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
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 1 – 11 and 14 – 16 are is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1 – 14 of prior U.S. Patent No. 12,168,779 B2. This is a statutory double patenting rejection.
Allowable Subject Matter
Claims 1 – 11 and 14 – 16 would be allowable if rewritten or amended to overcome the rejection(s) under Double Patenting, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
With respect to independent claim 1, Shapiro and Marks cited on PTO-892 are determined to be the closest art, teaching a method for producing a sexed semen sample, the method comprising:
illuminating a cell with a focused beam of electromagnetic radiation; detecting a first fluorescence by the cell; determining a set of characteristics of the cell based on the fluorescence of the cell;
identifying the cell as an undesired cell based on the set of characteristics; setting a timing signal for a kill laser wherein the timing signal causes the kill laser to emit a focused beam of electromagnetic radiation at the cell;
firing the kill laser at the cell based on the timing signal; detecting a second fluorescence by the cell; but the prior art of record fails to teach or reasonably suggest:
determining a type of event based on the second fluorescence, wherein the type of event is one of a slice, a kill, or a miss..
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KIHO KIM, Ph.D. whose telephone number is (571)270-1628. The examiner can normally be reached M-F: 8-5 EST.
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KIHO KIM, Ph.D.
Primary Examiner
Art Unit 2884
/Kiho Kim/Primary Examiner, Art Unit 2884
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