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 Objections
Claim 4 is objected to because of the following informalities:
Claim 4 line 1 recites “unoccupied” which should instead read –occupied space--.
Appropriate correction is required.
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 1,8 and 18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6-7 of U.S. Patent No. 12193962. Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims are more specific and constitutes a species of the instant invention. The patented claims further recite the convex shape along with all other features of instant claim 1. A nonstatutory double patenting rejection is appropriate where a claim in an application under examination claims subject matter that is different, but not patentably distinct, from the subject matter claimed in a prior patent or a copending application. The claim under examination is not patentably distinct from the reference claim(s) if the claim under examination is anticipated by 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, 1052, 29 USPQ2d 2010, 2015-16 (Fed. Cir. 1993). In this case, the patented claims (species) anticipates instant invention (genus) (In re Goodman) since the reference claims falls within the scope of the examined claims.
Instant claims
Patented Claims
1. An apparatus for collecting liquid from a female body, the apparatus comprising: a shell having a port in a first end adapted for receiving tubing, a second end distal to the first end, a back surface extending between the first end and the second end, and a front surface distal to at least a portion of the back surface, the shell defining a chamber and having two elongated edges spaced inwardly from the front surface that at least partially define an elongated window opening in the front surface of the shell; a wicking material applicator disposed in the chamber; and a wicking material disposed over the wicking material applicator, the wicking material extending across the elongated window opening.
A liquid collection system, comprising: a shell defining a chamber and a window opening, the shell having a first end region, a second end region distal to the first end region, a port configured to receive tubing, a back surface extending between the first end region and the second end region, a front surface at least partially distal to the back surface, and two elongated edges spaced inwardly from the front surface and that at least partially define the window opening on the front surface; and a wicking article positioned within the chamber and including at least a porous material and a convex region, wherein the wicking article is positioned in the chamber such that the convex region of the wicking article is exposed through and extends across the window opening for application against a particular source of moisture, wherein the shell and the wicking article are flexible and configured to be curved such that the convex region of the wicking article exposed through the window opening is recessed between the first end region and the second end region of the shell.
6. The liquid collection system of claim 1, wherein the wicking article includes at least a support including the porous material and a wicking material disposed on the support, wherein the support is configured to support the wicking material against a particular source of moisture through the window opening.
8. The apparatus of claim 1, wherein the wicking material applicator includes a porous spun plastic or plastic netting material.
7. The liquid collection system of claim 6, wherein the porous material of the support includes spun plastic and the wicking material includes gauze.
18. The apparatus of claim 1, wherein the wicking material includes gauze.
7. The liquid collection system of claim 6, wherein the porous material of the support includes spun plastic and the wicking material includes gauze.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Kraus (US 4528703) in view of Sanchez (US 2016/0374848).
Regarding claim 1, Kraus discloses an apparatus for collecting liquid from a female body, the apparatus comprising:
a shell (12) having a port (port 44 of spout 16) in a first end adapted for receiving tubing (device can be configured for the intended use of receiving tubing since the device is a spout generally for communicating fluid), a second end (end near 36, figure 1) distal to the first end, a back surface (surface on the bottom of shell 12) extending between the first end and the second end, and a front surface ( top surface of shell 12 near window) distal to at least a portion of the back surface, the shell defining a chamber (interior of the shell 12) and having two elongated edges ( edges formed by sidewall 18, figure 3) spaced inwardly from the front surface that at least partially define an elongated window opening (window formed by sidewalls 18 that expose the interior) in the front surface of the shell (see annotated figure below for locations of the surfaces and edges);
a wicking material (22, col 2, lines 15-18).
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Kraus does not disclose a wicking material applicator disposed in the chamber, and a wicking material disposed over the wicking material applicator, the wicking material extending across the elongated window opening.
Sanchez discloses a urine collection device and teaches a wicking material applicator (1640, figure 32, [0119]) disposed in the chamber, and a wicking material (1630, [0119]) disposed over the wicking material applicator, the wicking material extending across the elongated window opening (figure 32).
Sanchez provides a wicking applicator and wicking material in order to maintain the shape of the wicking material while also wicking material away from the body ([0057]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Kraus with the wicking material and applicator of Sanchez in order to maintain the shape of wicking material during use while wicking urine away from the body.
Regarding claim 2, Kraus further discloses wherein the elongated edges form an arch that extends at least partially between the first end and the second end (figure 1, arched back surface extending between first and second ends).
Regarding claim 3-4, Kraus further discloses, wherein the shell at least partially defines a substantially unoccupied space (space seen in figure 4 without material) and, wherein the substantially unoccupied space is located in the second end (22 has concave shape having no material above it).
Regarding claim 5, Kraus further discloses wherein the shell includes a compliant impermeable plastic material (col 4, lines 30-44).
Regarding claim 6, Kraus further discloses wherein a portion of the shell extending from the elongated window opening to the first end and a portion of the shell extending from the elongated window opening to the second end exhibit a generally cylindrical shape (see figures 4-6).
Regarding claim 7, Kraus discloses wherein the front surface of the shell is positioned to contact a region of a female body surrounding a urethral opening (figure 7).
Regarding claim 8, Kraus does not teach wherein the wicking material applicator includes a porous spun plastic or plastic netting material.
Sanchez discloses a urine collection device and teaches a wicking material applicator (1640, figure 32, [0119]) disposed in the chamber, and a wicking material (1630, [0119]) disposed over the wicking material applicator, the wicking material extending across the elongated window opening (figure 32), wherein the wicking material applicator includes a porous spun plastic or plastic netting material ([0114]).
Sanchez provides a wicking applicator and wicking material in order to maintain the shape of the wicking material while also wicking material away from the body ([0057]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Kraus with the wicking material and applicator of Sanchez in order to maintain the shape of wicking material during use while wicking urine away from the body.
Regarding claims 9 and 10, Kraus does not teach wherein the wicking material applicator defines symmetrical openings and wherein the wicking material applicator defines non-symmetrical openings.
Sanchez further teaches wherein the wicking material applicator defines symmetrical openings ([0114]) and wherein the wicking material applicator defines non-symmetrical openings ([0114]).
Sanchez provides a wicking applicator and wicking material in order to maintain the shape of the wicking material while also wicking material away from the body ([0057]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Kraus with the wicking material and applicator of Sanchez in order to maintain the shape of wicking material during use while wicking urine away from the body.
Regarding claim 11, Kraus does not teach, wherein the wicking material applicator is flexible.
Sanchez further teaches wherein the wicking material applicator is flexible ([0114]).
Sanchez provides a wicking applicator and wicking material in order to maintain the shape of the wicking material while also wicking material away from the body ([0057]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Kraus with the wicking material and applicator of Sanchez in order to maintain the shape of wicking material during use while wicking urine away from the body.
Regarding claim 12 and 13, Kraus does not teach wherein the wicking material applicator is initially a sheet (claim 12) and wherein the wicking material applicator is configured to be rolled into a generally cylindrical shape (claim 13).
Sanchez further teaches wherein the wicking material applicator is initially a sheet and rolled into a cylindrical shape (figures 29-30, [0114]).
Sanchez provides a wicking applicator and wicking material in order to maintain the shape of the wicking material while also wicking material away from the body ([0057]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Kraus with the wicking material and applicator of Sanchez in order to maintain the shape of wicking material during use while wicking urine away from the body.
Regarding claim 14, Kraus further discloses wherein a portion of the wicking material extends outwardly from the two elongated edges of the shell (figure 1).
Regarding claim 15, Kraus further discloses wherein the portion of the wicking material extending outwardly from the two elongated edges of the shell exhibits a generally cylindrical shape (figure 1, shape appears to be generally cylindrical).
Regarding claim 16 and 17, Kraus does not teach wherein the wicking material is disposed around the wicking material applicator, and wherein the wicking material is coextensive with the wicking material applicator.
Sanchez further teaches wherein the wicking material is disposed around the wicking material applicator (figure 31, [0114-0115]), and wherein the wicking material is coextensive with the wicking material applicator (figure 31).
Sanchez provides a wicking applicator and wicking material in order to maintain the shape of the wicking material while also wicking material away from the body ([0057]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Kraus with the wicking material and applicator of Sanchez in order to maintain the shape of wicking material during use while wicking urine away from the body.
Regarding claim 18, Kraus does not disclose wherein the wicking material includes gauze.
Sanchez further teaches wherein the wicking material includes gauze ([0056]).
Sanchez provides a wicking applicator and wicking material in order to maintain the shape of the wicking material while also wicking material away from the body ([0057]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Kraus with the wicking material and applicator of Sanchez in order to maintain the shape of wicking material during use while wicking urine away from the body.
Regarding claim 19, Kraus discloses a system for collecting liquid from a female body, the system comprising:
an apparatus (10) including:
a shell (12) having a port (port 44 of spout 16) in a first end adapted for receiving tubing (device can be configured for the intended use of receiving tubing since the device is a spout generally for communicating fluid), a second end (end near 36, figure 1) distal to the first end, a back surface (surface on the bottom of shell 12) extending between the first end and the second end, and a front surface ( top surface of shell 12 near window) distal to at least a portion of the back surface, the shell defining a chamber (interior of the shell 12) and having two elongated edges ( edges formed by sidewall 18, figure 3) spaced inwardly from the front surface that at least partially define an elongated window opening (window formed by sidewalls 18 that expose the interior) in the front surface of the shell (see annotated figure above for locations of the surfaces and edges);
a wicking material (22, col 2, lines 15-18).
Kraus does not teach a wicking material applicator disposed in the chamber; and
a wicking material disposed over the wicking material applicator, the wicking material extending across the elongated window opening;
a vacuum pump in fluid communication with tubing partially received in the port, the vacuum pump configured to create a partial vacuum in the chamber to draw moisture into the chamber and transport the liquid from the chamber.
Sanchez discloses a urine collection device and teaches a wicking material applicator (1640, figure 32, [0119]) disposed in the chamber, and a wicking material (1630, [0119]) disposed over the wicking material applicator, the wicking material extending across the elongated window opening (figure 32), a vacuum pump (270) in fluid communication with tubing partially received in the port (figure 4), the vacuum pump configured to create a partial vacuum in the chamber to draw moisture into the chamber and transport the liquid from the chamber ([0083]).
Sanchez provides a wicking applicator and wicking material in order to maintain the shape of the wicking material while also wicking material away from the body ([0057]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Kraus with the wicking material and applicator of Sanchez in order to maintain the shape of wicking material during use while wicking urine away from the body.
Regarding claim 20, Kraus discloses method for collecting liquid from a female body, the method comprising:
positioning an apparatus (10) to contact a wicking material (22) extending across an elongated window (window formed by sidewall 18, figure 1, see figure above) defined by a shell (12) of the apparatus against a urethral opening (figure 7), the apparatus including:
the shell (12) having a port (port 44 of spout 16) in a first end adapted for receiving tubing (device can be configured for the intended use of receiving tubing since the device is a spout generally for communicating fluid), a second end (end near 36, figure 1) distal to the first end, a back surface (surface on the bottom of shell 12) extending between the first end and the second end, and a front surface ( top surface of shell 12 near window) distal to at least a portion of the back surface, the shell defining a chamber (interior of the shell 12) and having two elongated edges ( edges formed by sidewall 18, figure 3) spaced inwardly from the front surface that at least partially define an elongated window opening (window formed by sidewalls 18 that expose the interior) in the front surface of the shell (see annotated figure above for locations of the surfaces and edges);
a wicking material (22, col 2, lines 15-18) and receiving liquid from the urethral opening into the wicking material (figure 7, col 4, lines 47-65).
Kraus does not teach a wicking material applicator disposed in the chamber; and the wicking material disposed over the wicking material applicator;
Sanchez discloses a urine collection device and teaches a wicking material applicator (1640, figure 32, [0119]) disposed in the chamber, and a wicking material (1630, [0119]) disposed over the wicking material applicator.
Sanchez provides a wicking applicator and wicking material in order to maintain the shape of the wicking material while also wicking material away from the body ([0057]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Kraus with the wicking material and applicator of Sanchez in order to maintain the shape of wicking material during use while wicking urine away from the body.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAI H WENG whose telephone number is (571)272-5852. The examiner can normally be reached M-F 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca Eisenberg can be reached at (571) 270-5879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KAI H WENG/Primary Examiner, Art Unit 3781
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