Appeal No. 95-4633
Application 07/135,067
applications which are commonly owned raises the specter of double patenting. See Section 804.03 of6
the Manual of Patent Examining Procedure, 6th Edition, Rev. 3, July 1997 where 37 CFR § 1.78(c)
is cited and where under the heading “DOUBLE PATENTING” it is stated that the examiner “may reject
claims of commonly owned applications of different inventive entities on the ground of double patenting.”
As a final note, this panel is aware of the recent decision in the Federal Circuit styled In re Berg,
___ F.3d ___, ___ USPQ2d ___, Appeal No. 97-1367, decided March 30, 1998 which distinguished
the Braat decision and held that the appellants were not entitled to the “two-way” test for determining7
obviousness-type double patenting because their claims, which were presented in separate applications,
could have been presented in a single application. We have considered our decision and appellants’
arguments in their request for rehearing in light of this decision, but we do not find our decision on appeal
or our decision in this request for hearing to be inconsistent with the Court’s decision.
The fact that all of the K/D and K/M applications were prosecuted by Mr. Tamte of 3M is evidence that the6
applications at the time they were examined by the examiner were commonly owned.
In re Braat, 937 F.2d 589, 19 USPQ2d 1289 (Fed. Cir. 1991).7
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