DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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 16-24 and 26-32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No. 9,895,475 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because both cases disclose a blood pump for insertion within a body of a patient comprising a rotor which is radially compressible and expandable and having a hub and at least one impeller blade disposed on the hub. A housing which is radially compressible and expandable by an axial stretching or axial compression and a control body passing through the hub and a housing wall. Wherein the control body is coupled to the housing distal to the rotor and comprises at least one of a distal abutment body at a distal end of the control body and a proximal abutment body on a proximal side of the housing wall. Additionally, both cases disclose wherein the distal abutment body is configured to exert a compressive force in a longitudinal direction onto the housing wall on retraction of the control body in a proximal direction and the proximal abutment body is configured to exert an axial expansion force onto the housing wall when the proximal abutment body is pushed in a distal direction.
Claim 25 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of Toellner et al U.S. Patent No. 9,895,475 in view of Scheckel US Pub. 2012/0234411A1.
Toellner et al disclose all the structural limitations as claimed and mentions that the abutment bodies are deformable, therefore, they are also compressible, however, does not disclose that the abutment bodies are made of a foam material.
Scheckel discloses that the blood pump, including the housing and the rotor can be made of a foam material for the purpose of bringing the implant to the original state when compressed.
It would have been obvious to one ordinary skill in the art to modify the abutment bodies of the Toellner et al reference with compressible foam materials in order to bring the implant to the original state when compressed.
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 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 –
(e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language.
Claims 16, 26, 28, 30 and 31 are rejected under pre-AIA 35 U.S.C. 102(e) as being anticipated by Khanal US Patent 7,878,967B1.
Khanal discloses a blood pump (20) for insertion within a body of a patient comprising a rotor (28) which is radially compressible and expandable (see Figs. 1 and 2) and having a hub (30) and at least one impeller blade (74) disposed on the hub (30). A housing (36) which is radially compressible and expandable by an axial stretching or axial compression and a control body (114) passing through the hub (30) and a housing wall (the perimeter of element 36). Wherein the control body (114) is coupled to the housing (36) distal to the rotor (see figure below) and comprises at least one of a distal abutment body (110) at a distal end of the control body (114) and a proximal abutment body (32) on a proximal side of the housing wall.
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Regarding claim 26, the invention discloses a plurality of wires.
Regarding claim 28, the reference discloses that element 114 is a guide pin.
Regarding claim 30, col. 3, lines 1-26 discloses that the control body passes through a lumen of the hub (30) and that the only part that rotates are the hub, the blades and the rotary mover.
Regarding claim 31, see Figs. 1-2 and col. 3, lines 6-8.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALVIN J STEWART whose telephone number is (571)272-4760. The examiner can normally be reached Monday-Friday 8:30AM-6PM EST.
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/ALVIN J STEWART/Primary Examiner, Art Unit 3799 2/18/26