Appeal No. 1998-2045
Application 08/402,374
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 23 [brief, page 11].
The rejection of claims on obviousness-type double
patenting based on the decision in Schneller has recently
found favor with patent examiners. The Board of Patent
Appeals and Interferences has recently published a decision
which discusses in detail the “cover” test of Schneller and
its applicability to obviousness-type double patenting
rejections. See ex parte Davis, 56 USPQ2d 1434 (BPAI 2000).
We adopt the reasoning of the panel in Davis in deciding this
appeal. To put it briefly, the “cover” test of Schneller
should be interpreted as a test to determine whether the
claims of an application and the claims of a patent are
patentably distinct. Thus, in considering the obviousness-
type double patenting rejection before us on this appeal, the
appropriate question is whether claims 23-32 of this
application are patentably distinct from the claims of Mano.
Claims 23-32 recite limitations which do not appear in
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