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 .
Response to Amendment
This Action is in response to amendment filed on June 20, 2025. Claims 1-22 are still pending in the present application. This Action is made FINAL.
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 1 and 12 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1 and 29 of the U.S. Patent No 8,639,267 B2. Although the conflicting claims are not identical, they are not patentably distinct from each other because:
The independent claims 1 and 12 of the current application include broader limitations of the independent claims 1 and 29 of the U.S. Patent No 8,639,267 B2.
The limitation of claim 1 of the current application can be read on limitations of claim 1 of the U.S. Patent No. 8,639,267 B2.
The limitation of claim 12 of the current application can be read on limitations of claim 29 of the U.S. Patent No. 8,639,267 B2.
Nonetheless, claims 1 and 12 of the present application made the claim a broader version of claims 1 and 29 of the U.S. Patent No 8,639,267 B2. Therefore, since omission of an element and its function in a combination is an obvious expedient if the remaining elements perform the same functions as before (In re Karlson (CCPA) 136 USPQ 184 (1963)), claims 1 and 12 is not patentably distinct from claims 1 and 29 of the U.S. Patent No 8,639,267 B2.
Allowable Subject Matter
Claims 1-22 are allowed. Application is allowable over prior art; a terminal disclaimer (TD) needs to be filed in the application to overcome double patenting rejection.
The following is an Examiner’s statement of reasons for allowance:
Consider claims 1 and 12, the applicant’s amendment and remark filed on June 20, 2025 have been considered and found to be persuasive. In agreement with the Applicant's remarks, the prior art failed to disclose or suggest each and every limitation recited in claims 1 and 12 of the claimed invention when considered as a whole.
Response to Arguments
Applicant’s arguments filed on June 20, 2025 with regards to claims 1 and 12 have been considered; examiner found argument/amendment persuasive have withdrawn the 103 rejection of claims 1-20. Application is allowable over prior art; a terminal disclaimer (TD) needs to be filed in the application to overcome double patenting rejection.
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 extension fee 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.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rafael Perez-Gutierrez can be reached on 571-272-7915. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LITON MIAH/Primary Examiner, Art Unit 2642