Appeal No. 97-2610
Application 08/236,809
piston.
Furthermore, there is no apparent reason why
applicant[s] would be prevented from presenting
claims corresponding to those of the instant
application in the other copending application[s].
In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA
1968). See also MPEP § 804 [answer, Paper No. 18,
page 3].
Reference is made to the appellants’ brief and to the
examiner’s answer for the respective positions of the
appellants and the examiner with regard to the merits of this
rejection.6
In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA 1968),
cited by the examiner in support of the appealed rejection,
stands for the principle that under certain circumstances a
double patenting rejection other than one of the statutory
same-invention-type or judicially created obviousness-type may
be employed to prevent an unjustified timewise extension of
the right to exclude granted by a patent no matter how the
extension is brought about (397 F.2d at 354, 158 USPQ at 214).
6The final rejection also included 35 U.S.C. § 112,
second paragraph, and 35 U.S.C. § 103 rejections which have
since been withdrawn by the examiner (see the advisory actions
dated March 8, 1996 and May 31, 1996, Paper Nos. 9 and 12).
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