DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 24 and 26 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over US Patent No. 5,651,893 to Kenley et al. (hereinafter “Kenley ‘893”) in view of US Patent No. 5,788,851 to Kenley et al. (hereinafter “Kenley ‘851”).
Kenley ‘893 teaches an apparatus comprising an enclosure for containing a portable hemodialysis unit (22) and a control interface (25) configured to allow user control of the hemodialysis unit;
the enclosure containing a portable hemodialysis unit (22), wherein the portable hemodialysis unit includes components including a dialyzer (404), one or more pumps (458) to circulate blood through the dialyzer (404), a source of dialysate (202), and one or more pumps (242) to circulate the dialysate through the dialyzer (404)(see Fig. 1, 6, 27; col. 7, line 50- col. 8, line 19; col. 18, lines 24-32; col. 22, lines 45-48; col. 26, lines 31-35);
wherein the enclosure includes a housing (see e.g. dialysis unit 22 in figure 1) that supports the components of the hemodialysis unit;
wherein the portable hemodialysis unit comprises a control interface (25) mounting area at the top of the enclosure where the control interface is mountable (see Fig. 1; col. 8, lines 1-19; col. 50, lines 50-54).
Kenley ‘893 further teaches a front panel (28, blood circuit section shown mounted to front plate in figure 27) having a dialyzer (404) and blood pump (458) and configured to allow a dialyzer (404) and a blood pump (458) to be mounted thereto (shown in figure 27).
Claim 24 differs from Kenley ‘893 in reciting the housing including a pair of vertical, side-by-side doors hingedly mounted to the housing at opposite sides of a front panel that when opened provide access to the front panel at which blood circuit connections and dialysate fluidic connections are located, the doors being closable to block access to the front panel.
Kenley ‘851 discloses in figure 1-2 a dialysis system having enclosure (26, 25, and 23 make up the entire enclosure), wherein the dialysis system includes within the enclosure an a housing supporting the components (23/25), a vertical door (27) hingedly mounted to the enclosure (see hinge structure on left side of 26) through which fluid connections may be accessed and closed and the closed potion suitable for retaining heat (inherent that the door being closed would retain heat) and further note that circuit (24) is behind door (27) and therefore all connections may be accessed regarding circuit 24 inside door 27 even if the lines run through alternative openings of the housing (26).
At the time of the invention, it would have been obvious to one of ordinary skill in the art to use the pair of vertical side by side doors since the examiner takes notice of the equivalence of such a configuration and the enclosure and housing of Kenley ‘851 and the selection of any known equivalents to provide access to dialyzer would be within the level of ordinary skill in the art (MPEP 2144.06).
Alternatively, one having ordinary skill in the art would have found it obvious to have utilized two doors instead of the single of the single door of Kenley ‘851 for the purpose of providing improved access. Additionally, since it has been held that mere duplication of essential working parts of a device involves only routine skill in the art. St. Regis Co. v. Bemis Co., 193 USPQ 8.
Regarding claim 26, Kenley ‘851 teaches a support (28) permitting the control interface to be stood in a near vertical position on top of the housing (see Fig. 1; col. 5, lines 2-8).
Claims 25 and 27-28 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kenley ‘893 in view of Kenley ‘851 as applied to claim 24 above and further in view of US Patent No. 5,769,811 to Stacey et al. (hereinafter “Stacey”).
Kenley ‘893 in view of Kenley ‘851 teaches the apparatus of claim 24.
Regarding claims 25 and 27-28, Kenley ‘893 in view of Kenley ‘851 does not expressly provide a control interface including buttons.
Stacey provides controller (164) which illustrates in figure 1 having buttons enclosable by a door (160) on a blood processing machine (abstract/title).
It would have been obvious to one of ordinary skill in the art at the time of the filing of the invention to have provided a controller inside the doors as shown by Stacey for the purpose of providing convenient controls adjacent to the blood interface equipment. As per functional language relating to the purpose of these buttons, the buttons are capable of such operations if so programmed.
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.
Claim 24 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No. 8,393,690. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 17 of U.S. Patent No. 8,393,690 anticipates claim 24 of the instant application.
Claim 24 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No. 9,795,728. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 17 of U.S. Patent No. 9,795,728anticipates claim 24 of the instant application.
Claim 24-25 and 27-28 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 and 6 of U.S. Patent No. 10,780,210. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1-4 and 6 of U.S. Patent No. 10,780,210 anticipates claims 24-25 and 27-28 of the instant application as shown in claim comparison below.
Claims of
Application No. 18/772525
Claims of
U.S. Patent No. 10,780,210
Claim Comparison
24
6/1
Narrow claim 6/1 anticipates broad instant claim 24 and contains all the limitations of claim 24.
25
3/2/1
Narrow claim 3/2/1 anticipates broad instant claim 25 and contains all the limitations of claim 25.
27
3/2/1
Narrow claim 3/2/1 anticipates broad instant claim 27 and contains all the limitations of claim 27.
28
4/3/2/1
Narrow claim 4/3/2/1 anticipates broad instant claim 28 and contains all the limitations of claim 28.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN KIM whose telephone number is (571)272-1142. The examiner can normally be reached on Maxi Flex.
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/John Kim/ Primary Examiner, Art Unit 1772
JK
9/23/26
