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 .
This action is in response to the documents received on June 30, 2025 and the preliminary amendment filed October 28, 2025.
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).1
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.2 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.3
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 21-30 and 36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 and 15 of U.S. Patent No. 11,857,190. Although the claims at issue are not identical, they are not patentably distinct from each other because the claimed structure in the pending application is a broader recitation or synonymous to the patented claims as shown below:
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Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 37-40 are rejected under 35 U.S.C. 103 as being unpatentable over VENDELY et al. (US 10,166,023).
In reference to claims 37, VENDLEY et al. discloses an applicator assembly including a platform 1320 positioned within a U-shaped gap of a housing 1310, 1318; a buttress body 1330 having a an adhesive 1338 thereon, the buttress body 1330 positioned on at least a portion (figure 33) of the platform 1320, and a visual indicium 1336 configured to guide trimming of the buttress body.
VENDLEY et al. does not mention a tray in the embodiment 1300 having trimming features as claimed. However, VENDLEY et al. discloses an alternative embodiment (figures 7-9) of an applicator assembly 200 which also includes a platform 220 positioned within a housing 210, 218; as well as, movable features 252 coupled to a base 260 of a tray (figure 9). It would have been obvious to one having ordinary skill in the art at the time of filing the invention to have modified the applicator assembly of VENDLEY et al. with the trimming feature to include a tray, since column 25 lines 37-40 of VENDLEY et al. states such a modification provides structural support to movable features (i.e. trimming feature(s)) of the applicator assembly.
Regarding claims 38 and 39, VENDLEY et al. disclose the at least one visual indicium 1336 as an arrow shape integrally formed with the buttress body . Column 29 lines 13-27 of VENDLEY et al. expresses a desire to provide visual feedback to a user that corresponds to the positioning of the buttress assembly with features, wherein the visual feedback can include visibly colored markings printed or etched into a surface of the assembly. Thus, it would have been obvious to one having ordinary skill in the art at the time of filing the invention to have modified the buttress assembly with a printed colored marking for the purpose of ensuring blade 1354 is aligned with a variable length feature 1356 of the buttress assembly.
With respect to claim 40, figure 35A of VENDLEY et al. discloses the buttress body comprising an adhesive 1338 of a first material and the portion of the buttress body defining the visual indicium 1336 is of a second material.
Allowable Subject Matter
Claims 31-35 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Refer to attachment for notice of references cited and recommended for consideration based on their disclosure of buttress assemblies having a housing configured to support a buttress body comparable to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GLORIA R WEEKS whose telephone number is (571)272-4473. The examiner can normally be reached M-F 8am-2pm & 5pm-7pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shelley Self can be reached on 571-272-4524. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Other helpful telephone numbers are listed for applicant's benefit:
Allowed Files & Publication (888) 786-0101
Assignment Branch (800) 972-6382
Certificates of Correction (703) 305-8309
Fee Questions (571) 272-6400
Inventor Assistance Center (800) PTO-9199
Petitions/special Programs (571) 272-3282
Information Help line 1-800-786-9199
/GLORIA R WEEKS/Primary Examiner, Art Unit 3731
November 19, 2022
1 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).
2 See MPEP § 804, subsection I.B.1.
3 See MPEP §§ 706.07(e) and 714.13.
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