Appeal No. 1998-0941 Page 5
Application No. 08/226,660
special case of "obviousness-type" double patenting.2 The United
States Patent and Trademark Office has applied the term
"non-obviousness-type" (as opposed to "obviousness-type") double
patenting to the factual situation in Schneller in the past, MPEP
§ 804 (6th ed. Jan. 1995), pages 800-15, -16, but does not now
use this label, MPEP § 804 (7th ed., Rev. 1, Feb. 2000),
pages 800-21 through 800-23 (classifying double patenting as
either "same invention" type or "non-statutory-" type where
"non-statutory-type" could include a rejection which is not the
usual "obviousness-type" double patenting). MPEP § 804 (7th ed.,
2 All types of double patenting which are not "same
invention" double patenting have come to be referred to as
"obviousness-type" double patenting. See In re Van Ornum, 686
F.2d 937, 942-43, 214 USPQ 761, 766 (CCPA 1982), which states in
discussing cases leading to the restatement of the law of double
patenting set forth in In re Vogel, 422 F.2d 438, 441-42, 164
USPQ 619, 621-22 (CCPA 1970):
numerous cases were considered in which application claims
were directed to mere obvious modifications of, or
improvements on, inventions defined in the claims of
patents already issued to the same inventors, or to common
assignees, and it had been decided that they might be
allowed to go to patent if the applicants filed terminal
disclaimers. We classified these as "obviousness type
double patenting." This latter classification has, in the
course of time, come, somewhat loosely, to indicate any
"double patenting" situation other than one of the "same
invention" type.
See also General Foods Corp. v. Studiengesellschaft Kohl mbH, 972
F.2d 1272, 1279-80, 23 USPQ2d 1839, 1844-45 (Fed. Cir. 1992).
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