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 .
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 1-3, 5-6, and 8-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of copending Application No. 18/812,969 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the disclosures within the claims of the instant invention are directly disclosed within the claims of the co-pending application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 4 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 of copending Application No. 18/812,969. While the co-pending application fails to disclose a rod bent section on the rod base part and the base block part being arranged on the bent section, the co-pending application does disclose a base block part 112 being on a base rod part 111 which includes a convex corner 1121 (Claim 3).
However, it would have been obvious to one of ordinary skill in the art to modify the device of the co-pending application to include a bend in its rod section wherein the rod being bent, particularly on an area already including convex/concave portions, would constitute nothing more than design choice arrived at through routine experimentation – one of ordinary skill in the art would devise to bend the rod to include its base rod part (which is already claimed within the context of the co-pending applications’ claim 3. In re Dailey, 357 F.2d 669, 149 USPQ 47
This is a provisional nonstatutory double patenting rejection.
Allowable Subject Matter
Claims 7 and 15-20 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure – in light of the 112 1st rejection above – includes: H.R. Platts (US 2597815) which discloses a valve body with a locking mechanism (Fig. 1-3, shown); Downing et al (US 2852037) which includes a valve for an engine with a swinging plate (Fig. 3, shown); Denton et al (US 6283448) discloses an engine butterfly valve having a plate 61 which includes a swinging arm locking mechanism 70 (Fig. 2, shown).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN A LATHERS whose telephone number is (571)272-1050. The examiner can normally be reached M-F 10a-6p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lindsay Low can be reached at 5712721196. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KEVIN A LATHERS/Primary Examiner, Art Unit 3747