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 Rejections - 35 USC § 112
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 the applicant regards as his invention.
Claim 5 is 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 5 requires that the second sensor is a flow sensor is “…of the thermomassic type…” [claims 5 lines 3-4] where the specification states that “…[t]he at least one second sensor 24 can be a flow sensor of the thermomassic type. The at least one second sensor 24 can detect a flow of air A from the duct 11 to the duct 12, which is then converted into a pressure differential required to calculate what is the flow of gas G in the duct 12” (emphasis added) [paragraph 0067 of the Applicant’s PgPub]. Claim 1, from which claim 5 depends, requires “at least one second sensor configured for measuring an air/fuel pressure ratio connected to said first and second ducts” (emphasis added) [claim 1 lines 13-14]. Since claim 1 requires direct measurement of a pressure ratio the thermomassic sensor of claim 5, which measures a flow rate which is then converted into a pressure differential (as opposed to a pressure ratio), cannot satisfy the requirements of claim 1.
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 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the combination of claims 1 and 3 of copending Application No. 18/723,257 (reference application, in the claim set dated 06/21/2024). Although the claims at issue are not identical, they are not patentably distinct from each other because:
The combination of claims 1 and 3 of the reference application discloses, with regards to claim 1 of the subject application, a device for delivering a combustible gaseous mixture (M) comprising: a first and second duct for feeding air (A) and a gaseous fuel (G) respectively, which join in a mixing zone, mixing said gaseous fuel (G) and air (A) according to a predefined lambda coefficient (2) before they are sent to a burner [see lines 1-6 of claim 1]; a ventilation device configured for feeding the air (A) and the gaseous fuel (G) [lines 7-8 of claim 1]; a gas flow regulator configured to regulate the flow of the gaseous fuel (G) [lines 9-10 of claim 1]; a first sensor configured for measuring the air (A) flow rate connected to said first duct [lines 11-12 of claim 1]: at least one second sensor configured for measuring an air/fuel pressure ratio connected to said first and second ducts [lines 13-15 of claim 1]; a speed sensor configured for measuring an actual rotation speed of said ventilation device [lines 2-3 of claim 3]; and a control unit configured to process data supplied by said first and second sensors and said speed sensor [lines 16-18 of claim 1 and lines 1-5 of claim 3], and to control said ventilation device and said regulation device in order to keep said lambda coefficient (λ) within predefined intervals (I1, I2) [lines 20-22 of claim 1] and a parameter (K), given by the ratio between said air (A) flow rate and said actual rotation speed, substantially constant around a certain initial value (K0) [lines 6-9 of claim 3].
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Allowable Subject Matter
Claims 7-15 are allowed.
Claims 2-3, 4, and 6 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
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIVEK K SHIRSAT whose telephone number is (571)272-3722. The examiner can normally be reached M-F 9:00AM-5:20AM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Helena Kosanovic can be reached at 571-272-9059. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VIVEK K SHIRSAT/Primary Examiner, Art Unit 3762
