Appeal No. 2002-0405
Application No. 07/325,269
diligence from a time prior to March 2, 1987 until the alleged
actual reduction to practice on March 6, 1987.17 Id. at
paragraph 7. Appellants must state with particularity and
provide evidence of the sequence of events which occurred from a
specified time prior to March 2 until the actual reduction to
practice on March 6. See generally, In re Nelson, 420 F.2d 1079,
164 USPQ 458 (CCPA 1970).
3. Double Patenting
Upon remand of the application, the examiner should
determine whether claims 3 and 19 should be subject to a
provisional double patenting rejection under either statutory18
or non-statutory19 grounds as being unpatentable over claims 21-
17In the event that appellants elect to continue prosecution in
this case and intend to maintain their reliance on Exhibits 1-3 as
showing a reduction to practice on March 6, 1987, we recommend that
they provide a typed copy of the exhibits, since the exhibits are not
legible in their present form.
1835 U.S.C. § 101 prevents two patents from issuing on the same
invention, i.e., identical subject matter. In re Vogel, 422 F.2d 438,
440, 164 USPQ 619, 620 (CCPA 1970).
19“[D]ouble patenting of the obviousness type . . . is a
judicially created doctrine grounded in public policy (a policy
reflected in the patent statute) rather than based purely on the
precise terms of the statute. The purpose of this rejection is to
prevent the extension of the term of a patent, even when an express
statutory basis for the rejection is missing, by prohibiting the
issuance of the claims in a second patent not patentably distinct from
the claims of the first patent. . . .
(continued...)
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