Appeal No. 2003-0914 7
Application No. 09/192,713
there is no overlap between the scope of the claimed subject matter and that of the ‘705
patent, “harassment on the basis of literal infringement by multiple assignees is not an issue
in the present circumstances.” See Brief, page 12. Accordingly, the appellants argue that
the requirement for a terminal disclaimer is unwarranted. We disagree.
The judicially created doctrine of obviousness-type double patenting remains in
effect and has not been eliminated by either Congress or any Federal court due to the
recent revisions of the patent term provisions of 35 U.S.C. § 154; and, to the extent
policy considerations have any bearing, on our decision making authority under 35 U.S.C.
§ 134. In addition, the policy rationale for the judicially created doctrine of obviousness
type double patenting remains notwithstanding the current patent term provisions of 35
U.S.C. § 154.
The amendment in 1995 to 35 U.S.C. § 154 changed in general, the term of an
issued patent from 17 years from the date of issue to 20 years from the date of
application. The change took effect on June 8, 1995 and applied to utility and plant
patent applications filed on or after that date. In 1999, Section 154 was amended again
to include limitations on extending the term of certain patents and included a provision
that:
No patent the term of which has been disclaimed beyond a specified
date may be adjusted under this section beyond the expiration date specified in
the disclaimer.
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