DETAILED ACTION
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 1-7, 9 and 10 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-3, 6-9, 11 and 12 of prior U.S. Patent No. 12,252,324. This is a statutory double patenting rejection.
Claims 13-15 and 17 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 13, 15, 16 and 18 of prior U.S. Patent No. 12,252,324. This is a statutory double patenting rejection.
Allowable Subject Matter
Claims 8, 11-12, 16 and 18 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
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/KAREEN K THOMAS/Primary Examiner, Art Unit 3736
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