Appeal No. 1997-2112
Application No. 08/398,831
are directed to essentially the same subject matter.” (Id. at
4.)
An inquiry into double patenting under 35 U.S.C. § 101
requires determination whether the “same invention” --
identical subject matter -- is being claimed twice. In re
Vogel, 422 F.2d 438, 441, 164 USPQ 619, 621-22 (CCPA 1970). A
useful test is to determine whether one of the claims could be
literally infringed without literally infringing the other.
Id.
Upon review of the file wrapper of application 08/399,020
we note that, subsequent to mailing of Examiner’s Answer in
the instant application, an amendment was submitted in the
other application on August 17, 1997. The amendment was
entered and the application ultimately issued (with twenty-six
claims) as U.S. Patent 6,004,027. Each of the independent
Claims 1, 16, 17, and 18 in U.S. Patent 6,004,027 was amended
subsequent to entry of the instant provisional double
patenting rejection. Since the claims of application
08/399,020 have changed since entry of the present ground of
rejection, we dismiss the provisional double patenting
rejection under 35 U.S.C. § 101 as moot.
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