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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 1/24/2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 1-9, 11-12, 14-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 11,911,577. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim 1 of patent ‘577 discloses the limitations of a protective cover for an affected area of a subject, comprising: a body portion comprising an aperture, side edges, and a notch opening, the body portion comprising a cotton or equivalent material; and a window portion comprising elastic materials, the elastic materials including a combination of polymers and nylon, wherein, when the side edges of the protective cover are attached to form a tubular configuration of the protective cover, a first side of the protective cover comprises the window portion, a second side of the protective cover opposite the first side of the protective cover comprises the notch opening, and the notch opening overlaps the window portion, wherein the body portion and window portion each optionally comprises an antimicrobial composition, wherein the body portion is formed from a material having an approximately trapezoidal shape prior to assembly or application to the subject, wherein the body portion has at least a partial tubular configuration when worn by the subject, wherein an inner diameter of the tubular configuration of the protective cover is 1 to 8 inches wherein the material having the approximately trapezoidal shape comprises: a first end body edge approximately parallel to a second end body edge, wherein the first end body edge has a first length and the second end body edge has a second length that is different from the first length obviously meets the broader claim limitations of claims 1-2 of instant application.
With respect to claim 3 of instant application, all of limitations are found in claim 2 of patent ‘577.
With respect to claim 4 of instant application, all of limitations are found in claim 3 of patent ‘577.
With respect to claim 5 of instant application, all of limitations are found in claim 4 of patent ‘577.
With respect to claim 6 of instant application, all of limitations are found in claim 5 of patent ‘577.
With respect to claim 7 of instant application, all of limitations are found in claim 6 of patent ‘577.
With respect to claim 8 of instant application, all of limitations are found in claim 7 of patent ‘577.
With respect to claim 9 of instant application, all of limitations are found in claim 8 of patent ‘577.
With respect to claim 11 of instant application, all of limitations are found in claim 9 of patent ‘577.
With respect to claim 12 of instant application, all of limitations are found in claim 10 of patent ‘577.
With respect to claim 14 of instant application, all of limitations are found in claim 11 of patent ‘577.
With respect to claim 15 of instant application, all of limitations are found in claim 12 of patent ‘577.
With respect to claim 16 of instant application, all of limitations are found in claim 13 of patent ‘577.
Claims 1-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 12,128,196. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim 1 of patent ‘196 discloses the limitations of a protective cover for an affected area of a subject, comprising: a body portion comprising an aperture and a notch, the body portion comprising a cotton or equivalent material; and a window portion, wherein the notch and the window portion overlap when the protective cover is worn to cover the affected area of the subject, wherein the body portion and window portion each optionally comprises an antimicrobial composition, wherein the body portion is formed from a material having an approximately trapezoidal shape prior to assembly or application to the subject, and wherein the material having the approximately trapezoidal shape comprises: a first end body edge approximately parallel to a second end body edge, wherein the first end body edge has a first length, and the second end body edge has a second length that is different from the first length obviously meets the broader claim limitations of claims 1 of instant application.
With respect to claim 2 of instant application, all of limitations are found in claim 2 of patent ‘196.
With respect to claim 3 of instant application, all of limitations are found in claim 3 of patent ‘196.
With respect to claim 4 of instant application, all of limitations are found in claim 4 of patent ‘196.
With respect to claim 5 of instant application, all of limitations are found in claim 5 of patent ‘196.
With respect to claim 6 of instant application, all of limitations are found in claim 6 of patent ‘196.
With respect to claim 7 of instant application, all of limitations are found in claim 7 of patent ‘196.
With respect to claim 8 of instant application, all of limitations are found in claim 8 of patent ‘196.
With respect to claim 9-10, 13 and 17 of instant application, all of limitations are found in claim 9 of patent ‘196.
With respect to claim 11 of instant application, all of limitations are found in claim 10 of patent ‘196.
With respect to claim 12 of instant application, all of limitations are found in claim 11 of patent ‘196.
With respect to claim 14 of instant application, all of limitations are found in claim 12 of patent ‘196.
With respect to claim 15 of instant application, all of limitations are found in claim 13 of patent ‘196.
With respect to claim 16 of instant application, all of limitations are found in claim 14 of patent ‘196.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TARLA R PATEL whose telephone number is (571)272-3143. The examiner can normally be reached M-Th 6-2:30PM.
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/TARLA R PATEL/ Primary Examiner, Art Unit 3786
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