Appeal No. 1999-1447
Application No. 08/446,316
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 to3
overrule that which it had not created.
3The 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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