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 .
Terminal Disclaimer
The terminal disclaimer filed on 10/31/25 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent Number 11,968,961 has been reviewed and is disapproved. In this case, the POA is missing (no additional fee is required with the resubmission).
Furthermore, the person who signed the terminal disclaimer (only for applications filed on or after September 16, 2012):
- is not the applicant, patentee or an attorney or agent of record. 37 CFR I.321(a) and (b). (See FP 14.26.08);
- failed to state his/her capacity to sign for the juristic entity, and he/she has not been established as being authorized to act on behalf of the applicant. (See FP 14.26.09). In addition, please note POA can be given to customer number, wherein all practitioners listed under the customer number have POA. If POA is given to a list of practitioners by registration number, the list may not comprise more than 10 practitioners or a separate paper signed by a 37 CFR 1.33(b) party must be in the record identifying which of the practitioners, up to 10, are recognized as having established that the representative is a party authorized to act on behalf of the applicant. The terminal disclaimer entities a party who is not the applicant (only for applications filed on or after September 16, 2012; See FP 14.26.10).
Election/Restrictions
Newly submitted claims 37-40 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: claims 37-40 are directed to only a tracheal cup while the previous claims 21-36 are directed to an animal restraint having a combination of a first and a second straps configured to bend around a neck of the animal and an impact resistant padding adjustably attached to an interior surface of the first strap.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims
37-40 have been withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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 obviousness-type 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); 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 conflicting 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.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 21-35 are rejected on the ground of nonstatutory double patenting over claims 1-9 of U. S. Patent No. 11,968,961 since the claims, if allowed, would improperly extend the "right to exclude" already granted in the patent.
The subject matter claimed in the instant application is fully disclosed in the patent and is covered by the patent since the patent and the application are claiming common subject matter, as follows: “an animal restraint for mitigating collar trauma of an animal, the animal restraint comprising: a first strap configured to bend around a neck of the animal; impact resistant padding adjustably attached to an interior surface of the first strap for cushioning the neck of the animal; and a second strap attached to the first strap, the second strap providing a lateral glide movement for a ring configured for attachment to a leash, the lateral glide movement maintaining proper anatomical positioning of the impact resistant padding around the neck of the animal, wherein the second strap defines a range for the lateral glide movement of the ring on the second strap, and wherein a first end of the second strap is terminated by a first portion of a release buckle, and a second end of the second strap is terminated by a second portion of the release buckle”.
Furthermore, there is no apparent reason why applicant was prevented from presenting claims corresponding to those of the instant application during prosecution of the application which matured into a patent. See In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA 1968). See also MPEP § 804.
Allowable Subject Matter
Claim 28 is 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.
Claim 36 is allowed.
Response to Arguments
Applicant’s arguments filed on 10/31/25, with respect to 21-35, have been fully considered and are persuasive. The rejection (on 9/24/25) of claims 21-35 has been withdrawn.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Note, although the examiner recites certain excerpts for the prior art, MPEP 2141.02 VI states “PRIOR ART MUST BE CONSIDERED IN ITS ENTIRETY, INCLUDING DISCLOSURES THAT TEACH AWAY FROM THE CLAIMS”.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRINH T NGUYEN whose telephone number is (571)272-6906. The examiner can normally be reached on Monday-Friday 7:00-3:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Collins can be reached on 571-272-6886. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/TRINH T NGUYEN/Primary Examiner, Art Unit 3644