Appeal No. 1998-0425 Page 12
Application No. 08/272,527
numerous cases were considered in which application
claims were directed to mere obvious modifications of, or
improvements on, inventions defined in the claims of
patents already issued to the same inventors, or to
common assignees, and it had been decided that they might
be allowed to go to patent if the applicants filed
terminal disclaimers. We classified these as
"obviousness type double patenting." This latter
classification has, in the course of time, come, somewhat
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,
4(...continued)
stated that the restatement of the law of double patenting set
forth in Vogel "serves as a good starting place" for deciding
the double patenting issue raised in that appeal.
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