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 .
Status of claims
Claims 1-18 as filed on 7/16/20224 are pending and under examination.
Claim Objections
Claims 1-18 are objected to because of the following informalities:
There are some typing errors in the claims 1, 3-6 and 13-18. Term “media” is written in a plural form but it is used as a term (“medium”) in a single form in the body of the claims; for example: “media is” or “media acts”. Appropriate correction is required: for example: replace phrases “media” by phrases “medium”.
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 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of US 12,090,261 (Ward et al) in view of Chappell et al (Curr Opin in Anaesthesiol. 2009 Apr; 22(2), pages 155-162).
Although the claims at issue are not identical, they are not patentably distinct from each other because they are both directed to similar methods of treating a subject by improving function of impaired glycocalyx of the subject (pending claims), thereby, improving oxygen saturation (all issued claims and pending claim 10) of the subject, wherein the methods comprise substantially the same active steps of contacting a sample from the subject with a glycocalyx-mimetic adsorption medium and infusing the treated sample into the subject. The glycocalyx-mimetic adsorption medium is a solid substrate having an adsorbent, wherein the adsorbent is a glycosaminoglycan comprising heparin, heparan sulfate, or a mixture thereof is the same in both pending claims 1-2 and in the issued claims (1-2). The use of the glycocalyx-mimetic adsorption medium provides for the same effects as recited in the pending claims 3-18 and in the issued claims 3-17. The needs of subjects under treatments in both methods are the same because main problem of impaired glycocalyx barrier is an altered oxygen distribution (see abstract of Chappell).
Accordingly, the claimed methods in the issued patent and in the present application are obvious variants. Therefore, the inventions as claimed are co-extensive.
Please, note that in parent application scope of original claims that was subjected to restriction requirement was changed during prosecution, thereby, resulting in the merging all method claims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VERA AFREMOVA whose telephone number is (571)272-0914. The examiner can normally be reached Monday-Friday: 8.30am-5pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sharmila Landau can be reached at (571) 272-0614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Vera Afremova
June 16, 2026
/VERA AFREMOVA/ Primary Examiner, Art Unit 1653
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