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 § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1, 6, 7, 9-15, 17 and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Staheli (WO 2013/151733).
Regarding claim 1, Staheli discloses a fluid mixing system comprising: a collapsible container (18) bounding a compartment, the container having a first end and an opposing second end; an elongated continuous drive line (44) at least partially disposed within the compartment of the container, wherein a first portion (for example a first strand of 44 as depicted in Fig. 10) of the drive line is laterally spaced apart from a second portion of the drive line (for example a second strand of 44 as depicted in Fig. 10), and the first portion of the drive line and the second portion of the drive line are rotatable within the compartment of the container.
Regarding claim 6, the first portion of the drive line and/or the second portion of the drive line comprises a flexible cable, cord, tube, or solid line (see [0056]).
Regarding claim 7, the first portion of the drive line and/or the second portion of the drive line comprises a plurality of polymeric strands woven together (see [0056]).
Regarding claim 9, Staheli discloses a method of mixing a fluid, the method comprising: providing at least a portion of an elongated continuous drive line (44) in a collapsible container (18) bounding a compartment, wherein a first portion (for example a first strand of 44 as depicted in Fig. 10) of the drive line is laterally spaced apart from a second portion (for example a second strand of 44 as depicted in Fig. 10) of the drive line; delivering a fluid into the compartment of the container; and rotating the first and second portions of the drive line to mix the fluid within the compartment.
Regarding claim 10, unfolding the container with at least a portion of the driveline in the container is disclosed (see [0084]).
Regarding claim 11, the fluid comprises a solution, suspension, colloid, emulsion, or biologic fluid (see [0003] and [0041]).
Regarding claim 12, a first end of the first portion of the drive line and a first end of the second portion of the drive line are secured to a hub (54) that is rotatably coupled to the container, the method further comprising: coupling a drive shaft (17)to the hub; and rotating the drive shaft to facilitate rotation of the hub and the first and second portions of the drive line.
Regarding claim 13, a first end of the first portion of the drive line and a first end of the second portion of the drive line are integrally connected together (see Figs. 8, 9 and 15).
Regarding claim 14, a first end of the first portion of the drive line and a first end of the second portion of the drive line are rotatably connected to a first end of the container and a second end of the first portion of the drive line and a second end of the second portion of the drive line are rotatably connected to a second end of the container (see Fig. 2).
Regarding claim 15, a port is disposed on the container and a pH probe or dissolved oxygen probe is coupled to the port (see [0050]).
Regarding claim 17, at least 50% of a length of the first portion of the drive line and the second portion of the drive line are maintained at lateral spaced apart positions within the compartment of the container during rotation of the first and second portions of the drive line (see Figs. 3 and 8).
Regarding claim 18, the first portion of the drive line and the second portion of the drive line each have a longitudinal axis extending along a length thereof, and at least 40% of the length of the first and second portions of the drive line are flexible that it can be bent along the longitudinal axis at an angle of at least 90° without plastic deformation of the drive line (see [0071]).
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.
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.
Claim 1-7 and 9-18 are rejected under 35 U.S.C. 103 as being unpatentable over Ivins (US 649,345) in view of Staheli (WO 2013/151733):
Regarding claim 1, Ivins discloses a fluid mixing system comprising a container (a, and optionally d) bounding a compartment, the container having a first end and an opposing second end (see drawing); an elongated continuous drive line at least partially disposed within the compartment of the container, wherein a first portion (one of the vertical wires of "b") of the drive line is laterally spaced apart from a second portion (another of the vertical wires of "b") of the drive line, and the first portion of the drive line and the second portion of the drive line are rotatable within the compartment of the container. However, it is not stated that the container is “collapsable”. Staheli teaches providing a collapsible container (18). It would have been obvious to one of ordinary skill in the art before the effective filing date to have provide the system of Ivins with a collapsable container, for example lining the existing rigid container, as taught by Staheli to reduce contamination.
Regarding claim 2, at least one tie (a horizontal member of “b”) extends between the first and second portions of the drive line so as to maintain at least a portion of the first and second portions of the drive line at lateral spaced apart positions within the compartment.
Regarding claim 3, Staheli further teaches making portions more rigid (see [0071]).
Regarding claim 4, the at least one tie projects in a normal direction from the first portion of the drive line (see drawing of Ivins).
Regarding claim 5, the at least one tie projects in a normal direction from the second portion of the drive line (see drawing of Ivins).
Regarding claim 6, Ivins further discloses, the first portion of the drive line and/or the second portion of the drive line comprises a flexible cable, cord, tube, or solid line (see page 1, line 40-45). Staheli also teaches a first portion of a drive line and/or the second portion of the drive line comprises a flexible cable, cord, tube, or solid line (see [0056]).
Regarding claim 7, Staheli further teaches the first portion of the drive line and/or the second portion of the drive line comprises a plurality of polymeric strands woven together (see [0056]).
Regarding claim 9, Ivins discloses a method of mixing a fluid, the method comprising providing at least a portion of an elongated continuous drive line in a container (a) bounding a compartment, wherein a first portion (one of the vertical wires of "b") of the drive line is laterally spaced apart from a second portion (another of the vertical wires of "b") of the drive line; delivering a fluid into the compartment of the container; and rotating the first and second portions of the drive line to mix the fluid within the compartment. However, it is not stated that the container is “collapsable”. Staheli teaches providing a collapsible container (18). It would have been obvious to one of ordinary skill in the art before the effective filing date to have provided the system of Ivins with a collapsable container, for example lining the existing rigid container, as taught by Staheli to reduce contamination.
Regarding claim 10, Staheli further teaches unfolding the container with at least a portion of the driveline in the container is disclosed (see [0084]).
Regarding claim 11, Ivins further discloses that the fluid comprises a solution, suspension, colloid, emulsion, or biologic fluid (see page 1, lines 8 and 9). Staheli also teaches that the fluid comprises a solution, suspension, colloid, emulsion, or biologic fluid (see [0003] and [0041]).
Regarding claim 12, Staheli further teaches that a first end of the first portion of the drive line and a first end of the second portion of the drive line are secured to a hub (54) that is rotatably coupled to the container, the method further comprising: coupling a drive shaft (17)to the hub; and rotating the drive shaft to facilitate rotation of the hub and the first and second portions of the drive line.
Regarding claim 13, a first end of the first portion of the drive line and a first end of the second portion of the drive line are integrally connected together (see drawing of Ivins).
Regarding claim 14, Staheli further teaches that a first end of the first portion of the drive line and a first end of the second portion of the drive line are rotatably connected to a first end of the container and a second end of the first portion of the drive line and a second end of the second portion of the drive line are rotatably connected to a second end of the container (see Fig. 2).
Regarding claim 15, Staheli further teaches that a port is disposed on the container and a pH probe or dissolved oxygen probe is coupled to the port (see [0050]).
Regarding claim 16, the first portion of the drive line and the second portion of the drive line are coupled to at least one tie (a horizontal member of “b”) to maintain at least a portion of the first and second portions of the drive line at laterally spaced apart positions within the compartment.
Regarding claim 17, Staheli further teaches that at least 50% of a length of the first portion of the drive line and the second portion of the drive line are maintained at lateral spaced apart positions within the compartment of the container during rotation of the first and second portions of the drive line (see Figs. 3 and 8).
Regarding claim 18, Staheli further teaches that the first portion of the drive line and the second portion of the drive line each have a longitudinal axis extending along a length thereof, and at least 40% of the length of the first and second portions of the drive line are flexible that it can be bent along the longitudinal axis at an angle of at least 90° without plastic deformation of the drive line (see [0071]).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Staheli (WO 2013/151733) in view of Terentiev (US 2005/0002274). The system of Staheli was discussed above. A portion of the line being ultrahigh molecular weight polyethylene is not disclosed. Terentiev teaches making a portion of a line with as bag of a mixing system of ultrahigh molecular weight polyethylene (see [0051]). It would have been obvious to one of ordinary skill in the art before the effective filing to date to have made the line of ultrahigh molecular weight polyethylene because Staheli suggests making the line of a polymer (see [0056]) and Terentiev teaches ultrahigh molecular weight polyethylene being an appropriate polymer in a highly analogous situation.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Ivins (US 649,345) in view of Staheli (WO 2013/151733) as applied to claim 1 above and further in view of Terentiev (US 2005/0002274). A portion of the line being ultrahigh molecular weight polyethylene is not disclosed. Terentiev teaches making a portion of a line with as bag of a mixing system of ultrahigh molecular weight polyethylene (see [0051]). It would have been obvious to one of ordinary skill in the art before the effective filing to date to have made the line of ultrahigh molecular weight polyethylene because Staheli suggests making the line of a polymer (see [0056]) and Terentiev teaches ultrahigh molecular weight polyethylene being an appropriate polymer in a highly analogous situation.
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 1-7, 9, and 11-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,669,515. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the pending claims are disclosed or suggested by the instant claims.
Claim 8 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,669,515 in view of Terentiev (US 2005/0002274). The claims of the issued patent recite all the limitations of instant claim 8 except for the ultrahigh molecular weight polyethylene requirement. Terentiev teaches making a portion of a line with as bag of a mixing system of ultrahigh molecular weight polyethylene (see [0051]). It would have been obvious to one of ordinary skill in the art before the effective filing to date to have made the line of ultrahigh molecular weight polyethylene because Staheli suggests making the line of a polymer (see [0056]) and Terentiev teaches ultrahigh molecular weight polyethylene being an appropriate polymer in a highly analogous situation.
Claim 10 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,669,515 in view of Staheli (WO 2013/151733). The claims of the issued patent recite all the limitations of instant claim 10 except for unfolding step. Staheli teaches unfolding the container with at least a portion of the driveline in the container is disclosed (see [0084]). It would have been obvious to one of ordinary skill in the art before the effective filing to date to have unfolded the container with at least a portion of the driveline in the container to facilitate compact storage and shipping as taught by Staheli.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID L SORKIN whose telephone number is (571)272-1148. The examiner can normally be reached 7am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Claire X Wang can be reached at (571) 270-1051. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DAVID L. SORKIN
Examiner
Art Unit 1774
/DAVID L SORKIN/Primary Examiner, Art Unit 1774
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