DETAILED ACTION
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 .
Applicant’s amendments and remarks, filed on 07/22/2026, are acknowledged. Applicant’s arguments have been fully considered. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. Rejections and/or objections not reiterated from the previous office actions are hereby withdrawn.
Status of Claims
Claims 1, 3-8, 11, 13, 15-16, 18-20, 23, 24 are presently under examination.
Claims 2, 9-10, 12, 14, 17, 21, 22 are cancelled.
Priority
The present application claims priority to United States Provisional Patent Application Serial No. 63/060,793, filed August 4, 2020.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The following rejection is modified in view of applicant’s amendments.
Claims 1, 3-8, 13, 15-16, 18-20, 23, 24 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
The United States Patent and Trademark Office published revised guidance on the application of 35 U.S.C. § 101. USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance (“Guidance”). Under the Guidance, in determining what concept the claim is “directed to,” we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes) (Guidance Step 2A, Prong 1); and
(2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)) (Guidance Step 2A, Prong 2).
Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim contains an “‘inventive concept’ sufficient to ‘transform’” the claimed judicial exception into a patent-eligible application of the judicial exception. Alice, 573 U.S. at 221 (quoting Mayo, 566 U.S. at 82). In so doing, we thus consider whether the claim:
(3) adds a specific limitation beyond the judicial exception that are not “well-understood, routine and conventional in the field” (see MPEP § 2106.05(d)); or 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50-57 (January 7, 2019).
(4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.(Guidance Step 2B). See Guidance, 84 Fed. Reg. at 54-56.
Step 1
The instantly claimed invention (claims 1 and 13 being representative) is directed to a method/system for determining a caloric requirement for an animal. As such, the claims fall into one of the four statutory categories.
A. Guidance Step 2A, Prong 1
The Revised Guidance instructs us first to determine whether any judicial exception to patent eligibility is recited in the claim. The Revised Guidance identifies three judicially-excepted groupings identified by the courts as abstract ideas: (1) mathematical concepts, (2) certain methods of organizing human behavior such as fundamental economic practices, and (3) mental processes. In this case, the following limitations constitute the abstract idea for the following reasons:
determining, via one or more processors, a caloric requirement of the animal for a second predetermined time period, the caloric requirement of the animal being based on the animal characteristic data of the animal, the sleep characteristics of the animal…., the durational parameters of the animal during the first predetermined time period, and the medical condition of the animal;
Mental Processes
Under the broadest reasonable interpretation, the above steps are not limited to any particular acts or operations and amount to analyzing data and making a decision based on said analysis. In addition, the specification provides sufficient evidence that the claims are directed to an abstract idea since the specific descriptions provided for accomplishing these tasks include only data analysis methods [0019, 0020]. Accordingly, but for the recitation of processors, the above steps clearly fall within the mental process groupings of abstract ideas because they cover concepts performed in the human mind, including observation, evaluation, judgment, and opinion. MPEP 2106.04(a)(2), subsection III.
Mathematical Concept
In addition, the above “determining” step requires determining a “caloric requirement” based on animal characteristic data and durational parameters. While no specific equation is being claimed, this still amounts to a mathematical calculation and/or mathematical relationship (i.e. calculating a value for a parameter). As discussed above, the specification also teaches specific equations for making the above determination [0019]. Therefore, when read in light of the specification, the claimed predicting step also encompasses a mathematical concept. MPEP 2106.04(a)(2) Section I [Step 2A, Prong 1: YES].
B. Guidance Step 2A, Prong 2
This part of the eligibility analysis evaluates whether the claim includes any additional steps/elements that integrate the recited judicial exception into a practical application of the exception. In this case, the additional steps/elements that are not part of the abstract idea are as follows:
receiving, via one or more processors, animal characteristic data comprising a breed of an animal or a medical condition of the animal, wherein the medication condition…comprises…;
receiving, via one or more of an accelerometer, a gyroscope…, durational parameters of the animal for a first predetermined time duration, wherein the durational parameters comprise at least one of an activity level of the animal during the first predetermined time period, a weight of the animal during the first predetermined time period, or an amount of calories consumed by the animal during the first predetermined time period;
receiving, via the one or more processors, a sleep characteristic of the animal during the first predetermined time period, the sleep characteristic comprising at least one of: a lack of sleep during the first predetermined time period, an overabundance of sleep during the first predetermined time period, and a number of sleep disturbances during the first predetermined time period;
causing the caloric requirement of the animal for the second predetermined time period to be displayed via a display device.
In this case, the “receiving” steps are not limited to any particular techniques or devices and generally require obtaining data for use by the abstract idea. Therefore, these steps amount to insignificant extra-solution activity and are not indicative of an integration into a practical application. See MPEP 2106.05(g). With regards to the “causing” step, under the BRI, this step generally results in displaying data. Accordingly, this step also amounts to insignificant extra-solution activity and is not indicative of an integration into a practical application. See MPEP 2106.05(g).
With regards to the newly recited elements directed to an accelerometer, gyroscope, etc., these are recited at a high level of generality and can be viewed as nothing more than generic elements for obtaining data for use by the abstract idea. MPEP 2106.05(g). With regards to additionally recited processor, display device, and “elements”, these are recited at a high level of generality and thus can be viewed as nothing more than generic elements for displaying data for use by the abstract idea and/or an attempt to generally link the use of the judicial exception to the technological environment of a computer. In addition, the processors, elements, display are used as a tool to perform the aforementioned steps and generic computer components do not satisfy the inventive concept requirement. See MPEP 2106.05(f) and 2106.05(h). Accordingly, the claims as a whole do not integrate the recited judicial exception into a practical application and the claims are directed to the judicial exception. [Step 2A, Prong 2: NO]
C. Guidance Step 2B:
Under the 2019 PEG, a conclusion that an additional element is insignificant extra-solution activity in Step 2A should be re-evaluated in Step 2B. In this case, the claims do not include additional steps and/or elements appended to the judicial exception that are sufficient to amount to significantly more than the judicial exception(s) for the following reasons:
As discussed above, the non-abstract steps/elements amount to nothing more than insignificant extra-solution activity or field of use. In addition, a review of the prior art of Kates et al. (US2006/0201433; Pub. Date: Sep. 14, 2006) teaches that methods/system for receiving the various types of animal data being claimed (including sleep data) as well as GPS receiver, accelerometers or gyroscopes were routine and conventional [ref. claims 1-7, para. 0012, 0031, 0187, 0195, Figure 1, and see also rejection under 35 USC 103 below]. Moreover, a review of the instant specification teaches a laundry list of various elements for performing the above functions [0025, 0026, 0027, 0034, 0035, 0036, 0037, 0038] and therefore provides evidence that there is nothing unconventional with regards to the claimed elements and devices. Accordingly, it is the examiner’s position that the additionally recited steps/elements appending to the judicial exception were well understood, routine, and conventional in the art. See MPEP 2106.05(d)(Part II). Thus, the independent claims as a whole do not amount to significantly more than the exception itself. Therefore, the claim(s) is/are not patent eligible.
Dependent Claims
Dependent claims 3-8, 11, 15-16, 18-20, 23, 24 have also been considered under the two-part analysis but do not include additional steps/elements appended to the judicial exception that are sufficient to amount to significantly more than the judicial exception(s) for the following reasons. Regarding claim(s) 4-8, 11, 16, 18-20, 23, these claims further limit the abstract idea (by adding additional functional limitations) or the nature of the data being used by the abstract idea. Accordingly, these claims are also abstract ideas that are not patent eligible for reasons discussed above (Step 2A, analysis). Regarding claim(s) 3, 15, 24, these claims are all directed to nominally recited elements and are recited at a high level of generality. In addition, a review of the specification provides a laundry list of such elements [0025, 0026, 0027, 0034, 0035, 0036, 0037, 0038] and therefore provides evidence that these elements were routine and conventional in the art. Accordingly, these steps/elements be viewed as nothing more than generic elements for receiving or displaying data and/or an attempt to generally link the use of the judicial exception to the technological environment of a computer. In addition, the processors, elements, display are used as a tool to perform the aforementioned steps and generic computer components do not satisfy the inventive concept requirement. See MPEP 2106.05(f) and 2106.05(h). Therefore, the instantly rejected claims are not drawn to eligible subject matter as they are directed to an abstract idea without significantly more.
Response to Arguments
Applicant’s arguments, filed 07/22/2026, have been fully considered but are not persuasive for the following reasons.
Applicant argues that the claim amendments integrate the underlying mathematical concept into a practical application by restricting the technical execution of the processor to highly specialized biometric data transformation loop that addresses specific physiological conditions-namely the pregnancy, lactation or medical disorder condition, in addition to the previously recited sleep deviations. In response, with regards to the amended ‘receiving’ step, further limiting the medical condition of the animal does not change the fact that this step still amounts to data collection (i.e. insignificant extra-solution activity) and is therefore not indicative of an integration into a practical application. See MPEP 2106.05(g). In summary, the claimed invention does not provide any objective evidence of an improvement to the technology, nor does the specification explain the details of an unconventional technical solution expressed in the claim, or identify technical improvements realized by the claim over the prior art. See MPEP 2106.04(d)(1) and MPEP 2106.05(a). Therefore, even when viewed in combination, these additional steps/elements do not integrate the recited judicial exception into a practical application. [Step 2A, Prong 2: NO].
With regards to the ‘determining’ step, applicant argues that the human mind cannot continuously aggregate, monitor, or mathematically evaluate raw sensor data streams to model altered metabolic states in real time, and the limitations of amended claim 1 therefore integrate the exception into a practical application under Step 2A, Prong 2, and establish an inventive concept under Step 2B. In response, contrary to applicant’s assertions, the instant claims do not recite any limitations directed to “continuously aggregating, monitoring, or mathematically evaluating raw sensor data streams to model altered metabolic states in real time”. Therefore, applicant’s argument is not persuasive because it relies upon a plurality of limitations that are not being claimed. See MPEP § 2145.
With regards to Step 2A, prong 1, the examiner has interpreted the “determining” step as part of the abstract idea and has provided explicit reasoning as to why this step encompasses a mental process and/or mathematical concept. Applicant is reminded that the Office's eligibility guidance does not set limit on the number of calculations that can or cannot be performed mentally. MPEP § 2106.04(a)(2)III. As such, the examiner maintains that this step indeed encompasses a mental process for reasons set forth above (Step 2A, prong 1). See also MPEP 2106.04(a)(2), section III. In addition, as the ‘determining’ step is part of the abstract idea, it has not been analyzed under “Step 2A, prong 2” or “Step 2B” analysis. To the extent that applicant is arguing that the improvement lies in the ‘determining’ step, i.e. entirely in the realm of abstract ideas, it is well established that the abstract idea alone cannot supply the inventive concept that renders the invention ‘significantly more’ than that ineligible concept.” BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018).
Lastly, the examiner has also provided clear and sufficient reasons as to why the “receiving” and “causing” steps appended steps/elements do not amount to significantly more than the judicial exception (Step 2B analysis). There is also nothing in the specification to suggest that there is anything unconventional with regards to how the data is being “received” or displayed, or with regards to the sensors and processor being used (Step 2A, prong 1, and Step 2B analysis). For at least these reasons, applicant’s arguments are not persuasive and the rejection is maintained.
Claim rejections - 35 USC § 112, 2nd Paragraph
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3-8, 11, 13, 15-16, 18-20, 23, 24 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention. Claims that depend directly or indirectly from claim(s) 1 and 13 is/are also rejected due to said dependency.
Claims 1 and 13 recite “receiving…a breed of an animal or a medical condition of the animal, wherein the model condition of the animal comprises…”. In this case, the claim uses alternative language with regards to breed and medical condition, i.e. one or the other. However, the claims later recite “determining….a caloric requirement of the animal.., the durational parameters…, and the medical condition of the animal.” As a result, the claim is indefinite because it relies upon medical condition data that was previously recited in the alternative, i.e. in what way is this step performed if the practitioner receives breed data instead of medical condition data from the animal. Clarification is requested via amendment.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims under 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of 35 U.S.C. 103(c) and potential 35 U.S.C. 102(e), (f) or (g) prior art under 35 U.S.C. 103(a).
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 3-8, 11, 13, 15-16, 18-20, 23, 24 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kates et al. (US2006/0201433; Pub. Date: Sep. 14, 2006) in view of Shmalberg ("Calculating calories: a guide to energy expenditure", CABI Database July 2013, pp.1-7) and O’Toole et al. (JAVMA, July 1, 2004, Vol 225, No. 1, pp.58-64).
Regarding claim(s) 1 and 13, Kates teaches a computer-controlled pet feeding system. In particular, the feeding system includes sensors configured to receive data related to: calories consumed by an animal; activity level of the animal; identification data to distinguish an animal from a plurality of animals (i.e. condition data); health and condition of the dog (e.g. temperature, blood pressure, pulse, respiration, or if the dog is sick) [ref. claims 1-7, para. 0010, 0031, 0187, 0194, 0195, Figure 1]; and data from one or more accelerometers and/or gyroscopes to sense motion of the collar [0140, 0012]; and data relating to dog breed for from a list of breeds [0228], which broadly reads on receiving animal characteristic data and durational parameter data as claimed.
Kates teaches functionality for receiving data relating to various activity characteristics for the dog [0144, 0195, 0203, 0238] and sensors for monitoring ambient conditions around the dogs [0176]. Kates does not specifically teach receiving sleep characteristic data (during a first time period) comprising a lack of sleep, overabundance of sleep, or a number of sleep disturbances. However, Kates makes obvious such data since the activity data being collected includes sleep period, time spent asleep, or time spent inactive [0144, 0195, 0203, 0238] and since a lack of (or overabundance) of sleep would be readily apparent to one of ordinary skill in the art based on the activity data provided.
Kates additionally teaches a computer system configured to calculate consumed calories and calculated caloric needs of the animal based on the above data; modify said feeding schedule according to said calorie needs; and dispense food according to feeding schedule [ref. claims 1-8]. Additionally, the computer can provide modified recommendations based on breed and condition data (health data, training data, etc.) [0228].
Kates does not specifically teach determining a caloric requirement of the animal (during a second predetermined time period) based on animal characteristic data, sleep characteristics, durational parameters obtained during a first time period, and medical condition, as claimed. However, it is noted that receiving medical condition was only recited using alternative language and therefore is not required to be taught for determining caloric requirement (see also rejection under 35 USC 112b above). That being said, Kates at a minimum suggests this limitation because their system includes functionality for calculating caloric needs of an animal, functionality for modifying those needs to account for real-time temporal changes in consumption patterns as well as changes based on breed and health conditions, and sensors that take measurements periodically [ref. claims 1-8, para. 0187, 0191-0194, 0202, 0228], and since one of ordinary skill in the art would recognize that an animals sleep schedule is necessarily associated with activity levels and caloric requirements.
In addition, to the extent that applicant intends for medical condition data to be required to practice the claimed invention, O’Toole teaches methods for calculating resting energy expenditure for healthy dogs and dogs with medical, surgical, or traumatic illnesses [See entire].
In addition, Shmalberg teaches standard linear equations for calculating the energy expenditure for dogs and cats based on the Resting Energy Requirement and a plurality of additional parameters including animal characteristic data, e.g. BW, size, activity level [pages 2-6 and Figure 1]. Alternatively, Hills Vet teaches a lookup table and equations for calculating energy requirements for cats and dogs, including equations for DER based on activity levels [page 1].
Furthermore, absent any limiting definition to the contrary, the choice of a predetermined time period for determining a caloric requirement is nothing more than a design choice that does not change the function of the claimed process steps, as claimed, and Applicant has not disclosed that this particular feature provides an advantage, is used for a particular purpose, or solves a stated problem. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the teachings of Kates by determining caloric requirements of the animal based on animal characteristic data, sleep characteristics, durational parameters obtained during a first time period, and medical disorder data, as claimed, since O’Toole and Shmalberg provide specific equations for calculating caloric requirements for dogs and cats based on animal activity, characteristic data, and medical condition data, since Kates suggests the use of medical condition data and data relating to a lack of (or overabundance) of sleep, as discussed above, and since one of ordinary skill in the art would recognize that an animal sleep schedule is necessarily associated with activity levels and caloric requirements. One of ordinary skill in the art would have been able to perform this modification with a reasonable expectation of success since manipulating known equations to account for additional parameters would have been well within the capabilities of the artisan. The motivation would have been to improve animal health by accounting for temporal changes in consumption patterns as well as changes based on medical conditions, as suggested by O’Toole.
Regarding dependent claim(s) 3-11, 15, 16, 18-20, 23, 24, all aspects of these claims are taught or fully encompassed by Kates, Shmalberg and O’Toole. Regarding claim(s) 3, 15, Kates teaches they system includes an animal collar comprising at least one of, an acoustic input device, an acoustic output device, a vibrator device, an odor output device an infrared receiver, an infrared transmitter, an RFID tag reader, a GPS receiver, an inertial motion unit (e.g., accelerometers or gyroscopes) [0012].
Regarding claim(s) 4-8 and 16, 18, 19, 20, it is the examiner’s position that the time period is considered a results-effective variable that is routinely optimizable. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the teachings of Kates by using first and second time periods that are similar, different, longer, shorter, or 24-hours in duration, with a reasonable expectation of success, since Kates already provides computational methods for determining caloric needs based on animal condition and durational data in real-time, as set forth above, and since one of skill in the art would recognize that such time periods are variable and could easily be optimized based on the health needs of the animal. Regarding claim(s) 23, Kates teaches determining caloric needs based on animal consumption data over time, as set forth above. Regarding claim(s) 24, Kates does not specifically teach processors located at a server. However, Kates suggests this limitation since their system includes a network connection (i.e. server) that allows for Internet connection, local area network connection, wide area network connection [0034]. For these reasons, the claimed invention as a whole does not recite any new element, new function, or unpredictable result, and would have been prima facie obvious at the time it was made.
Response to Arguments
Applicant’s arguments, filed 07/22/2026, have been fully considered but are not persuasive in view of the modified rejection as set forth above.
Applicant argues that Kates fails to teach or suggest the use of a medical condition of the animal. In response, as discussed above, the claimed receiving step refers to breed and medical condition using alternative language, i.e. breed OR medical condition. As such, medical condition data is not required to be taught for determining caloric requirement. That being said, to the extent that applicant intends for medical condition data to be required to practice the claimed invention, O’Toole teaches methods for calculating resting energy expenditure for healthy dogs and dogs with medical, surgical, or traumatic illnesses [See entire]. In addition, Kates at a minimum suggests the use of identification data to distinguish an animal from a plurality of animals (i.e. condition data); health and condition of the dog (e.g. temperature, blood pressure, pulse, respiration, or if the dog is sick) [ref. claims 1-7, para. 0010, 0031, 0187, 0194, 0195, Figure 1]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the teachings of Kates by determining caloric requirements of the animal based on animal characteristic data, sleep characteristics, durational parameters obtained during a first time period, and medical disorder data, as claimed, for reasons set forth above. The motivation would have been to improve animal health by accounting for temporal changes in consumption patterns as well as changes based on medical conditions, as suggested by O’Toole.
Applicant additionally argues that Kates does not teach or suggest the use of sleep characteristic data of the animal for determining caloric needs. In response, the examiner has acknowledged that Kates does not specifically teach receiving sleep characteristic data (during a first time period) comprising a lack of sleep, overabundance of sleep, or a number of sleep disturbances. However, Kates makes obvious such data since the activity data being collected includes sleep period, time spent asleep, or time spent inactive [0144, 0195, 0203, 0238] and since a lack of (or overabundance) of sleep would be readily apparent to one of ordinary skill in the art based on the activity data provided.
In addition, applicant is reminded that the instant claims do not impose any boundaries with regards to how the different types of data are being mathematically combined for determining a caloric requirement as claimed, i.e. the determining of a caloric requirement is merely “based on” animal characteristic data, sleep characteristics, durational parameters, and (alternatively) medical condition data. Furthermore, it is noted that that prior art is not limited to the four corners of the documentary prior art being applied. Prior art includes both the specialized understanding of one of ordinary skill in the art, and the common understanding of the layman. KSR at 1396. Suggestion, teaching or motivation does not have to be explicit and “may be found in any number of sources, including common knowledge, the prior art as a whole or the nature of the problem itself” Pfizer, Inc. v. Apotex, Inc. 480 F.3d 1348, 82 USPQ2d 1321 (Fed. Cir. 2007) citing Dystar Textilfarben GMBH v. C. H. Patrick Co., 464 F.3d 1356 (Fed. Cir. 2006).
For at least these reasons, applicant’s arguments are not persuasive in view of the modified rejection set forth above.
Double Patenting
Claims 1, 3-8, 11, 13, 15-16, 18-20, 23, 24 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-25 of application 17/388393. The differences between the inventions defined by the conflicting claims are as follows: Reference claim(s) 1 of the ‘393 application is a species of the genus recited in instant claim(s) 1 and 13 of the instant patent application, because the cited reference claim(s) teach all of the limitations of instant claim(s) 1 and 13, plus additional features and/or limitations. Therefore, instant claim(s) 1 and 13 is/are anticipated by the narrower claims (i.e. species anticipates the genus). Moreover, dependent reference claims 2-12 teach or suggest all aspects of instant claims 2-11, 14-16, 18-20, 23, 24. Therefore, instant claims 3-11, 15-16, 18-20, 23, 24 are made obvious over the COMBINATION of reference claims 2-12 because it would have been obvious to COMBINE all limitations taught in the reference claims. This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Response to Arguments
Applicant’s request that the double patenting rejection be held in abeyance is denied, as applicant has not argued the merits of these rejections and no terminal disclaimer(s) in compliance with 37 C.F.R. 1.321 (c) have been filed to overcome these rejections, as required by 37 C.F.R. 1.130(b).
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PABLO S WHALEY whose telephone number is (571)272-4425. The examiner can normally be reached between 1pm-9pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Anita Coope can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PABLO S WHALEY/ Primary Examiner, Art Unit 3619
