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 1 of the instant application is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,269,032 in view of Wakeley et al. (US 2012/0270225 A1).
Instant Application 19/088,766
U.S. Patent 12,269,032
1. A spectrophotometer device for measuring the concentration or activity of one or more analytes in a plasma comprising:
a light emitting diode (LED) configured to emit a light with a narrow band optical spectrum;
a photodetector configured to be sensitive to the light;
an array of wells (AOW) comprising a first well;
a reflector with an output lens configured to redirect the light through the plasma in the first well and onto the photodetector, wherein the reflector has a protrusion that contacts the plasma in the first well;
a reporter molecule in the first well, wherein the reporter molecule is configured to absorb part or all of the light; and
dried critical reagents on the surface of the protrusion.
1. A spectrophotometer device for measuring the concentration or activity of one or more analytes in a plasma comprising:
a light emitting diode (LED) configured to emit a light with a narrow band optical spectrum;
a photodetector configured to be sensitive to the light;
an array of wells (AOW) comprising a first well;
a reflector with an output lens configured to redirect the light through the plasma in the first well and onto the photodetector; and
a reporter molecule in the first well, wherein the reporter molecule is configured to absorb part or all of the light;
wherein the reflector is mountable on the array of wells (AOW) using an optic tape, wherein there is a vent between the reflector and the array of wells (AOW), wherein the vent has a vent length, and wherein the vent is configured to eliminate or reduce mass transport of air and/or water and/or the reporter molecule.
Regarding independent Claim 1 of the instant application, claim 1 of U.S. Patent No. 12,269,032 discloses limitations of instant Claim 1, but does not specifically teach limitations “wherein the reflector has a protrusion that contacts the plasma in the first well”; and
“dried critical reagents on the surface of the protrusion.”
However, Wakeley, in the same field of nucleic acid detection, teaches a protrusion (Figure 7; [0134] “a downwardly projecting protrusion (83)”) that contacts the plasma in the first well (Figure 7; [0134] “that is able to form a snug fit with a detachable first well (72)”); and
dried critical reagents on the surface of the protrusion (Figure 7; [0134] “separate first well (72) which is suitably preloaded with amplification reagents in dried form, is provided with an annular flange (84) for ease of handling. […] In use, a sample is applied to the first well (72) and the protrusion (83) is inserted snugly into the opening of the well (72)”, wherein “amplification reagents in dried form” are understood to contact the surface of the protrusion when “protrusion (83) is inserted snugly into the opening of the well (72)”).
Therefore, it would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the device of claim 1 of U.S. Patent No. 12,269,032 with the teachings of Wakeley, such that the reflector has a protrusion that contacts the plasma in the first well; and dried critical reagents on the surface of the protrusion, because “the invention provides a simple device that may be readily operated for a variety of purposes. It is simple to operate and minimises [sic] opportunities for contamination of samples and thus inaccurate results.” (Wakeley, para 133)
Allowable Subject Matter
Claims 2-7 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
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Akbar H Rizvi whose telephone number is (571) 272-5085. The examiner can normally be reached Monday - Friday, 9:30 am - 6:30 pm.
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/AKBAR H. RIZVI/
Examiner, Art Unit 2877
/TARIFUR R CHOWDHURY/Supervisory Patent Examiner, Art Unit 2877
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