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 Objections
Claims 6, 9, and 19 are objected to because of the following informalities:
Claims 6 and 9 contain two periods after the claim number, which is improper.
Claim 19, line 1: “a passive path” should read --the passive path--.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 2-4, 7-10, 12, and 13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Leimbach et al (2879687).
In regards to Claim 2, Leimbach teaches an apparatus for making surgical braids, the apparatus comprising:
a plurality of bobbin carrier assemblies (Detail 27), the bobbin carrier assemblies carrying strands (the “yarn” of the yarn carriers 27);
a plurality of horn gears (Detail 30) defining an active path (see annotated figure below), at least three of the bobbin carrier assemblies disposed along the active path (Figure 1), wherein strands carried by the at least three bobbin carrier assemblies are actively intertwined into a surgical braid when the at least three bobbin carrier assemblies are moving along the active path (a braid is being formed);
at least one horn gear defining a passive path (see annotated figure below), wherein a strand selectively carried by a bobbin carrier assembly on the passive path is not actively intertwined with strands carried on the active path (a bobbin on the passive track of Leimbach would not be integrated at that moment into the braid being formed on the active track); and
a transfer gate arranged to selectively enable movement of at least one of the plurality of bobbin carrier assemblies between the active and passive paths (Details 5, 6, 7, and 8).
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In regards to Claim 3, Leimbach teaches a plate, the plate further forming the active path and the passive path (Figure 4, Detail 25).
In regards to Claim 4, Leimbach teaches the plate defines a plurality of grooves, at least two of the plurality of grooves further defining the active path and at least one of the plurality of grooves further defining the passive path (Figure 4 shows grooved path).
In regards to Claim 7, Leimbach teaches the active path is an endless path when the gate is in the closed position (Forming Figure 11 would require two endless paths; one the active path, one the passive path).
In regards to Claim 8, Leimbach teaches the active path defines a bounded region and the passive path is positioned outside the bounded region (the annotated figure above shows the passive path is outside the active path).
In regards to Claim 9, Leimbach teaches the at least one horn gear defining the passive path is positioned outside the bounded region (the annotated figure above shows the passive path is outside the active path).
In regards to Claim 10, Leimbach teaches the passive path is defined by two or more horn gears (Figure 1 shows each path with 12 horn gears).
In regards to Claim 12, Leimbach teaches at least one bobbin carrier assembly on the active path bypasses the passive path when at least one bobbin carrier assembly is selectively disposed along the passive path (to form Figure 11, a braid would have to be formed, separately, on each of the active path and the passive path; The claim does not require that the selective disposal causes the bypass, only that they occur at the same time).
In regards to Claim 13, Leimbach teaches the bypass of the passive path by the at least one bobbin carrier assembly on the active path occurs by operation of the transfer gate (Details 5, 6, 7, 8).
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 14, 16, and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,024,804.
Although the claims at issue are not identical, they are not patentably distinct from each other because both teach the same apparatus, with the claims aligned as follows.
Claim 14 of the instant application aligns with Claim 1 of the ‘804 patent.
Claim 16 of the instant application would align with Claim 1 of the ‘804 patent as non-oscillating path would indicate no braiding is occurring, as n oscillating path must be present for a braid to form.
Claim 17 of the instant application would align with Claim 1 of the ‘804 patent as braiding requires out-of-phase oscillating paths to form a braided structure, as the strands must pass over and under each other.
Claims 14, 16, and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6, and 7 of U.S. Patent No. 11,447,901.
Although the claims at issue are not identical, they are not patentably distinct from each other because both teach the same apparatus, with the claims aligned as follows.
Claim 14 of the instant application aligns with Claim 1 of the ‘901 patent.
Claim 16 of the instant application aligns with Claim 7 of the ‘901 patent.
Claim 17 of the instant application aligns with Claim 6 of the ‘901 patent.
Claims 15, 18, and 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,024,804 in view of Leimbach et al.
While the ‘804 patent essentially teaches the inventio as detailed, it fails to specifically teach moving a bobbin from the passive path to the active path by operating a transfer gate, and moving a bobbin to the passive path requires moving a transfer gate from a closed position to an open position, all of which Leimbach teaches (Figure 1). It would have been obvious to one of ordinary skill in the art to move bobbins between paths using a transfer gate, so as to allow for braiding variations in an automated manner.
Claims 15, 18, and 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,447,901 in view of Leimbach et al.
While the ‘901 patent essentially teaches the inventio as detailed, it fails to specifically teach moving a bobbin from the passive path to the active path by operating a transfer gate, and moving a bobbin to the passive path requires moving a transfer gate from a closed position to an open position, all of which Leimbach teaches (Figure 1). It would have been obvious to one of ordinary skill in the art to move bobbins between paths using a transfer gate, so as to allow for braiding variations in an automated manner.
Claims 2-4, 7, 10, 12, and 13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 and 11 of U.S. Patent No. 11,447,900 in view of in view of Leimbach et al.
Claim 2 of the instant application aligns with Claim 1 of the ‘900 patent, with the exception of a plurality of horn gears. Leimbach, however, teaches that it is well known that braiding machines have horn gears (Figure 7) to interact with bobbins and drive braiding. It would have been obvious to one of ordinary skill in the art to utilize horn gears to move the bobbins as needed.
Claim 3 of the instant application aligns with Claim 2 of the ‘900 patent.
Claim 4 of the instant application aligns with Claim 3 of the ‘900 patent.
Claim 7 of the instant application aligns with Claim 11 of the ‘900 patent.
Claim 10 of the instant application would align with Claim 1 of the ‘900 patent as the passive path would require at least 2 horn gears to form a path, or there would be no path.
Claim 12 of the instant application would align with Claim 1 of the ‘900 patent as the ‘900 patent teaches bobbins on both paths. The claim does not require that the selective disposal causes the bypass, only that they occur at the same time.
Claim 13 of the instant application would align with Claim 1 of the ‘900 patent as Claim 1 teaches a transfer gate.
Response to Arguments
Applicant’s arguments with respect to the claims 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.
Allowable Subject Matter
Claims 5, 6, and 11 are 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.
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 Shaun R Hurley whose telephone number is (571)272-4986. The examiner can normally be reached Monday thru Friday, 8:00am - 3:00pm.
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/SHAUN R HURLEY/Primary Examiner, Art Unit 3732