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   non-statutory obviousness-type double patenting
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   Author  Topic: non-statutory obviousness-type double patenting  (Read 1318 times)
patag2001
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non-statutory obviousness-type double patenting
« on: Dec 6th, 2007, 1:01pm »
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The following two paragraphs were lifted from MPEP 804:
 
A non-statutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s).
 
A double patenting rejection of the obviousness-type, if not based on an anticipation rationale, is "analogous to [a failure to meet] the non-obviousness requirement of 35 U.S.C. 103" except that the patent principally underlying the double patenting rejection is not considered prior art.
 
The latter portion of the above second paragraph generally says the patent triggering the double patent rejection is not considered prior art.  However, the process of detecting non-statutory double patenting appears to be the same as the process used for rejecting prior art.  Is this correct?  Or is non-statutory double patenting focused on the claims as compared to a prior art rejection based on the whole patent application?  Im not sure I understand the distinction if there is a distinction?
 
Many Thanks!
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yahsureyoubetcha
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Re: non-statutory obviousness-type double patentin
« Reply #1 on: Dec 6th, 2007, 7:06pm »
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Double patenting requires a common inventor, assignee, ownership, or a joint-research agreement.  So, if the patent cannot be used as prior art because of one or more of these, but otherwise would be, then a double patenting rejection might work.
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