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 .
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, 3, 5-7, 9, 10, 12, are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. US 8,075,510 to Aklog et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
With regard to claims 1, 3, 10, 12, patented claims 26 and 27 recite a system for capturing an undesirable material comprising: a first suction cannula, a second cannula, a pump, and first and second filter housings, wherein the pump generates a driving force to remove a clot from a patient, filter it out, and return remaining blood to the patient. The ‘’510 patent does not set forth pore size in the claims. However, it is within the skill of a worker in the art to select a filter pore size based on the desired result of filtration.
With regard to claims 5-7, patented claim 16 sets forth a pump that creates negative pressure at one end and positive pressure at another end, suggesting the intake and exit ports set forth in the instant application. With regard to claims 6 and 7, the manner of operation of the device does not materially limit the structure of the claimed device.
With regard to claim 9, patented claim 27 sets forth a single multilumen cannula with the distal ends in spaced relationships relative to one another.
Claims 2, 11, are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. US 8,075,510 to Aklog et al, in view of US Patent No. 10,517,617 to Aklog et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
With regard to claims 2, 11, Aklog ‘510 sets forth the cannulae, pumps, and filters of claim 1, while Aklog ‘’617 sets forth a first and second cannula with with an expandable distal funnel with expandable strips and an impermeable membrane; wherein each strip comprises a strip base and a strip distal end; wherein the impermeable membrane extends between the strip base and strip distal end; and a pump creating a suction force in the first cannula and a driving force into a second vessel (see patented claim 1).
Taken together, the claims reasonably teach the instantly claimed apparatus.
Claims 4, 8, 13-15, 17-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. US 8,075,510 to Aklog et al, in view of US Patent No. 12,446,904 to Aklog et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
With regard to claims 4, 13-15, 17-19, Aklog ‘510 sets forth the cannulae, pumps, and filters of claim 1, while claims 7, 9, and 19 of Aklog ‘’904 sets forth a method of capturing an undesireable material with the use of two cannulas and a chamber, wherein the chamber allows for visualization of the material. The operation of the pump does not patentably distinguish the instantly claimed apparatus over the prior art.
With regard to claims 8, 20, Aklog ‘510 sets forth the cannulae, pumps, and filters of claim 1, while claim 14 of Aklog ‘’904 sets forth a method of capturing an undesireable material with the use of two coaxial cannulae.
Taken together, the claims reasonably teach the instantly claimed apparatus.
Claim 16 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. US 8,075,510 to Aklog et al, in view of US Patent No. 10,517,617 to Aklog et al, further in view of US 12,446,904 to Aklog et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
With regard to claims 2, 11, , Aklog ‘510 sets forth the cannulae, pumps, and filters of claim 1, while Aklog ‘’617 sets forth a first and second cannula with an expandable distal funnel with expandable strips and an impermeable membrane; wherein each strip comprises a strip base and a strip distal end; wherein the impermeable membrane extends between the strip base and strip distal end. Claims 7, 9, and 19 of Aklog ‘’904 sets forth a method of capturing an undesireable material with the use of two cannulas and a chamber, wherein the chamber allows for visualization of the material.
Taken together, the claims reasonably teach the instantly claimed apparatus.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LESLIE R DEAK whose telephone number is (571)272-4943. The examiner can normally be reached Monday-Friday, 9am to 5:30pm.
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/LESLIE R DEAK/Primary Examiner, Art Unit 3799 2 February 2026