3.3.1 Reclaiming the preferred way of carrying out the invention

In T 307/03 (OJ 2009, 422) the board held that a double patenting objection can also be raised where the subject-matter of the granted claim is encompassed by the subject-matter of the claim later put forward, that is where the applicant is seeking to re-patent the subject-matter of the already granted patent claim, and in addition to obtain patent protection for the other subject-matter not claimed in the already granted patent. In particular, where the subject-matter which would be double patented is the preferred way of carrying out the invention both of the granted patent and of the pending application under consideration, the extent of double patenting cannot be ignored as de minimis. See however T 1391/07 and T 2402/10 (both summarised in this chapter II.G.3.2).