DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments
Applicant's arguments filed 12/26/2025 have been fully considered but they are not persuasive. The Applicant argues that the claims as amended overcome the prior art of record. The Examiner disagrees and respectfully refers the Applicant to the rejection of the claims as being anticipated by Gharib, below.
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.
Claims 1-27 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-31 of U.S. Patent No. 8255045 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because both claim sets forth systems and methods for advancing to a surgical site, associated first and second magnitudes, boundaries and rangers, neurophysiological testing, including orientation sensor capabilities and identifier capabilities and include both single and multipulse signals that can be selected based on instrument location.
Claims 1, 2, 6, 7, 9-17 and 20-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 9295396 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because both claim sets forth systems and methods for advancing to a surgical site, associated first and second magnitudes, boundaries and rangers, neurophysiological testing, including identifier capabilities and include both single and multipulse signals that can be selected based on instrument location.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 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) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
Claim(s) 1, 2, 6, 7, 9-11, 17-20, 22-24, 26 and 27 is/are rejected under pre-AIA 35 U.S.C. 102(a) as being anticipated by US 20070021682 A1 to Gharib et al. (hereinafter, Gharib).
Regarding Claims 1, 20 and 24, Gharib discloses a system for avoiding harm to nervous tissue during surgery (paragraph [0006] “Operating on or near the spine generally means operating in close proximity to delicate neural tissue, such as the spinal cord and nerve roots.”) (paragraph [0007] “The present invention is directed at eliminating, or at least reducing the effects of, the above-described problems.”), comprising inter alia:
an instrument (paragraph [0038] “… surgical accessories 24 include (by way of example only) a screw test assembly 27 and a nerve root retractor assembly 28 … pedicle access probes …”) capable of advancement to a surgical target site and configured to deliver a stimulation signal at least one of while advancing to said surgical target site and after reaching said surgical target site (paragraph [0010] “The step of stimulating one or more nerves may be accomplished by applying any of a variety of suitable stimulation signals to an electrode(s) on the surgical accessory, including voltage and/or current pulses of varying magnitude and/or frequency. The stimulating step may be performed at different times depending upon the particular surgical accessory in question. For example, with regard to neural pathology monitoring, stimulation may be performed before, during and/or after retraction of the nerve root …”) ; and
a processing system programmed (processor at paragraph [0058]) with a set of at least three threshold ranges (paragraph [0050] “color coded graphics may be displayed to indicate the relative safety level indicated by the Ithresh (e.g. "green" for a range of stimulation thresholds below (or above, depending on the selected mode) a predetermined safe value, "red" for a range of stimulation thresholds above (or below, depending on the mode) a predetermined unsafe value, and "yellow" for the range of stimulation thresholds in between the predetermined safe and unsafe values--designating caution).”) and configured to:
direct a first stimulation signal to said instrument at a first magnitude corresponding to a boundary between a pair of said ranges and direct a second stimulation signal at a second magnitude corresponding to a boundary between a different pair of said ranges (As described in paragraphs [0047] and [0048], a threshold-hunting algorithm applies a sequence of stimulation signals at varying current magnitudes to determine the stimulation threshold (Ithresh). These signals are applied across a range that includes predetermined threshold boundaries (e.g., 5 mA and 10 mA), as shown by the color-coded safety classification in paragraph [0050]. Therefore the first stimulation signal being applied at a magnitude of 5 mA that corresponds to the boundary between the red and yellow threshold zones, and a second stimulation signal applied at different magnitude 10 mA that corresponds to a boundary between yellow and green threshold zones, shows that the two stimulation signals correspond to different boundaries between threshold ranges, as required by the claim); and
measure responses of nerves depolarized by said stimulation signals (paragraph [0011] “… monitoring or measuring the EMG responses of the muscles innervated by the stimulated nerve(s).”) to indicate at least one of nerve proximity and pedicle integrity (paragraph [0046] “a low Ithresh value may indicate a breach in the pedicle, or the close proximity of a nerve, respectively.”),
wherein the processing system is programmed to perform a plurality of neurophysiologic testing functions including at least two of:
static pedicle integrity testing, dynamic pedicle integrity testing, nerve proximity detection, neuromuscular pathway assessment, manual motor evoked potential monitoring, automatic motor evoked potential monitoring, somatosensory evoked potential monitoring, and non-evoked monitoring (paragraph [0008] “Other assessments performed by the system 10 may include one or more of, but not necessarily limited to, neuromuscular pathway status (Twitch Test), pedicle integrity testing (Screw Test), nerve proximity testing during surgical access (Detection), nerve pathology monitoring (Nerve Retractor), and detection of spontaneous muscle activity (Free Run EMG-which may be conducted alone or in conjunction with any other assessment).”);
where the instrument is configured to deliver stimulation signals having different characteristics based on a region of the spine, where when a lumbar region is selected, stimulation signals include single pulse signals and when thoracic and cervical regions are selected stimulation signals may include multipulse signals (paragraph [0010] “The step of stimulating one or more nerves may be accomplished by applying any of a variety of suitable stimulation signals to an electrode(s) on the surgical accessory, including voltage and/or current pulses of varying magnitude and/or frequency.”) (paragraph [0039] “The main functions of the control unit 12 include receiving user commands via the touch screen display 30, activating stimulation in the selected mode (e.g. Nerve Retractor)…” (paragraph [0040] “The stimulation handpiece 36 may include one or more buttons 38 for selectively initiating stimulation according to the selected function.”) (paragraph [0051] “[0051] By way of example only, the various functional modes capable of being performed by system 10 may include, but is not necessarily limited to, the Twitch Test, Free-run EMG, Basic Screw Test, Difference Screw Test, Dynamic Screw Test, MaXcess.RTM. Detection, Nerve Retractor, MEP Auto, MEP manual, and SSEP modes…”) (single pulse, FIG. 4 and multipulse, FIG. 5) (Examiner notes the device is capable of being put in either a single or multipulse mode by the operator of the device and can change the mode of the device from single/multipulse according to desired pulse mode when in lumbar and/or thoracic/cervical regions).
Regarding Claim 2, Gharib discloses the system of claim 1, wherein said instrument is a device for forming a hole in a pedicle (paragraph [0051] “… pilot hole formation (e.g., via an awl), pilot hole preparation (e.g. via a tap), and screw introduction (during and after).”).
Regarding Claim 6, Gharib discloses the system of claim 1, wherein said instrument is part of a system for establishing an operative corridor to a surgical target site (paragraph [0051] “Detection mode is designed to detect the presence of nerves during the use of the various surgical access instruments of the neuromonitoring system 10, including the k-wire 62, dilator 64, cannula 66, retractor assembly 70.”).
Regarding Claim 7, Gharib discloses the system of claim 6, wherein said operative corridor is a lateral approach to a spinal target site (especially as broadly claimed, any approach to a spinal target site would be lateral, as any approach to the spine would be lateral to at least some anatomical structure).
Regarding Claim 9, Gharib discloses the system of claim 1, comprising a plurality of sensors for measuring said nerve responses (paragraph [0038] “… an EMG harness 16 including 8 pairs of EMG electrodes 18 and a return electrode 22 coupled to the patient module 14 …”).
Regarding Claim 10, Gharib discloses the system of claim 9, wherein said plurality of sensors comprises at least one of an anode (anode electrode 22) and a common electrode (common electrode 20).
Regarding Claim 11, Gharib discloses the system of claim 10, wherein said plurality of sensors connect to said processing system through a single connector (data cable 34 and/or accessory cable 26).
Regarding Claim 17, Gharib discloses the system of claim 1, further comprising a stimulation electrode, wherein said stimulation electrode is configured to deliver stimulation to a peripheral nerve (paragraph [0054] “… the nerve root may be stimulated (monopolar or bipolar) before, during, and/or after retraction in order to assess the degree to which such retraction impairs or otherwise degrades nerve function over time.”)
Regarding Claim 18, Gharib discloses the system of claim 1, wherein said processing system is further configured to: deliver an electrical stimulation signal to a patient's motor cortex; receive evoked neuromuscular response data from a sensor employed on the patient; assess spinal cord health by identifying a relationship between the stimulation signal and the neuromuscular response (paragraph [0051] “The MEP Auto and MEP Manual modes are designed to test the motor pathway to detect potential damage to the spinal cord by stimulating the motor cortex in the brain and recording the resulting EMG response of various muscles in the upper and lower extremities.”); and communicate the relationship between the stimulation signal and the neuromuscular response to a user via at least one of alpha-numeric indicia and audio (paragraph [0050] “The final step (d) of communicating this relationship to the surgeon in an easy-to-interpret fashion may be accomplished in any number of suitable fashions, including but not limited to the use of visual indicia (such as alpha-numeric characters, light-emitting elements, and/or graphics) and audio communications (such as a speaker element).”).
Regarding Claim 19, Gharib discloses the system of claim 1, wherein said processing system is further configured to: deliver an electrical stimulation signal to a patient's peripheral nerve; measure an action potential related to said stimulation signal; assess spinal cord health by identifying a relationship between the stimulation signal and the measured action potential response (paragraph [0051] “The SSEP function is designed to test the sensory pathway to detect potential damage to the spinal cord by stimulating peripheral nerves inferior to the target spinal level and recording the action potential from sensors superior to the spinal level.”); and communicate the relationship between the stimulation signal and an action potential response to a user via at least one of alpha-numeric indicia and audio (paragraph [0050] “The final step (d) of communicating this relationship to the surgeon in an easy-to-interpret fashion may be accomplished in any number of suitable fashions, including but not limited to the use of visual indicia (such as alpha-numeric characters, light-emitting elements, and/or graphics) and audio communications (such as a speaker element).”).
Regarding Claim 22, Gharib discloses the system of claim 20, wherein the processing system is further configured to: deliver an electrical stimulation signal to a patient's motor cortex; receive evoked neuromuscular response data from a sensor employed on the patient; assess spinal cord health by identifying a relationship between the stimulation signal and the neuromuscular response (paragraph [0051] “The MEP Auto and MEP Manual modes are designed to test the motor pathway to detect potential damage to the spinal cord by stimulating the motor cortex in the brain and recording the resulting EMG response of various muscles in the upper and lower extremities.”); and communicate the relationship between the stimulation signal and the neuromuscular response to a user via at least one of alpha-numeric indicia and audio (paragraph [0050] “The final step (d) of communicating this relationship to the surgeon in an easy-to-interpret fashion may be accomplished in any number of suitable fashions, including but not limited to the use of visual indicia (such as alpha-numeric characters, light-emitting elements, and/or graphics) and audio communications (such as a speaker element).”).
Regarding Claim 23, Gharib discloses the system of claim 20, wherein the processing system is further configured to: deliver an electrical stimulation signal to a peripheral nerve of the patient; measure an action potential related to the stimulation signal; assess spinal cord health by identifying a relationship between the stimulation signal and the measured action potential (paragraph [0051] “The SSEP function is designed to test the sensory pathway to detect potential damage to the spinal cord by stimulating peripheral nerves inferior to the target spinal level and recording the action potential from sensors superior to the spinal level.”); and communicate the relationship between the stimulation signal and an action potential response to a user via at least one of alpha-numeric indicia and audio (paragraph [0050] “The final step (d) of communicating this relationship to the surgeon in an easy-to-interpret fashion may be accomplished in any number of suitable fashions, including but not limited to the use of visual indicia (such as alpha-numeric characters, light-emitting elements, and/or graphics) and audio communications (such as a speaker element).”).
Regarding Claim 26, Gharib discloses the method of claim 24, further comprising: delivering an electrical stimulation signal to a patient's motor cortex; receiving evoked neuromuscular response data from a sensor employed on the patient; assessing spinal cord health by identifying a relationship between the stimulation signal and the neuromuscular response (paragraph [0051] “The MEP Auto and MEP Manual modes are designed to test the motor pathway to detect potential damage to the spinal cord by stimulating the motor cortex in the brain and recording the resulting EMG response of various muscles in the upper and lower extremities.”) and communicating the relationship between the stimulation signal and the neuromuscular response to a user via at least one of alpha-numeric indicia and audio (paragraph [0050] “The final step (d) of communicating this relationship to the surgeon in an easy-to-interpret fashion may be accomplished in any number of suitable fashions, including but not limited to the use of visual indicia (such as alpha-numeric characters, light-emitting elements, and/or graphics) and audio communications (such as a speaker element).”).
Regarding Claim 27, Gharib discloses the method of claim 24, further comprising: delivering an electrical stimulation signal to a patient's peripheral nerve; measuring an action potential related to the stimulation signal; assessing spinal cord health by identifying a relationship between the stimulation signal and the measured action potential (paragraph [0051] “The SSEP function is designed to test the sensory pathway to detect potential damage to the spinal cord by stimulating peripheral nerves inferior to the target spinal level and recording the action potential from sensors superior to the spinal level.”); and communicating the relationship between the stimulation signal and an action potential response to a user via at least one of alpha-numeric indicia and audio (paragraph [0050] “The final step (d) of communicating this relationship to the surgeon in an easy-to-interpret fashion may be accomplished in any number of suitable fashions, including but not limited to the use of visual indicia (such as alpha-numeric characters, light-emitting elements, and/or graphics) and audio communications (such as a speaker element).”).
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 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, 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 negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 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.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 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 pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 12 and 13 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gharib in view of US 6628975 B1 to Fein et al. (hereinafter, Fein).
Gharib discloses the system of claim 11 as set forth and cited above. Gharib does not expressly disclose wherein said single connector comprises an identifier that is recognized by said processing system, wherein the identification of said connector alters system parameters employed by said processing system. However, Fein teaches a sensor/connector type memory device read by a monitor to recognize an attached accessory (col. 3, lines 55-63, col. 4, lines 11-15). Fein further teaches where the processor changes operating parameters based on the data read from the connector memory (col. 3, lines 15-21). One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the single connector of Gharib with the identification that alters the system paragraphs employed by the processing system of Fein, as Fein teaches that such modification would have enhanced performance and/or safety of the system (col. 3, lines 21-22).
Claims 14-16 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gharib in view of US 6334068 B1 to Hacker.
Gharib discloses the system of claim 10 as set forth and cited above, Gharib does not expressly disclose wherein a status of said sensors is checked prior to measuring said nerve responses, wherein said status is checked with an impedance measurement, wherein the status of every sensor is determined independently from the other sensors. However, Hacker teaches electrode and lead impedance checking circuitry (col. 4, lines 34-42) that identifies lead impedance measurement circuity at a patient interface stage (col. 5, lines 36-40) and the system is a multi-channel (one to nine) EMG monitoring, that supports per-channel independent checks (col. 5, lines 36-40). Thus, Hacker teaches pre-measurement status checks via impedance on each independent channel. One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the sensors of Gharib to have the individual impedance checking of each sensor of Hacker, as Hacker teaches that impedance checks before use would have made sure the monitor is operating properly and electrode imbalances can be resolved saving time (col. 3, lines 46-56).
Claim 21 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gharib in view of Hacker and Fein.
Gharib discloses the system of claim 20, comprising a plurality of sensors for measuring the nerve responses that include at least one of an anode and a common electrode, wherein the plurality of sensors connect to the processing system through a single connector (paragraph [0041] “… 8 pairs EMG electrodes 18 (placed on the skin over the muscle groups to be monitored), a common electrode 20 providing a ground reference to pre-amplifiers in the patient module 14, and an anode electrode 22 providing a return path for the stimulation current.” ).
Gharib does not expressly disclose wherein the single connector comprises an identifier; wherein the processing system is programmed to recognize the identifier and alter system parameters based thereon; wherein the status of the sensors is checked with an impedance measurement prior to measuring the nerve responses. However, Fein teaches a sensor/connector type memory device read by a monitor to recognize an attached accessory (col. 3, lines 55-63, col. 4, lines 11-15). Fein further teaches where the processor changes operating parameters based on the data read from the connector memory (col. 3, lines 15-21). However, Hacker teaches electrode and lead impedance checking circuitry (col. 4, lines 34-42) that identifies lead impedance measurement circuity at a patient interface stage (col. 5, lines 36-40) and the system is a multi-channel (one to nine) EMG monitoring, that supports per-channel independent checks (col. 5, lines 36-40). Thus, Hacker teaches pre-measurement status checks via impedance on each independent channel. One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the sensors of Gharib to have the individual impedance checking of each sensor of Hacker, as Hacker teaches that impedance checks before use would have made sure the monitor is operating properly and electrode imbalances can be resolved saving time (col. 3, lines 46-56). One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the sensors of Gharib to have the individual impedance checking of each sensor of Hacker, as Hacker teaches that impedance checks before use would have made sure the monitor is operating properly and electrode imbalances can be resolved saving time (col. 3, lines 46-56).
Claims 3-5, 8 and 25 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gharib in view of US 6628975 B1 to Fein et al. (hereinafter, Fein) in view of US 20050116673 A1 to Carl et al. (hereinafter, Carl)
Gharib discloses the system of claims 2 and 24. Gharib does not expressly disclose wherein said instrument is further coupled to an orientation sensor operable to: determine a first angular relationship in a first plane between said sensor and a reference direction and determine a second angular relationship in a second plane between said sensor and said reference direction, wherein said orientation sensor is communicatively linked to said processing system, wherein said processing system is configured to communicate information to a user regarding at least one of said determined first and second angular relationships between said sensor and said reference direction, and wherein said processing system communicates information to a user regarding at least one of said determined first and second angular relationships between said sensor and said reference direction. However, Carl teaches a two axis orientation sensing on a surgical instrument (thus teaching first and second angular relationship) (paragraph [0047] “In the aspect of the invention shown in FIGS. 2 and 3, sensor 36 is a vibration-sensing sensor, for example, having one or more accelerometers (for instance, up to six accelerometers). For instance, sensor 36 may be a single-axis or multi-axis accelerometer. In the aspect shown in FIGS. 2 and 3, sensor 36 is a model number ADXL202E dual-axis accelerometer supplied by Analog Devices of Norwood, Mass. (as described in Analog Devices ADXL202E specification sheet C02064-2.5-10/00 (rev. A), the disclosure of which is incorporated by reference herein), though any other similar or related accelerometer capable of detecting the acceleration (or vibrations) of drill 32 may be used for this invention.”), a communicative link to a processing system (paragraph [0049] “… transmit the output signals from sensors 36 to a mating slip ring stator 41, and then, via wires 40 and 42, to an external receiver, for example, a processing or storage device (not shown) such as device 24 shown in FIG. 1.”) and the communication of orientation information to the user (paragraph [0084] “The results of this data processing may comprise a notification of the operator, for example, an audible or visual signal as discussed above, or a change in the operation of tool 152. In one aspect of the invention, the output of the data processing in sensor assembly 160 may be transmitted to a controller that controls the operation of drill 152 either telemetrically or via one or more wires (for example, via slip rings, not shown).”). One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the instrument to include the orientation sensor and associated orientation sensor processing and communication system of Carl, as Carl teaches that detecting the angle of the instrument can be helpful to ensure proper alignment of the surgical instrument (paragraph [0046]).
Conclusion
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 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN PATRICK DOUGHERTY whose telephone number is (571)270-5044. The examiner can normally be reached 8am-5pm (Pacific Time).
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/SEAN P DOUGHERTY/Primary Examiner, Art Unit 3791