Appeal No. 1997-4067 Application 08/285,324 Obviousness-type double patenting must use the claims. It appears that the Examiner's rejection is based on an improper application of In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA 1968). Schneller is a very special case of obviousness-type double patenting. Schneller applies to those situations where: (1) the subject matter recited in the claims of the application is fully disclosed and covered by a claim in the patent (i.e., there has been no improvement or modification invented after filing and the application claim reads on subject matter which has been protected by a patent claim); and (2) there is no reason why appellant was prevented from presenting the same claims for examination in the issued patent (i.e., there is no justification for extending the protection, such as the existence of a restriction requirement). The Patent and Trademark Office has applied the term "non-'obviousness-type'" (as opposed to "obviousness-type") double patenting to the factual situation in Schneller in the past, MPEP § 804 (6th ed. Jan. 1995), pages 800-15, -16, but does not now use this - 6 -Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: November 3, 2007