Appeal No. 95-2830
Application No. 07/967,617
judicially created doctrine of double patenting over claims 1
through 10 of U.S. Patent 5,478,936 in view of Pedrazzi. Our
analysis of the examiner's rejection of claims 1, 2, 5 through
9, 11, and 12 under the doctrine of judicially created double
patenting parallels that for a § 103 rejection. While the
double patenting rejection is analogous to a failure to meet
the non-obviousness requirement of 35 U.S.C. § 103, that
section is not itself involved in double patenting rejections
because the patent principally underlying the rejection is not
usually prior art. See In re Longi, 759 F.2d 887, 892-93, 225
USPQ 645, 648 (Fed. Cir. 1985); In re Braithwaite, 379 F.2d
594, 600, n. 4, 154 USPQ 29, 34, n. 4 (CCPA 1967). However,
in the case before us, the underlying U.S. Patent 5,478,936
constitutes prior art, since it is a continuation of
application USSN 07/741,595 having a filing date of August 7,
1991, which is prior to appellants' foreign priority date of
November 5, 1991. Accordingly, we will consider the obvious-
type double patenting rejection of claims 1, 2, 5 through 9,
11 and 12 as having been subsumed by the rejection of the
claims under 35 U.S.C. § 103 over the same reference. See In
re Ornitz, 376 F.2d 330, 334, 153 USPQ 453, 457 (CCPA 1967),
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