Appeal No. 95-2803
Application 08/024,851
We reverse the rejection of appellants’ claims under
35 U.S.C. § 101.
In a statutory double patenting rejection under 35
U.S.C. § 101, the issue is whether the same invention is being
claimed twice. Same invention means IDENTICAL subject matter.
As expressed by the court in 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.
In the present case, we find that the test can be
responded to in the affirmative, reflecting that the pending
claims and the patented claims to Levosinski do not address the
same invention.
The examiner’s view is that claims 29 through 33 in
the present application are drawn to the same invention as
that of claims 1 through 3 and 5 through 10 of the U.S. Patent
No. 5,248,162.
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