Appeal No. 1996-1838 Page 7
Application No. 08/119,655
loosely, to indicate any "double patenting" situation
other than one of the "same invention" type.
See also General Foods, 972 F.2d at 1279-80, 23 USPQ2d at
1844-45.
"Obviousness-type" double patenting extends the
fundamental legal doctrine to preclude "obvious variants" of
what has already been patented. See In re Berg, 140 F.3d
1428, 1432, 46 USPQ2d 1226, 1229 (Fed. Cir. 1998); Goodman, 11
F.3d at 1052, 29 USPQ2d at 2015 and General Foods, 972 F.2d at
1280, 23 USPQ2d at 1845. "Obviousness-type" double patenting
precludes issuance where there is no "patentable difference"
or no "patentable distinction" between the two claims.
Goodman, 11 F.3d at 1052,
29 USPQ2d at 2015; General Foods, 972 F.2d at 1278-79, 23
USPQ2d at 1844. This allows the public to practice obvious
variations of the first patented invention after the first
patent expires. See Longi, 759 F.2d at 892-93, 225 USPQ at
648. The courts adopted the doctrine out of necessity where
claims in two applications by the same inventor were so much
alike that to allow the latter would effectively extend the
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