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 Rejections - 35 USC § 112
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.
Claims 1-20 are 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With Respect to Claims 1, 11, and 20
The scope of the phrase “configured to maintain a length of driveline extending from a patient to the controller” is unclear, noting that it is unclear whether this phrase should be narrowly interpreted to require some sort of additional fastener or attachment structure on or formed as part of the flap to maintain the driveline, if it encompasses for example the flap being capable of maintaining a driveline between the flap and a user (e.g. the flap forming part of a belt and the driveline being held by the belt attachment around the user), if it is sufficient that it is possible to wrap the driveline around the belt to maintain it, if it is sufficient that the flap has nothing to prevent attachment of an appropriate driveline including a fastener (e.g. it is sufficient that the flap is made of fabric or the like that would allow a pin or the like to attach the driveline to the flap) or if it has some other scope.
The remainder of this office action is based on the invention as best understood by Examiner.
With Respect to Claim 2
It is unclear whether the phrase “perforated polyurethane or neoprene foam” means perforated polyurethane foam or neoprene foam, neoprene foam or alternately perforated polyurethane, or perforated polyurethane foam or perforated neoprene foam.
The remainder of this office action is based on the invention as best understood by Examiner.
With Respect to Claims 2-10 and 12-19
These claims are rejected as they depend from a rejected claim and so incorporate its indefinite scope.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-4, 7, and 9-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent #6,698,636 to Angus (Angus). Angus discloses:
With Respect to Claim 1
A carrying case for a controller for an implantable blood pump, the carrying case comprising: a pouch (10B, 10D, FIG. 10) sized and configured to retain the controller (capable of this use with an appropriately sized controller), the pouch defining a first face (rear face) and a second face (front face) opposite the first face, the first face including a thermally insulating material (neoprene, for clarity it is noted that both the front and rear walls are disclosed as preferably comprising both neoprene and mesh, and neoprene is a thermally insulating material) and the second face including a thermally transmissive material (mesh); and at least one flap (either or both 10A) extending from the pouch and configured to be coupled to one or both of a waist strap or a shoulder strap (it is coupled to a waist strap and so clearly configured to be coupled to it), wherein the at least one flap is configured to maintain a length of driveline extending from a patient to the controller (capable of this use, noting the disclosure of the side pocket including velcro/hook and loop, buttons, or snap closure, any of which would allow a driveline to be passed through the top opening and secure the driveline in place; alternately capable of this use via appropriate fastening means on the driveline such as a pin, securing the driveline between the flap and the user and tightening the belt to secure/maintain the driveline in position, and/or passing an appropriately sized driveline around the flap to maintain it).
With Respect to Claim 2
The case of claim 1, wherein the thermally insulating material is perforated polyurethane or neoprene foam (wetsuit neoprene is disclosed, which is neoprene foam as wetsuits are commonly made from neoprene foam).
With Respect to Claim 3
The case of claim 1, wherein the thermally transmissive material is a nylon mesh (breathable nylon mesh is disclosed as one material option).
With Respect to Claim 4
The case of claim 1, further including the waist strap (see, e.g. FIG. 10), the waist strap being configured to engage the pouch (capable of this use which is also the intended use, noting that they are attached together and engage each other in FIG. 10).
With Respect to Claim 7
The case of claim 1, wherein the at least one flap comprises at least one hook and loop fastener (noting disclosure of velcro® fastener which is a type of hook and loop fastener as the closure fastener of the pocket(s) 10A).
With Respect to Claim 9
The case of claim 8, wherein the thermally insulating material is substantially planar (see other FIGS, e.g. FIGS. 8-9 showing this).
With Respect to Claim 10
The case of claim 1, wherein the second face is curved (see, e.g. FIG. 8 showing curves at the ends and near attachment to the side panels and/or FIG. 9 showing curved from the bottom to the top).
With Respect to Claim 11
A carrying case for a controller for an implantable blood pump, the carrying case comprising: a pouch (10B) sized and configured to retain the controller (capable of this use with an appropriate controller), the pouch defining a first face (rear face), a second face (front face) opposite the first face, a third face (left or right face)), and a fourth face (the other of the left or right face)) opposite the third face; the first face being planar (see FIG. 8 showing planar rear wall) and including a thermally insulating material (neoprene) and the second face being curved (see FIG. 9 showing it curved from the bottom to the top) and including a thermally transmissive material (mesh); and a pair of flaps (10A) extending from the pouch, the pair of flaps comprising hook and loop fasteners (noting disclosure to use hook and loop fasteners for the closure mechanism of pockets on 10A) and configured to be coupled to one or both of a waist strap or a shoulder strap (shown as coupled to the waist strap and so clearly configured for such coupling), wherein at least one flap of the pair of flaps is configured to maintain a length of driveline extending from a patient to the controller (capable of this use, noting the disclosure of the side pocket including velcro/hook and loop, buttons, or snap closure, any of which would allow a driveline to be passed through the top opening and secure the driveline in place; alternately capable of this use via appropriate fastening means on the driveline such as a pin, securing the driveline between the flap and the user and tightening the belt to secure/maintain the driveline in position, and/or passing an appropriately sized driveline around the flap to maintain it).
With Respect to Claim 12
The case of claim 11, wherein a first flap of the pair of flaps extends in a first direction away from the pouch and a second flap of the pair of flaps extends in a second direction opposite the first direction.
With Respect to Claim 13
The case of claim 12, wherein each flap of the pair of flaps is substantially co-planar with the first face (FIGS. 8 and 10).
With Respect to Claim 14
The case of claim 11, wherein the thermally insulating material is perforated polyurethane or neoprene foam (the disclosure of wetsuit foam discloses neoprene foam as wetsuits are commonly made of neoprene foam).
With Respect to Claim 15
The case of claim 11, wherein the thermally transmissive material is a nylon mesh (breathable nylon mesh is disclosed).
With Respect to Claim 16
The case of claim 11, further including the waist strap, the waist strap being configured to engage the pouch (FIG. 10 shows it engaged to the pouch and so it clearly fulfills this function).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 5 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent #6,698,636 to Angus (Angus) as applied to claim 4 or 16 above, and further in view of U.S. Patent Publication #2003/0218038 to Chang (Chang).
With Respect to Claim 5
The case of claim 4, wherein the pouch is a first pouch, but does not disclose the case further comprising a second pouch spaced a distance from the first pouch and engaged to the waist strap, the second pouch being sized and configured to retain a smartphone.
However, Chang discloses a second pouch for removable attachment to a waist belt sized and configured to retain a smartphone (it is disclosed as retaining a phone, which is inherently capable of holding a smartphone or alternately renders obvious holding a smartphone which is a common type of phone).
It would have been obvious to one of ordinary skill in the art before the filing date of this application, given the disclosure of Chang, to add a second pouch as taught by Chang to the waist belt portion of the case of angus, in order to increase the storage capacity of the case and/or allow for holding a phone as taught by Chang.
With Respect to Claim 17
The case of claim 16, wherein the pouch is a first pouch, the case further comprising a second pouch spaced a distance from the first pouch and engaged to the waist strap, the second pouch being sized and configured to retain a smartphone (per Chang).
Claims 6 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent #6,698,636 to Angus (Angus) in view of U.S. Patent Publication #2003/0218038 to Chang (Chang) as applied to claim 5 or 17 above, and further in view of U.S. Patent #1,290,827 to Yergason (Yergason).
With Respect to Claim 6
The case of claim 5, but does not disclose further comprising the shoulder strap, wherein the shoulder strap is configured to engage the first pouch.
However, Yergason discloses forming a similar user belt attached pouch and the use of a shoulder strap attached to the belt and to the pouch in order to secure the pouch in position on a wearer and that this supports the carrier from the user’s shoulders.
It would have been obvious to one of ordinary skill in the art before the filing date of this application, given the disclosure of Yergason, to add a shoulder strap configured to engage the first pouch of Angus, in order to distribute the weight of the pouch to the user’s shoulders to enhance user comfort and/or better secure the case in the desired position (e.g. preventing it from falling down or moving from side to side).
With Respect to Claim 18
The case of claim 17, further including the shoulder strap, the shoulder strap being configured to engage the first pouch (per Yergason).
Claims 8 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent #6,698,636 to Angus (Angus) as applied to claim 1 or 11 above, and further in view of U.S. Patent #8,807,412 to Thomas (Thomas).
With Respect to Claim 8
The case of claim 1, and that portions of the pouch may be made from plastic or other materials; but does not disclose wherein the pouch defines at least one transparent window.
However, Thomas discloses forming a similar user belt attached pouch with at least one transparent window (clear urethane window 422) in order to allow for visibility into the interior of the pouch while maintaining a waterproof seal on the pouch. It is noted that Angus discloses the pouch being waterproof as one desired benefit.
It would have been obvious to one of ordinary skill in the art before the filing date of this application, given the disclosure of Thomas, to add a transparent window to the front of the pouch of Angus, in order to allow for visibility of the contents of the pouch while maintaining the waterproof benefit of the pouch.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over EP 2292117 to Schmidt (Schmidt) in view of U.S. Patent #6,662,985 to Harada (Harada) or U.S. Patent #6,698,636 to Angus (Angus), either alone or further in view of U.S. Patent #6,698,636 to Angus (Angus) or U.S. Patent #5,353,975 to Libertucci (Libertucci), and/or U.S. Patent #6,443,347 to Elizalde (Elizalde).
With Respect to Claim 1
Schmidt discloses a carrying case for a controller for an implantable blood pump, the carrying case comprising: a pouch (receiving device 1) sized and configured to retain the controller, the pouch defining a first face (rear face) and a second face (front face) opposite the first face; and at least one flap (portions of 4 extending to the left and right of the sidewalls 7 and 8 of 1) extending from the pouch and configured to be coupled to one or both of a waist strap or a shoulder strap (capable of this use, noting either waist strap 19 and/or shoulder strap attachment between 1 and 3), wherein the at least one flap is configured to maintain a length of driveline extending from a patient to the controller (capable of this use); but does not disclose what materials the receiver and/or flaps/belt are made from and so does not disclose the first face including a thermally insulating material and the second face including a thermally transmissive material.
However, Harada discloses forming a use mounted electronic device holder with a first/rear face (3) including a thermally insulating material (3’) and the second/front face including a thermally transmissive material (mesh) in order to prevent heat from being transferred from the electronic device to the user through the holder while cooling the outer surface of the electronic device in the case; Angus discloses forming a similar user belt mounted holder wherein the first/rear face includes a thermally insulating material and the second/front face includes a thermally transmissive material (see the rejection of claim 1 above for details) and that this structure helps to move heat and moisture away from the user and enhance user comfort.
It would have been obvious to one of ordinary skill in the art before the filing date of this application, given the disclosure of Harada or Angus, to form the first face including a thermally insulating material and the second face including a thermally transmissive material as taught by either reference in order to obtain the benefits disclosed by either reference for its material selection.
Alternately, as to the at least one flap, Angus or Libertucci disclose forming a similar belt mounted pouch structure including a central pouch and a pair of side pouches (as to Angus, although the pouch of Angus takes up all of the corresponding flap, as to Libertucci the flap forms the rear wall of the pouch and then extends beyond it and tapers towards the belt), wherein the side pouches are formed on/as part of flaps extending from the central pouch that attach to a belt (as to Libertucci, it is noted that Libertucci is specifically a holder for an electronic device).
It would have been obvious to one of ordinary skill in the art before the filing date of this application, given the disclosure of Angus or Libertucci to form the belt holder of Schmidt to include side flaps as taught by either reference that taper and attach to a belt, in order to provide a thinner belt structure to save on materials cost and/or as a mere substitution of one art known pouch and belt structure for another. For clarity, the combination with Angus encompasses either having the side pouches formed to take up all of the flap or alternately being slightly spaced as taught by Schmidt so as to take up only part of the flap.
Alternately, as to the at least one flap is configured to maintain a length of driveline extending from a patient to the controller, Schmidt discloses that cables/driveline extend out of the receivers, and Elizalde discloses forming a user worn electronic device holder with cable/driveline holders (51, FIGS. 9-10) configured to maintain a length of driveline/cable in place.
It would have been obvious to one of ordinary skill in the art before the filing date of this application, given the disclosure of Elizalde, to add one or more cable/driveline holders (51) to the at least one flap, in order to secure excess cable as taught by Elizalde. It is Examiner’s position that this structure is capable of securing an appropriate driveline as claimed.
With Respect to Claim 2
The case of claim 1, wherein the thermally insulating material is perforated polyurethane or neoprene foam (Angus explicitly discloses this, or as to the combinations without Angus Examiner takes official notice that perforated polyurethane and neoprene foam are both art known thermally insulating materials and so would have been obvious to use for the art known benefits of such material and/or as it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416).
With Respect to Claim 3
The case of claim 1, wherein the thermally transmissive material is a nylon mesh (Angus explicitly discloses this, or Harada discloses mesh and Examiner takes official notice that nylon is an art known material for mesh and so would have been obvious to use for the art known benefits of such material and/or as it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416).
With Respect to Claim 4
The case of claim 1, further including the waist strap, the waist strap being configured to engage the pouch.
With Respect to Claim 5
The case of claim 4, wherein the pouch is a first pouch, the case further comprising a second pouch spaced a distance from the first pouch (spaced per Schmidt) and engaged to the waist strap (engaged via the flap that forms the rear wall of the pouch), the second pouch being sized and configured to retain a smartphone (capable of this use with an appropriate smartphone).
With Respect to Claim 6
The case of claim 5, further comprising the shoulder strap (FIG. 1), wherein the shoulder strap is configured to engage the first pouch (it engages the belt structure forming the rear wall of the first pouch and therefore engages the first pouch).
With Respect to Claim 7
The case of claim 1, wherein the at least one flap comprises at least one hook and loop fastener (12, FIG. 1 or hook and loop fastener on pouch closures per Schmidt and/or Angus).
With Respect to Claim 8
The case of claim 1, wherein the pouch defines at least one window (the left or right openings in the pouch between the upper closure flap and the left and right sidewalls for allowing passage of cables constitute windows to the extent claimed, see FIG. 1 and description noting that they are referred to as recesses 14).
With Respect to Claim 9
The case of claim 8, wherein the thermally insulating material is substantially planar (as the rear wall/belt is substantially planar when not in use and/or the rear wall of the container is substantially planar even when worn).
With Respect to Claim 10
The case of claim 1, but does not detail a particular shape of the second face and so does not disclose wherein the second face is curved.
However, it would have been obvious to one of ordinary skill in the art before the filing date of this application to form the second face to be curved in order to accommodate a device having a curved face at that location, and/or as a mere selection of an art appropriate shape or at most a mere change in shape which does not patentably distinguish over the prior art (MPEP 2144.04).
Alternately, as to the combinations with Angus or Libertucci, Angus or Libertucci disclose forming a similar pouch with a curved second face (see e.g. Angus FIGS. 8-9, or Libertucci FIG. 2 or 3 shows the front face curved in both directions), which provides additional evidence of the obviousness of and/or motivation to use this shape for the second/front face.
With Respect to Claim 11
A carrying case for a controller for an implantable blood pump, the carrying case comprising: a pouch (1) sized and configured to retain the controller, the pouch defining a first face, a second face opposite the first face, a third face, and a fourth face opposite the third face; the first face being planar and including a thermally insulating material (per Harada or Angus) and the second face being curved and including a thermally transmissive material (per Harada or Angus); and a pair of flaps extending from the pouch, the pair of flaps comprising hook and loop fasteners (12 per Schidt either on the flap ends or on the receivers 2/3) and configured to be coupled to one or both of a waist strap or a shoulder strap (shoulder strap per Schmidt, or waist strap per Schmidt or Angus or Libertucci), wherein at least one flap of the pair of flaps is configured to maintain a length of driveline extending from a patient to the controller (capable of this use or per Elizalde).
With Respect to Claim 12
The case of claim 11, wherein a first flap of the pair of flaps extends in a first direction away from the pouch and a second flap of the pair of flaps extends in a second direction opposite the first direction.
With Respect to Claim 13
The case of claim 12, wherein each flap of the pair of flaps is substantially co-planar with the first face.
With Respect to Claim 14
The case of claim 11, wherein the thermally insulating material is perforated polyurethane or neoprene foam (Angus explicitly discloses this, or as to the combinations without Angus Examiner takes official notice that perforated polyurethane and neoprene foam are both art known thermally insulating materials and so would have been obvious to use for the art known benefits of such material and/or as it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416).
With Respect to Claim 15
The case of claim 11, wherein the thermally transmissive material is a nylon mesh (Angus explicitly discloses this, or Harada discloses mesh and Examiner takes official notice that nylon is an art known material for mesh and so would have been obvious to use for the art known benefits of such material and/or as it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416)
With Respect to Claim 16
The case of claim 11, further including the waist strap, the waist strap being configured to engage the pouch (per Schmidt, it engages the pouch via the flaps).
With Respect to Claim 17
The case of claim 16, wherein the pouch is a first pouch, the case further comprising a second pouch spaced a distance from the first pouch and engaged to the waist strap, the second pouch being sized and configured to retain a smartphone (capable of this use with an appropriate smartphone).
With Respect to Claim 18
The case of claim 17, further including the shoulder strap, the shoulder strap being configured to engage the first pouch (FIG. 1, it engages the shoulder strap via the rear wall/belt).
With Respect to Claim 19
The case of claim 11, wherein at least one of the third face or the fourth face defines a window (as shown the window(s) formed by recess(es) 14 extend(s) on the third and fourth faces as well as the front face).
With Respect to Claim 20
A carrying case for a controller for an implantable blood pump, the carrying case comprising: a first enclosure (1) sized and configured to retain the controller, the first enclosure defining a first face, a second face opposite the first face, a third face, and a fourth face opposite the third face; the first face being planar and comprising a thermally insulating material and the second face being curved and comprising a thermally transmissive material (per Harada or Angus); a pair of flaps (per Schmidt or Angus or Libertucci) extending away from the first enclosure in opposite directions, the pair of flaps including hook and loop fasteners (12 per Schmidt), the pair of flaps being substantially coplanar to the first face; a waist strap (19 or per Angus or Libertucci) coupled to the first enclosure via at least one flap of the pair of flaps; a shoulder strap (Schmidt FIG. 1 and description) coupled to the first enclosure via at least one flap of the pair of flaps (noting attachment to flap, between 1 and 3); at least one of the third face and the fourth face including a window (side window formed by 14, FIG. 1); and a second enclosure (2 or 3) spaced a distance from the first enclosure and engaged to the waist strap (engaged via the flap or alternately Angus discloses/renders obvious directly engaging the waist strap to a receiver formed on a side flap), the second enclosure being sized and configured to retain a smartphone (capable of this use with an appropriately sized smartphone), wherein at least one flap of the pair of flaps is configured to maintain a length of driveline extending from a patient to the controller (capable of this use or per Elizalde).
Claims 5-6, 17-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over EP 2292117 to Schmidt (Schmidt) in view of U.S. Patent #6,662,985 to Harada (Harada) or U.S. Patent #6,698,636 to Angus (Angus), either alone or further in view of U.S. Patent #6,698,636 to Angus (Angus) or U.S. Patent #5,353,975 to Libertucci (Libertucci), and/or U.S. Patent #6,443,347 to Elizalde (Elizalde)as applied to claim 4 or 16 above, and further in view of U.S. Patent Publication #2003/0218038 to Chang (Chang).
With Respect to Claims 5-6, 17-18, and 20
As an alternative to the rejection of these claims above using EP 2292117 to Schmidt (Schmidt) in view of U.S. Patent #6,662,985 to Harada (Harada) or U.S. Patent #6,698,636 to Angus (Angus), either alone or further in view of U.S. Patent #6,698,636 to Angus (Angus) or U.S. Patent #5,353,975 to Libertucci (Libertucci), and/or U.S. Patent #6,443,347 to Elizalde (Elizalde) alone, Chang discloses a second pouch for removable attachment to a waist belt sized and configured to retain a smartphone (it is disclosed as retaining a phone, which is inherently capable of holding a smartphone or alternately renders obvious holding a smartphone which is a common type of phone).
It would have been obvious to one of ordinary skill in the art before the filing date of this application, given the disclosure of Chang, to add a second pouch as taught by Chang to the waist belt portion of the case of Schmidt/the combination, in order to increase the storage capacity of the case and/or allow for holding a phone as taught by Chang.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 12,157,000, either alone or further in view of Elizalde or Schmidt and Elizalde.
The ‘000 patent’s limitations disclose a similar carrying case including a first face including a thermally insulating material and a second face including a thermally transmissive material (see e.g. claims 1, 10, and 19) and at least one/pair of flaps extending from the case (claims 7, 10-12, 19) and configured to maintain a driveline extending from a patient to the controller (capable of this use with an appropriate driveline, noting also the disclosure of hook and loop fastener on the flap which would allow maintaining a driveline including mating hook and loop fastener) or alternately Elizalde renders obvious the use of a hook and loop flap to secure a cable/driveline and/or Schmidt’s disclosure of a similar enclosure with openings for cables to extend out of provides additional evidence of the obviousness of adding a retention device like that of Elizalde/as claimed to the similar case of the ‘000 patent; claim 2 discloses the thermally insulating material being the materials claimed in claims 2 and 14; claim 3 discloses the thermally transmissive material is nylon mesh as required by claims 3 and 15; claims 4-5 disclose the waist strap as recited in claims 4-5, 11, 16-17, and 20, and/or Schmidt renders the addition of such obvious; claim 6 discloses the shoulder strap as recited in claims 6, 11, 18, and 20, and/or Schmidt’s disclosure renders such obvious; claims 7, 10, and 19 disclose the flap(s) including hook and loop fastener as recited in claims 7, 11, and 20; claims 18-19 recite the third/fourth face defining a window, meeting the limitations of claims 8 and 19-20; claim 9-10 and 19 indicate that the first face/thermally insulating material is substantially planar as required by claims 9, 11, and 20; claim 16 discloses a second spaced apart pouch to receive a smartphone as required by claims 5 and 17; claim 1 recites that the second face is curved as required by claims 10-11 and 20. As such, all of the limitations of the claims of this application are taught by or obvious over the ‘000 patent, either alone or in view of Schmidt and/or Elizalde.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADAM J WAGGENSPACK whose telephone number is (571)270-7418. The examiner can normally be reached M-F 8:30-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Newhouse can be reached at (571)272-4544. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ADAM J WAGGENSPACK/Primary Examiner, Art Unit 3734
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