Prosecution Insights
Last updated: August 06, 2026
Application No. 18/821,824

FLOW MODIFICATION IN BODY LUMENS

Non-Final OA §103§DP
Filed
Aug 30, 2024
Priority
Jun 02, 2017 — provisional 62/514,020 +4 more
Examiner
DEL PRIORE, ALESSANDRO R
Art Unit
Tech Center
Assignee
Nephronyx Ltd.
OA Round
1 (Non-Final)
61%
Grant Probability
Moderate
1-2
OA Rounds
1y 7m
Est. Remaining
99%
With Interview

Examiner Intelligence

Grants 61% of resolved cases
61%
Career Allowance Rate
122 granted / 200 resolved
+1.0% vs TC avg
Strong +45% interview lift
Without
With
+45.4%
Interview Lift
resolved cases with interview
Typical timeline
3y 6m
Avg Prosecution
26 currently pending
Career history
229
Total Applications
across all art units

Statute-Specific Performance

§101
2.9%
-37.1% vs TC avg
§103
52.1%
+12.1% vs TC avg
§102
15.8%
-24.2% vs TC avg
§112
22.2%
-17.8% vs TC avg
Black line = Tech Center average estimate • Based on career data from 200 resolved cases

Office Action

§103 §DP
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 1-22 are pending. None are amended. Claim 22 is withdrawn from consideration and claims 1-21 are examined in the merits. Election/Restrictions This application contains claims directed to the following patentably distinct species: Flow modulator with circumferential overlap between upstream and downstream portions (Figs. 6, and 8-9, appears drawn to claims 7 and 9) Flow modulator with an extension portion (Fig. 10; appears drawn to claim 22) The species are independent or distinct because they represent mutually exclusive arrangements of the gap region between the upstream nozzle and the downstream diffuser. In addition, these species are not obvious variants of each other based on the current record. Applicant is required under 35 U.S.C. 121 to elect a single disclosed species, or a single grouping of patentably indistinct species, for prosecution on the merits to which the claims shall be restricted if no generic claim is finally held to be allowable. Currently, claim 1 is generic. There is a serious search and/or examination burden for the patentably distinct species as set forth above because at least the following reason(s) apply: the inventions require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries). the groups have diverging subject matter and features (i.e. searching for one configuration of a gap region would be unlikely to yield the others). Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected species or grouping of patentably indistinct species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered nonresponsive unless accompanied by an election. The election may be made with or without traverse. To preserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the election of species requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable on the elected species or grouping of patentably indistinct species. Should applicant traverse on the ground that the species, or groupings of patentably indistinct species from which election is required, are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing them to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the species unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other species. Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which depend from or otherwise require all the limitations of an allowable generic claim as provided by 37 CFR 1.141. During a telephone conversation with Albert Heng on 7/8, and in a follow up electronic communication on 7/14, a provisional election was made without traverse to prosecute the invention of species A, which appears drawn to claims 1-21. Affirmation of this election must be made by applicant in replying to this Office action. Claim 22 is withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention. Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i). Allowable Subject Matter Claims 7 and 9-11 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. The following is a statement of reasons for the indication of allowable subject matter: The closest prior art drawn to Tuval, fails to show or make obvious the claimed combination of elements, particularly the limitations as set for in claims 7 and 9, which recites features not taught or suggested by the prior art. Claims 7 and 9 are both drawn to there being an overlap between the upstream nozzle and downstream diffuser. None of the prior art of record, including Tuval, Schwammenthal, Allers, Eigler, and Bödewadt teach an overlap between upstream and downstream elements. The remaining claims are allowable as depending upon an allowable base claim. 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 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. Claim(s) 1-3, 12, 15-19, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Tuval et al. (US 2019/0239998 A1), in view of Schwammenthal et al. (US 2006/0149360 A1). All references are cited in Applicant’s IDS filed 8/30/2024. Regarding claim 1, Tuval discloses a flow modulator for altering fluid flow through a body lumen coupled to a branch lumen (Abstract, Paragraphs 31-37 and 49), the flow modulator comprising: an upstream nozzle having an inlet, an outlet, and a converging portion that converges from the inlet towards the outlet (upstream portion 26 and upstream end 28); a downstream diffuser having an entry, an exit, and a diverging portion that diverges in a direction from the entry towards the exit (elements 30 and 32; Paragraphs 99 and 103; also see annotated Fig. 1 below); a gap extending between the outlet of the upstream nozzle and the entry of the downstream diffuser, the gap defining a pathway in communication with the branch lumen (openings 36; which are located adjacent i.e. where the downstream diffuser is diverging, the gaps forming a larger gap section positioned where the branch off to the renal veins intersects with the inferior vena cava), wherein an axial position of the entry of the downstream diffuser is aligned with an axial portion of the outlet of the upstream nozzle (see annotated Fig. 1 below), and when the flow modulator is configured to accelerate a fluid stream passing through the inlet of the upstream nozzle towards the downstream diffuser to generate a low pressure region in the vicinity of the gap to thereby entrain additional fluid from the branch lumen through the gap into the fluid stream as the fluid stream passes into the downstream diffuser (Abstract, ¶s 106-107, 114, 118 describe how a venturi is made to create a low pressure region at the gap to draw blood in from the renal veins). PNG media_image1.png 991 980 media_image1.png Greyscale Tuval does not explicitly teach the entry having a cross-sectional area that is larger than a cross-sectional area of the outlet of the upstream nozzle. However, Schwammenthal teaches an intravascular flow modulator (Figs. 11A and 11B; Abstract and Paragraph 65), thus being in the same field of endeavor, comprising an upstream diversion portion, and a downstream diffuser (Figs. 11A and 11B shows two end portions connected by a gapped central portion) wherein the entry has a cross-sectional area that is larger than the cross-sectional area of the outlet of the upstream nozzle (Clearly shown in Figs. 11A and 11B, the upper, larger segment being the downstream diffuser) and further that the device may have varying cross-sectional diameters across its length in order to conform to the anatomy of the implanted vessel (¶ 46). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the cross-sectional area of the entry to be larger than the cross-sectional area of the outlet of the upstream nozzle, as taught by Schwammenthal. Doing so would be obvious in order to accommodate patients of different sizes and weights, and would also be used to promote beneficial fluid dynamics (recognized in ¶s 44 and 46 of Schwammenthal). Regarding claims 2 and 21, Schwammenthal further teaches the device being a made in a number of different shapes (¶ 43). Thus, it would have been an obvious matter of design choice to make the different portions of the flow modulator of whatever form or shape was desired or expedient, such as to make (claim 2) the downstream diffuser comprise a cylindrical portion upstream of the diverging portion, an upstream end of the cylindrical portion defining the entry of the downstream diffuser, or (claim 21) the upstream nozzle comprises a cylindrical portion downstream of the converging portion, a downstream end of the cylindrical portion defining the outlet of the upstream nozzle. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47. Also see MPEP 2144.04 (IV)(B) which relates to Changes in Shape. Further, Applicant has placed no criticality on the claimed shape (¶ 64 merely indicates the central portion “may be cylindrical” ). Regarding claim 3, the combination of Tuval and Schwammenthal substantially discloses the invention of claim 1. They do not explicitly teach the upstream nozzle the downstream diffuser being formed of a single frame. However Tuval does teach the use of a memory shape frame to make at least some portions of the device (¶ 117 explicitly discusses the upstream nozzle; also see Fig. 3) and does appear to be formed of a single frame (based on Fig. 1). It would have been obvious to one having ordinary skill in the art at the time the invention was made to explicitly form the upstream nozzle and downstream diffuser from a single frame, since it has been held that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art. See MPEP 2144.04 (V)(B), which relates to Making Integral. Regarding claim 12, Tuval further teaches the upstream nozzle and the downstream diffuser are configured to share a common, collinear flow axis with the body lumen’s flow axis (Fig. 1 show the upstream nozzle 26 and downstream diffuser 30 and the vena cava all being aligned along a shared flow axis). Regarding claim 15, Tuval further teaches the upstream portion of the upstream nozzle comprises an upstream fixation portion configured to contact an inner wall of the body lumen and thereby anchor the upstream nozzle within the body lumen, and wherein the downstream portion of the diffuser comprises a downstream fixation portion configured to contact the inner wall of the body lumen to thereby anchor the downstream diffuser within the body lumen (Fig. 1; ¶ 99 describes how both the upstream and downstream ends are configured to seal against the vena cava, i.e. via flared ends). Regarding claim 16, Tuval further teaches the upstream and downstream fixation portions have constant cross-sectional areas for a length (Fig. 1 shows the upstream and downstream components having linear portions which sit against the vena cava walls; also see annotated Fig. 1 under the rejection of claim 2). The limitations of the constant cross-sectional areas being “for a length configured to anchor the upstream nozzle and the downstream diffuser, respectively, within the body lumen” are considered functional language. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function, because apparatus claims cover what a device is, not what a device does. See MPEP 2112.02. Thus, if a prior art structure is capable of performing the intended use as recited the claim, then it meets the claim. In the instant case, the device of Tuval and Schwammenthal has all the structure of the device as claimed. As such, it is capable of performing the functions as claimed (i.e. it is configured to be disposed within the body as claimed; also see ¶ 99 of Tuval). Regarding claim 17, the limitations of the flow modulator configured “to be positioned within an inferior vena cava such that the inlet of the upstream nozzle is located upstream from a branch off to a renal vein, the exit of the downstream diffuser is located downstream from the branch off to the renal vein, and the gap is located in a vicinity of the branch off to the renal vein to thereby entrain blood from the renal vein through the gap into the fluid stream to improve kidney functionality” are considered functional language. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function, because apparatus claims cover what a device is, not what a device does. See MPEP 2112.02. Thus, if a prior art structure is capable of performing the intended use as recited the claim, then it meets the claim. In the instant case, the device of Tuval and Schwammenthal has all the structure of the device as claimed. As such, it is capable of performing the functions as claimed (also see Fig. 1 of Tuval and ¶s 8-10, 106-107, 114, and 118). Regarding claim 18, the limitations of the flow modulator configured “to entrain blood from the renal vein through the gap into the fluid stream to reduce excess fluid to treat heart failure” are considered functional language. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function, because apparatus claims cover what a device is, not what a device does. See MPEP 2112.02. Thus, if a prior art structure is capable of performing the intended use as recited the claim, then it meets the claim. In the instant case, the device of Tuval and Schwammenthal has all the structure of the device as claimed. As such, it is capable of performing the functions as claimed (also see Fig. 1 of Tuval and ¶s 8-10, 106-107, 114, and 118). Regarding claim 19, the limitations of the flow modulator configured “for an acute treatment” are considered functional language. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function, because apparatus claims cover what a device is, not what a device does. See MPEP 2112.02. Thus, if a prior art structure is capable of performing the intended use as recited the claim, then it meets the claim. In the instant case, the device of Tuval and Schwammenthal has all the structure of the device as claimed. As such, it is capable of performing the functions as claimed (also see Fig. 1 of Tuval and ¶s 8-10, 106-107, 114, 118, and 121). Claims 4-6 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Tuval and Schwammenthal, as applied to Claim 3 above, and further in view of Allers et al. (US 2004/0210236 A1), cited in Applicant’s IDS filed 8/30/2024. Regarding claim 4, the combination of Tuval and Schwammenthal does not explicitly teach a biocompatible coating disposed on the frame, wherein the gap is defined by uncoated portions of the frame. However, Allers teaches a blood flow control device (Fig. 1), thus being in the same field of endeavor, which entrains blood from branch veins (Abstract, ¶s 45 and 51) having a biocompatible coating on the device except for at a gap portion (¶ 28; ¶ 51 indicates the use of biocompatible coatings). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device of Tuval and Schwammenthal to comprise the selective coating of Allers. Doing so would thus comprise a flow modulator frame having a biocompatible coating disposed on the frame, and wherein the gap is defined by uncoated portions of the frame. Doing so would be obvious in forming a selected flow path and sealing flow outside of said selected flow path (Paragraphs 28-29 of Allers). Regarding claim 5, Schwammenthal further teaches the portion of the frame defining the gap extends radially outward from the outlet of the upstream nozzle to the entry of the downstream diffuser (shown in Figs. 11A and 11B, the upper, larger segment resulting in the gap expanding radially outward). As previously stated, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the cross-sectional area of the entry to be larger than the cross-sectional area of the outlet of the upstream nozzle, as taught by Schwammenthal. Doing so would result in the portion of the frame defining the gap extends radially outward from the outlet of the upstream nozzle to the entry of the downstream diffuse. Doing so would be obvious in order to accommodate patients of different sizes and weights, and would also be used to promote beneficial fluid dynamics (recognized in ¶s 44 and 46 of Schwammenthal). Regarding claim 6, Schwammenthal further teaches the portion of the frame defining the gap comprises a curved profile (shown generally in Figs. 11A and 11B in how the gap portions bend outwardly). Further, it would have been an obvious matter of design choice to make the different portions of the frame defining the gap of whatever form or shape was desired or expedient, such as to make the frame portion comprise a curved profile. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47. Also see MPEP 2144.04 (IV)(B) which relates to Changes in Shape. Further, Applicant has placed no criticality on the claimed shape (¶s 21 and 28 merely indicates the junction between the upstream and downstream components may have a curved shape). Regarding claim 8, the limitations of the entry of the downstream diffuser is “configured to be disposed within the body lumen adjacent to where the branch lumen intersects with the body lumen” are considered functional language. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function, because apparatus claims cover what a device is, not what a device does. See MPEP 2112.02. Thus, if a prior art structure is capable of performing the intended use as recited the claim, then it meets the claim. In the instant case, the device of Tuval, Schwammenthal, and Allers has all the structure of the device as claimed. As such, it is capable of performing the functions as claimed (i.e. it is configured to be disposed within the body as claimed; also see Fig. 1 of Tuval). Claims 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Tuval and Schwammenthal, as applied to Claim 1 above, and further in view of Eigler et al. (US 2019/0008628 A1), cited in IDS cited in Applicant’s IDS filed 8/30/2024. Regarding claim 13, the combination of Tuval and Schwammenthal substantially discloses the device of claim 1. They do not explicitly teach the downstream diffuser is greater in length than a length of the upstream nozzle. In addressing the same problem as Applicant, the problem being the acceleration of blood with venturi stents, Eigler teaches a blood flow control stent (Figs. 1C and 7B, Abstract) having an upstream nozzle (Fig. 1C, at points B and C) and a downstream diffuser (at points G and F; see Paragraph 106 which indicates the entry is on the right and the exit is on the left as shown in Fig. 1C), wherein the axial lengths are selected to provide laminar flow through the shunt and inhibit eddy currents (¶ 101). Thus, Eigler discloses that the lengths of the upstream and downstream components are result effective variables in that the axial lengths affect the fluid dynamic properties of the device. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device of Tuval and Schwammenthal as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Regarding claim 14, the combination of Tuval and Schwammenthal substantially discloses the device of claim 1. They do not explicitly teach an average angle of convergence of the upstream nozzle is greater than an average angle of divergence of the downstream diffuser. However, Eigler teaches a blood flow control stent (Figs. 1C and 7B, Abstract) having an upstream nozzle (Fig. 1C, at points B and C) and a downstream diffuser (at points G and F; see Paragraph 106 which indicates the entry is on the right and the exit is on the left as shown in Fig. 1C), wherein upstream nozzle’s average angle of convergence is greater than the downstream diffuser’s average angle of divergence (see Fig. 1C and ¶ 105 which describes using a de Laval nozzle shape). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device of Tuval and Schwammenthal wherein upstream nozzle’s average angle of convergence is greater than the downstream diffuser’s average angle of divergence. Doing so would be obvious to provide suitable flow characteristics and efficient function as a venturi (¶ 105). Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Tuval and Schwammenthal, as applied to claim 1 above, and in view of Bödewadt et al. (US 2015/0313603 A1), cited in Applicant’s IDS filed 8/30/2024. Regarding claim 20, the combination of Tuval and Schwammenthal substantially discloses the device of claim 1. They do not explicitly teach a retrieval portion located upstream of the upstream nozzle and having a cross-sectional area that diverges towards the inlet of the upstream nozzle, the retrieval portion configured to be coupled to a retrieval device that pulls the retrieval portion to compress the flow modulator into a collapsed delivery state. However, in addressing the same problem as Applicant, the problem being the deployment and retrieval of blood flow controlling stents, Bödewadt teaches an implantable stent (Figs. 1 and 6; Abstract) having an upstream nozzle (Fig. 6, frame and stent structures 82 and 84) comprising a retrieval portion having a cross-sectional area that diverges towards the inlet of the upstream nozzle (retrieval element 94, struts 98, and coupling element 96). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the upstream nozzle of Tuval and Schwammenthal to comprise the retrieval portion of Bödewadt. Doing so would thus comprise a retrieval portion such that the flow modulator would be configured to receive a fluid stream through said retrieval portion (¶ 50 indicates a lumen through the retrieval portion). Further, doing so would be advantageous in improving control over the device, particularly in retrieving and compressing the device (¶ 50 of Bödewadt; ¶s 98 and 99 of Tuval indicate a constrained state, and thus would be compressible in the same manner as Bödewadt). Further, the limitations of the retrieval portion configured “to be coupled to a retrieval device that pulls the retrieval portion to compress the flow modulator into a collapsed delivery state” are considered functional language. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function, because apparatus claims cover what a device is, not what a device does. See MPEP 2112.02. Thus, if a prior art structure is capable of performing the intended use as recited the claim, then it meets the claim. In the instant case, the device of Tuval, Schwammenthal, and Bödewadt has all the structure of the device as claimed. As such, it is capable of performing the functions as claimed (see ¶ 50 of Bödewadt and ¶s 98-99 of Tuval). 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp. Claims 1, and 11-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2-3, 5, 10 of U.S. Patent No. 10,195,406. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the present application are anticipated by the patented claim. Although U.S. Pat No. ‘406 uses the term “component”, the upstream and downstream components appear equivalent to the upstream nozzle and downstream diffuser as claimed. In addition, the claims of the present application are more generic than the patented claims and are therefore anticipated. The patented claims present the species, while the claims of the current application present a genus. In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993). Double Patenting Corresponding Claims Instant Application Claim 1 Claim 11 Claim 12 Claim 13 U.S. Patent No. 10,195,406 Claim 2 Claim 3 Claim 5 Claim 10 Claims 1, 3, 11-14, and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2-3, 5-6, 9, and 11-12 of U.S. Patent No. 11,607,532. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the present application are anticipated by the patented claim. The claims of the present application are more generic than the patented claims and are therefore anticipated. The patented claims present the species, while the claims of the current application present a genus. In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993). Double Patenting Corresponding Claims Instant Application Claim 1 Claim 11 Claim 12 Claim 3 Claim 20 U.S. Patent No. 11,607,532 Claim 2 Claim 3 Claim 5 Claim 6 Claim 9 Double Patenting Corresponding Claims Instant Application Claim 13 Claim 14 U.S. Patent No. 11,607,532 Claim 11 Claim 12 Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALESSANDRO R DEL PRIORE whose telephone number is (571)272-9902. The examiner can normally be reached Monday - Friday, 8:00 - 5:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca E Eisenberg can be reached at (571) 270-5879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /ALESSANDRO R DEL PRIORE/Examiner, Art Unit 3781 /GUY K TOWNSEND/Primary Examiner, Art Unit 3781
Read full office action

Prosecution Timeline

Aug 30, 2024
Application Filed
Jul 28, 2026
Non-Final Rejection mailed — §103, §DP (current)

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Prosecution Projections

1-2
Expected OA Rounds
61%
Grant Probability
99%
With Interview (+45.4%)
3y 6m (~1y 7m remaining)
Median Time to Grant
Low
PTA Risk
Based on 200 resolved cases by this examiner. Grant probability derived from career allowance rate.

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