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 Rejections - 35 USC § 103
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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 38-40 are rejected under 35 U.S.C. 103 as being unpatentable over Clayson (US H000319 H) in view of Miller (2021/0190451).
With respect to claim 38, Clayson teaches a suppressor (Figures 1-3, #10 – note that the diffusor device #10 functions to expand the high pressure gases such that the gases are expelled from the device at a low pressure, which is functionally a “suppressor” as the high pressure muzzle blast is suppressed and exhausted at a low pressure) for a weapon system (defined by Gatling type gun having barrels #14) having a plurality of barrels (14), the suppressor comprising: an aft end (12) configured to receive a muzzle of each barrel (14) of the plurality of barrels; a forward end (defined by end having exit tubes #34) defining a plurality of discrete projectile apertures (34) spaced radially about a center of the forward end and configured to align with the plurality of barrels (14) when the muzzle of each barrel is received in the aft end (12); and a sidewall (defined by sidewall forming outer body of nose #30, enclosing chamber #32) extending from the aft end (12) to the forward end (defined by end having exit tubes #34).
Clayson fails to teach each of the discrete projectile apertures having a non-circular cross-sectional profile.
Miller teaches a similar firearm suppressor (Figures 1A-D, #200), wherein it is known to form a forward end (Figure 1, defined by end having flash hider #100, defining a projectile exit aperture through portion #120) defining a plurality of discrete projectile apertures (defined by walls #120a/b of flash hider forming the discrete projectile apertures, when combined with, and forming the plurality of exit tubes #34 of Clayson), having a non-circular cross-sectional profile (defined by cross-sectional profile of portions #120a/b).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the apparatus of Clayson, with the apparatus of Miller so as to can reduce flash in the visible and infrared wavelengths emitted from the distal end of the suppressor of Clayson, as taught by Miller (see Miller, [0034]).
With respect to claim 39, Clayson and Miller teach wherein each discrete non-circular projectile aperture (Clayson #34, when combined with Miller #100/120) is elongated in a direction (axial direction parallel to projectile pathway) extending counter to a direction of rotation (radial direction) of the plurality of barrels (Clayson, #14, when combined) during firing of the weapon system.
With respect to claim 40, Clayson and Miller teach the suppressor of claim 38. Clayson and Miller further teaches a plurality of discrete non-circular projectile apertures (Miller, defined by walls #120a/b of flash hider forming the discrete projectile apertures, when combined with, and forming the plurality of exit tubes #34 of Clayson).
Clayson and Miller fail to teach wherein each discrete non-circular projectile aperture has a generally triangular shape.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide wherein each discrete non-circular projectile aperture has a generally triangular shape, since it has been held by the courts that a change in shape or configuration, without any criticality, is nothing more than one of numerous shapes that one of ordinary skill in the art will find obvious to provide based on the suitability for the intended final application. See In re Dailey, 149 USPQ 47 (CCPA 1976). It appears that the disclosed device would perform equally well shaped as disclosed by Clayson.
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, 24-37 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 11,604,042. Although the claims at issue are not identical, they are not patentably distinct from each other because the claimed subject matter of the current application is contained in the patented claims previously indicated.
Claims 21-22, 24-37 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,768,049. Although the claims at issue are not identical, they are not patentably distinct from each other because the claimed subject matter of the current application is contained in the patented claims previously indicated.
Claims 21-22, 24-37 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21-40 of copending Application No. 18/234,263 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claimed subject matter of the current application is contained in the patented claims previously indicated.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant’s arguments with respect to claims 38-40 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The Examiner considers the new reliance on Miller, in combination with Clayson, so teach all of the limitations of claims 38-40.
It is noted that the nonstatutory double patenting rejection for claims 38-40 has been withdrawn in light of the amendments to claim 38. Claims 21-22 and 24-37 are still rejected on the grounds of nonstatutory double patenting as indicated above, but will be in condition for allowance upon acceptance of a properly filed terminal disclaimer.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEREMY AUSTIN LUKS whose telephone number is (571)272-2707. The examiner can normally be reached Monday-Friday (9:00-5:00).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dedei Hammond can be reached at (571) 270-7938. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEREMY A LUKS/Primary Examiner, Art Unit 2837