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 .
Request for Continued Examination
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5/18/2026 has been entered.
Response to Arguments
Applicant’s arguments, see pages 8-9, filed 5/18/2026, with respect to claims 1 and 9 have been fully considered and are persuasive. The rejection under 35 USC section 101 of claims 1-7, 9-10 and 15 has been withdrawn.
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 obviousness-type 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 LongL 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Omum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Patent No. 11,576,316
Claims 1-7, 9-10 and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of Patent No. 11,576,316. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following.
Regarding claim 1, conflicting claims in the instant application are not patentable distinct because conflicting claims of Patent No. 11,576,316 are broader.
Many decisions support the fact that a broad or generic claim is obvious from a specific claim, i.e. an obvious variation. See In re Van Ornum and Stang, 214 USPQ 761 (CCPA 1982); In re Goodman (CA FC) 29 USPQ2d 2010 (12/3/1993); In re Vogel and Vogal, 164 USPQ 619 (CCPA 1970); In re Berg (CA FC) 46 USPG2d 1226 (3/30/1998); Eli Lilly and Co. v. Barr Laboratories Inc., 58 USPQ2d 1865 (CA FC 2001). It is well settled that omission of an element and its function in a combination is an obvious expedient if the remaining element perform the same function as before. This notion is supported by In re Karlson, 136 USPG 184 (1963); In re Nelson, 95 USPQ 82 (CCPA 1952); and In re Eliot, 25 USPQ 111 (CCPA 1935).
Regarding claims 2-7, 9-10 and 15, claims 2-23 of Patent No. 11,576,316 recite similar limitations on its own or in combination.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MANUEL A RIVERA VARGAS whose telephone number is (571)270-7870. The examiner can normally be reached M-F 9:00-6:00.
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/MANUEL A RIVERA VARGAS/Primary Examiner, Art Unit 2857
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