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 21-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 5 of the patent contains all limitations in claims 21-22 (see below).
Claim 30 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 11 of the patent contains all limitations in claim 30 (see below).
Claim 31 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 12 of the patent contains all limitations in claim 31.
Claim 32 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 13 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 13 of the patent contains all limitations in claim 32.
Claim 33 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 14 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 14 of the patent contains all limitations in claim 33.
Claim 34 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 15 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 15 of the patent contains all limitations in claim 34.
Claim 35 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 16 of the patent contains all limitations in claim 35.
Claim 36 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 17 of the patent contains all limitations in claim 36 (see below).
Claim 37 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 20 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 20 of the patent contains all limitations in claim 37.
Claim 38 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 23 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 23 of the patent contains all limitations in claim 38.
Claims 39-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 24 of U.S. Patent No. 11,858,698. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 24 of the patent contains all limitations in claims 39-40.
Regarding claim 21, claim 5 of U.S. Patent No. 11,858,698 discloses a coupling comprising: a top wall (col. 25, line 3), wherein said top wall has a top wall periphery (col. 25, lines 3-4), wherein said top wall has a longitudinal axis (col. 25, lines 6-7), a transverse axis orthogonal to said longitudinal axis and intersecting said longitudinal axis at a z-axis (col. 25, lines 7-9), wherein said z-axis is orthogonal to said longitudinal axis and said transverse axis (col. 25, lines 9-11), wherein said coupling further comprises: a pair of front apertures in said top wall (col. 25, line 13), wherein said front apertures are on opposite sides of said transverse axis and are on one side of said longitudinal axis (col. 25, lines 19-22); a dispensing opening in said top wall and aligned with said z-axis (col. 25, lines 14-15); a first guide aperture and a second guide aperture in said top wall positioned along said longitudinal axis and positioned on opposite sides of said transverse axis (col. 25, lines 35-38), wherein said first guide aperture and said second guide aperture extend further away from said z-axis than said front apertures (col. 25, lines 38-40); and a neck fitment at least partially surrounding said dispensing opening and projecting from said top wall and aligned with said z-axis (col. 25, lines 16-18).
Regarding claim 22, claim 5 of U.S. Patent No. 11,858,698 discloses said front apertures each have a front edge oriented away from said longitudinal axis, wherein said front edges are equidistant from said longitudinal axis (col. 25, lines 23-25).
Regarding claim 30, claim 11 of U.S. Patent No. 11,858,698 discloses a coupling comprising: a top wall (col. 25, line 63), wherein said top wall has a top wall periphery (col. 25, lines 63-64), wherein said top wall has a longitudinal axis (col. 25, lines 66-67), a transverse axis orthogonal to said longitudinal axis and intersecting said longitudinal axis at a z-axis (col. 25, line 67 to col. 26, line 2), wherein said z-axis is orthogonal to said longitudinal axis and said transverse axis (col. 26, lines 2-4), wherein said top wall is more extensive along said longitudinal axis than along said transverse axis (col. 26, lines 4-6), wherein said top wall is open at said z-axis (col. 26, line 6), wherein said coupling further comprises: (i) at least two support zones (col. 26, line 8), wherein each support zone comprises a portion of said top wall and an open area in said top wall at least partially bounded by a front edge substantially parallel to said longitudinal axis (col. 26, lines 8-12), wherein said open area is continuous between said support zones (col. 26, lines 12-13); and (ii) a neck fitment projecting from said top wall and aligned about said z-axis (col. 26, lines 14-15).
Regarding claim 36, claim 17 of U.S. Patent No. 11,858,698 discloses a coupling comprising: a top wall (col. 26, line 35), wherein said top wall has a top wall periphery (col. 26, lines 35-36), wherein said top wall has a longitudinal axis (col. 26, lines 38-39), a transverse axis orthogonal to said longitudinal axis and intersecting said longitudinal axis at a z-axis (col. 26, lines 39-41), wherein said z-axis is orthogonal to said longitudinal axis and said transverse axis (col. 26, lines 41-43), wherein said coupling further comprises: a front aperture in said top wall (col. 26, line 45); a dispensing opening in said top wall and aligned with said z-axis (col. 26, lines 46-47); a first guide aperture and a second guide aperture in said top wall positioned along said longitudinal axis and positioned on opposite sides of said transverse axis (col. 26, lines 51-54), wherein said first guide aperture and said second guide aperture extend further away from said z-axis than said front aperture (col. 26, lines 55-57); and a neck fitment at least partially surrounding said dispensing opening and projecting from said top wall and aligned with said z-axis (col. 26, lines 48-50).
Allowable Subject Matter
Claims 23-29 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DONNELL ALAN LONG whose telephone number is (571)270-5610. The examiner can normally be reached Mon - Fri 8AM-5PM.
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/DONNELL A LONG/Primary Examiner, Art Unit 3754