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 .
Claims
The amendments received on Oct. 24, 2025, have been entered. Claim 29 has been canceled, claims 1-28 and 30-34 are pending and are examined in this Office Action.
Claim Interpretation
Claim 4 is directed to a seed grown from the plant of claim 1. The claim does not specify how the plant of claim 1 was pollinated, therefore, claim 4 is inclusive of F1 hybrid seeds produced by pollinated the plant of claim 1 with pollen from a different plant as well as including seeds from self-pollinating the plant of claim 1.
Objections and Rejections That are Withdrawn
All rejections of claim 29 are moot in light of Applicant’s cancelation of this claim.
Claim Objections
Claims 13, 14, and 34 are objected to because of the following informalities: each of these claims recites “selfing” a plant with “itself or a second lettuce plant” and this is technically incorrect. Crossing involves using pollen from one plant to fertilize a flower on a different plant; whereas when pollen from a plant fertilizes a flower on the same plant it is referred to as “selfing” (Spec 15, ¶¶ 81-82). Applicant amended the claims to address the previous objection, but introduced a new issue by claiming selfing a plant with a second lettuce plant.
Claim 24 is also objected to because it was amended to replace “the” with “a”, and this is not the correct article for referencing a single element from the parent claim. The issue that was raised, previously, was directed to “further” comprises which broadened the claim to encompass more than the single element from the parent claim. Deleting “further” was all that was needed to address this. Applicant is advised to revert to “wherein the plant” for referring to the plant of the parent claim.
Appropriate correction is requested.
Claim Rejections - 35 USC § 112
Indefiniteness
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 1-28 and 30-34 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. All dependent claims are included in these rejections unless they include a limitation that overcomes the deficiencies of the parent claim. Applicant’s arguments in the response received on Oct. 24, 2025, have been fully considered but were not found to be persuasive.
The claims are directed to a plant, plant part, or seed of lettuce variety NUN 09185LTL, and to products derived from said plants, plant parts, and seeds, and to methods of making and using the plants, plant parts, seeds, and products.
The following definition is provided for the word “plant”:
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(Spec 8)
This means that any time the word “plant” appears in a claim, it is inclusive of a whole plant, plant part, or derivative of a plant/plant part, and it is NOT required to have the same genetic makeup as the plant from which it is obtained. This raises indefiniteness for every claim, because starting at claim 1, it is completely unclear what the metes and bounds of the claims are. It is clear claim 1 is inclusive of products that are not required to have the same genetic makeup as the seeds that have been deposited. It is unclear what is included by “derivative”.
The word “derivative” is defined by the Merriam Webster online dictionary by multiple different definitions. For the closest context (chemistry), it is defined as a chemical substance related structurally to another substance and theoretically derivable from it OR as a substance that can be made from another substance (on the world wide web at merriam-webster.com/dictionary/derivative). It is unclear which substances that can be derived from a plant or plant part are encompassed by this claim. Does it include extracts? Progeny? Isolated proteins?
The metes and bounds of claim 1 and every claim that recites “plant” and every claim that depends on a claim that recites “plant” are completely unclear.
In addition, multiple claims recite “a representative sample of seed of said variety NUN 09185 LTL has been deposited under Accession Number NCIMB 43875”. Given that the word “plant” specifically states that the plant is not required to have the same genetic makeup as the plant from which it is obtained because having the same genetics is merely preferable, it is unclear how the deposited seeds are “representative”.
For claims 6, 12, 21, 22 and 24, specifically, it is unclear what “physiological and morphological characteristics are required for the claimed lettuce plant, because the plant of claim 1 includes derivatives that are not required to have the same genetic makeup. Without known what characteristics are required, one would not be able to determine if any given lettuce plant has the same characteristics.
Arguments
Applicant submits that the “plant” is the whole plant, plant part, or derivatives thereof having the same genetic makeup as lettuce variety NUN 09185 LTL (Resp 7). This is not persuasive, however, because there continue to be claims directed to progeny plants produced from crossing to a second plant (claims 14 and 17), transformed plants (claim 21), plants having a locus conversion (claim 24), and plants that have been gene edited (claim 27). Furthermore, most of the method claims include the word “plant” and it is clear that it is often in a context that does not retain the same genetic makeup as lettuce variety NUN 09185 LTL. In addition, an attorney’s remarks cannot render void a definition in the specification.
Inadequate Written Description
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.
Claims 1-28 and 30-34 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 claim(s) 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 inventor(s), at the time the application was filed, had possession of the claimed invention. All dependent claims are included in these rejections unless they include a limitation that overcomes the deficiencies of the parent claim. Applicant’s arguments in the response received on Oct. 24, 2025, have been fully considered but were not found to be persuasive.
The claims are broadly drawn to a plant, plant part, or seed of lettuce variety NUN 09185LTL, and to products derived from said plants, plant parts, and seeds, and to methods of making and using the plants, plant parts, seeds, and products. As discussed, above, in the indefiniteness rejection under 35 USC 112B, it is completely unclear what the metes and bounds of the claims are. The genus of products covered by the product claims and the genus of products utilized in the method claims is infinitely large.
Applicant has described lettuce variety NUN 09185 LTL, in part by depositing a representative sample of seed with the NCIMB, and in part by including three trait tables (Spec 45-51). Presumably the plants grown to collect the data for these traits tables are from the same batch of seeds as the seeds deposited with the NCIMB with no changes to the genetics between the deposited seeds and the seeds used for collecting the data.
Applicant has not described any derivatives of lettuce variety NUN 09185 LTL. Applicant has not described any plants, plant parts, or derivatives that do not share the same genetic makeup as variety NUN 09815 LTL and the deposited seeds.
The MPEP requires:
The written description of the deposited material needs to be as complete as possible because the examination for patentability proceeds solely on the basis of the written description. See, e.g., In re Lundak, 773 F.2d 1216, 227 USPQ 90 (Fed. Cir. 1985); see also 54 Fed. Reg. at 34,880 ("As a general rule, the more information that is provided about a particular deposited biological material, the better the examiner will be able to compare the identity and characteristics of the deposited biological material with the prior art.").
(MPEP § 2163 (I))
This is also referenced in the Enzo v. Gen-Probe decision.
Furthermore, the Guidelines state that "'[o]nce the patent issues, the description must be sufficient to aid in the resolution of questions of infringement.'" Guidelines at 1107-08 n. 6 (quoting Deposit of Biological Materials for Patent Purposes, Final Rule, 54 Fed. Reg. 34,864, 34880 (Aug. 22, 1989) (codified at 37 C.F.R. pt. 800)).
Enzo Biochem, Inc. v. Gen-Probe Inc., 285 F.3d 1013, 1022, 62 U.S.P.Q.2d 1289, 1295 (Fed. Cir. 2002).
In the BACKGROUND section, Applicant provides an excellent description of
“plant breeding [as] a process to develop improved lettuce germplasm in an inbred or hybrid plant.” (Spec 1-2).
Specifically, in claim 1, applicant claims a new lettuce variety, NUN 09815 LTL. Aside from the deposit, this lettuce variety is defined by both its traits as set forth in Tables 1-3 (Spec 45-51) and by its genetics, i.e., its breeding history).
In the instant application however, the specification only provides a phenotypic description of traits with absolutely no description of the underlying genetics. The instant specification is silent regarding the breeding history of the claimed variety.
In contrast, the specification is replete with discussion about how to change the genotype of the claimed variety (pp. 23-37) and how to use genetic markers (pp. 27-29), but other than what is inherent in the deposited seeds, Applicant provides no information regarding the genetics of the deposited seeds.
See Vas-Gath Inc. v. Mahurkar, which teaches that "the purpose of the written description is for the purpose of warning an innocent purchaser, or other person using a machine, of his [or her] infringement of the patent; and at the same time, of taking from the inventor the means of practicing upon the credulity or the fears of other persons, by pretending that his invention is more than what it really is, or different from its ostensible objects, that the patentee is required to distinguish his invention in his specification.” Vas-Gath Inc. v. Mahurkar, 935 F.2d 1555, 1561, 19 U.S.P.Q.2d 1111, 1115 (Fed. Cir. 1991 ).
None of the traits recited in Table 1 are unique to the claimed variety. For example, many other lettuce plants have white seeds, green leaves, thin leaves, no heads, late bolting, etc. (e.g. Spec 45-47). Their combination provides a fingerprint that may be unique to this variety.
However a lettuce plant is not produced by selecting individual traits, it is produced by breeding. Thus, to protect an unintentional infringer, the breeding history is required.
Further, availability of the breeding history will expedite a full and through examination of the pending claims
To illustrate this point further, the breeding history features prominently in a recent decision by the Office’s Appeals Board.
In the McGowen decision, after analyzing the breeding history (p. 7 (btm)-8), the Board found the claimed plants to be obvious (p. 10). Ex Parte McGowen (PTAB 2020) (decision in appl. ser. no. 14/996,093). The decision provided extensive discussion of the traits. (para 5-8 & 12 pp. 4-5) These differences were cited by the applicant when comparing the prior art and the new plant variety. But the trait tables insufficient to overcome the finding of obviousness. See, for example, McGowen, paras. 6 & 8 (pp. 4-5). The decision, however, turned on the breeding history. (pp. 8 & 17).Because the breeding history was available, the phenotypic differences were deemed to be obvious and within the natural variation expected in a backcrossing breeding process. Without a breeding history in these cases, a complete comparison with the prior art could not have been possible.
Thus the breeding history is necessary to aid in the resolution of patent infringement by providing information necessary to determine whether differences in plants where genetic differences, differences caused by the environment, or differences within the accepted variation within a variety.
This applies both to the examination process and also for the purposes of determining possible infringement after the patent issues. Providing the breeding history begins to provide an artisan with the necessary information to be able to anticipate potential infringement. It is routine in the art to rely on the breeding history for evaluating the underlying genetics in any given plant variety.
Thus, a specification devoid of a breeding history hampers the public’s ability to resolve infringement analysis with plants already in the prior art as well as plants that have not yet been patented. Since the breeding history, including the parents, is not known to the public, the public could only rely on the phenotypes of the claimed plants for assessing potential infringement.
In view of this variability, the breeding history is essential and is the least burdensome way to Applicant to provide genetic information needed by the Office and the public to adequately describe a newly developed plant.
To overcome this rejection, applicant should amend the specification/drawing to provide the breeding history used to develop the instant variety. When identifying the breeding history, applicant should identify any and all other potential names for all parental lines utilized in the development of the instant variety. If, for example, applicant’s breeding history uses proprietary line names, applicant should include in the specification all other names of the proprietary lines / varieties. This is particularly important in the case of publicly disclosed or patented lines / varieties. If the breeding history encompasses a locus conversion or a backcrossing process, applicant should clearly indicate the recurrent parent and the donor plant and specifically describe the trait or transgenic event that is being donated to the recurrent parent. If one of the parents is a backcross progeny or locus converted line of a publicly disclosed line, applicant should provide the breeding history of the parent line as well (i.e. grandparents).
Claim 27 is specifically rejected for an inadequate written description of the broad genus of plants that the claim encompasses. The claim is directed to a lettuce plant produced by mutating a target gene in a NUN 09815 LTL lettuce plant by gene editing. There is no limit to how much of the genome can be edited relative to the seeds that will be deposited and no limit to how many traits can be changed relative to plants grown from the deposited seeds and relative to the traits disclosed in the trait table. Because there is no particular genomic DNA that is required to remain the same and no particular trait that is required to remain the same, this genus of lettuce plants is not described by either a shared structure (genomic DNA) or by a shared function (phenotypic traits). For this reason, the genus of plants encompassed by claim 20 is not sufficiently described across the breadth of the claim.
Arguments
With regard to claim 27, Applicant argues they have amended the claim to recite that the modified plant contains the desired trait and otherwise has all the physiological and morphological characteristics of their variety (Resp 9). This is not persuasive, however, because the claim uses open language of “comprising” and this allows for an unlimited number of modifications.
With regard to the lack of a breeding history, Applicant argues that in a letter from the Office it was stated that applicants are allowed to satisfy 35 USC 112 by making a deposit of the material (e.g. seeds, tissue cultures, etc.) and Applicant points to case law that makes similar statements (Resp 7-8). This is not persuasive, however, because the controlling rule is the statute, not a letter or case law.
35 USC 112 (a) states that “The specification shall contain a written description of the invention”. In evaluating written description, the threshold question is what is “an adequate written description”. This is question of fact that is evaluated by the factfinder (examiner). MPEP 2163.04 clearly states that “The inquiry into whether the description requirement is met must be determined on a case-by-case basis and is a question of fact. In re Wertheim, 541 F.2d 257, 262, 191 USPQ 90, 96 (CCPA 1976).”
The instant invention is a new lettuce variety (NUN 09185 LTL). So, the appropriate analysis asks “what is an adequate written description for a new lettuce variety”. In reviewing this question of fact, the examiner analyzed how plant varieties are evaluated in the public domain. The review concluded that generally the minimum requirements for an adequate description of a new plant variety has a trait table and genetic information (via a breeding history). In reviewing applicant’s specification there is a phenotypic description as is seen in tables 1-3. However, there is no accompanying breeding history in the specification. Because the specification lacks a breeding history and that breeding history is part of the minimum description of a plant variety the applicant has not fulfilled the requirement.
The above factual evidence provides a reasonable basis that a breeding history is a necessary part of a written description. With this information the examiner has met the initial burden of presenting by a preponderance of evidence why a person of ordinary skill in the art would not recognize in an applicant’s disclosure a description of the invention defined by the claims. (See MPEP 2163.04).
Although not directly relied upon for the above written description position, a complete written description additionally helps drive examination and help with infringement verification.
MPEP 2163 (I) states “The written description of the deposited material needs to be as complete as possible because the examination for patentability proceeds solely on the basis of the written description. See, e.g., In re Lundak, 773 F.2d 1216, 227 USPQ 90 (Fed. Cir. 1985); see also 54 Fed. Reg. at 34,880 ("As a general rule, the more information that is provided about a particular deposited biological material, the better the examiner will be able to compare the identity and characteristics of the deposited biological material with the prior art.").”
MPEP 2163(I) states “The description must be sufficient to permit verification that the deposited biological material is in fact that disclosed. Once the patent issues, the description must be sufficient to aid in the resolution of questions of infringement." Id. at 34,880.)” (Quoting the Deposit of Biological Materials for Patent Purposes, Final Rule, 54 Fed. Reg. 34,864 (August 22, 1989) at 34,880).
Applicant argues there is no persuasive or binding authority for the proposition that the specification must provide the breeding history of the claimed variety (Resp 8). This is not persuasive because 35 USC 112(a) clearly states “The specification (emphasis added) shall contain a written description of the invention”. A review of art accepted practices as part of the Examiner’s fact finding shows that the breeding history is considered a critical part of the description of a new plant variety.
In the instant application, Applicant included some breeding history for the instant variety in their response to a request for information (request mailed on 11/29/2024 and response received on 1/29/2025), however Applicant has asserted that this information is a Trade Secret and Applicant petitioned to expunge this information (petition received 1/29/25). This disclosure is insufficient because the information provided is not part of the Specification and cannot provide the written description required to be in the Specification. Thus, the breeding history for the claimed variety as disclosed in the Specification is incomplete. Moreover, the claims are directed to a genus of lettuce plants and seeds that are genotypically and phenotypically different from the deposited seeds, and have different traits from those disclosed in the specification (claims 14, 16, 17, 21, 24, and 27). The specification’s definition of the word “plant” actually opens ALL claims up to more than just the genetics of the deposited seed and the traits in the trait table (see rejection for indefiniteness, above). For this reason, the deposited seed cannot be relied upon as a physical representation of the genetics for all of the claimed plants and seeds.
Given these differences, the complete breeding history for producing the claimed variety, including all names for the parents and for the claimed cultivar, are material for patentability. A specification devoid of a complete breeding history is not adequate for satisfying 35 USC 112A.
Claim Rejections - 35 USC § 102/103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. Applicant’s arguments in the response received on Oct. 24, 2025, have been fully considered but were not found to be persuasive.
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.
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(s) 1-28 and 30-34 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Munoz, J. F. (US Pre-Grant Publication US 2019/0223400 A1; published on July 25, 2019).
The claims are directed to a plant, plant part, or seed of lettuce variety NUN 09185LTL, and to products derived from said plants, plant parts, and seeds, and to methods of making and using the plants, plant parts, seeds, and products. As discussed, above, in the indefiniteness rejection under 35 USC 112B, it is completely unclear what the metes and bounds of the claims are. It is unclear which physiological and morphological characteristics are required, and it is unclear which genetic material, if any, is required. For this reason, a lettuce plant that appears to be similar is not excluded from the claims.
Munoz teaches lettuce variety NUN 06193 LTL (abstract). Comparing Munoz’s Tables 1 and 2 (Munoz 13-15) with the instant Trait tables 1-3 (Spec 45-51), many of the traits are the same: white seeds, semi-erect leaf attitude, green leaves, thin leaves, absence of blistering, and loose heads.
With regard to claims 1-21 and 33, Munoz claims are almost identical in wording to the instant claims except for the name of the variety (Munoz claims 1-14, 16, 18).
With regard to claim 28, Munoz claims making double haploid cells of their plant (claim 17).
With regard to claims 22-27, Munoz teaches introducing a single locus conversion via backcrossing, including introducing resistance genes (Munoz 11). Munoz teaches mutating a plant of their variety and using the TILLING method (Munoz 9) which allows for targeting a particular gene by selecting for mutations in that particular gene. Munoz specifically teaches mutations that confer a trait selected from a specific list (Munoz 9).
With regard to claims 30-32, Munoz characterizes the heads of their lettuce variety (Munoz 14), and this necessarily means they growing the heads. Munoz claims a container comprising a plant part, therefore a container comprising heads of lettuce is immediately envisioned.
With regard to claim 34, Munoz teaches traditional breeding techniques that include crossing, selfing, and selection (Munoz 4).
For the obviousness portion of this rejection: for some of the claims, Munoz has taught the claimed material, but Munoz has not reduced it to practice. The Examiner has determined that all claims have been anticipated because there is no legal requirement for the prior art to have reduced to practice an invention in order to anticipate it. However, in the event there are some claims where the Examiner could be persuaded they were not fully envisioned, contemplated, and conceived in the prior art, then all claims are fully obvious, because the prior art clearly teaches and suggests all elements of every claim.
Arguments
Applicant argues that the rejection is based on the indefiniteness rejection, and they assert that their response to the indefiniteness rejection is sufficient to provide a distinction over the prior art (Resp 9). This is not persuasive, however, because the response to the indefiniteness rejection was insufficient for addressing the issues (see above).
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 1-24, 30, and 31 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 10,874,072; issued on Dec. 29, 2020. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are quite broad and do not include any limitations that would exclude the lettuce plants claimed in the ‘072 patent (see analysis in 102/103 rejection, above). Applicant’s arguments in the response received on Oct. 24, 2025, have been fully considered but were not found to be persuasive.
The double patenting rejection is over the issued patent for the same application that was published for Munoz which was relied upon for the 102/103 rejection. Therefore, the analysis is identical. The only difference is that the issued patent had three new claims added relative to the pre-Grant publication, therefore, more of the instant claims were covered by the issued patents claims.
Arguments
Applicant relies on the same arguments presented, above, against the art rejection, and it is not persuasive for the same reasons the Examiner set forth, above.
Summary
No claim is allowed.
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.
Examiner’s Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHY KINGDON whose telephone number is (571)272-8784. The examiner can normally be reached M-F 9:00 - 5:30 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amjad A Abraham can be reached at (571) 270-7058. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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CATHY KINGDON
Primary Examiner
Art Unit 1663
/CATHY KINGDON/Primary Examiner, Art Unit 1663