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
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