Appeal No. 1998-2051
Application 08/426,814
longer a viable doctrine, appellant fails to cite such cases
as In re Van Ornum, 686 F.2d at 944, 214 USPQ at 767, which
treat the Schneller decision with approval. The non-
obviousness type double patenting language that seems to be a
problem for appellant, probably arose in Schneller at 353-54,
158 USPQ at 214:
This is not a case of an improvement or
modification invented after filing. Hence it is not
the usual "obviousness-type" double patenting case.
Neither is it a "same invention type" double
patenting case . . ..
This may be where the PTO got the terminology "non-
obviousness-type double patenting." However, the court in
Schneller emphasized that Schneller was simply a case where
there was no justification for the timewise extension of the
right to exclude past the expiration date of the previously
granted patent. Such an impermissible extension would prevail
in the instant case were we not to affirm the examiner's
rejection.
With respect to claim 21 we note the limitation therein:
"the wall being adapted to form a slit from said proximal
opening to said distal opening to allow a guidewire to exit
laterally from the inner guidewire receiving lumen through the
-6-
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007