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
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.
Claim 1 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 1 of prior U.S. Patent No. 12,290,235. This is a statutory double patenting rejection. Patent ‘235 appears to have the exact same language as the pending application. They both claim:
“A laparoscopic imaging apparatus comprising: a handle subsystem; a shaft extending outwardly from the handle subsystem between a proximal end opposite a distal end, wherein a longitudinal axis extends through the shaft, between the proximal and distal ends; a trocar piercing tip coupled to the distal end of the shaft and movable between an open position and a closed position; a first laparoscopic tool positioned within the shaft and extendable through the trocar piercing tip, the first laparoscopic tool rotatable about a first axis parallel to the longitudinal axis and including a camera sensor mounted to a camera gimbal assembly configured to rotate the camera sensor about a second axis that is orthogonal to the first axis; and a second laparoscopic tool positioned within the shaft and extendable through the trocar piercing tip; wherein the handle subsystem includes a control handle configured for attachment and actuation of the first and second laparoscopic tools.”
Conclusion
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/TIMOTHY J NEAL/ Primary Examiner, Art Unit 3795
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