Appeal No. 1999-1924 Page 7
Application No. 08/486,545
be allowed to go to patent if the applicants filed
terminal disclaimers. We classified these as
"obviousness type double patenting." This latter
classification has, in the course of time, come, somewhat
loosely, to indicate any "double patenting" situation
other than one of the "same invention" type.
See also General Foods, 972 F.2d at 1279-80, 23 USPQ2d at
1844-45.
"Obviousness-type" double patenting extends the
fundamental legal doctrine to preclude "obvious variants" of
what has already been patented. See In re Berg, 140 F.3d
1428, 1432, 46 USPQ2d 1226, 1229 (Fed. Cir. 1998); Goodman, 11
F.3d at 1052, 29 USPQ2d at 2015 and General Foods, 972 F.2d at
1280, 23 USPQ2d at 1845. "Obviousness-type" double patenting
precludes issuance where there is no "patentable difference"
or no "patentable distinction" between the two claims.
Goodman, 11 F.3d at 1052, 29 USPQ2d at 2015; General Foods,
972 F.2d at 1278-79, 23 USPQ2d at 1844. This allows the
public to practice obvious variations of the first patented
invention after the first patent expires. See Longi, 759 F.2d
at 892-93, 225 USPQ at 648. The courts adopted the doctrine
out of necessity where claims in two applications by the same
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