Appeal No. 1997-3650
Application No. 08/206,658
REMAND
Relying on In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA
1968), the examiner has rejected claims 31 through 44, 46 and 47
under the judicially created doctrine of “nonobviousness-type”
double patenting as unpatentable over claims 1 through 7 of
Rajan. According to the Manual of Patent Examining Procedure
(MPEP) § 804 (8th Ed., Rev. 1, Aug. 2001):
Non-statutory double patenting rejection based on
Schneller will be rare. The Technology Center (TC)
Director must approve any nonstatutory double patenting
rejections based on Schneller. If an examiner
determines that a double patenting rejection based on
Schneller is appropriate in his or her application, the
examiner should first consult with his or her
supervisory patent examiner (SPE). If the SPE agrees
with the examiner then approval of the TC Director must
be obtained before such a nonstatutory double patenting
rejection can be made.
However, the record does not indicate whether the examiner has
consulted with his supervisory patent examiner and obtained
approval from the Technology Center Director consistent with the
requirements of Manual of Patent Examining Procedure (MPEP) § 804
(8th Ed., Rev. 1, Aug. 2001). Accordingly, we remand this
application to the examiner’s jurisdiction to:
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