Interference No. 103,950
in § 804.02. Likewise, we note that the policy does not seem
to embrace "obviousness-type" double patenting. The rejection
reversed in Heinle was not a statutory double patenting
rejection. Hence, it does not appear that the policy set out
in the MPEP is squarely based on the decision in Heinle,
whether the disclaimer discussion by Heinle majority is
characterized as a holding or dictum. We note, however, that
the MPEP is entirely consistent with the majority's discussion
of disclaimers in Heinle, whether that discussion be
considered a holding or dictum. The double patenting issue
involved in Eli Lilly does not appear to have involved
statutory double patenting because the subject matter of claim
7 of the patent on appeal seems to have been an embodiment
within the scope of the claims of the second patent. In re
Vogel, 422 F.2d 438, 441, 164 USPQ 619, 622 (CCPA 1970)
(a good test, and probably the only objective test, for "same
invention," is whether one of the claims could be literally
infringed without literally infringing the other; if it could
be, the claims do not define identically the same invention).
v.
In this case, claims 38 through 42 of Nardella's
application are the same as claims 1-3 and 5 of Nardella's
disclaimed patent. Claim 42 of the Nardella application
differs in minor respects from Nardella patent claim 9.
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