Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Continued Examination Under 37 CFR 1.114
1. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on March 13, 2026 has been entered.
Response to Amendment
2. Claims 74, 97, 100, 105 and 107-109 have been amended and claims 111-117 added as requested in the amendment filed on March 13, 2026. Following the amendment, claims 74-77 and 79-117 are pending in the instant application.
3. The amendment to the claims filed on March 13, 2026 is considered non-compliant because it has failed to meet the requirements of 37 CFR 1.121, as amended on June 30, 2003 (see 68 Fed. Reg. 38611, Jun. 30, 2003) with respect to claim 105. Specifically, claim 105 is presented as “previously presented” claim; however, the claim contains markings, which is permissible only for claims of the status “currently amended.” Appropriate correction is required.
4. Claims 74-77 and 79-117 are under examination in the instant office action.
5. Any objection or rejection of record, which is not expressly repeated in this action has been overcome by Applicant’s response and withdrawn.
6. The Declaration of Prof. Colin R. Green under 37 CFR 1.132 filed March 13, 2026 is sufficient to overcome the rejection of the pending claims based upon 35 U.S.C. 102 and 103, see previous office actions of record.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory 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). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
7. Claims 74-77, 79-96 and 99-117 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 5 and 9 of U.S. Patent No. 7,098,190 for reasons of record in section 8 of Paper mailed on September 03, 2024 and section 9 of Paper mailed on April 14, 2025.
8. Claims 74-77, 79-96 and 99-117 are further rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1-4 of U.S. Patent No. 7,615,540, reference 1 of IDS filed on 07/29/2024 for reasons of record in section 9 of Paper mailed on September 03, 2024 and section 10 of Paper mailed on April 14, 2025.
9. Claims 74-77, 79-96 and 99-117 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 6 and 9 of U.S. Patent No. 7,879,811 for reasons of record in section 10 of Paper mailed on September 03, 2024 and section 11 of Paper mailed on April 14, 2025.
10. Claims 97, 98 and 111 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1-3 of U.S. Patent No. 9,193,754 for reasons of record in section 11 of Paper mailed on September 03, 2024 and section 12 of Paper mailed on April 14, 2025.
11. Claims 97, 98 and 111 are further rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1-2 of U.S. Patent No. 7,919,474 for reasons of record in section 12 of Paper mailed on September 03, 2024 and section 13 of Paper mailed on April 14, 2025.
Conclusion
12. No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OLGA N CHERNYSHEV whose telephone number is (571)272-0870. The examiner can normally be reached 9AM to 5:30PM, Monday to Friday.
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/OLGA N CHERNYSHEV/Primary Examiner, Art Unit 1675
March 25, 2026