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 .
Claim Objections
The numbering of claims is not in accordance with 37 CFR 1.126 which requires the original numbering of the claims to be preserved throughout the prosecution. When claims are canceled, the remaining claims must not be renumbered. When new claims are presented, they must be numbered consecutively beginning with the number next following the highest numbered claims previously presented (whether entered or not).
Misnumbered claims 11-20 have been renumbered as 10-19.
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, 10-12 (formerly 11-13), 14-19 (formerly 15-20) are rejected on the ground of nonstatutory double patenting as being unpatentable over various claims of U.S. Patent No. 11,911,543 to Galavotti et al in view of US 5.387,174 to Rochat. Although the claims at issue are not identical, they are not patentably distinct from each other because the instantly presented claims are slightly different embodiments of the patented claims.
With regard to claims 1-3, 5-9, 10-12 (formerly 11-13), 14-19 (formerly 15-20), patented claim 1 sets forth an autotransfusion system with a housing, a rotatable drive member, a centrifuge bowl that engages with the drive member, a fluid line organizer with a plurality of fluid lines. Galavotti does not claim a tapered shape. However, Rochat discloses an autotransfusion device with a driving cup 3 and a centrifuge bowl 5 with a conical shape, tapering upwardly to a larger diameter wherein the centrifuge bowl has a second taper juxtaposed with the taper of the driving cup (see FIG 1 and accompanying text).
Where a claimed improvement on a device or apparatus is no more than "the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement," the claim is unpatentable under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d 1509, 1518-19 (BPAI, 2007) (citing KSR v. Teleflex, 127 S.Ct. 1727, 1740, 82 USPQ2d 1385, 1396 (2007)). Applicant claims a combination that only unites old elements with no change in the respective functions of those old elements, and the combination of those elements yields predictable results; absent evidence that the modifications necessary to effect the combination of elements is uniquely challenging or difficult for one of ordinary skill in the art, the claim is unpatentable as obvious under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d at 1518-19 (BPAI, 2007) (citing KSR, 127 S.Ct. at 1740, 82 USPQ2d at1396. Accordingly, since the applicant[s] have submitted no persuasive evidence that the combination of the above elements is uniquely challenging or difficult for one of ordinary skill in the art, the claim is unpatentable as obvious under 35 U.S.C. 103(a) because it is no more than the predictable use of prior art elements according to their established functions resulting in the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement. In the instant case, it would have been obvious to a person having ordinary skill in the art at the time of filing to provide the patented system as claimed by Galavotti with the shape disclosed by Rochat, since both elements are known within the art.
With regard to claims 8, 9, Galavotti claims that the drive member may receive a plurality of differently sized centrifuge bowls, indicating different capacities (see Galavotti claims 1, 3)
Claims 4, 13 (formerly 14) are rejected on the ground of nonstatutory double patenting as being unpatentable over various claims of U.S. Patent No. 11,911,543 to Galavotti et al in view of US 5.387,174 to Rochat, further in view of US 2001/0015227 to Jorgensen et al. Although the claims at issue are not identical, they are not patentably distinct from each other because the instantly presented claims are slightly different embodiments of the patented claims.
With regard to claims 4 and 13, the cited prior art claims and suggests the apparatus as claimed by Applicant (see rejections above). The cited prior art does not set forth a manifold. However, Jorgensen discloses a fluid processing system with a centrifuge 62 for separating blood cells and a manifold 256 for distributing those cells to a preferred destination (see FIGS 5-7, ¶0033-0034, 0047-0050). It would have been obvious to a person having ordinary skill in the art at the time of filing to add a manifold as disclosed by Jorgensen to the autotransfusion apparatus suggested by the prior art in order to accurately direct multiple fluids to preferred destinations, as taught by Jorgensen.
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 11 February 2026