Appeal No. 1999-1924 Page 8
Application No. 08/486,545
inventor were so much alike that to allow the latter would
effectively extend the life of the first patent. See Gerber
Garment Technology, Inc. v. Lectra Sys., 916 F.2d 683, 686 16
USPQ2d 1436, 1439 (Fed. Cir. 1990); In re Thorington, 418 F.2d
528, 534, 163 USPQ 644, 648 (CCPA 1969), cert. denied, 397
U.S. 1038, 165 USPQ 290 (1970).
In summary, "obviousness-type" double patenting is a
judge-made doctrine that prevents an unjustified extension of
the patent right beyond the statutory time limit. It requires
rejection of an application claim when the claimed subject
matter is not patentably distinct from the subject matter
claimed in a commonly owned patent when the issuance of a
second patent would provide an unjustified extension of the
term of the right to exclude granted by a patent. In order to
overcome an "obviousness-type" double patenting rejection, an
applicant may file a "terminal disclaimer," foregoing that
portion of the term of the second patent that extends beyond
the term of the first. Berg, 140 F.3d at 1431-32, 46 USPQ2d
at 1229.
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