Free Affidavit - District Court of Connecticut - Connecticut

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. ent 49-3 FIIG
Case 3:03-cv-00703 CFD Docum .
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UNITED STATES DEPARTMENT DF COMMERCE
ltr Patent; and Trademark Office
" 4;... of Address : C¤MMlSSlDNEFl DF PATENTS AND TRADEMARKS
. Washington. D.C. EDES1 .
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é This appllcatlon has been examlned D Flesponslve to communication llled on —.i.;__ U This actton ls made flnel.
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A shortened statutory perlod lor response to thls action is set ID explr¤—.;.;_ month(s). tt days from the date of thls letter.
· Failure to respond within the period for response will cause the applicellon to become abandoned. 35 U.S.G. 133
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V ' Pont ug THE FOLLOWING A`I'|’ACHMENT(S) ARE PART OF THIS ACTION:
` 1. Notice of Flelerences Clted by Examiner, PTD·892. 2. D Notlce re Patent Drawlng, PTO-948.
3. EI Notlce ot Art Clted by Applicant. PTD·1449. 4. D Notlce of informal Patent Application, Form PTO·152.
5. El Itnformatlon on How to Effect Drawlng Changes. PTO-1474. I. U
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Pen II ’ SUMMARY OF ACTION /t
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1. Clalms _ are pendlng ln the appllcatlon.
1* ..- _L {
Dt the above. clalms are wlthdrawn from conslderatlon.
2. D Clalms have been cancelled.
3. lm Clalrns_.____._ _.._ _.,,. 1. ____.__.__.__,_ .._._, ._, __, _ are allowed.
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4. & Clalms are rejected.
5. D Claims are obiected to.
B. El Claims are subject to restriction or election requlremenl.
T. D This appllcallon has been lllad wlth informal drawings under 37 C.F.Ft. 1.El5 whlch are acceptable for examination purposes.
U. U Formal drawings are requlred ln response to thls Dtllce actlon.
D. El The corrected or eubetltute drawtngs have been received on —-;._.___. Under 37 C.F.R. 1.84 these drawings
' are U acceptable. U not acceptable (eee explanation or Notlce re Patent Drawing. PTO-948).
ta. El The proposed addltlonel or substitute aheetlsl of drawings. ftled on —-;.___ has (havel been EI approved by the
examlner. EI disapproved by the examlner (eee explanation).
11. I] The proposed drewlng correctlon, Filed on-t.;,_i___ has been U approved. E1 disapproved (see explanatlonl.
12. EI Acknowledgment ls made of the claim for prlorlty under U.S.C. 119. The certlfied copy has EI been recelved E] not been recelved
D been Illad ln parent appllcatlon. serlal no. ; flled on .
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13. U Since thls application appears to be In condltlon for allowance except for formal matters. prosecutlon as to the marlts ls closed In
accordance wllh the practice under Ex parte Quayle. 1935 C.D. 11; 453 0.6. 213. ‘ ·
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14. EI Other
f·1XAMlNER'S ACTION `

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1 Document 49-3 Filed O2/10/2004 Page 2
Case 3:03-cv-00703-CFD
Serial No. 325888 —2— .
n · Art Unit 242 '
_ _ A. This application contains claims directed to'- U
` the following patentably distinct species of the claimed
invention: the embodiments of figures 1; 2; 3; 4; 5: 7; _
9; ll; 12; 14; 16; and 17 ·
g e - i Applicant is required under 35 U.S.C. l2l to elect
‘ _ -a single disclosed species for prosecution on the merits
e _ to which the claims shall be restricted if no generic
e . claim is finally held to be allowable. Currently, g
claims l-4 and 17 are generic. A
Applicant is advised that a response to this
· requirement must include an identification of the
species that is elected consonant with this requirement,
and a listing of all claims readable thereon, including
any claims subsequently added. An argument that a
generic claim is allowable or that all claims are
‘ qeneric is considered nonresponsive unless accompanied
· · by an election. _ `
- Upon the allowance of a generic claim, applicant ·
will be entitled to consideration of claims to `
additional species which are written in dependent form .
or otherwise include all the limitations of an allowed _
generic claim as provided bv 37 CFR 1.141. If claims V
are added after-the election, applicant must indicate j
which are readable upon the elected species. MPEP l
8D9.02(a). ‘ Q
Should applicant traverse on the ground that the
species are not patentably distinct, applicant should j
_ submit evidence or identify such evidence now of record Q
showing the species to be obvious variants or clearly g
admit on the·record that this is the case. In either _·
instance, if the examiner finds one of the inventions `Q
unpatentable over the prior art, the evidence or `.
admission may be used in a rejection under 35 U.S.C. 103
of the other invention. i · “
B. During a telephone conversation with Mr. Arthur U [
T. Fattibene on 9/8/89 a provisional election was.made -y
with traverse to prosecute the invention of Figures 5 .
and 6, claims 1-4, 16, and 17. Affirmation of this by
election must be made by applicant in responding to this QQ
Office action, and such affirmation must distinctly and if 4»`-


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Case 3:03-cv--00703-CFD Document 49 3 _
Serial No. 325888 -3- .
‘ Art Unit 242 _
specifically point out the reasons upon which applicant.
l bases his or her conclusion that the requirement to
i e_ ‘ lrestrict is in error. Claims 5-15 and 18 are withdrawn
I from further consideration by the Examiner, 37 CFR U
" 1.142(b}, as beinq drawn to a nonelected invention. .
` _ C. The following is a quotation of the appropriate "
. . paragraphs of 35 U.S.C. 102 that form the basis for the
rejections under this section made in this Office
action: ‘ ·
A person shall be entitled to a patent unless-
‘ · (b) the invention was patented or described in·
. . a printed publication in this or a foreign
_ country or in public use or on sale in this
i _ country, more than one (1) year prior to the
date of application for patent in the United
' States.
. Claims 1-4, 16, and 17 are rejected under 35
U.S.C. lQ2b as being clearly anticipated by Xamaki. The l
recitation in the claims of the dental brush being for
applying coatings to teeth fails to patentably define
U · over Yamaki's device.` V
D. The prior art made of record and not relied upon
is considered pertinent to a¤¤licant's disclosure. The
patents cited refer to dental impelments having similar
structure to the applicant's.
E. Any inquiry concerning this communication
should be directed to Examiner O'Learv at telephone ·
number 703-557-29OD.
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iz J:
O'Leary-org I E gg L%
9/15/89 ' fauna.; r, ;,.,,,,.;,y U
<·i€.i=¤¢"·'1$!!??T:* {Han! Exnminrr Z
Pt Unit 242