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 .
Response to Arguments
Applicant's arguments filed 1/29/26 have been fully considered but they are not persuasive. Arguments filed 1/29/26 incorrectly state that all claims 1-20 were rejected under the judicially created doctrine of obvious type double patenting. The office action mailed on 1/15/26 only rejects independent claims 1, 9 and 15 under the judicially created doctrine of obvious type double patenting. Items 4 and 5 in said office action reject all dependent claims under 35 U.S.C. 101, statutory double patenting, which clearly states that a terminal disclaimer will not overcome the rejection. Thus, terminal disclaimer filed and approved on 1/29/26 only overcomes the outstanding rejection for independent claims 1, and 15. However, dependent claims 2-8, 10-14 and 16-20 remain rejected under 101 35 U.S.C. 101, statutory double patenting. Examiner attempted to reach out to applicant’s representative Mr. Kent Stier on 2/11/26 and 2/27/26 to discuss a potential examiner’s amendment to cancel dependent claims and place the application in condition for allowance, but did not hear back. Claims 1-20 are pending hereinafter.
Note: Claim 9 was inadvertently mistyped as claim 8 in the non-statutory rejection in the office action. However, claim 8 was correctly rejected under statutory double patenting in said office action, hence no new grounds of rejection are presented hereinafter and this action is made final.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 2-8, 10-14 and 16-20 are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-7, 8-12 and 15-19 respectively of prior U.S. Patent No. 12126480 B2. This is a statutory double patenting rejection.
Allowable Subject Matter
Claims 1, 9 and 15 are allowed in light of the terminal disclaimer filed and approved on 1/29/26.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VINEETA S PANWALKAR whose telephone number is (571)272-8561. The examiner can normally be reached M-F 9:00am-5pm.
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, David C. Payne can be reached at 571-272-3024. 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/VINEETA S PANWALKAR/ /VINEETA S PANWALKAR/Primary Examiner, Art Unit 2635
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