Appeal No. 1999-0189
Application No. 08/344,691
no double patenting.” In White, the CCPA made such statement
in connection with nonobviousness under 35 U.S.C. § 103, and
not in connection with same invention double patenting under
35 U.S.C. § 101 or the judicially-created, obviousness-type
double patenting. The Schneller decision never mentioned
“nonobviousness” type double patenting, and the White decision
was not addressing the same. Thus, the Court had no need to2
overrule that which it had not created.
Appellant argues (Brief, page 4) that the Court sitting
en banc in In re Vogel, 422 F.2d 438, 441-42, 164 USPQ 619,
621 (CCPA 1970) overruled prior CCPA decisions, such as
Schneller, to the extent that the prior decisions were
inconsistent therewith. Schneller was not mentioned in Vogel.
Although the subsequent case of In re Kaplan, 789 F.2d
1574, 229 USPQ 678 (Fed. Cir. 1986) dealt with an obviousness-
type double patenting rejection, it does not support
appellant’s arguments (Brief, page 4) because the Court never
2The so-called "nonobviousness" type of double patenting
was a creation of the U.S. Patent & Trademark Office. See
Manual of Patent Examining Procedure (MPEP) § 804 (6th ed.,
Jan. 1995), pages 800-15 and 800-16. The latest edition of
the MPEP has dropped "nonobviousness" from the description of
the Schneller decision.
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