Appeal No. 1998-0941 Page 6
Application No. 08/226,660
Rev. 1, Feb. 2000) now provides that "non-statutory-type" double
patenting of Schneller applies to those situations where: (1) the
subject matter recited in the claims of the application is fully
disclosed and covered by a claim in the patent (i.e., there has
been no improvement or modification invented after filing and the
application claim reads on subject matter which has been
protected by a patent claim); and (2) there is no reason why the
appellants were prevented from presenting the same claims for
examination in the issued patent (i.e., there is no justification
for extending the protection, such as the existence of a
restriction requirement); and (3) no terminal disclaimer has been
filed.
The condition of Schneller that the subject matter recited
in the claims of the application is fully covered by a claim in
the patent is not satisfied in this instance as clearly shown by
the appellants' comparison of patent claim 15 and the claims
under appeal (brief, pp. 12-15). In that regard, the claims
under appeal set forth structure (i.e., the means set forth in
the last paragraph of each of claims 20, 43 and 65) that is not
present in patent claim 15. As noted by the appellants, the
"controlling means" of patent claim 15 is controlling the
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