Interference No. 103,950
Accordingly, what is involved in this case is essentially
statutory double patenting under 35 U.S.C. § 101, as opposed
to "obviousness-type” double patenting involved in Heinle and
Eli Lilly. Since Heinle and Eli Lilly (1) do not seem to
involve statutory double patenting, and (2) statements therein
with respect to disclaimers appear to be dictum, neither is
controlling authority. To the extent the dictum can be argued
to be binding and that there may be a conflict between Heinle
and Eli Lilly, we are obligated to follow the en banc CCPA
Heinle decision and not the Eli Lilly panel decision. South
Corp. v. United States, 690 F.2d 1368, 215 USPQ 657 (Fed. Cir.
1982) (CCPA and Court of Claims decisions are binding
precedent in Federal Circuit until overruled en banc).
The facts of the case bring it within the policy set out
in § 804.02 of the MPEP. Notwithstanding the lack of any
legal analysis in the MPEP in support of the policy, we have
not been given a sufficiently cogent reason for not following
the policy. Accordingly, we adopt as the law for this case
the policy set out in § 804.02 of the MPEP.8
8 We will make the following observation. At the time the policy set out in §
804.02 was adopted, maintenance fees were not required by Congress. We have not
overlooked the possibility that through what we will call shenanigans involving filing
of disclaimers of patents and terminal disclaimers in applications, an inventor might be
able to avoid paying the full maintenance fees required by law to maintain a patent in
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