DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Claims Status
Claims 16-24 are pending and under current examination in this application.
The applicant’s election with traverse of Group I (claims 16-24) in the reply filed on 16 December 2025 is acknowledged. Claims 25-30 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected group, there being no allowable generic or linking claim. The applicant timely traversed the restriction (election) requirement in the reply filed on 16 December 2025 in response to Office Action dated 16 October 2025.
Claim Objections
Claim 17 is objected to because of the following informalities:
Claim 17 is objected to because it is missing a period at the end of the claim. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. § 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. § 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which Applicant regards as his invention.
Claims 16-24 are rejected under 35 U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
Regarding claim 16, the claim is directed to a process of manufacturing an aqueous suspension (1) of "at least one organic UV filter having a particle size DN30 of 100 nm or more." The specification defines DN30 as a number-based particle size distribution parameter. However, the claim does not specify the method by which this DN30 value is determined. The specification, at ¶[0009], indicates that number-based distributions can be obtained by electron microscopy, and that different instruments may yield results that differ within some minor range. The specification ¶[0076], states that DN values "may be determined by e.g. transmission electron microscopy (TEM) or scanning electron microscopy (SEM), preferably by transmission electron microscopy (TEM)". The use of permissive language "may be" and the lack of a required technique in the claim renders it unclear which method must be used to satisfy the claim limitation. This uncertainty as to the required measurement technique renders the metes and bounds of the claim indefinite. Without reciting the measurement technique in the claim, it is unclear what method must be used to determine whether a UV filter meets the "particle size DN30 of 100 nm or more" limitation. Similarly, in claim 17, the DN10, DN50, DN90 limitations in claim do not recite the measurement technique and as with claim 16, it is unclear how these number-based parameters are to be measured. This ambiguity renders the scope of the claim unclear, as the result may vary depending on the measurement technique and instrument selected. Dependent claims 18-24 are also included in this rejection because they do not cure the defect in claim 16 noted above.
In addition, claim 18 recites, "wherein the population of particles below 100 nm in the aqueous suspension (1) is reduced during the milling step." This limitation is indefinite because it lacks an antecedent basis and a standard for comparison. The phrase "is reduced" is relative. The claim does not specify a baseline or a reference point from which the reduction is measured. For example, it is unclear if the reduction is relative to the starting suspension (2), relative to a theoretical population, or relative to a process performed under different conditions. The specification ¶[0022] attempts to provide a comparison, stating the terms relate to comparison with a milling step yielding a DN30 of 99 nm or less. However, this clarifying language is not present in the claim, leaving the claim scope ambiguous and the limitation purely subjective.
Claim 21 recites “pyrrolo moieties”, where the substituent for pyrrolo is unclear and "a group - (CH—CH)mC(═O)—OR6" where the bonding and structure of the -(CH—CH)- group is unclear. These errors render the metes and bounds of the compounds in claim 21 unclear. Appropriate correction is required.
Regarding claim 24, the claim recites "wherein the at least one organic UV filter in suspension (2) has a particle size Dv90 determined by laser diffraction in the range of from 0.01 to 300 μm." As with claim 17, this claim recites a measurement parameter (Dv90) and the general technique (laser diffraction) but fails to specify the instrument or conditions used to obtain this value. The specification ¶[0009], notes that different commercial instruments may yield results that differ within some minor range. Because the claim does not specify the instrument or a protocol, it is unclear what specific values fall within the claimed range, rendering the claim indefinite.
Claims 17 and 29 are rejected as indefinite for their improper use of a trademark to identify a material or product. A process claim should not define an apparatus by its trademark, but instead, describe the apparatus by its structure or function (see MPEP § 2173.05(u) and 37 CFR 1.75(d)(1)). When a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim scope becomes uncertain. Because a trademark does not define the properties of the product it represents, the public cannot clearly determine the boundaries of the claimed invention.
Claims 17 and 29 limitations recite specific particle size parameters (and further require that these values be "measured using a Mastersizer 2000 from Malvern Panalytical." "Mastersizer" and "Mastersizer 2000" are registered trademarks of Malvern Panalytical Ltd. for a line of laser diffraction particle size analyzers. By defining the measurement method by reference to a specific branded commercial instrument, the claim improperly relies on a trademark to define a key aspect of the invention (i.e., the methodology by which the particle size limitations are met). The characteristics, models, software versions, or measurement protocols of this commercial instrument may change over time, be updated, or be discontinued. The claim scope cannot be permitted to fluctuate with the commercial decisions or upgrades made by an instrument vendor. Furthermore, there is no guarantee that every instrument bearing the "Mastersizer 2000" name is identical in its operation or output, nor is there a way for the public to verify compliance with the claim without access to a specific, proprietary machine. The scope of a claim is indefinite if it does not allow the public to determine what is covered by the patent.
To overcome this rejection, applicant is advised to amend claims 17 and 29 to remove the trademark limitation or replace the trademark with a generic term or a functional description of the measurement method that defines the measurement parameters in a way that is independent of a specific commercial trademark product. For example, the applicant could specify that the measurements are performed according to a recognized standard, such as ISO 13320 particle size analysis, laser diffraction methods, and define the specific operating conditions (e.g., dispersion medium, optical model, analysis algorithm) used to obtain the recited Dv10 and Dv90 values.
Claim Rejections - 35 USC § 103
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 35 U.S.C. § 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. § 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. § 102(b)(2)(C) for any potential 35 U.S.C. § 102(a)(2) prior art against the later invention.
Claims 16-24 are rejected under 35 U.S.C. § 103 as being unpatentable over Mongiat et al. (US-20100303746-A1; published 02 Dec 2010, hereinafter referred to as “Mongiat”) in view of Floesser-Mueller et al. (US-20190274939-A1; published 12 Sep 2019, hereinafter referred to as “Floesser-Mueller”).
Mongiat teaches a method of preparing a composition comprising a micronised insoluble organic UV absorber, which inherently reduces fine particles (e.g., the population of particles below 100 nm as in the limitation of instant claim 18). The method comprises grinding the insoluble organic UV absorber, in coarse particle form, in a grinding apparatus, in the presence of a grinding aid selected from various groups (claim 1). The process produces an aqueous suspension, as the grinding is performed in a liquid medium, which can be chosen as water (¶[0142]).
The grinding aid of Mongiat may be a hydrophobic additive (e.g., (b2) fatty acid esters, (b3) alkyl phosphates esters, (b7) ethoxylated alkylphenols, (b8) esters of polyol and mono-, di- or tri-glycerides, (b9) esters of fatty acids, (b10) Sorbitan mono- and di-esters of saturated and/or unsaturated C6-C22 fatty acids, and (b6) polyethylene/polypropylene "-glycol" ethers of saturated or unsaturated C4-C28 fatty acids with low ethoxylation can be hydrophobic as recited in claim 1), wherein the hydrophobic additive used as a grinding aid may be used in a concentration of 0.1 to 20% by weight, based on the total weight of the UV protection composition (¶[0064]). Furthermore, most of Mongiat Examples A1-A19 and Dispersion 20-34 use the range of 1-7.5% weight, which is well within the broader range of instant claim 22.
Mongiat teaches the use of alcohols having from 6 to 18 carbon atoms (¶[0076]); C6-C24 carboxylic acids (¶[0065]); esters of C6-C24 carboxylic acids with C3-C24 alcohols (¶[0009] (b2) and ¶[0068]); esters of hydroxycarboxylic acids with C6-C24 alcohols (¶[0065] and ¶[0067]); esters of carboxylic acids with polyhydric alcohols (¶[0009] (b8) and ¶[0079]); liquid mono-/di-/tri-glyceride mixtures based on C6-C18 carboxylic acids (¶[0009] (b8)); esters of C6-C24 alcohols with aromatic carboxylic acids or with oxo carboxylic acids (¶[0009] (b3) and ¶[0071]); substituted cyclohexanes (¶[0054]); silicone oils (¶[0104]); and diol esters (¶[0009] (b8) and ¶[0079]), meeting the limitation of instant claim 20.
Mongiat teaches an insoluble organic UV filter selected from the group consisting of a oxanilide UV filter (¶[0019]); triazine UV filter (¶[0019]); piperazine UV filter (¶[0037]); triazole UV filter (¶[0034]); sulfonated benzimidazole (¶[0037]); phenylene bis-diphenyltriazine (¶[0034]); triazol formulas (¶[0034] and ¶[0036]); and the most preferred in the instant application, 2,2′-methylenebis [6-(2H-1,2,3-benzotriazol-2-yl)-4-(2,4,4-trimethylpentan-2-yl)phenol], also known as methylene bis-benzotriazolyl tetramethylbutylphenol and MBBT (formula (7); ¶[0036]).
The process taught by Mongiat is, “Any known process suitable for the preparation of microparticles can be used for the preparation of the micronised UV absorbers, for example: wet-milling (low-viscosity micronisation process for pumpable dispersions), with a hard grinding medium, for example zirconium silicate balls in a ball mill, and a protective surfactant or a protective polymer in water or in a suitable organic solvent; wet-kneading (high-viscosity micronisation process for non-pumpable pastes) using a continuous or discontinuous (batch) kneader. For a wet-kneading process, a solvent (water or cosmetically acceptable oils), a grinding aid (surfactant, emulsifier) and a polymeric grinding aid may be used.” (¶[0142]) and is conducted in a milling apparatus (claim 1), selected from a ball mill, vibratory mill, jet mill, or hammer mill, preferably a high-speed mixing mill (¶[0061] and ¶[0149]), thus meeting the limitation of instant claim 23.
Regarding particle size, Mongiat teaches that the organic UV absorber is micronized (claim 1), exemplified dispersion 20 has a D50 of 123 nm and D90 of 246 nm, dispersion 22 has a D50 of 123 nm and D90 of 238 nm, dispersion 23 has a D50 of 120 nm and D90 of 230 nm, dispersion 24 has a D50 of 120 nm and D90 of 227 nm, dispersion 25 has a D50 of 122 nm and D90 of 234 nm, dispersion 26 has a D50 of 122 nm and D90 of 237 nm, dispersion 29 has a D50 of 127 nm and D90 of 265 nm, dispersion 30 has a D50 of 124 nm and D90 of 243 nm, dispersion 31 has a D50 of 132 nm and D90 of 265 nm, dispersion 32 has a D50 of 123 nm and D90 of 242 nm, dispersion 34 has a D50 of 124 nm and D90 of 235 nm (pages 18-20, ¶[0176]-[0192]). In addition, Mongiat discloses ball milling the UV absorber to a mean particle size of D50 from 100 nm to 170 nm (¶[0153]), specifically the UV absorber is milled together with zirconium silicate balls (diameter 0.1 to 4 mm) as grinding aids, a dispersing agent and the continuous phase, containing water, simethicone and occasionally citric acid (indicating a hydrophobic additive is present in the water mixture during milling), in a ball mill to a mean particle size of D50 from 100 nm to 170 nm (¶[0175]), and wherein the UV substances/absorbers have a particle size distribution in the range of 100-300 nm (¶[0197]).
Mongiat does not explicitly teach or measure Dv10, DN10, DN30, DN50, or DN90 particle size measurements, only Dv90 particle size measurements as indicated by D90, and is silent on the method of measurement being as determined by laser diffraction using a Mastersizer 2000 from Malvern Panalytical. Mongiat also does not expressly state milling in a milling apparatus at a temperature of 35-90 °C or 40-80 °C.
Floesser-Mueller teaches micronized UV filter particle size from 0.01 to 2μ (10-2000 n; claim 35) and added to an aqueous dispersion with a dispersing agent milling together to a mean particle size of d50 from 100-170 nm (claim 36), also teaching a primary uv filter/absorber particle size as having a particle size distribution in the range of 100-300 nm (¶[0271]), overlapping and falling within the extraordinarily broad range of 0.01 to 300 μm (10-300,000 nm) of instant claim 24. Specifying, “The particle size of the micronized UV filter dispersions is characterized with a Mastersizer 2000 (Malvern Instruments) equipped with a wet dispersion unit. This instrument measures the particle size distribution of the dispersed particles by laser diffraction. The d50 value is a measure for the average particle size of the micronized UV filter particles.” (¶[0326]-[0327]), thus particle size characterization by laser diffraction, specifically using a Mastersizer 2000, was known in the art at the time of the invention to measure particle size distribution for the exact same type of micronized UV absorber dispersions.
Furthermore, Floesser-Mueller teaches preparation of UV filter particles with water and a hydrophobic additive (i.e., simethicone) (¶[0309]) and milled together with grinding beads at 48° C (¶[0312]-[0325]), thus milling organic dispersions at moderate elevated temperatures (e.g., 40-80 °C) is a routine process parameter within the capability of formulation scientists for a formulation exactly comprising at least one organic UV filter in a mixture of water and a hydrophobic additive, as per the instant claims 16 and 19.
While some prior art may not recite all specific particle size metrics (e.g., Dv10, DN10, DN30, DN50, DN90 of instant claims 16 and 17; wherein number-based distribution particle size measurements are standard metrics that are less commonly used in the field of particle characterization), the concept of micronized organic UV filters at sub-micron to several micron scales is taught and choosing between volume distribution (Dv) and number distribution (Dn) is a matter of routine analysis (see evidentiary reference, Malvern Mastersizer 2000 User Manual, Chapter 9, page 116, “Transforming Results”, describing transforming analysis converting volume distribution (Dv or D) which is the volume proportion within each size class of the total volume of the particles to a number based distribution (i.e., Dn)).
In re Sujeet Kumar, 418 F.3d 1361 (Fed. Cir. 2005), emphasizes that merely defining a specific particle size range is not patentable if it falls within or overlaps with a broader, or even closely related, particle size and distribution ranges already known in the art. Thus, the burden is on the applicant to show the specific selection of the claimed range produces unexpected or critical results, not obvious from the teachings of the prior art.
Thus, it would have been prima facie obvious to a person of ordinary skill in the art at the time the invention was made to modify the composition of Floesser-Mueller or Mongiat to arrive at the particle sizes recited in instant claims 16and 17. Both Mongiat and Floesser-Mueller already discloses mean particle sizes (D50) that overlap with the claimed DN50 of 120 nm or more and D90 sizes that overlap with the claimed DN90 of 200 nm or more. Furthermore, the ranges disclosed by Floesser-Mueller (e.g., up to 2.0 μ) fully encompass the claimed Dv90 of less than 2.2 μm and the claimed DN90 of 200 nm or more. The selection of specific values (e.g., DN30 ≥100 nm, DN10 ≥100 nm, Dv10 ≥100 nm, DN50 ≥120 nm, DN90 ≥200 nm, Dv90 ≤2200 nm or Dv90 from 10-300,000 nm) from within a known operable range from the teachings of Mongiat and Floesser-Mueller and to apply alternative measurement techniques for particle size taught by the Malvern Mastersizer 2000 User Manual to the method would have been obvious to try with a reasonable expectation of success (see In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)). Consequently, it would have been obvious to a person of ordinary skill in the art that the compositions of Mongiat and Floesser-Mueller would inherently overlap and possess the particle size characteristics recited in the instant claims or that they could be arrived at through routine optimization.
Claim Rejections – Nonstatutory 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).
Claims 16-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of US Patent No. 8,393,556 B2 (“’556” patent). Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons outlined below.
The '556 patent claims a method for preparing a composition comprising a micronised insoluble organic UV absorber. Independent claim 1 of the '556 patent is directed to a method comprising grinding an insoluble organic UV absorber in coarse particle form in a grinding apparatus comprising yttrium-stabilized zirconium oxide grinding beads in the presence of an antifoam agent. Instant claim 16 is directed to a process of manufacturing an aqueous suspension of at least one organic UV filter comprising the step of milling a suspension comprising the at least one organic UV filter in a mixture of water and a hydrophobic additive in a milling apparatus at a temperature of 35 to 90°C.
The scope of independent claim 16 is not patentably distinct from the scope of the claims in the '556 patent because the terms "milling" and "grinding" are considered synonymous in the context of particle size reduction. The '556 patent explicitly contemplates wet-milling processes and lists various milling apparatuses such as ball mills, vibratory mills, and high-speed mixing mills (column 6, lines 45-52). Instant claim 23 similarly recites that the milling step may be conducted in a ball mill or vibratory mill, confirming that the processes are analogous.
While instant claim 16 recites specific temperatures (35-90°C) and the presence of a "hydrophobic additive," these limitations do not patentably distinguish the claimed process from that of the '556 patent. The '556 patent discloses that the grinding process is typically performed in an aqueous medium and does not specify a temperature range. The use of a temperature range of 35-90°C in the instant process is considered an optimization of a process condition that would inherently occur or be selectable by a skilled artisan performing the grinding process of the '556 patent, especially in industrial milling equipment. In addition, the temperature range 35-90 °C overlaps with “elevated temperature” conditions disclosed in the specification (column 7, line 21), which is not considered patentably distinct.
Regarding the "hydrophobic additive", the '556 patent teaches the use of an antifoam agent as a dispersing agent auxiliary. The '556 patent further defines the antifoam agent as being selected from, inter alia, silicone oils, hydrophobic silica, and hydrophobic fat derivatives and waxes (column 6, line 58- column 7, line 36). These materials are inherently hydrophobic. Therefore, the "hydrophobic additive" of instant claim 16 is merely a broad recitation of a class of materials that encompasses the specific "antifoam agents" disclosed in the '556 patent.
Furthermore, dependent claims 17-24 of the instant application recite features that are either inherently present in, or obvious variations of, the process and product disclosed in the '556 patent.
Instant claims 17 and 18 recite specific particle sizes and the reduction of particles below 100 nm. The '556 patent is expressly directed to producing "nanoscalar UV absorbers" with a particle size <120 nm (column 1, lines 35-47). The specification teaches particle size ranges wherein, “…the micronised insoluble organic UV absorber, produced according to the method of the present invention, has a mean particle size in the range of from 0.01 to 2, more preferably from 0.02 to 1.5, especially from 0.05 to 1.0μ. Most preferably, the mean particle size is in the range of from 0.01 to 2.0μ.” (column 8, lines 25-29) and Example A3 (column 16, table, lines 30-39). A process designed to produce particles <120 nm will inherently produce suspensions where the population of particles below 100 nm is reduced. Particle size metrics like Dv10, Dv50, and Dv90 would be expected to fall within the recited ranges, wherein the claimed size ranges would be expected, as an inherent results of the reference processes, to overlap. The selection of specific percentiles are result-effective variables, which is considered an obvious variation the is not patentably distinct.
The limitation of 40-80 °C temperature in instant claim 19 is a narrowing of the overlapping range in claim 16, and as such is rendered an obvious routine optimization of the process of the '556 patent
Instant claim 20 recites that the hydrophobic additive is a cosmetic oil from a long list. This list encompasses various oils, fats, and waxes, many of which are chemically similar to or encompass the hydrophobic antifoam agents (e.g., silicone oils, hydrophobic fat derivatives) explicitly disclosed in the '556 patent. The selection of a specific "cosmetic oil" from this known class of hydrophobic additives would have been obvious to one of ordinary skill in the art for formulating a cosmetic composition. The instant claimed subject matter is equal to that disclosed in the '556 patent.
Instant claim 21 recites specific types of organic UV filters. The '556 patent also discloses numerous specific insoluble organic UV filters in Table 1 (columns 8-11), including compounds of formula (3) (a triazole; column 3, lines 17-40), formula (4) (a vinyl group-containing amide; column 3, lines 50-67), and formula (5) (a cinnamic acid amide; column 4, lines 5-18). The specific types of organic UV filters significantly overlap and does not render the process patentably distinct.
Instant claim 22 recites 0.01 to 10.0 wt.% amount of hydrophobic additive. This is a quantitative limitation of the additive is taught by the '556 patent, wherein, “The anti-foam agents are used in amounts from 0.01 to 10, preferably from 0.01 to 1% b.w., based on the micronized UV absorber dispersion.” (column 8, lines 20-23). In addition, the specific range of 0.01 to 10.0 wt.% is considered a conventional range for such auxiliary agents in milling processes and does not define a patentable improvement over the prior art process.
Instant claim 23 recites specific types of mills. These mills are the same as those disclosed in the '556 patent (e.g., ball mill, vibratory mill; column 6, lines 45-52).
Instant claim 24 recites a starting particle size (Dv90 0.01-300 μm [10-30,000 nm]). The '556 patent begins with the UV absorber in "coarse particle form" and grinds it to the nanoscale. A Dv90 range of 0.01 to 300 μm is broad enough to encompass both the starting "coarse" material and the final product of the '556 patent, and thus does not distinguish the claimed process. Moreover, the '556 patent disclosed suitable UV filter substances and adjuvants which can be additionally used with the UV absorbers according to the present invention in Table 1 including No. 42, titanium dioxide (primary particle size 10-50 nm), and No. 44, zinc oxide (primary particle size 20-100 nm) (column 9), which overlap within the instant claim Dv90 limitation range of 10-30,000 nm, thus rendering the instant claimed range inherent and/or obvious.
Overall, the reference claims recite overlapping ranges, species selections, and result-effective optimizations and thus, the instant claimed invention is directed to a process that is not patentably distinct from the subject matter claimed in the earlier-filed, commonly assigned '556 patent. This results in an improper extension of patent exclusivity. Accordingly, claims 16-24 are rejected on the grounds of nonstatutory double patenting.
This rejection may be overcome by filing a terminal disclaimer in compliance with 37 CFR § 1.321(c), disclaiming any patent term extending beyond the expiration of the reference patent and agreeing to common ownership for the life of the patent; or amending the claims to render them patentably distinct from the claims of the reference patent; or providing persuasive arguments demonstrating that the instant claims are patentably distinct from the reference claims.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA L. SCOTLAND whose telephone number is (571) 272-2979. The examiner can normally be reached M-F 9:00 am to 5:00 pm EST.
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/RL Scotland/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615