Appeal No. 1998-0941 Page 11
Application No. 08/226,660
BARRETT, Administrative Patent Judge, concurring.
I concur with the majority decision, but write separately to
express additional views on In re Schneller, 397 F.2d 350,
158 USPQ 210 (CCPA 1968) and its application to the facts of this
case.
In my view, assuming Schneller is controlling precedent (see
footnote 1 of Administrative Patent Judge Nase's opinion),
Schneller represents a factually unique case of
"obviousness-type" double patenting and should not be treated as
a third category of double patenting, i.e., as a second kind of
"non-statutory-type" double patenting as discussed in Manual of
Examining Procedure (MPEP) § 803 (7th ed., Rev. 1, Feb. 2000).
Schneller is not the usual "obviousness-type" double patenting
case because it "is not a case of an improvement or modification
invented after filing," Schneller, 397 F.2d at 353, 158 USPQ at
214. Schneller is a situation where an applicant voluntarily
files a divisional application (i.e., the disclosure is
identical) and not in response to a restriction requirement from
the Patent and Trademark Office. In such a case, an applicant is
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