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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 4-6, 13-16, and 18 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 4-6, 13, 15, 16, and 18 are indefinite because it is unclear what other alternatives are intended to be encompassed by the claim. A Markush grouping is a closed group of alternatives, i.e., the selection is made from a group "consisting of" (rather than "comprising" or "including") the alternative members. MPEP 2173.05(h).
Allowable Subject Matter
Claims 1-3, 7, 8, 29-33, 35, and 36 allowed.
Response to Arguments
Applicant's arguments filed 9-21-26 have been fully considered but they are not persuasive. MPEP 2117(I) recites that “…any claim that recites alternatively usable members, regardless of format, should be treated as a Markush claim,” and further that “[c]laim language defined by a Markush grouping requires selection from a closed group "consisting of" the alternative members.” It is the examiner’s position that the list(s) of alternative limitations in claims 4, 13, 15, 16, and 18 is/are a Markush Group and they are indefinite because it is unclear what other alternatives are intended to be encompassed by the claim. A Markush grouping is a closed group of alternatives, i.e., the selection is made from a group "consisting of" (rather than "comprising" or "including") the alternative members. MPEP 2173.05(h).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REGINALD S TILLMAN, JR whose telephone number is (571)270-7010. The examiner can normally be reached M-F 830-530.
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, Troy Chambers can be reached at 571-272-6874. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/REGINALD S TILLMAN, JR/Primary Examiner, Art Unit 3641
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