Appeal No. 1999-1345 Page 5
Application No. 08/482,556
claims 33, 34, 40, and 41 as being anticipated by Hebert.
Accordingly, we affirm-in-part. Our opinion addresses the
double patenting rejection and anticipation rejections. We
begin with the former rejection.
I. Double Patenting Rejection of Claims 33-36 and 40-43
The appellants argue, “the inventions claimed in the `580
patent and in the instant application are ‘independent and
distinct.’ The former is directed to a novel optical
arrangement of elements with general circuitry recited, and
the latter is directed to a novel circuit arrangement, for use
in a general optical system.“ (Reply Br. at 3.) The
examiner's rejection is based on the plurality’s opinion in 1
In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA 1968).
“Schneller does not set forth another test for determining
‘obviousness-type’ double patenting.” Ex parte Davis, 56
USPQ2d 1434, 1436 (Bd. Pat. App. & Int. 2000). “Schneller did
not establish a rule of general application and thus is
1Because only two judges joined the principal opinion,
while two others concurred in the result, and a fifth wrote a
concurring opinion, Schneller lacked a majority opinion.
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