In Re Vogel

422 F.2d 438 (1970)

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Nature of the Case

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Facts

The invention is based on P's discovery that spoilage and discoloration of meat are markedly accelerated if the meat is allowed to reach ambient temperature before packaging. P filed a patent application for a process of preparing packaged meat products for prolonged storage. This application was filed in January 1964. At that time, P also had another pending patent application that claimed the same subject matter. It was issued in March 1964. Ellies teaches the use of meat packaging material having the oxygen permeability range recited in the claims. The examiner rejected the claims on the January application and the Board of Appeals affirmed that rejection. It cited double patenting based upon the claims of P’s ‘462, issued March 10, 1964. The board viewed the case as involving 'same invention' type double patenting. The board then discussed the differences between the appealed claims and the patent claims and found that the former did not define a 'patentable advance' over the latter. P appealed.