Appeal No. 1998-2051
Application 08/426,814
Lilly & Co. v. Barr Labs., Inc., ___ F.3d ___, 55 USPQ2d 1609,
1619 (Fed. Cir 2000).
Secondly, appellant includes an argument that amounts to
the argument that In re Schneller is no longer "good" law. In
re Schneller, 397 F.2d 350, 355, 158 USPQ 210, 215 (CCPA
1968), dealt with a special fact situation of obviousness-type
double patenting which is relevant to the instant appeal. The
PTO had 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 edition.
Jan. 1995),
pages 800-15, 16, but does not now use this label, MPEP § 804
(7th ed. Jul. 1998), pages 800-21 through 800-23. In our view
Schneller is simply an obviousness-type double patenting case
with special facts. The examiner's Schneller-type double
patenting rejection is thus properly considered as part of the
obviousness-type double patenting analysis.
Although appellant cites obviousness-type double
patenting cases later than Schneller such as In re Vogel, 422
F.2d 438, 441-42, 164 USPQ 619, 621-22 (CCPA 1970), to stand
for the proposition that Schneller-type double patenting is no
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