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.
Application claims 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 of U.S. Patent No. 11,751,876. U.S. Patent No. 11,751,876 is cited in the IDS filed 10/14/24. Although the claims at issue are not identical, they are not patentably distinct from each other because
Regarding application claim 1, claim 1 of U.S. Patent No. 11,751,876 anticipates application claim 1.
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(s) 1 is rejected under 35 U.S.C. 102(a) (1) as being anticipated by Daniel (US Pat. No. 4,523,592). Daniel is cited in the IDS filed 10/14/24.
Regarding claim 1, Daniel discloses an apparatus for anastomosis of tubular structures comprising two annular bodies (10, 10’) (Figs. 1- 7), each of the annular bodies (10, 10’) comprising:
a first side (18) (Figs. 2, 4- 5) (Col. 3, l. 55- 57 - - As illustrated in FIG. 4, only the cavities 26 and wedges 28 are visible in an end view of the rear face 18):
a second side (16) (Figs. 1- 2, 5), wherein a central axis extends between the first (18) and second (16) sides (See Figs. 5- 7) (Col. 3, l. 47- 49 - - FIG. 3 illustrates an end view of the front face 16 on which hooks 20 and wedges 28 are arranged in alternating positions along a generally circular pattern);
an inner wall defining a passageway (12) (Figs. 1- 5) for passing a tubular structure (V) (Figs. 5- 7) therethrough, wherein the passageway (12) extends along the central axis and is open to the first (18) and second sides (16) (Col. 3, l. 63- 65 - - Referring to FIG. 5, one end 30 of a severed vessel V is passed through the bore 12 from the rear face 18 and then, through the front face 16); and
a plurality of spikes (20) (Figs. 1- 7) each extending from a base (22, 25) (Figs. 1- 2) that is connected to the second side (16) of the annular body (10, 10’) to a pointed free end (24a) (Figs. 1, 2) configured to pierce the tubular structure (V) (See Fig. 5) (Col. 3, l. 49- 53; Col. 3, l. 65- Col. 4, l. 2 - -The hooks 20 are spaced so that a pair of hooks are positioned in opposing positions on a diameter of face 16 in order to provide mechanical balance in fixing the vessel tissue on the hooks 20; The emergent end 30 is then folded or everted backwardly and across the front face 16, and the resulting everted end is fixed upon the coupler device 10 by forcing the end back until it is penetrated by each sharpened tang or barb of each head 24);
wherein when the annular bodies (10, 10’) are assembled together, the second sides (16) of the annular bodies face (10, 10’) one another and the central axes of the annular bodies are coaxial (See Figs. 6, 7) (Col. 4, l. 2 - 10 - - The interior surface of the vessel is thus exposed upon the front surface 16 of the device 10. This procedure is repeated with the end 32 of the vessel V' to fix the eversion thereof upon a second coupler 10'. The interior surfaces of the everted vessels V and V' are then engaged in direct, clamped contract by interlocking couplers 10 and 10' so that the hook members of coupler 10 are locked or retained on the wedges 28' of coupler 10', as illustrated in FIG. 6).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KANKINDI RWEGO whose telephone number is (303)297-4759. The examiner can normally be reached Monday- Friday: 10:00- 5:00 MT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, (Jackie) Tan-Uyen Ho can be reached on 571 272-4696. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KANKINDI RWEGO/Primary Examiner, Art Unit 3771