Appeal No. 1999-0189
Application No. 08/344,691
mentioned Schneller.
Thus, appellant’s arguments to the contrary
notwithstanding, Schneller did not create a third type of 3
double patenting rejection (i.e., nonobviousness-type double
patenting rejection) (Brief, pages 5 and 6).
Appellant argues (Brief, page 11) that “in General Foods
Corp. v. Studiengesellschaft Kohle mbH, 972 F.2d 1272,
23 U.S.P.Q.2d 1839 (Fed. Cir. 1992), the Federal Circuit
reiterated that ‘same invention’ and ‘obvious-type’ are the
only recognized bases for a double patenting rejection.” We
agree with appellant’s argument. Schneller fits within the
latter type of double patenting rejection, and a “Schneller-
based double patenting [rejection] is legally viable” (Brief,
page 6).
Appellant argues (Brief, page 12) that “[i]f Schneller
was good law, why did the U.S.P.T.O. fail to apply it between
1970 and 1994?” The mere fact that the Office failed to rely
3As indicated supra, the judicially-created, obviousness-
type double patenting and same invention double patenting
under 35 U.S.C. § 101 are the only types of double
patenting rejections.
7
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