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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