Ex parte WALKER - Page 11

          Appeal No. 1999-1042                                      Page 11           
          Application No. 08/781,220                                                  

               The examiner has not provided a detailed explanation of                
          the double patenting rejection.  Apparently, the rejection is               
          based on the theory that since the subject matter of the                    
          application claims was disclosed in the application from which              
          the patent matured and the appellant chose not to claim it at               
          that time, Section 804 of the Manual of Patent Examining                    
          Procedure (MPEP) and In re Schneller (397 F.2d 350, 355-56, 158             
          USPQ 210, 215-16 (CCPA 1968)) dictate that a double patenting               
          rejection is proper.  We do not agree with this conclusion.                 
          MPEP Section 804.II.A states “[i]n determining whether a                    
          statutory basis for a double patenting rejection exists, the                
          question to be asked is: Is the same invention being claimed                
          twice?”.  We answer this question in the negative, for the                  
          following reasons.  Application claim 1 requires that the                   
          support column have at least five planar panels which are                   
          vertical and of the same width, that there be a medical gas                 
          supply assembly supported on each of the five panels at the                 
          same height of between about 40 and about 60 inches above the               
          floor, and that the width of the side panels be only slightly               
          greater than the width of the medical gas support assembly.                 
          None of these features are present in the gas service unit                  

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