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 Objections
The claims contain minor informalities.
In claim 2, the language “… wherein the width [[to]] of said handle portion is …” should be changed for clarity.
In claim 11, the language “… wherein said handle portion [[having]] has a compartment adapted …” should be changed for clarity.
Claim Warning
Claim 19 appears to be a duplicate of claim 18.
Applicant is advised that should claim 18 be found allowable, claim 19 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 706.03(k).
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 10 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 10 recites “… wherein said curved terminal portion is sufficiently curved so as to provide a defection of its terminal end from about 5 degrees to about 35 degrees from said longitudinal axis of said linear portion, and preferably from about 10 degrees to about 30 degrees from said longitudinal axis of said linear portion, and most preferably about 17.5 degrees.”
This language includes a narrow numerical range that falls within a broader range in the same claim, and renders the claim indefinite since the boundaries of the claim are not discernible. If stated in a single claim, examples and preferences lead to confusion over the intended scope of the claim. See MPEP 2173.05(c).
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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1-20 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-20 of Spalding; Marshall Chance et al. (US 12097346 B1).
Regarding pending claim 1, Spalding claims substantially all limitations in patented claim 1, in addition to other features.
Spalding does not explicitly claim whether (c) the continuous channel extends through said handle. However, Spalding claims a channel that is open at both of its ends (claim 1, (c) a continuous channel open at its proximal and distal ends).
Spalding further claims that the channel accommodates a tube (claim 1, said channel adapted to guide a tube along said central axis and distally to a position beyond said curved terminal portion distal end, while being adapted to allow a tube to be removed laterally of said open channel).
Spalding suggests a need to extend the channel through the handle as well as through the insertion portion. Limiting the channel to only the insertion portion will prevent the tube from nesting inside the handle, and will force the tube to extend away from the handle while the user grips the handle. Extending the channel through the handle would have been an obvious way to route the tube past the user’s hand and to avoid interfering with the user’s grip. Therefore, it would have been obvious to modify Spalding claims to extend the channel through the handle in order to avoid interfering with the user’s grip.
Regarding pending claim 16, Spalding claims substantially all limitations in patented claim 16, among other features.
Spalding does not explicitly claim that (c) the continuous channel extends through the handle.
However, Spalding claims that the channel removably accommodates a tube (claim 16, said channel adapted to guide a tube along said central axis … while being adapted to allow a tube to be removed laterally of said open channel). Regarding the rationale and motivation to modify Spalding’s claims by extending the channel through both the insertion channel and handle, see the discussion of pending claim 1 above.
Regarding pending claim 17, Spalding claims substantially all limitations in patented claim 17, among other features.
Spalding does not explicitly claim that (c) the continuous channel extends through the handle.
However, Spalding claims that the channel removably accommodates a tube (claim 17, said channel adapted to guide a tube along said central axis … while being adapted to allow a tube to be removed laterally of said open channel). Regarding the rationale and motivation to modify Spalding’s claims by extending the channel through both the insertion channel and handle, see the discussion of pending claim 1 above.
Regarding pending claims 2-15 and 18-20, Spalding claims all limitations in patented claims 1-15 and 17-20 as shown in Table 1.
Table 1: Spalding double patenting
Pending claim
Spalding
Pending claim
Spalding
Pending claim
Spalding
2
1, 2
8
1, 8
14
1, 14
3
1, 2, 3
9
1, 9
15
1, 15
4
1, 2, 3, 4
10
1, 10
18
17, 18, 19
5
1, 2, 5
11
1, 11
19
17, 18, 19
6
1, 6
12
1, 12
20
17, 20
7
1, 7
13
1, 12, 13
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Liu, Gao-Feng et al. CN 109481746 A
Weiss; Sol US 4765334 A
Elser; Christoph et al. US 20160310194 A1
Robich; Michael P. US 20190231388 A1
Any inquiry concerning this communication or earlier communications from the examiner should be directed to:
Tel 571-272-2590
Fax 571-273-2590
Email Adam.Marcetich@uspto.gov
The Examiner can be reached 8am-4pm Mon-Fri.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca Eisenberg can be reached at 571-270-5879. The fax phone number for the organization where this application is assigned is 571-273-8300.
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.
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.
/Adam Marcetich/
Primary Examiner, Art Unit 3781
Prosecution Insights