Appeal No. 93-4332
Application 07/707,717
OPINION
The Double Patenting Rejection
Under 35 U.S.C. § 101
It is the examiner’s position that claim 21 of the Corley
patent recites
“heating” the monomer blend to a temperature of
“about 170 to about 350 C[”] which includes ao o
range of “about 170 to about 200 C.” [Answer, page 3.]o o
In comparing patent claim 21 to application claim 1, the examiner
contends that the “heating” step (i.e., step (b)) of the patent
claim is the same as step (2) of the application claim. The
examiner subsequently concludes that
[s]ince all claimed process parameters of the
application are the same as the patented
parameters of the patent, the claimed process is the
same as the patented process. Id.
We cannot agree with the examiner’s conclusion that
appellant is claiming the same subject matter as that of patented
claims 21 through 25. It is well settled that the same invention
cannot be claimed twice. 35 U.S.C. § 101 forbids two patents
from being issued on the same invention. See, e.g., In re
Boylan, 392 F.2d 1017, 1021, 157 USPQ 370, 374 (CCPA 1968). As
the court stated in In re Vogel, 422 F.2d 438, 441, 164 USPQ 619,
622 (CCPA 1970):
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