Detailed Action
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Amendment filed on 05/11/2026 has been acknowledged. Claims 21-40, as originally filed, are currently pending and have been considered below. Claim 21, 29 and 37 are independent claim. Claim 21, 29 and 37 have been amended.
Priority
This application is a CON of 17/161,491 filed on 01/28/2021 (US PAT No. 12,058,176 B1).
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. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form 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 http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 21, 29 and 37 are non-provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 of application No 17/161,491 (US Patent No. 12,058,176 B1). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the co-pending application contains every element of claims of the instant application. A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim. In re Longi, 759 F.2d at 896, 225 USPQ at 651 (affirming a holding of obviousness-type double patenting because the claims at issue were obvious over claims in four prior art patents); In re Berg, 140 F.3d at 1437, 46 USPQ2d at 1233 (Fed. Cir. 1998) (affirming a holding of obviousness-type double patenting where a patent application claim to a genus is anticipated by a 35 patent claim to a species within that genus). “ELI LILLY AND COMPANY v BARR LABORATORIES, INC., United States Court of Appeals for the Federal Circuit, ON PETITION FOR REHEARING EN BANC (DECIDED: May 30, 2001).
Claims 21, 29 and 37 are non-provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 of application 17/161,491 (US Patent No 12,058,176 B1) in view of Behm (US Patent No 9,225,744 B1) and Baer (US Patent No 8,955,149 B1). This is a nonstatutory obviousness type double patenting rejection.
This is a non-provisional non-statutory double patenting rejection because the conflicting claims have been patented.
Allowable subject matter
Claim 21-40 are allowable when the above mentioned rejections are overcome.
Conclusion
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 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 date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to WASIKA NIPA whose telephone number is (571)272-8923. The examiner can normally be reached on M-F (7:30 - 5:00).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JEFFRY PWU can be reached on 571-272-6798. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WASIKA NIPA/ Primary Examiner, Art Unit 2433
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