Appeal No. 1998-2962
Application No. 08/485,079
reasons why applicant was prevented from presenting said claims for examination in said
copending application. In re Schneller, 158 USPQ 210 (CCPA 1968).” [Examiner's
answer, page 4].
Reference is made to the brief and answer for the respective positions of
appellants and the examiner.
OPINION
We turn first to the double patenting rejection.
The examiner clearly has a rational basis for making this rejection. The subject
matter claimed in the instant application appears to have been disclosed in Application
Serial No. 08/474,612. In any event, appellants point to nothing within the instant claimed
subject matter which was not disclosed in Application Serial No. 08/474,612. Accordingly,
the instant claimed subject matter could have been claimed in Application Serial No.
08/474,612 but, for whatever reason, appellants chose not to do so. Public policy would
appear to dictate that, should Application Serial No. 08/474,612 mature into a patent,
patent protection should not extend beyond the term of such patent by a later patent
directed to subject matter appellants could have claimed in that application but chose not
to so claim. We also note in passing, that the instant application does not appear to be in
the same chain of applications to which Serial No. 08/474,612 belongs.
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