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.
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Claim 7 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of U.S. Patent No. 11,447,309 (Jinkins et al. hereinafter). Although the claims at issue are not identical, they are not patentably distinct from each other because the patent claims “A lid assembly comprising: a rim for engaging an opening of a container, the rim defining a top wall; a side wall defining a groove for placement of a first gasket; a middle wall extending below the rim, a top [first] surface of the middle wall defining a recess, the recess having a first opening and a second opening, a bottom [second] surface of the middle wall defining a first ramped feature having a first crest surface and a first trough depression, the first ramped feature positioned on a first side of the second opening, a second ramped feature having a second crest surface and a second trough depression, the second ramped feature positioned on a second side of the second opening; and a slider mechanism configured to be manually slid to selectively provide a closed position by covering both the first opening and the second opening, and an open position, the slider mechanism comprising: an upper sled configured to be positioned within the recess on the top surface of the middle wall, and having an upper sled magnet encapsulated therein; a lower sled configured to be positioned proximate the bottom surface of the middle wall, the lower sled further comprising: an inner surface having a lower sled ramp protruding therefrom, wherein the lower sled ramp is configured to be selectively received into the first trough depression and the second trough depression when the slider mechanism is in the closed position, wherein the lower sled ramp is configured to abut the first crest surface and the second crest surface when the slider mechanism is in the open position, a lower sled magnet encapsulated within the lower sled; a first and a second curved wall extending from the inner surface of the lower sled, and having a first tab ear at a distal end of the first curved wall and a second tab ear at a distal end of the second curved wall configured to extend through the second opening; a second gasket, configured to extend around a perimeter of the inner surface of the lower sled, and configured to be compressed between the lower sled and the bottom surface of the middle wall, wherein magnetic attraction between the upper sled magnet and the lower sled magnet magnetically couples the upper sled to the lower sled.” And in claim 3 “the lower sled moves away from the upper sled as the lower sled ramp slides from the first and second trough depressions to the first and second crest surfaces”.
Allowable Subject Matter
Claims 2-6 and 8-21 are allowed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. 2007/0170184 to Canedo teaches a container closure with co-sliding sleds to cover and uncover a drinking hole.
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/ANDREW T KIRSCH/Primary Examiner, Art Unit 3733