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 .
Information Disclosure Statement
Since this application is a continuation of US Application 18/322,308 and 17/138,117, the examiner has considered the information provided in the parent application (per MPEP 609.02). Should applicant desire the information to be printed on any patent issuing from this application, a new listing of the information must be separately submitted.
Claim Rejections - 35 USC § 103
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 20 is rejected under 35 U.S.C. 103 as being unpatentable over Alpern et al. (US 5,325,987) in view of Char et al. (US 5,833,057).
Regarding claim 20, Alpern discloses a system (See Fig. 1) capable of packaging a kit for a radiofrequency ablation procedure, the system comprising: an introducer tray (tray at 15 in Fig. 1 – See Fig. 1 labeled below) configured to hold at least one introducer (tray at 15 in Fig. 1 is considered an introducer tray since it is capable of holding an introducer element therein); a probe tray (tray at 16 in Fig. 1 – See Fig. 1 labeled below) configured to hold at least one radiofrequency ablation probe assembly (tray at 16 in Fig. 1 is considered a probe tray since it is capable of holding an radiofrequency ablation probe assembly therein); an outer carrier tray (at 21 in Fig. 1 - See Fig. 1 labeled below), wherein the introducer tray and the probe tray are held within the outer carrier tray (as shown in Fig. 1); a pouch (bag 11 in Fig. 1) configured to hold a tubing assembly (element 11 in Fig. 1 is fully capable of holding a tubing assembly therein); wherein the probe tray and introducer tray are arranged in a stacked configuration within the outer carrier tray (as shown in Fig. 1), and wherein the pouch is positioned outside of the outer carrier tray (as shown in Fig. 1).
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Alpern discloses the claimed invention except for the dispenser carton. However, Char teaches a packaging kit (14 — See Fig. 1) disposed within a dispenser carton (carton at the bottom of Fig. 1 and shown at 12 in Fig. 2) for the purpose of surrounding and protecting a packaging kit during transport (see column 3, lines 55-57). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the kit of Alpern within a carton as taught by Char in order to surround and protect the kit during transport.
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 1-18 of U.S. Patent No. 11,684,443. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, Patent No. 11,684,443 (claim 1) discloses a system for packaging a kit for a radiofrequency ablation procedure, the system comprising: an introducer tray for receiving at least one introducer; a probe tray for receiving at least one radiofrequency ablation probe assembly; and a probe sleeve formed from a single piece of material folded into a rectangular shape configured to surround the at least one radiofrequency ablation probe assembly, wherein the probe sleeve facilitates a secure fit of the at least one radiofrequency ablation probe assembly within the probe tray; an outer carrier tray, wherein the introducer tray and the probe tray are held within the outer carrier tray; a pouch configured to hold a tubing kit; and a dispenser carton, wherein the outer carrier tray and the pouch are configured to be held within the dispenser carton.
Regarding claim 2, Patent No. 11,684,443 (claim 2) discloses the claimed subject matter.
Regarding claim 3, Patent No. 11,684,443 (claim 3) discloses the claimed subject matter.
Regarding claim 4, Patent No. 11,684,443 (claim 4) discloses the claimed subject matter.
Regarding claim 5, Patent No. 11,684,443 (claim 5) discloses the claimed subject matter.
Regarding claim 6, Patent No. 11,684,443 (claim 6) discloses the claimed subject matter.
Regarding claim 7, Patent No. 11,684,443 (claim 7) discloses the claimed subject matter.
Regarding claim 8, Patent No. 11,684,443 (claim 8) discloses the claimed subject matter.
Regarding claim 9, Patent No. 11,684,443 (claim 9) discloses the claimed subject matter.
Regarding claim 10, Patent No. 11,684,443 (claim 10) discloses the claimed subject matter.
Regarding claim 11, Patent No. 11,684,443 (claim 11) discloses the claimed subject matter.
Regarding claim 12, Patent No. 11,684,443 (claim 12) discloses the claimed subject matter.
Regarding claim 13, Patent No. 11,684,443 (claim 13) discloses the claimed subject matter.
Regarding claim 14, Patent No. 11,684,443 (claim 14) discloses the claimed subject matter.
Regarding claim 15, Patent No. 11,684,443 (claim 15) discloses the claimed subject matter.
Regarding claim 16, Patent No. 11,684,443 (claim 16) discloses the claimed subject matter.
Regarding claim 17, Patent No. 11,684,443 (claim 1) discloses the claimed subject matter.
Regarding claim 18, Patent No. 11,684,443 (claim 17) discloses the claimed subject matter.
Regarding claim 19, Patent No. 11,684,443 (claim 18) discloses the claimed subject matter.
Regarding claim 20, Patent No. 11,684,443 (claim 1) discloses the claimed subject matter.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN A REYNOLDS whose telephone number is (571)272-9959. The examiner can normally be reached M-F 9am-5pm.
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/STEVEN A. REYNOLDS/Primary Examiner, Art Unit 3735