Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Summary
This is the initial Office action based on the 18105064 application filed 04/12/22
Claim(s) 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19 are pending and claim(s) 1,4,5,6,7,19 have been fully considered
Claim(s) 2,3,8,9,10,11,12,13,14,15,16,17,18 have been non-elected/withdrawn
Election/Restrictions
Applicant’s election of Group I, Species H in the reply filed on 12/23/2025 is acknowledged.
Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.03(a)).
The ground(s) of “it is believed that a search and an examination of all claims would place no undue burden on the Examiner”, does not distinctly and specifically point out why there is supposedly “believed that a search and an examination of all claims would place no undue burden on the Examiner.”
For the sake of argument, this is not found persuasive because based on the additional work involved in searching and examining both distinct inventions together, restriction of the distinct inventions is clearly proper.
The requirement is still deemed proper and is therefore made FINAL.
Claim(s) 2,3,8,9,10,11,12,13,14,15,16,17,18 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and/or species, there being no allowable generic or linking claim.
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.
Claim(s) 1,19 rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 2 of U.S. Patent No. 11433332 (herein SMITH332). Although the claims at issue are not identical, they are not patentably distinct from each other because a person of ordinary skill in the art would conclude that the filter media as recited in the patented claim(s) clearly envisages the filtration article of the instant application.
Claim(s) 4-6 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 11433332 (herein SMITH332) in view of U.S. Patent No. 4462399 (herein BRAUN).
With regard to claims 4 and 5, SMITH332 does not specifically claim a powered air-purifying respirator
But, BRAUN sufficiently teaches a powered air-purifying respirator, especially at the abstract
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention (or at the time the invention was made; if pre-AIA ) to provide powered air-purifying respirator of BRAUN with the filter of SMITH332, for the benefit of a device worn over the mouth or nose or both to protect the respiratory tract from harmful dust
With regard to claim 6, SMITH332 claims an air filter (i.e. particulate filtering)
Allowable Subject Matter
Claim(s) 7 objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANTHONY R SHUMATE whose telephone number is (571)270-5546. The examiner can normally be reached on M,T,Th,F.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Lebron can be reached on (571)272-0475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANTHONY SHUMATE/
Primary Examiner, Art Unit 1776