Appeal No. 1998-0671
Application 08/285,328
"non-'obviousness-type'" (as opposed to "obviousness-type") double
patenting to the factual situation in Schneller in the past, MPEP
§ 804 (6th ed. Jan. 1995), pages 800-15, -16, but does not now use
this label, MPEP § 804 (7th ed. July 1998), pages 800-21 through
800-23.
The second Schneller condition is not met because the present
application, the '324 application, and the '326 application were
filed on the same day. That is, there is no issue here about
Appellants filing an application, getting protection for an
invention, and then some years down the road filing another
application claiming subject matter that was clearly covered by the
claims of the first application (e.g., a best mode embodiment) for
the purpose of improperly extending the right to exclude. Because
the second condition is not met, it is not necessary to address the
first condition.
To prove obviousness-type double patenting, the Examiner must
show why the presently claimed subject matter would have been obvious
over claimed subject matter of the '324 application or the '326
application ('821 patent). This has not been done since the Examiner
does not analyze the claims of the '324 application or the '326
application ('821 patent). Appellants' claim analysis (e.g.,
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