DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments
Applicant’s arguments, filed 8/26/2025, with respect to the rejection of claims 1 – 9 on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 9 of U.S. Patent No. 11,406,978 B2 in view of Huang et al. (US 2011/0203367 A1), applicant's arguments have been fully considered but they are not persuasive. Since the terminal disclaimer was not approved, this rejection of the claims is maintained. See the Terminal Disclaimer section below.
Applicant’s arguments and amendments, filed 8/26/2025, with respect to the rejection of claims 1 – 7 and 9 under pre-AIA 35 U.S.C. 102(a)/(b)/(e) as being anticipated by Huang et al. (US 2011/0203367 A1), have been fully considered and are persuasive. This rejection has been withdrawn.
Applicant’s arguments and amendments, filed 8/26/2025, with respect to the rejection of claim 1 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Huang et al. (US 2011/0203367 A1) in view of Kautzky (US 2007/0092405 A1) have been fully considered and are persuasive. This rejection has been withdrawn.
The rejection of dependent claim 8 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Huang et al. (US 2011/0203367 A1) in view of Singh et al. (US 2003/0186218 A1) has been withdrawn.
Applicant canceled nonelected claim 10.
Terminal Disclaimer
The terminal disclaimer does not comply with 37 CFR 1.321 because: The terminal disclaimer filed 8/26/2025 is not approved. The terminal disclaimer identifies a party who is not the applicant (only for applications filed on or after September 16, 2012): This application was filed on or after September 16, 2012. The party identified in the terminal disclaimer is not the applicant of record. A request to change the applicant under 37 CFR 1.46(c) must be filed and must include an application data sheet specifying the applicant in the applicant information section and comply with 37 CFR 3.71 and 3.73. To be reconsidered, the terminal disclaimer must be filed with the request under 37 CFR 1.46(c). For applications filed on or after 9/16/2012, 37 CFR 1.321 specifies that the applicant can disclaim, and the terminal disclaimer must specify the extent of the applicant’s ownership. To remedy this: A request under 37 CFR 1.46(c) to change the applicant needs to be filed, which is (1) a request, signed by a 1.33(b) party, (2) a corrected applicant data sheet (ADS) (37 CFR 1.76(c) that identifies the new applicant in the applicant information, and is underlined since it is new, and (3) a 3.73(c) statement showing chain of title to the new applicant. There is no Power of Attorney (POA) filed in this application. Along with the § 1.46(c) request, a power of attorney (POA) that gives power to the attorney who is signing the terminal disclaimer, along with another copy of the terminal disclaimer, unless a terminal disclaimer is filed that is signed by the applicant. Note that the applicant cited on the terminal disclaimer must be cited exactly as it is cited on the applicant data sheet (ADS) and/or the filing receipt and also in its entirety. If more space for the applicant section is required, please use a smaller font or submit an attachment page to the terminal disclaimer. Please correct and resubmit the terminal disclaimer (No new fee is required).
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 – 9 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 9 of U.S. Patent No. 11,406,978 B2 in view of Huang et al. (US 2011/0203367 A1; hereinafter “Huang”).
Claim 1 of the instant application includes a first step comprising procuring a blood sample. Huang teaches a method of testing blood hemostasis (¶¶15, 22 and 79; figures 2 and 3) comprising a step of procuring a blood sample before subjecting the sample to analysis (¶15). The combination of familiar elements is likely to be obvious when it does no more than yield predictable results (see MPEP § 2143, A.). The rationale to support an obviousness rejection under 35 U.S.C. 103 may rely on logic and sound scientific principle (see MPEP § 2144.02). The prior art can be modified or combined to reject claims as prima facie obvious as long as there is a reasonable expectation of success (see MPEP § 2143.02). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to further include the step of procuring a blood sample prior to sample processing and analysis.
Claim 1 of the instant application further recites testing of the sample by “vibration excitation,” which appears to be functionally equivalent to the “resonant vibration state” as recited in claim 1 of the patent.
Dependent claims 2 – 9 of the instant application appear to correspond to and claim the identical subject matter of claims 2 – 9 of the patent.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN J. SINES whose telephone number is (571)272-1263. The examiner can normally be reached 9 AM-5 PM EST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Elizabeth A Robinson can be reached on (571) 272-7129. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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BRIAN J. SINES
Primary Patent Examiner
Art Unit 1796
/BRIAN J. SINES/Primary Examiner, Art Unit 1796