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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-22 of U.S. Patent No. 11,813,443 and claims 1-9 of 12,179,008; in view of Wampler et al. (U.S. Patent Application Publication No. 2007/0231135) hereinafter referred to as Wampler.
Although the claims at issue are not identical, they are not patentably distinct from each other because the earlier patented claims are narrower than the instant claims, therefore anticipating the claims of the instant application, excepting for the recitation of dipole magnets.
Attention is drawn to the Wampler reference which teaches coaxial magnets respectively attached to an impeller and motor, wherein the magnets are dipole magnets.
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the magnets of earlier patented claims to include dipole magnets, as taught by Wampler, because Wampler teaches that the opposite dipole polarity of the two magnets results in a state of constant axial attraction between the magnets, therefore reducing the axial load on the rotor assembly (Wampler ¶[0132]).
Allowable Subject Matter
As the claims are rejected for Double Patenting, the claims are not allowed. However the examiner has determined that the claims may comprise otherwise allowable subject matter.
The following is an examiner’s statement of reasons for indicating allowable subject matter:
Closest prior art of Wampler et al. U.S. Patent Application Publication No. 2007/0231135 teaches dipole magnets located on a rotor axis and motor spindle, and teaches that these magnets are drawn together. However, Wampler teaches that rotation of the rotor is accomplished through a separate magnet assembly, and that rotation of the impeller and spindle magnets results instead in adjustment of an axial distance, and not coaxial co-rotation. These magnets are drawn together axially, but do not cause each other to rotate as disclosed by Wampler. Further, the impeller magnet is not located on any shaft of the impeller, as it is a ring type magnet which surrounds the spindle mounted magnet.
Additional identified close prior art of Changzhi Jiuan Artificial Heart Tehnology Development Co Ltd. (CN 104162191, machine translation provided through Espacenet) teaches axially centered dipole magnets in a longitudinal blood pump, but does not teach any motor shaft or impeller shaft, nor that the magnets rotate at all, let alone magnetically pair such that rotating one rotates the other. Furthermore, the magnetic attracting between the two magnets serves solely to position the rotor within the housing in the center.
Additional identified close prior art of Akdis (U.S. Patent Application Publication No. 2011/0238172) teaches multipolar magnets which transmit rotation of a motor to a pump impeller, but does not teach an arrangement comprising an impeller shaft and a motor shaft.
Additional close prior art of Siess (U.S. Patent Application Publication No. 2017/004,307) teaches a housing magnet and rotor/stator magnets which cooperate for axial deloading, but does not go so far as to teach an impeller or motor shaft comprising the dipole magnets.
Therefore, upon review of the art, the claims are not anticipated or made obvious by the teachings of closest prior art.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMANDA L STEINBERG whose telephone number is (303)297-4783. The examiner can normally be reached Mon-Fri 8-4.
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, Unsu Jung can be reached at (571) 272-8506. 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.
/AMANDA L STEINBERG/ Examiner, Art Unit 3792
Prosecution Insights