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.
Claims 11-30 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4-6, 8, of U.S. Patent No. US 12,246,280 (‘280). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Claims 11, 12, 14, 15, 21, 23 and 26-28 corresponds to claims 1 and 4 of ‘280.
Claim 13 corresponds to claim 6 of ‘280.
Claims 16 and 29 correspond to claims 1 and 4 but does not disclose the additional reservoir has an annular shape. It is noted that the configuration of the claimed apparatus was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed apparatus was significant In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Claims 17 and 30 correspond to claim 8 of ‘280.
Claim 22 corresponds to claim 5 of ‘280.
Claims 24 and 25 correspond to claim 3 of ‘280.
Claims 18-20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 4 of U.S. Patent No. 12,246,280 (‘280) in view of Son et al. US 2017/0122593.
For claims 18-20 the ‘280 reference does not disclose the lower body has second air holes communicating with the inside of the screen, the second air holes are formed around an outer periphery of the lower body and the second air holes are formed to surround the screen.
The Son et al. reference discloses the lower body has second air holes communicating with the inside of the humidification medium, the second air holes are formed around an outer periphery of the lower body and the second air holes are formed to surround the humidification medium (objects 31 and 51).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the ‘280 reference to include the lower body has second air holes communicating with the inside of the screen, the second air holes are formed around an outer periphery of the lower body and the second air holes are formed to surround the screen (Son et al. objects 31 and 51 so as to provide for communication of air to the humification medium).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMBER ROSE ORLANDO whose telephone number is (571)270-3149. The examiner can normally be reached Monday-Thursday 6:30-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexa Neckel can be reached at (571) 272-2450. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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AMBER ROSE ORLANDO
Primary Examiner
Art Unit 1731
/AMBER R ORLANDO/Primary Examiner, Art Unit 1731
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