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 .
Information Disclosure Statement
The information disclosure statement (IDS), submitted on 08/28/2023, has been considered by the examiner.
Claim Rejections - 35 USC § 112
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 7 and 17 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.
[Claims 7 and 17] The claims recite the limitation of “a vertical orientation.” The examiner is unable to determine the metes and bounds of the claims, since it is unclear if this refers to the previously recited “vertical orientation” of independent claims 1 and 10, or if a new frame of reference is being introduced. For purposes of examination, it is interpreted that the limitation refers to the same “vertical orientation” introduced in claims 1 and 10.
Claim Rejections - 35 USC § 102
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.
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.
Claims 1-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Danby (USPN 5,964,583).
[Claims 1, 7, and 8] Danby teaches an infusion pump (figure 1, item 10) for delivering an intravenous ("IV") fluid (column 2, lines 57-59), the infusion pump (figure 1, item 10) comprising:
a housing (figure 1, item 12) having a vertical orientation when the infusion pump (figure 1, item 10) is positioned for operation (figure 1), the housing (figure 1, item 12) having a top side (see annotated figure below) configured to engage a portion of an IV tube (figure 2, item 28) in the vertical orientation (figure 1), the top side (see annotated figure below) including a tube window (figure 1, item 26) configured to enable the portion of the IV tube (figure 2, item 28) to pass through the top side (see annotated figure below) of the housing (figure 1, item 12); and
a door (figure 1, item 14) hingedly (figure 1, via item 16) connected to the housing (figure 1, item 12), the door (figure 1, item 14) configured to rotate between an open position and a closed position (figure 1), the door (figure 1, item 14) including a roof (see annotated figure below) configured to contact the top side (see annotated figure below) of the housing (figure 1, item 12), the door (figure 1, item 14) including a lip (figure 1, item 18) configured to prevent the portion of the IV tube (figure 2, item 28) from occluding and to enable the portion of the IV tube (figure 2, item 28) to pass through the door (figure 1, item 14).
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[Claims 2 and 3] Danby teaches the limitations of claim 1, upon which claims 2 and 3 depend. In addition, Danby discloses the tube window (figure 1, item 26) includes a first half-circle recess section (see annotated figure above) and the lip (figure 1, item 18) includes a second half-circle recess section (see annotated figure above); wherein the first half-circle recess section (see annotated figure above) and the second half-circle recess section (see annotated figure above) enable the portion of the IV tube (figure 2, item 28) to pass through the roof (see annotated figure above) of the door (figure 1, item 14) and the top side (see annotated figure above) of the housing (figure 1, item 12) when the door (figure 1, item 14) is in the closed position (figure 1).
[Claims 4 and 5] Danby teaches the limitations of claim 1, upon which claims 4 and 5 depend. Danby also discloses the housing (figure 1, item 12) includes an actuation area (figure 2, at item 40) and the door (figure 1, item 14) is configured to enclose the actuation area (figure 2, at item 40) when the door (figure 1, item 14) is in the closed position (figure 4; column 5, lines 10-12); wherein the roof (see annotated figure above) in conjunction with the top side (see annotated figure above) of the housing (figure 1, item 12) are configured to prevent contaminates from entering the actuation area (figure 2, at item 40).
[Claim 6] Danby teaches the limitations of claim 1, upon which claim 6 depends. Danby further discloses the tube window (figure 1, item 26) has a surface curvature and a width configured to accept a bottom side (figure 2) of the portion of the IV tube (figure 2, item 28) (figure 2).
[Claim 9] Danby teaches the limitations of claim 1, upon which claim 9 depends. Danby also teaches the top side (see annotated figure above) of the housing (figure 1, item 12) further includes a rib (figure 1, items 32/34) that extends from the housing (figure 1, item 12), the rib (figure 1, items 32/34) defining the tube window (figure 1, item 26).
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Abrahamson et al. (PGPub 2003/0181866).
[Claims 1, 7, 8, 10, 17, 18, and 20] Abrahamson teaches an infusion pump (figure 1, item 10) for delivering an intravenous ("IV") fluid (paragraph [0001]), the infusion pump (figure 1, item 10) comprising:
a housing (figure 1, item 12) having a vertical orientation when the infusion pump (figure 1, item 10) is positioned for operation (figure 1), the housing (figure 1, item 12) including:
a top side (see annotated figure below) configured to engage a portion of an IV tube (figure 1, item 30) in the vertical orientation (figure 1), the top side (see annotated figure below) including a tube window (figure 2, item 36 on left; see annotated figure below) configured to enable the portion of the IV tube (figure 1, item 30) to pass through the top side (see annotated figure below) of the housing (figure 1, item 12),
a hinge (see annotated figure below) located along a side (figure 2; paragraph [0031]), and
a front face (figure 1, item 14) comprising a display interface (figure 1, item 16) (paragraphs [0020], [0021]); and
a door (figure 2, item 28) connected to the hinge (see annotated figure below) (figure 2; paragraph [0031]) of the housing (figure 1, item 12) such that the door (figure 2, item 28) swings open away from the display interface (figure 1, item 16), the door (figure 2, item 28) including a roof (see annotated figure below), including a flat top surface (figure 2), configured to contact the top side (see annotated figure below) of the housing (figure 1, item 12) (figure 1), the door (figure 2, item 28) including a lip (figure 2, item 36 on right; see annotated figure below) configured to prevent the portion of the IV tube (figure 1, item 30) from occluding and to enable the portion of the IV tube (figure 1, item 30) to pass through the door (figure 2, item 28).
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[Claim 11] Abrahamson teaches the limitations of claim 10, upon which claim 11 depends. In addition, Abrahamson discloses the door (figure 2, item 28) is positioned adjacent to the display interface (figure 1, item 16) when the door (figure 2, item 28) is in a closed position (figure 1).
[Claims 2, 3, 12, and 13] Abrahamson teaches the limitations of claims 1 and 10, upon which claims 2, 3, 12, and 13, depend. In addition, Abrahamson discloses the tube window (figure 2, item 36 on left) includes a first half-circle recess section (see annotated figure above) and the lip (figure 2, item 36 on right) includes a second half-circle recess section (see annotated figure above); wherein the first half-circle recess section (see annotated figure above) and the second half-circle recess section (see annotated figure above) enable the portion of the IV tube (figure 1, item 30) to pass through the roof (see annotated figure above) of the door (figure 2, item 28) and the top side (see annotated figure above) of the housing (figure 1, item 12) when the door (figure 2, item 28) is in the closed position (figure 1).
[Claims 4, 5, 14, and 15] Abrahamson teaches the limitations of claims 1 and 10, upon which claims 4, 5, 14, and 15, depend. Abrahamson also discloses the housing (figure 1, item 12) includes an actuation area (figure 2, items 102/106/108; paragraph [0023]) and the door (figure 2, item 28) is configured to enclose the actuation area (figure 2, items 102/106/108) when the door (figure 2, item 28) is in the closed position (figure 1); wherein the roof (see annotated figure above) in conjunction with the top side (see annotated figure above) of the housing (figure 1, item 12) are configured to prevent contaminates from entering the actuation area (figure 2, items 102/106/108) (figure 1).
[Claims 6 and 16] Abrahamson teaches the limitations of claims 1 and 10, upon which claims 6 and 16 depend. Abrahamson further discloses the tube window (figure 2, item 36 on left) has a surface curvature and a width configured to accept a bottom side of the portion of the IV tube (figure 1, item 30) (figure 1).
[Claims 9 and 19] Abrahamson teaches the limitations of claims 1 and 10, upon which claims 9 and 19 depend. Abrahamson also teaches the top side (see annotated figure above) of the housing (figure 1, item 12) further includes a rib (see annotated figure above) that extends from the housing (figure 1, item 12), the rib (see annotated figure above) defining the tube window (figure 2, item 36 on left).
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 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2 and 15 of U.S. Patent No. 11,739,841. Although the claims at issue are not identical, they are not patentably distinct from each other because all of the elements of the recited instant application claims are found in the recited patent claims. For example, all of the elements of claim 1 of the instant application can be found in claim 2 of the patent. The difference between claim 1 of the instant application and claim 2 of the patent lies in the fact that the patent claim includes more elements and is thus more specific. Thus, the invention of claim 2 of the patent is in effect a “species” of the "generic” invention of claim 1 of the instant application. It has been held that the generic invention is anticipated by the species. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claim 1 of the instant application is anticipated by claim 2 of the patent, it is not patentably distinct from claim 2 of the patent.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 10,648,564. Although the claims at issue are not identical, they are not patentably distinct from each other because all of the elements of the recited instant application claims are found in the recited patent claims. For example, all of the elements of claim 1 of the instant application can be found in claim 12 of the patent. The difference between claim 1 of the instant application and claim 12 of the patent lies in the fact that the patent claim includes more elements and is thus more specific. Thus, the invention of claim 12 of the patent is in effect a “species” of the "generic” invention of claim 1 of the instant application. It has been held that the generic invention is anticipated by the species. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claim 1 of the instant application is anticipated by claim 12 of the patent, it is not patentably distinct from claim 12 of the patent.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON E FLICK whose telephone number is (571)270-7024. The examiner can normally be reached M-F 7 a.m.-3 p.m. Eastern Time.
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/JASON E FLICK/Primary Examiner, Art Unit 3783 02/03/2026