federal Circuit disagreed. First, Munsignwear was distinguished because it concerns mootness, rather than standing. The difference between the two doctrines resides in the timing: Standing relates to existence of controversy “at the outset” of the appeal whereas mootness considers existence of controversy “throughout the proceedings.” To the extent the dispute between the parties had disappeared before the appeal was filed, the case cannot “become moot.” Second, even if the mootness doctrine were applicable, the court stated that vacatur would still not be appropriate. Because the alleged mootness was caused by Apple’s own voluntary action (i.e., settlement), it could not claim the equitable remedy of vacatur.
Dissent
The dissenting opinion noted that continuing controversy existed where Apple, although agreeing to settlement and license, still disputed the validity of the licensed patents, and the potentially infringing products will likely remain on the market after the termination of the contract, which does not cover the entire life of the patents as a result of Qualcomm’s refusal of Apple’s request otherwise. The dissent also argued that denial of the standing is contrary to the statutory purposes of estoppel and right of appeal provisions under the AIA. Furthermore, citing United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021) (see Cindy Chen’s previous report), which required vacatur of PTAB decisions that are unreviewable by a principle agency officer, the dissent argued that the IPR decisions in the present case should be vacated if Apple is denied the constitutional right of judicial review.
Takeaway
- In addition to confirming that the patent licensee seeking appeal from the IPR lacks Article III standing in the circumstances of the case, the Federal Circuit found that such a party also forfeited its right to vacatur of the underlying IPR decision.
- Potential consequences of settlement and license where an IPR is pending could be grave; not only could it limit the party’s ability to prove a requisite injury for standing to appeal, but also it could foreclose the remedy of vacatur, thereby affecting future re-litigation.
Lets’ B. Cereus, No Reasonable Fact Finder Could Find an Expectation of Success Based on the Teachings of a Prior Art Reference That Failed to Achieve That Which The Inventor Succeeds
Adele Critchley | December 6, 2021
University of Strathclyde vs., Clear-Vu Lighting LLC
Circuit Judges Reyna, Clevenger and Stoll (author).
Summary:
Here, the University of Strathclyde (Strathclyde herein after) appeals from a final written decision of the Patent Trail and Appeal Board holding claims 1 to 4 of U.S. Patent No. 9,839,706 unpatentable as obvious.
The patent relates to effective sterilization methods for environmental decontamination of air and surfaces of, amongst other antibiotic resistant Gram-positive bacteria, Methicillin-resistant Staphylococcus aureus (MRSA). Specifically, sterilization is performed via photoinactivation without the need for a photosensitizing agent.
Claim 1[1] is as follows:
1. A method for disinfecting air, contact surfaces or materials by inactivating one or more pathogenic Gram-positive bacteria in the air, on the contact surfaces or on the materials, said method comprising exposing the one or more pathogenic Gram-positive bacteria to visible light without using a photosensitizer, wherein the one or more pathogenic Gram-positive bacteria are selected from the group consisting of Methicillin-resistant Staphylococcus aureus (MRSA), Coagulase-Negative Staphylococcus (CONS), Streptococcus, Enterococcus, and Clostridium species, and wherein a portion of the visible light that inactivates the one or more pathogenic Gram-positive bacteria consists of wavelengths in the range 400-420 nm, and wherein the method is performed outside of the human body and the contact surfaces or the materials are non-living.
The Board determined that claim 1 above would have been obvious over Ashkenazi in view of Nitzan. Ashkenazi is an article that discusses photoeradication of a Gram-positive bacterium, stating that “In the case of P. acnes (leading cause of acne) or other bacterial cells that produce porphyrins…. Blue light may photoinactivate the intact bacterial cells.” However, as noted by the CAFC, the methods of Ashkenazi always contained a photosensitive agent. Ashkenazi taught that increasing the light doses, the number of illuminations, and the length of time the bacteria are cultured resulted in greater inactivation.
The Nitzan article studied the effects of ALA (photosensitive agent) on Gram-positive bacteria, including MRSA. In Nitzan, for all the non-ALA MRSA cultures, it was reported therein that a 1.0 survival fraction was observed, meaning there was “no decrease in viability…after illumination” with blue light.
The Board ultimately held that Ashkenazi and Nitzan taught or suggested all the limitations of claim 1, and that a person of ordinary skill in the art would have been motivated to combine these two references, and “would have had a reasonable expectation of successfully doing so.”
Although neither of the references achieved inactivation of any bacteria without using a photosensitizer, the Board nonetheless found that a skilled artisan would have reasonably expected “some” amount of inactivation because the claims “do not require any specific amount of inactivation.”
Ultimately, the CAFC disagreed with the Boards’ findings.
Initially, the CAFC emphasized that “[T]he substantial evidence standard asks ‘whether a reasonable fact finder could have arrived at the agency’s decision,’ and ‘involves examination of the record as a whole, taking into account evidence that both justifies and detracts from an agency’s decision.’” OSI Pharms., LLC v. Apotex Inc., 939 F.3d 1375, 1381–82 (Fed. Cir. 2019) (quoting In re Gartside, 203 F.3d 1305, 1312 (Fed. Cir. 2000)).
That, “An obviousness determination generally requires a finding that “all claimed limitations are disclosed in the prior art,” PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1194 (Fed. Cir. 2014); cf. Koninklijke Philips N.V. v. Google LLC, 948 F.3d 1330, 1337–38 (Fed. Cir. 2020).
“Whether the prior art discloses a claim limitation, whether a skilled artisan would have been motivated to modify or combine teachings in the prior art, and whether she would have had a reasonable expectation of success in doing so are questions of fact. Tech. Consumer Prods., Inc. v. Lighting Sci. Grp. Corp., 955 F.3d 16, 22 (Fed. Cir. 2020); OSI Pharm., 939 F.3d at 1382.
Here, “the only dispute is whether these references teach inactivating one of the claimed Gram-positive bacteria without using a photosensitizer.” The CAFC stated that the “Board’s finding that this was taught by the combination of Ashkenazi and Nitzan is not supported by substantial evidence.”
Claim 1 requires both (i) exposing the bacterial to 400 to 420 nm blue light without using a photosensitizers and (ii) that the bacteria are inactivated as a result. Here, Ashkenazi achieves inactivation after exposure to 407 to 420 nm blue light but with a photosensitizer. On the other hand, Nitzan provides an example in which MRSA is exposed to 407 to 420 nm blue light without a photosensitizer, but there is no evidence that Nitzan successfully achieved inactivation under the conditions.
The Board agreed with Clear-Vu’s argument that a skilled artisan would have prepared a MRSA culture according to the method described in Nitzan and applied Ashkenazi’s teaching that increasing the light energy, number of illuminations, and length of time the bacteria are cultured, and so arrived at the Patented claims.
However, the CAFC held that “given neither Ashkenazi nor Nitzan teaches or suggests inactivation of any bacteria without using a photosensitizer” they failed “to see why a skilled artisan would opt to entirely omit a photosensitizer when combining these references.” The CAFC stressed that Nitzan itself disclosed that a photosensitizer-free embodiment was “wholly unsuccessful in achieving inactivation.”
Again, the CAFC emphasized that claim 1 requires both (i) exposing the bacterial to 400 to 420 nm blue light without using a photosensitizers and (ii) that the bacteria are inactivated as a result, and declined Clear-Vu’s invitation to read the inactivation limitation in isolation divorced from the claim as a whole concluding that “Obviousness cannot be based on the hindsight combination of components selectively culled from the prior art to fit the parameters of the patented invention.”
Next, the CAFC analyzed the Board’s finding on reasonable expectation of success and again, declined to agree.
The Board had relied upon (i) both parties agreeing that MRSA naturally produces at least some amount of endogenous porphyrins and (ii) Ashkenazi’s teaching that “blue light may” inactivate “other bacterial cells that produce porphyrins.
Here, the CAFC focused on Nitzan, as evidence on record showing the opposite. The CAFC reaffirmed that “absolute predictability of success is not required, only a reasonable expectation.” In this case, where the prior art reference fails to “achieve that at which the inventors succeeded, no reasonable fact finder could find an expectation of success based on the teachings of that same prior art.”
Thus, the CAFC concluded that the Board’s finding was not supported by substantial evidence, and so reversed its obviousness determination.
Take-away:
- The substantial evidence standard asks ‘whether a reasonable fact finder could have arrived at the agency’s decision,’ and ‘involves examination of the record as a whole, taking into account evidence that both justifies and detracts from an agency’s decision.
- If a prior art reference fails to achieve that which the inventor succeeds, it can be argued that no reasonable fact finder could find an expectation of success based thereon.
[1] Claim 2 depends on claim 1. Claim 3 is independent, but contains the same contested features highlighted above in claim 1. Claim 4 is dependent on claim 3.
Prosecution history disclaimer dooms infringement case for patentee
WHDA Blogging Team | November 22, 2021
Traxcell Technologies, LLC v. Nokia Solutions and Networks
Decided on October 12, 2021
Prost, O’Malley, and Stoll (opinion by Prost)
Summary
Patentee’s arguments during prosecution distinguishing the claimed invention over prior art were found to be clear and unmistakable disclaimer of certain meanings of the disputed claim terms. The prosecution history disclaimer resulted in claim constructions that favored the accused infringer and compelled a determination of non-infringement.
Details
Traxcell Technologies LLC specializes in navigation technologies. The company was founded by Mark Reed, who is also the sole inventor behind U.S. Patent Nos. 8,977,284, 9,510,320, and 9,642,024 that Traxcell accused Nokia of infringing.
The 284, 320, and 024 patents are directly related to each other as grandparent, parent, and child, respectively. The three patents are concerned with self-optimizing wireless network technology. Specifically, the patents claim systems and methods for measuring the performance and location of a wireless device (for example, a phone), in order to make “corrective actions” to or tune a wireless network to improve communications between the wireless device and the network.
The asserted claims from the three patents require a “first computer” (or in some of the asserted claims, simply “computer”) that is configured to perform several functions related to the “location” of a mobile wireless device.
Central to the parties’ dispute was the proper constructions of “first computer” and “location”.
Nokia’s accused geolocation system was undisputedly a self-optimizing network product. Nokia’s system performed similar functions as those claimed in the asserted computers, but across multiple computers. Nokia’s system also collected performance information for mobile wireless devices located within 50-meter-by-50-meter grids.
To avoid infringement, Nokia argued that the claimed “first computer” required a single computer performing the claimed functions, and that the claimed “location” required more than the use of a grid.
On the other hand, wanting to capture Nokia’s products, Traxcell argued that the claimed “first computer” encompassed embodiments in which the claimed functions were spread among multiple computers, and that the claimed “location” plainly included a grid-based location.
Unfortunately for Traxcell, their arguments did not stand a chance against the prosecution histories of the asserted patents.
The doctrine of prosecution history disclaimer “preclud[es] patentees from recapturing through claim interpretation specific meanings disclaimed during prosecution”. Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). “Prosecution disclaimer can arise from both claim amendments and arguments”. SpeedTrack, Inc. v. Amazon.com, 998 F.3d 1373, 1379 (Fed. Cir. 2021). “An applicant’s argument that a prior art reference is distinguishable on a particular ground can serve as a disclaimer of claim scope even if the applicant distinguishes the reference on other grounds as well”. Id. at 1380. For there to be disclaimer, the patentee must have “clearly and unmistakably” disavowed a certain meaning of the claim.
Of the three asserted patents, the 284 patent had the most protracted prosecution, with six rounds of rejections. And it was the prosecution history of the 284 patent that provided the fodder for the district court’s claim constructions. Incidentally, the 284 patent was also the only one of the three asserted patents prosecuted by the inventor, Mark Reed, himself.
During claim construction, the district court construed the terms “first computer” and “computer” to mean a single computer that could performed the various claimed functions.
The district court first looked to the plain language of the claims. The claim language recites “a first computer” or “a computer” that performs a function, and then recites that “the first computer” or “the computer” performs several additional functions. The district court determined that the claims plainly tied the claimed functions to a single computer, and that “it would defy the concept of antecedent basis” for the claims to refer back to “the first computer” or “the computer”, if the corresponding tasks were actually performed by a different computer.
The intrinsic evidence that convinced the district court of its claim construction was, however, the prosecution history of the 284 patent.
During prosecution, in a 67-page response, Mr. Reed argued explicitly and at length, in a section titled “Single computer needed in Reed et al. [i.e., the pending application] v. additional software needed in Andersson et al. [i.e., the prior art]”, that the claimed invention requiring just one computer distinguished over the prior art system using multiple computers. The district court quoted extensively from this response as intrinsic evidence supporting its claim construction.
The Federal Circuit agreed with the district court’s claim construction, quoting still more passages from the same response as evidence that the patentee “clearly and unmistakably disclaimed the use of multiple computers”.
Next, the district court addressed the term “location”. The district court construed the term to mean a “location that is not merely a position in a grid pattern”.
Here, the district court’s claim construction relied almost exclusively on arguments that Reed made during prosecution of the 284 patent. Referring again to the same 67-page response, the district court noted that Mr. Reed explicitly argued, in a section titled “Grid pattern not required in Reed et al. v. grid pattern required in Steer et al.”, that the claimed invention distinguished over the prior art because the claimed invention operated without the limitation of a grid pattern, and that the absence of a grid pattern permitted finer tuning of the network system.
And again, the Federal Circuit agreed with the district court’s claim construction, finding that “the disclaimer here was clear and unmistakable”.
The claim constructions favored Nokia’s non-infringement arguments that its system lacked the single-computer, non-grid-pattern-based-location limitations of the asserted claims. Accordingly, the district court found, and the Federal Circuit affirmed, that Nokia’s system did not infringe the 284, 320, and 024 patents.
Traxcell made an interesting argument on appeal—specifically, the disclaimer found by the district court was too broad and a narrower disclaimer would have been enough to overcome the prior art. Traxcell seemed to be borrowing from the doctrine of prosecution history estoppel. Under that doctrine, arguments or amendments made during prosecution to obtain allowance of a patent creates prosecution history estoppel that limits the range of equivalents available under the doctrine of equivalents.
However, the Federal Circuit was unsympathetic to Traxcell’s argument, explaining that Traxcell was held “to the actual arguments made, not the arguments that could have been made”. The Federal Circuit also noted that “it frequently happens that patentees surrender more…than may have been absolutely necessary to avoid particular prior art”.
Mr. Reed’s somewhat unsophisticated prosecution of the 284 patent was in sharp contrast to the prosecution of the related 320 and 024 patents, which were handled by a patent attorney. The prosecution histories of the 320 and 024 patents said very little about the cited prior art, even less about the claimed invention. In addition, whereas Mr. Reed editorialized on various claimed features during prosecution of the 284 patent, the prosecution histories of the 320 and 024 patents rarely even paraphrased the claims.
Takeaways
- Avoid gratuitous remarks that define or characterize the claimed invention or the prior art during prosecution. Quote the claim language directly and avoid paraphrasing the claim language, as the paraphrases risk being construed later as a narrowing characterization of the claimed invention.
- Avoid claim amendments that are not necessary to distinguish over the prior art.
- The prosecution history of a patent can affect the construction of claims in other patents in the same family, even when the claim language is not identical. Be mindful about how arguments and/or amendments made in one application may be used against other related applications.
