Appeal No. 1998-0941 Page 4
Application No. 08/226,660
It appears to us that the examiner's rejection is based on
an improper application of Schneller.1 Schneller is a very
1 Schneller is a rather unusual case in that there was no
majority opinion because only Judges Rich and Smith joined the
principal opinion, while Judges Worley and Kirkpatrick concurred
in the result and Judge Almond wrote a concurring opinion. Thus,
the principal opinion therein is of doubtful controlling
precedent. As Judge Rich observed in In re Kaplan, 789 F.2d
1574, 1578, 229 USPQ 678, 682 (Fed. Cir. 1986):
The development of the modern understanding of "double
patenting" began in the Court of Customs and Patent Appeals
(CCPA) about the time of In re Zickendraht, 319 F.2d 225,
138 USPQ 22 (CCPA 1963), a rather unusual case is [sic, in]
that there was no majority opinion because only two judges
joined each of the two principal opinions. Neither opinion
therein, therefore, can be regarded as controlling precedent
in this court.
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