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., - 10 -Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 NextLast modified: November 3, 2007