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 .
Election/Restrictions
Applicant's election with traverse of species A. 1. Figs. 1A-4B, and B. 1. wherein the first and second parts are slidably movable relative to one another, in the reply filed on 06/23/2026 is acknowledged. The traversal is on the ground(s) that “The requirement is improper, particularly since claims 5, 6, and 12-20 ultimately depend on or otherwise incorporate all the features of claim 1. Furthermore, Applicants submit that the Inventions I and II claims are so interrelated that a search of one group of claims will reveal art to the other. Were restriction to be affected between the claims in Inventions I and II, a separate examination of the claims in Inventions I and II would require substantial duplication of work on the part of the U.S. Patent and Trademark Office. Even though some additional consideration would be necessary, the scope of analysis of novelty of all the claims of Inventions I and II would have to be as rigorous as when only the claims of Invention I were being considered by themselves. Clearly, this duplication of effort would not be warranted where these claims of different categories are so interrelated. Further, Applicants submit that for restriction to be affected between the claims in Inventions I and II, it would place an undue burden by requiring payment of a separate filing fee for examination of the nonelected claims, as well as the added costs associated with prosecuting two applications and maintaining two patents. [...] The lack of unity requirement is based on the allegation that there is no special technical feature common to all the claims. The requirement is improper. The pending claims satisfy unity because the alleged species are linked by the same or corresponding special technical features. As the Office acknowledges, claim 1 is generic. [...] The alleged species of Groups A and B are not separate inventions, but rather alternative implementations of that same inventive concept. [...].” This is not found persuasive because: the Examiner is unclear as to what the Applicant is referring as ‘the Inventions I and II claims [...].’ In response to the Applicant's arguments, Examiner notes that claim 1 (generic claim) encompasses the disclosed embodiments; and scope of a claim may be limited to a single disclosed embodiment (i.e., a single species, and thus a specific species claim). Distinctness is shown as each species in species A represents a distinct system configuration, not shared by the other species (see ¶ 0011-0025 for example); and each species in species B represents a distinct movable configuration, not shared by the other species (see i.e., wherein the first and second parts are slidably movable relative to one another; wherein the first and second parts are rotatably movable relative to one another; wherein the third part of the housing is movable relative to the first part, second part, or both first and second parts; & ¶ 0049-0050 for example). The requirement is still deemed proper and is therefore made FINAL.
Claims 1-4 & 7-11 are being examined.
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 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 –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-4 & 7-11 is/are rejected under 35 U.S.C. 102a1/a2 as being anticipated by Johnson (US 2019/0126266 A1).
Regarding claim 1, Johnson teaches:
1. A sample collection system comprising:
a housing comprising a first part (e.g., 101-A) and a second part (e.g., 101-B), the first and second parts being movable relative to one another (see i.e., open position in Fig. 1 and closed position in Fig. 2 & ¶ 0035-0036, 0042+);
porous sample collection media (e.g., sample media (also called a membrane herein) 209 ¶ 0048) disposed along an airflow path in the first part (see i.e., opening of the well 104 forming an airflow path in Fig. 1); and
an assay (e.g., 202, 204, reagents) disposed on the second part (see Fig. 3A & ¶ 0044 for example).
With regard to limitations in claims 1, 7-11 (e.g., [...] to receive a sample captured by the porous sample collection media; wherein moving the first and second parts relative to one another aligns the porous sample collection media with at least a portion of the assay; wherein moving the first and second parts relative to one another causes the porous sample collection media to come into contact with the assay, etc.), these claim limitations are considered process or intended use limitations, which do not further delineate the structure of the claimed apparatus from that of the prior art. The cited prior art teaches all of the positively recited structure of the claimed apparatus. The Courts have held that a statement of intended use in an apparatus claim fails to distinguish over a prior art apparatus. See In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). The Courts have held that the manner of operating an apparatus does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex Parte Masham, 2 USPQ2d 1647 (BPAI 1987). The Courts have held that apparatus claims must be structurally distinguishable from the prior art in terms of structure, not function. See In re Danley, 120 USPQ 528, 531 (CCPA 1959); and Hewlett-Packard Co. V. Bausch and Lomb, Inc., 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (see MPEP §§ 2114 and 2173.05(g)).
Regarding claims 2-4 & 9-11, Johnson teaches:
2. The sample collection system of claim 1, wherein the airflow path comprises a through opening in the first part (see Figs. 1, 3A for example).
3. The sample collection system of claim 1, wherein the first part comprises a screen disposed in the airflow path in front of the porous sample collection media (see ¶ 0049 for example).
4. The sample collection system of claim 1, wherein the first and second parts are slidably movable relative to one another (see ¶ 0042 for example).
9. - 10. The sample collection system of claim 1, wherein the assay comprises a sample receiving area (see ¶ 0044 for example).
11. The sample collection system of claim 10, the housing comprising a protrusion (e.g., 206).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Cheng et al. (US 2014/0271400 A1) teach: a test strip system comprising: a test strip housing (1) having a sample port (2) having an airflow path (see Figs. 1-3), a slidable cover (4) for the test strip housing, and a lock having a protrusion (5) to lock the test strip housing to the cover.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEAN KWAK whose telephone number is (571)270-7072. The examiner can normally be reached M-TH, 4:30 am - 2:30 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CHARLES CAPOZZI can be reached at (571)270-3638. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DEAN KWAK/Primary Examiner, Art Unit 1798
DEAN KWAK
Primary Examiner
Art Unit 1798
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