Appeal No. 98-0964
Application 08/557,436
claim of appellant’s prior U.S. Design Patent No. 377,473
“since the claims, if allowed, would improperly extend the
‘right to exclude’ already granted in the patent” (answer,
page 4). According to the examiner,
“[t]he subject matter claimed in the instant
applica-tion is fully disclosed in the patent and is
covered by the patent since the patent and the
application are claiming common subject matter, as
follows: a distinctive configuration for a kayak.
Furthermore, there is no apparent reason why
applicant was prevented from presenting claims
corresponding to
those of the instant application during prosecution
of the application which matured into a patent. In
re Schneller, 397 F.2d 350, 158 USPQ 210(CCPA 1968).
See also MPEP § 804. (answer page 4)
Claims 23 through 34 also stand rejected under the
judicially created doctrine of obviousness-type double
patenting as being unpatentable over the claim of appellant’s
prior U.S. Design Patent No. 377,473. In this regard, it is
the examiner’s position that
[a]lthough the conflicting claims are not identical,
they are not patentably distinct from each other
because one of ordinary skill in the art at the time
of the invention would have sit and placed his/her
feet as claimed in the kayak of Des. 377,473.
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