Ex parte PLUMTON et al. - Page 3

              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.                                                                                
                     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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