Appeal No. 1996-1838 Page 8
Application No. 08/119,655
life of the first patent. See Gerber Garment Technology, Inc.
v. Lectra Sys., 916 F.2d 683, 686 16 USPQ2d 1436, 1439 (Fed.
Cir. 1990); In re Thorington, 418 F.2d 528, 534, 163 USPQ 644,
648 (CCPA 1969), cert. denied, 397 U.S. 1038, 165 USPQ 290
(1970).
In summary, "obviousness-type" double patenting is a
judge-made doctrine that prevents an unjustified extension of
the patent right beyond the statutory time limit. It requires
rejection of an application claim when the claimed subject
matter is not patentably distinct from the subject matter
claimed in a commonly owned patent when the issuance of a
second patent would provide an unjustified extension of the
term of the right to exclude granted by a patent. In order to
overcome an "obviousness-type" double patenting rejection, an
applicant may file a "terminal disclaimer," foregoing that
portion of the term
of the second patent that extends beyond the term of the
first. Berg, 140 F.3d at 1431-32, 46 USPQ2d at 1229.
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