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In re Berg

140 F.3d 1428 (1998)

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In re Berg

United States Court of Appeals for the Federal Circuit
140 F.3d 1428 (1998)

Facts

Todd Berg and others (collectively, Berg) sought to patent a method for preparing an abrasive composition. Berg filed two patent applications with practically identical specifications on the same day. One of the patent applications issued as the ‘916 patent. The remaining application included a claim requiring dispersion of a liquid into a mold cavity. The ‘916 patent’s version of the same claim used the same language but added a limitation on the extent of the exposed surface of the dispersion. The United States Patent and Trademark Office Board of Appeals (the board) rejected the application on the ground of obviousness-type double patenting, employing a one-way test by which the application was compared against the ‘916 patent. Berg appealed to the United States Court of Appeals for the Federal Circuit, arguing that a two-way test comparing the application’s claims and the patent claims should have been applied.

Rule of Law

Issue

Holding and Reasoning (Michel, J.)

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