Appeal No. 1998-1993
Application 08/320,729
based on the grounds of double patenting. Although the
examiner has nominally designated this rejection as being
based on the judicially created doctrine of obviousness-type
double patenting, the examiner has made no obviousness
determinations of the appealed claims with respect to the
claims of Mano. Instead, the examiner has asserted that
obviousness determinations did not have to be considered
because, in the examiner’s view, these appealed claims fall
within the ambit of In re Schneller, 397 F.2d 350, 158 USPQ
210 (CCPA 1968). Based on the examiner’s interpretation of
Schneller, the examiner finds that appealed claims 44-51 and
53 of this application cover subject matter “already
adequately claimed and covered in [Mano]” [answer, page 6].
Appellants do not discuss the application of Schneller to
the facts of this case. Instead, appellants simply argue that
the appealed claims are not unpatentable under the doctrine of
obviousness-type double patenting because neither claims 1-17
of Mano nor the teachings of Morozumi, Asars, Togashi and/or
Holmberg disclose or suggest the subject matter specifically
recited in independent claim 44 [brief, page 11].
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