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 .
Information Disclosure Statement
Acknowledgment is made of Applicant’s Information Disclosure Statement (IDS) form PTO 1449.These IDS has been considered.
Examiner’s Note
The Examiner has pointed out particular references contained in the prior art of record within the body of this action for the convenience of the Applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages, paragraph and figures may apply. Applicant, in preparing the response, should consider fully the entire reference as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the Examiner.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1 and 4-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 8-9 and 11-12 of U.S. Patent No. (US 12240770 B2). Although the conflicting claims are not identical, they are not patentable distinct from each other because both the claims of the instant application and the claims of the patent are almost the same in scope. Omission of an element and its function in a combination is an obvious expedient if the remaining elements perform the same function as before. In re KARLSON (CCPA) 136 USPQ 184 (1963).
Summary of double patenting claims (The differences are bolded.)
Current application
Patent (US 12240770 B2)
1. A discrimination system, comprising: collection optics that collect output electromagnetic radiation from X-chromosome bearing sperm and Y-chromosome bearing sperm within a measurement region; a split detector that generates an electrical signal responsive to the intensity of the output electromagnetic radiation collected by the collection optics, wherein the electrical signal is responsive to the intensity of the output electromagnetic radiation collected by the collection optics and the split detector detects the position of sperm cells in the measurement region; and an analyzer having instructions stored thereon to discriminate between X-chromosome bearing sperm and Y-chromosome bearing sperm.
1. A discrimination system, comprising: collection optics that collect output electromagnetic radiation from X-chromosome bearing sperm and Y-chromosome bearing sperm within a measurement region;
a detector that generates an electrical signal responsive to the intensity of the output electromagnetic radiation collected by the collection optics; and an analyzer having instructions stored thereon i) to normalize the intensity of the output electromagnetic radiation represented in the electrical signal based on the position of the sperm cells in the measurement region, and ii) to discriminate between X-chromosome bearing sperm and Y-chromosome bearing sperm.
4. The discrimination system of claim 1, wherein the analyzer further comprises instructions stored thereon for normalizing the intensity of the output electromagnetic radiation represented in the electrical signal based on the position of the sperm cells in the measurement region applies a correction to the intensity of the output electromagnetic radiation represented in the electrical signal.
8. The discrimination system of claim 1, wherein the instructions stored on the analyzer for normalizing the intensity of the output electromagnetic radiation represented in the electrical signal based on the position of the sperm cells in the measurement region applies a correction to the intensity of the output electromagnetic radiation represented in the electrical signal.
5. The discrimination system of claim 4, wherein the amount of correction is determined for each position on a major axis of a core stream at the measurement region, and wherein the correction is applied to the electrical signal representing each sperm cell based on its detected position on the major axis of the core stream.
9. The discrimination system of claim 8, wherein the amount of correction is determined for each position on a major axis of a core stream at the measurement region, and wherein the correction is applied to the electrical signal representing each sperm cell based on its detected position on the major axis of the core stream.
6. The discriminating system of claim 1, wherein the sperm cells located within an elliptical column of sample fluid, where the sample fluid is formed coaxially with an outer layer of sheath fluid and the sheath fluid comprises a generally cylindrical shape.
11. The discriminating system of claim 1, wherein the sperm cells located within an elliptical column of sample fluid, where the sample fluid is formed coaxially with an outer layer of sheath fluid and the sheath fluid comprises a generally cylindrical shape.
7. The discriminating system of claim 1, further comprising an element that modifies the output electromagnetic radiation to increase the uniformity of output electromagnetic radiation collected by the collection optics of sperm cells at different positions.
12. The discriminating system of claim 1, further comprising an element that modifies the output electromagnetic radiation to increase the uniformity of output electromagnetic radiation collected by the collection optics of sperm cells at different positions.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MD M RAHMAN whose telephone number is (571)272-9175. The examiner can normally be reached on Mon-Thur.
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MD M. RAHMAN
Primary Patent Examiner
Art Unit 2886
/MD M RAHMAN/Primary Examiner, Art Unit 2886
