DETAILED ACTION
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 . 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.
Response to Amendment
This Office Action is responsive to the amendment filed 06/11/2026 (“Amendment”). Claims 1-3, 5, 7, 9, 20, 22, 24, and 26 are currently under consideration. The Office acknowledges the amendments to claims 1, 2, 9, 20, and 24. Claims 4, 6, 8, 10, 21, 23, 25, and 27 remain withdrawn.
The objection(s) to the drawings, specification, and/or claims, the interpretation(s) under 35 USC 112(f), and/or the rejection(s) under 35 USC 101 and/or 35 USC 112 not reproduced below has/have been withdrawn in view of the corresponding amendments. However, it is noted that the entire amended specification was not able to be reviewed, and the Office assumes that the only amendment was at ¶ 0070 as cited in Applicant’s remarks.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because in Fig. 4, reference numerals 20 and 320 are used to point to different things, e.g. a power supply vs a controller, and an actuator vs a patient support apparatus. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 26 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 26, there is no support for varying the respective intensity of multiple ones of the plurality of emitters. Although multiple emitters are contemplated, as is varying intensity, Fig. 8 does not suggest that e.g. the intensity can be varied individually, per emitter.
Claim Rejections - 35 USC § 103
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 1, 3, 5, 7, 9, 20, 22, 24, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over various teachings of US Patent Application Publication 2020/0053298 (“Liu”).
Regarding claim 1, Liu teaches [a] contactless patient monitor (Fig. 2) comprising: at least one emitter (Fig. 2, ¶ 0112, light source 400), a first detector (Fig. 2, ¶¶s 0077-0080, detector 120), and a second detector (¶ 0131, thermal imaging sensor), a controller controlling the monitor (¶ 0112, computing device 200 providing automated control), the controller including a processor and a non-transitory memory device that includes instructions that are performed by the processor to control the monitor (¶¶s 0081, 0112), and wherein the controller varies the operation of the emitter in response to the environmental conditions in its field of view as detected by the first detector to improve the image captured by the first detector from the field of view, so that the image captured by the first detector is acceptable for acquisition of vital signs information from the captured image (¶ 0112 describes delivering light having an appropriate intensity. Although it is not explicit that an intensity change is in response to environmental conditions, ¶ 0156 describes changing intensity to achieve a desirable level of background. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the detector 120 to detect background (as it does), and to change intensity in response to an undesirable level of background, for the purpose of achieving a desirable level of background (Liu: ¶ 0156) – also see ¶ 0080, describing a variety of imaging modes including e.g. fluorescence imaging, oxygenation saturation imaging, etc., ¶ 0081, describing the image data captured by detector 120 as being used with a variety of different algorithms e.g. for decision support, etc.).
Regarding claims 3, 5, 7, and 9, various teachings of Liu teach all the features with respect to claim 1, as outlined above. Liu further teaches wherein the emitter has a variable output, wherein the operation of the emitter is varied by altering its intensity (¶ 0156, changing intensity), wherein there are a plurality of emitters, wherein the operation of one or more of the plurality of emitters is varied by altering its intensity (¶¶s 0123 and 0156, changing the intensity of the 830 nm LEDs of the plurality of LEDs).
Regarding claims 20, 22, 24, and 26, various teachings of Liu teach all the features with respect to claim 1, as outlined above. Liu further teaches wherein the first detector is a camera (¶ 0077, providing any desired resolution) and the operation of the emitter is varied based on a camera signal (¶¶s 0112, 0123, and 0156, based on the level of background detected by a camera), including varying the operation of the emitter by altering its intensity (¶¶s 0123, 0156), wherein a plurality of emitters are positioned to emit into the field of view of the camera and the operation of multiple ones of the plurality of emitters is varied based on the camera signal, including varying the operation of the plurality of emitters by altering their respective intensity (¶¶s 0123 and 0156, changing the intensity of the 830 nm LEDs of the plurality of LEDs).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over various teachings of US Patent Application Publication 2020/0053298 (“Liu”) in view of US Patent Application Publication 2015/0272456 (“Kyal”).
Regarding claim 2, various teachings of Liu teach all the features with respect to claim 1, as outlined above. Liu further teaches wherein the first detector is a … detector … (¶ 0077, providing any desired resolution. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a high resolution camera for the purpose of having more image data to work with, and as a simple matter of design choice), and wherein the second detector is a thermal camera (¶ 0131).
Liu does not appear to explicitly teach the first detector being a monochromatic detector operable to detect in its spectrum.
Kyal teaches using a high resolution monochrome camera for imaging a subject (¶ 0048).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a monochromatic detector in Liu as in Kyal, as the simple substitution of one known imaging component for another, with predictable results (Kyal: ¶ 0048, monochrome and color being interchangeable for capturing high resolution images of a subject).
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.
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.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of U.S. Patent No. 11,882,366 (“’366 patent”). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 is generally broader than, and therefore anticipated by, claim 5 of the ‘366 patent.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,176,105 (“’105 patent”) in view of Liu and/or Kyal. Claim 1 of the ‘105 patent teaches all features of the present claim 1 except for those made up by Liu and/or Kyal, as outlined above.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,279,857 (“’857 patent”) in view of Liu and/or Kyal. Claim 1 of the ‘857 patent teaches all features of the present claim 1 except for those made up by Liu and/or Kyal, as outlined above.
Response to Arguments
Applicant’s amendments and arguments filed 06/11/2026 have been fully considered. In response to the amendments related to the drawing objection, the Office notes that while some issues have been addressed, others have been introduced.
Regarding the amendment to the specification, it is noted that the entire amended specification was not able to be reviewed, and the Office assumes that the only amendment was at ¶ 0070, as cited in Applicant’s remarks.
The arguments with respect to the rejection under 35 USC 112(a) are not persuasive as explained above. Namely, while use of multiple emitters is contemplated, as is varying intensity, Fig. 8 does not suggest that e.g. the intensity can be varied individually, per emitter.
In response to the amendments and arguments regarding the prior art rejections, they are not persuasive. ¶ 0156 of Liu explicitly describes changing intensity of the light sources. The Office’s citations are not tied to specific modes or configurations of filters. Thus, the rejections are maintained. As for making an image “acceptable for acquisition of vital signs,” the Office notes that this is merely an intended use, and one that is achieved by varying an operation of the emitter (e.g. changing the level of background, as contemplated). Further, it is noted that the image need only be “acceptable” for acquisition of the data, and not actually acquiring the data. All claims remain rejected in light of the prior art.
Regarding the double patenting rejections, there is no requirement for the patents at issue to have an earlier priority date than the present application. Thus, the rejections are maintained.
Conclusion
Applicant's amendment necessitated any new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ANDREY SHOSTAK whose telephone number is (408) 918-7617. The examiner can normally be reached Monday-Friday, 7am-3pm PT.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Robertson, can be reached at telephone number (571) 272-5001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREY SHOSTAK/Primary Examiner, Art Unit 3791
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