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 .
Response to Arguments
Applicant's arguments filed 12/10/2025 regarding the rejection of Independent Claim 1 under 35 USC 102 as being anticipated by US 2017/0340384 A1 to Deem et al. (“Deem”) have been fully considered but they are not persuasive. The rejection is maintained.
Applicant argues on Pg. 7-8 of Applicant’s Remarks that “The Claimed Device Produces Non-Thermal Microwaves; Deem Is Purely Thermal” and that, accordingly, “Deem cannot meet the non-thermal limitation.” The Examiner respectfully disagrees that this distinction is captured by the language of Claim 1.
The “non-thermal limitation” application references is “under non-thermal conditions.” Applicant’s arguments suggest that this term requires production of non-thermal microwaves. The Examiner disagrees. In fully pertinent part, the subject limitation recites “a control means adapted to cause the generator to provide pulses of microwave energy to the patient through the applicator sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions.” The broadest reasonable interpretation is that the term “under non-thermal conditions” is part of the modifier “sufficient to reduce a level of malarial parasites in the patient,” and that the entire modifier “sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions” pertains to the “pulses of microwave energy.” By this interpretation (which is explained to have been applied at Paras. 11(a)(i) and 17(e)(i) of the Non-Final Office Action dated 6/10/2025), the recited “pulses of microwave energy” are limited to such pulses that are “sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions.”
Applicant argues that the term “under non-thermal conditions” modifies only the recited “pulses of microwave energy.” This argument is not persuasive. At best, this argument suggests that language of Claim 1 is indefinite as a matter of grammar, as the term “under non-thermal conditions” is a dangling modifier whose subject is unclear. Accordingly, Claim 1 is rejected herein under 35 USC 112(b) in view of Applicant’s Remarks.
It is noted that the Examiner’s position would merit reconsideration were Claim 1 to clearly require that the term “under non-thermal conditions” modifies only the recited “pulses of microwave energy.”
Applicant argues on Pg. 8 of Applicant’s Remarks that “Deem Treats Skin, and Not Malaria” and thus cannot anticipate the apparatus of Claim 1. The Examiner respectfully disagrees.
It is not clear from Applicant’s arguments which particular portion of the system recited in apparatus Claim 1 Applicant considers to impose the limitation that the system treat malaria. There are two possibilities: the preamble, and the limitation “…cause the generator to provide pulses of microwave energy to the patient through the applicator sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions.” The Examiner does not agree that either portion imposes such a requirement.
As was explained at Para. 17(a)(i) of the Non-Final Office Action dated 6/10/2025, “[t]he preamble recitation ‘for the treatment of malaria in a patient’ is being interpreted as a statement reciting purpose or intended use. See MPEP 2111.02(II).” Applicant does not appear to dispute this interpretation. The Examiner maintains that the body of Claim 1 “…fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states … the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations…” Id. As such, the Examiner maintains that “…the preamble is not considered a limitation and is of no significance to claim construction.” Id. Accordingly, the preamble does not require that the device actually treat malaria.
With respect to the limitation “…cause the generator to provide pulses of microwave energy to the patient through the applicator sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions,” Applicant’s own arguments on Pg. 4 of Applicant’s Remarks regarding the rejection of Claim 1 under 35 USC 112(a) contradict Applicant’s position, and align with the Examiner’s position.
Claim 1 is an apparatus claim. “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). In the context of the apparatus recited by Claim 1, the term “sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions” imposes structural limitations upon the “control means,” the “application,” and the “microwave generator.” Those structural limitations require that the above three components be “adapted to” cause microwave energy to the patient, said microwave energy having the particular characteristic that they are “sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions.” Actual reduction pertains to what the device does; the properties which facilitate such actual reduction pertain to what the device is.
The Present Specification provides no guidance as to what “sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions” constitutes. That is, there is no overt indication that any particular combination of parameters is “sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions.” Applicant argues with respect to the rejection of Claim 1 under 35 USC 112(a) that the parameters on Pg. 4 of the Present Specification define these characteristics. Applicant’s arguments to this effect align with the Examiner’s interpretation as set forth at Paras. 11(a)(i) and 17(e)(i) of the Non-Final Office Action dated 6/10/2025.
As explained at Para. 17(e)(ii) of the Non-Final Office Action dated 6/10/2025 in elaboration upon the applicability of Deem’s Para. [0204], “Deem’s controller controls Deem’s generator, which generator is operatable at a frequency of 100 KHz-6 GHz. Deem’s controller is thus “adapted to cause” such “pulses of microwave energy … sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions” as claimed.” This interpretation is consistent with Applicant’s own characterization.
Applicant argues on Pg. 8 of Applicant’s Remarks that “Deem Does Not Disclose the Claimed Control Means,” and thus cannot anticipate Claim 1. In support of this position, Applicant states that “[t]he invention’s control means adjusts []power, [] pulse time, [] interval time, [and] treatment time to maintain non-thermal conditions.” Applicant argues that “Deem does not disclose such control or such purpose.” Applicant’s arguments are not persuasive. Claim 1 does not so narrowly limit the recited “control means,” but instead recites only “a control means adapted to cause….” The manner in which the control means operates (i.e., “[t]he invention’s control means adjusts…”) is not recited in Claim 1, nor is the purpose of the control means (i.e., “to maintain non-thermal conditions.”). Applicant’s arguments are therefore not persuasive.
Applicant’s arguments on Pg. 9 of Applicant’s Remarks that “The Examiner’s Mapping of ‘Non-Thermal’ to ‘2.45 GHz’ Is Incorrect” is not persuasive. Applicant argues that “the frequency is conventional and does not define non-thermal operation.” The Examiner agrees that the frequency is conventional, as evidenced by Deem’s Para. [0204]. The Examiner disagrees that “non-thermal operation” is a requirement of the claim, as explained above. The Examiner additionally disagrees that the “novelty of the invention” Applicant highlights is reflected by the language of Claim 1. For the reasons explained above, the Examiner disagrees that the Examiner’s mapping to 2.45 GHz is incorrect.
Applicant’s arguments on Pg. 9-10 of Applicant’s Remarks regarding the rejection of Claim 4 under 35 USC 103 as unpatentable over Deem have been fully considered but are not persuasive.
Applicant argues that “Deem Operates in an Entirely Different Field: Dermatology vs. Systemic Infectious Disease.” However, Claim 4 is rejected under 35 USC 103 based on Deem’s disclosed range overlapping rather precisely disclosing the claimed range. Claim 1 is an apparatus claim that recites a system which creates a particular type of microwave energy. Deem’s system creates this same type of microwave energy, using a range that overlaps that claimed. Applicant’s arguments pertain to an intended use of the claimed device, and do not address the claimed range. Applicant’s arguments are thus unpersuasive.
Applicant argues that “Thermal Mechanisms in Deem Are the Opposite of the Non-Thermal Mechanisms Claimed.” Again, Applicant’s arguments pertain to an intended use of the claimed device, and do not address the claimed range. Further, neither Claim 1 nor Claim 4 not recite any such thermal mechanisms.
Applicant argues that “Pulse Intervals in Deem Are for Cooling Overheated Tissue - Not Maintaining Non- Thermal Conditions.” The Examiner notes that “Cooling Overheated Tissue” is a subset of “Maintaining Non- Thermal Conditions,” and respectfully disagrees with the premise of Applicant’s position (see Deem at Para. [0319] describing such “maintaining non-thermal conditions” via cooling). Additionally, Claim 4 does not recite maintaining thermal conditions. Applicant’s arguments pertain to an intended use of the claimed device, and do not address the claimed range.
Applicant argues that “There Is No Motivation to Modify a Dermatology Device to Treat Malaria.” Applicant’s arguments pertain to an intended use of the claimed device, and do not address the claimed range, and are therefore not persuasive. However, as explained above, treating malaria is not required by either of apparatus Claims 1 or 4, which recite systems that deliver a particular microwave energy.
Applicant argues that “Deem's Parameters Would Not Produce Applicant's Claimed Non-Thermal Regime.” The Examiner disagrees that either Claims 1 or 4 require the parameters themselves to produce such a non-thermal regime (see Deem at Para. [0319] describing maintaining non-thermal conditions via cooling). That said, Deem discloses the parameters highlighted by Applicant (though the Examiner notes that each dependent claim reciting such a parameters depends only from Independent Claim 1, and that no “combination” of parameters is thus claimed).
Applicant argues that “The Claimed Combination of Parameters Is Not Disclosed or Suggested in the Art.” However, no “combination of parameters” is claimed. Instead, singular parameters are recited individually, as each dependent claim reciting such a parameters depends only from Independent Claim 1.
Applicant argues that there is “No Reasonable Expectation of Success.” The Examiner respectfully disagrees. Deem maintains non-thermal conditions via cooling (see Deem at Para. [0319]), and discloses parameters within which such cooling functions adequately. Deem’s range at Para. [0330] is such a parameter.
Applicant’s arguments regarding the interpretation of the term “control means” under 35 USC 112(f) have been fully considered and are persuasive. In accordance with Applicant’s remarks, the term “control means” is being interpreted as a manual or programmable switch, such as in the form of a computer and functional equivalents thereof.
Applicant’s arguments regarding the rejection of Claim 1 under 35 USC 112(a) have been fully considered but are not persuasive. The Examiner maintains Present Specification provides no guidance as to what “sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions” constitutes, and does not provide any particular characteristics of such “pulses of microwave energy” that would render them so-sufficient.
The portion of the Present Specification that Applicant highlights details how to maintain non-thermal conditions. These highlighted portions do not tie in sufficiency for reducing the level of malarial parasites in the patient under those non-thermal conditions.
It appears that the difference between the Examiner’s position and Applicant’s boils down to the interpretation of the term “sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions,” and in particular what the phrase “under non-thermal conditions” modifies. Applicant appears to be of the position that novelty of Claim 1 lies in some unique relationship between pulse parameters, non-thermal conditions and reduction in level of malarial parasites. The particulars of this relationship are not reflected in the language of Claim 1. However, if such a relationship were to reflected by the language of Claim 1, Applicant’s arguments may be persuasive.
Applicant’s arguments regarding the rejections of Claims 1-5 under 35 USC 112(b) have been fully considered and are persuasive. The Examiner agrees that Applicant’s amendments are sufficient to resolve the cited indefiniteness issues.
Claim Objections
Claim 1 is objected to because of the following informalities: Claim 1 recites “sufficient to reduce level of malarial…” at Ln. 4, but should recite --sufficient to reduce a level of malarial..--. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
In particular, the following limitations are being interpreted under 35 U.S.C. 112(f):
Claim 1, Ln. 3, “control means,” which is being interpreted as “a manual or programmable switch, such as in the form of a computer and functional equivalents thereof” (Present Specification at Pg. 5, Ln. 22-25) and functional equivalents thereof.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 1, and Claims 3-6 by dependency, are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claims contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventors, at the time the application was filed, had possession of the claimed invention. The rejection is maintained.
Claim 1 recites “pulses of microwave energy … sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions.” However, the Present Specification provides no guidance as to what “sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions” constitutes, and does not provide any particular characteristics of such “pulses of microwave energy” that would render them so-sufficient. The Present Specification thus fails to convey to one skilled in the art that the inventor had possession of the claimed invention at the time the application was filed.
For purposes of this Office Action, the recitation “pulses of microwave energy … sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions” is being interpreted to mean “a frequency of 2.45 GHz” (Present Specification at Pg. 10, Ln. 15; see “Example 1” at Pg. 9-12).
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.
Claim 1, and Claims 3-6 by dependency, 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding Independent Claim 1, Claim 1 recites “a control means adapted to cause the generator to provide pulses of microwave energy to the patient through the applicator sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions.” It appears from the plain language of Claim 1 that the term “under non-thermal conditions” modifies the term “sufficient to reduce a level of malarial parasites in the patient,” and that the subject “microwave energy” is configured such that malarial parasites are reduced when non-thermal conditions are generally present. However, Applicant’s Remarks filed 12/10/2025 suggest that the term “under non-thermal conditions” is, grammatically, a dangling modifier intended to modify the “pulses of microwave energy” alone so as to require that those pulses remain within a non-thermal condition. It is thus grammatically unclear which claim element the term “under non-thermal conditions” modifies, and the scope of Claim 1 is indefinite.
For purposes of this Office Action, the term “a control means adapted to cause the generator to provide pulses of microwave energy to the patient through the applicator sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions” is being interpreted consistent with its plain meaning such that the term “under non-thermal conditions” modifies the term “sufficient to reduce a level of malarial parasites in the patient,” and that the subject “microwave energy” is configured such that malarial parasites are reduced when non-thermal conditions are generally present.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1, 3 and 5-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by previously cited US 2017/0340384 A1 to Deem et al. (“Deem”). The rejection is maintained.
Regarding Independent Claim 1, Deem discloses:
A device for the treatment of malaria in a patient, comprising (Abstract, “A system for the application of microwave energy to a tissue can include…”);
The preamble recitation “for the treatment of malaria in a patient” is being interpreted as a statement reciting purpose or intended use. See MPEP 2111.02(II).
a microwave generator, (Abstract, “A system for the application of microwave energy to a tissue can include … a signal generator adapted to generate a microwave signal having predetermined characteristics…”);
an applicator connected to the microwave generator (Abstract, “A system for the application of microwave energy to a tissue can include … an applicator connected to the generator and adapted to apply microwave energy to tissue…”);
and a control means adapted to cause the generator to provide pulses of microwave energy to the patient through the applicator (Abstract, “A system for the application of microwave energy to a tissue can include … and a controller adapted to control the signal generator…;” Para. [0205]);
Para. [0205] describes a “continuous wave” as contemplated by Deem’s disclosure. Deem’s “continuous wave” constitutes such “pulses of microwave energy” as claimed. Deem’s “control means” is thus “adapted” in the manner claimed.
sufficient to reduce a level of malarial parasites in the patient under non-thermal conditions (Para. [0204], “In the embodiment illustrated in FIG. 2, controller 302 may be, for example, a custom digital logic timer controller module that controls the delivery of microwave energy generated by signal generator 304 and amplified by amplifier 306. … In one embodiment of the invention, signal generator 304 may be, for example, a Model N5181A MXG Analog Signal Generator 100 KHz-6 GHz, available from Agilent Technologies.”).
As explained above, the limitation the recitation “pulses of microwave energy … sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions” is being interpreted to mean “a frequency of 2.45 GHz” (Present Specification at Pg. 10, Ln. 15; see “Example 1” at Pg. 9-12).
Deem’s controller controls Deem’s generator, which generator is operatable at a frequency of 100 KHz-6 GHz. Deem’s controller is thus “adapted to cause” such “pulses of microwave energy … sufficient to reduce the level of malarial parasites in the patient under non-thermal conditions” as claimed.
Regarding Claim 3, Deem discloses the entirety of Claim 1 as explained above.
Deem additionally discloses:
wherein the device is adapted to switch microwave energy in pulses (Para. [0329], “In one embodiment of the invention, energy is delivered to the skin for a period of time which optimizes the desired tissue effect. In one embodiment of the invention, energy is delivered to the skin for a period of between 3 and 4 seconds. In one embodiment of the invention, energy is delivered to the skin for a period of between 1 and 6 seconds.”).
Deem’s “period of between 3 and 4 seconds” is such “switch[ing] microwave energy in pulses” as claimed.
Regarding Claim 5, Deem discloses the entirety of Claim 1 as explained above.
Deem additionally discloses:
wherein the device is adapted to provide a treatment period from 25 minutes to 45 minutes (Para. [0329], “In one embodiment of the invention, energy is delivered to the skin for a period of time which optimizes the desired tissue effect.”).
Deem’s device is capable of any treatment period “which optimizes the desired tissue effect,” and is thus capable of and adapted for such a treatment period as that claimed.
Regarding Claim 6, Deem discloses the entirety of Claim 1 as explained above.
Deem additionally discloses:
wherein the applicator is a waveguide (Para. [0178], “FIG. 129 shows a schematic of an underside of a waveguide applicator system including waveguide antenna and tissue capture according to one embodiment.”).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over previously cited US 2017/0340384 A1 to Deem et al. (“Deem”). The rejection is maintained.
Regarding Claim 4, Deem discloses the entirety of Claim 1 as explained above.
Deem additionally discloses:
wherein interval between pulses is from 18 to 30 seconds (Para. [0330], “In one embodiment of the invention, the skin surface is cooled for a period of between 10 and 20 seconds after the time energy is delivered to the skin. In one embodiment of the invention, the skin surface is cooled for a period of approximately 20 seconds after the time energy is delivered to the skin.”).
Deem’s disclosed range overlaps the claimed range. “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” MPEP 2144.05(I).
Deem fails to explicitly teach an interval of the exact range of 18 to 30 seconds. However, based on Deem’s disclosed overlapping interval range of “10 and 20 seconds,” it would have been obvious for a person of ordinary skill in the art to choose any one of the interval lengths disclosed by Deem, including 18 to 30 seconds, as this is merely choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success or alternatively optimizing a result effective variable.
Conclusion
THIS ACTION IS MADE FINAL. 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
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/C.J.M./Examiner, Art Unit 3796
/Jennifer Pitrak McDonald/Supervisory Patent Examiner, Art Unit 3796