Appeal No. 1999-1447
Application No. 08/446,316
Appellant argues (Brief, page 8) 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 8) because the Court never
mentioned Schneller.
Thus, appellant’s arguments to the contrary
notwithstanding, Schneller did not create a third type of 4
double patenting rejection (i.e., nonobviousness-type double
patenting rejection) (Brief, pages 9 and 10).
Appellant argues (Brief, page 15) 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
4As 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.
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