DETAILED ACTION
This action is in response to the application filed on 8/16/2019.
Claims 2-21 are pending.
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
The references listed on the Information Disclosure Statement submitted on 10/23/2019 been considered by the examiner (see attached PTO-1449).
Claim Rejections - 35 USC § 101
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 2-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 105, 105, 105, 105, 106, 105, 105, 105, 105, 106, 105, 105, 105, 105 and 106 of patent No. 12262027 (hereinafter reference patent).
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Claims of the present application are anticipated or at least obvious by the claims of the reference patent.
Selecting the identified OLS is inherent in the claims and/or obvious since the identification would be for the purpose of selecting and also selecting one with a lowest index value is considered simply a matter of design choice to assign values to index values.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure Hannuksela et al. (US 20160191931 A1) disclose relevant art related to the subject matter of the present invention.
A shortened statutory period for reply to this action is set to expire THREE MONTHS from the mailing date of this action. An extension of time may be obtained under 37 CFR 1.136(a). However, in no event, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAE N. NOH whose telephone number is (571) 270-0686. The examiner can normally be reached on Mon-Fri 8:30AM-5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, William Vaughn can be reached on (571) 272-3922. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAE N NOH/
Primary Examiner
Art Unit 2481