Appeal No. 96-0688
Application 08/105,465
the unjustified or improper timewise extension of the
"right to exclude" granted by a patent (citations
omitted).
On page 12 of the answer, the examiner points to In re Schneller,
397 F.2d 350, 353-54, 158 USPQ 210, 214 (CCPA 1968) and In re
Goodman, 11 F.3d 1046, 1052, 29 USPQ2d 2010, 2015-16 (Fed. Cir.
1993) in support of the double patenting rejection.
Unlike the situations involved in Schneller and Goodman, the
subject matter of the Goldston et al. patent relied upon by the
examiner here involves an improvement or modification invented
after the filing by appellant of the initial application on the
basic invention (Serial No. 806,925, filed December 11, 1991),
and from which the application before us on appeal is a
continuation and the patent No. 5,285,586 (resulting from an
application filed June 26, 1992 by another inventive entity
including the appellant) is said to be a continuation-in-part.
For this reason alone we consider that Schneller and Goodman are
distinguishable.
Moreover, even if there might be some timewise extension of
the patent protection of the Goldston et al. structure, we note
that only if the extension of patent rights is unjustified is a
double patenting rejection appropriate. See, e.g., In re Braat,
937 F.2d 589, 594, 19 USPQ2d 1289, 1293 (Fed. Cir. 1991) and In
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