DETAILED ACTION
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 claims at issue 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); 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 reference 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. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form 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 http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1, 9, 10, and 14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims (1, 10), 11, 12 and 17, respectively, of co-pending Application No. 18469734.
Although the claims at issue are not identical, they are not patentably distinct from each other because all the claims 1, 9, 10, and 14 of Application No. 18482528 are anticipated by claims (1, 10), 11, 12 and 17 of copending Application No. 18469734.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Regarding claims 1-14: The references of record do not teach or suggest the aforementioned limitations of independent claim 1, nor would it be obvious to modify those references to include such limitations. If double patenting rejection is overcome by a timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) that would be allowable to claims 1-14.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. A list of pertinent prior art is attached in form 892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kazi Hossain whose telephone number is 571-272-8182. The examiner can normally be reached on Monday-Thursday from Monday to Thursday 8:00 AM to 4:30 PM (EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Shawki Ismail can be reached on 571-272-3985. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KAZI HOSSAIN/
Examiner, Art Unit 2837
/SHAWKI S ISMAIL/Supervisory Patent Examiner, Art Unit 2837
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