DETAILED ACTION
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, 3-10 and 14-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 7-19 of U.S. Patent No. 11,670,847. Although the claims at issue are not identical, they are not patentably distinct from each other because they both claimed a drive assembly, comprising:
one or more components (axle) configured to couple to a motor and to a polarization shifter for a dual-polarized radiating element, wherein the motor is controllable by a processing system configured to detect an interference signal having a polarization orientation, and wherein, when the one or more components are coupled to the polarization shifter and operated by the motor, at least some of the one or more components impart rotational forces to the polarization shifter to effect polarization adjusting for the dual-polarized radiating element, thereby mitigating the interference signal according to the polarization orientation of the interference signal.
Claims 2, 11-13 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 7-19 of U.S. Patent No. 11,670,847 in view of claims 2 and 14 of U.S. Patent No. 11,949,168.
Claims 7-19 of U.S. Patent No. 11,670,847 fails to claim the polarization shifter comprises a rotatable printed circuit board (PCB), the orthogonally-polarized element pair resides on an element substrate and wherein the linear drive assembly is included in an antenna having a plurality of orthogonally-polarized element pairs. However, claims 2 and 14 of U.S. Patent No. 11,949,168 teaches the polarization shifter comprises a rotatable printed circuit board (PCB) and the radiating element resides on an element substrate. It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skilled in the art to provide the U.S. Patent No. 11,670,847 with the polarization shifter comprises a rotatable printed circuit board (PCB), the orthogonally-polarized element pair resides on an element substrate and wherein the linear drive assembly is included in an antenna having a plurality of orthogonally-polarized element pairs for the purpose of improving the antenna gain.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The patents to Rice, Bastin, Sanford, Roberts, Sreenivas and Ranghelli are cited as of interested and illustrated a similar structure to a drive assembly.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THO GIA PHAN whose telephone number is (571)272-1826. The examiner can normally be reached on M-F (8-430).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dimary Lopez can be reached on (571) 270-7893. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THO G PHAN/
Primary Examiner, Art Unit 2845
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