Appeal No. 97-3085
Application 08/236,835
described within the disclosure and encompassed
within the scope of the claim(s) of Applicant’s
copending application Serial No. 08/236,809,
copending application Serial No. 08/236,069, and
copending application Serial No. 08/236,838 and
therefore, a claim for the now claimed subject
matter could have been presented therein.
The non-statutory type double patenting
rejection is a judicially established doctrine based
upon public policy and is primarily intended to
prevent unjustified prolongation of the patent term.
See In re Schneller, 397 f.2nd 350, 158 USPQ 210
(CCPA 1968) [answer, Paper No. 22, page 3].
Reference is made to the appellant’s brief and to the
examiner’s answer for the respective positions of the
appellant
and the examiner with regard to the merits of this rejection.6
In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA 1968),
USPQ2d 1771 (Bd. Pat. App. & Int. 1988)) and by the
predecessor of our reviewing court (see, for example, In re
Wetterau, 356 F.2d 556, 148 USPQ 499 (CCPA 1966)). As
indicated above, Application 08/236,069 has matured into U.S.
Patent No. 5,577,963.
6The final rejection also included 35 U.S.C. § 112,
second paragraph, 35 U.S.C. § 102(b) and 35 U.S.C. § 103
rejections which have since been withdrawn by the examiner
(see the advisory action dated June 6, 1996, Paper No. 16, and
page 4 in the answer).
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