Appeal No. 97-3085
Application 08/236,835
cited by the examiner in support of the appealed rejection,
stands for the principle that under certain circumstances a
double patenting rejection other than one of the statutory
same-invention-type or judicially created obviousness-type may
be employed to prevent an unjustified timewise extension of
the right to exclude granted by a patent no matter how the
extension is brought about (397 F.2d at 354, 158 USPQ at 214).
Accord In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA
1982). The offending situation in Schneller involved a
patent and a subsequent continuing application filed
voluntarily instead of in response to a restriction
requirement. The patent and the application contained common
disclosures and claims which all could have been included in
the patent. The claims in the application, if allowed, would
afford patent protection on an invention fully disclosed in
and covered by the claims in the patent. Under these
circumstances, the court found that the
application claims, if allowed without the filing of a
terminal disclaimer, would provide an unjustified timewise
extension of the right to exclude granted by the patent.
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