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 non-statutory 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 non-statutory 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 non-statutory double patenting ground provided the reference 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. 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 §§ 706.02(l)(1) - 706.02(l)(3) 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/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 e-Terminal Disclaimer may be filled out completely online using web-screens. An e-Terminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about e-Terminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-4, 6-8,11-14 and 16-18 are rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1,3-5,7-8,10-11,13-15,17-18 and 20 of US 10,715,869 B1 and 11,265,609 B2 respectively . Although the conflicting claims are not identical, they are not patentably distinct from each other because, if allowed would improperly extend the "right to exclude" already granted in the patent. The subject matter claimed in the instant application is fully disclosed in the patent and is covered by the patent since the patent and the application are claiming common subject matter. Furthermore, there is no apparent reason why applicant was prevented from presenting claims corresponding to those of the instant application during prosecution of the application which matured into a patent. See also MPEP § 804.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US-2018/0075137 A1 to LIFAR et al.
US-10,438,114 B1 to Blundell et al.
US-2016/0379123-A1 to Younessain et al.
US-2017/0228385-A1 to Zheng et al.
US-2018/0225710-A1 to Kar et al.
US-2019/0332920-A1 to Sermanet et al.
US-2019/0327139-A1 to Soderlind et al.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MULUGETA MENGESHA whose telephone number is (469)295-9212. The examiner can normally be reached Monday-Friday 9:00AM-5:30PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Bruckart can be reached at 571-272-3982. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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MULUGETA MENGESHA
Primary Examiner
Art Unit 2424
/Mulugeta Mengesha/Primary Examiner, Art Unit 2424