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 .
Response to Arguments
Applicant’s arguments combined with the claim amendments have been fully considered and are found persuasive with respect to the previous rejection(s); however, upon further search and consideration due to the change in scope, an updated grounds of rejection is presented below, necessitated by amendment.
Claim Rejections - 35 USC § 102
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 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 –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 3-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jaeschke et al. (US 2010/0168596; hereinafter “Jaeschke”).
Regarding claim 1, Jaeschke discloses a maternal and/or fetal monitoring system comprising: a detection probe configured to conduct physiological measurements on a maternal abdomen, the detection probe comprising a probe housing configured to be attached to the maternal abdomen and a tocodynamometer in the probe housing configured to acquire the physiological measurements as pressure data from the maternal abdomen (e.g. ¶¶ 46 - #108); a plurality of electrodes integrated into the probe housing and configured to acquire biopotential physiological data from the maternal abdomen (e.g. ¶¶ 24, 38, 39, 46, etc. – “plethysmography electrode”); at least one controller configured to calculate at least two of fetal heart rate (fHR) values, maternal heart rate (mHR) values, and uterine activity (UA) values based on the pressure data and the biopotential physiological data (e.g. ¶¶ 30, 46, 65, etc.); and a graphical display communicatively connected to the at least one controller to receive and visually present the calculated fHR values and mHR values (e.g. ¶¶ 52).
Regarding claim 3, Jaeschke discloses at least three electrodes on a patient side of the probe housing surrounding a probe interface (e.g. Fig. 1, #108, 112, 114).
Regarding claim 4, Jaeschke discloses the probe interface is a diaphragm of a tocodynamometer (e.g. ¶¶ 48, etc.)
Regarding claim 5, Jaeschke discloses the plurality of electrodes are embedded in the probe housing so as to be substantially flush with an exterior surface of the probe housing (e.g. Fig. 1).
Regarding claim 6, Jaeschke discloses the plurality of electrodes are attached to the probe housing such that they sit proud of the probe housing (e.g. Fig. 1, #108).
Regarding claim 7, Jaeschke wherein the at least one controller is configured to calculate mHR values based on at least the biopotential physiological data and the UA values based on at least the pressure data (e.g. ¶¶ 30, 46, 65, etc.).
Regarding claim 8, Jaeschke discloses the electrodes are fixed on an exterior surface of the probe housing, and wherein the tocodynamometer and the plurality of electrodes are held in a fixed position relative to each other within the probe housing (e.g. Fig. 1).
Regarding claim 9, Jaeschke aster discloses at least a portion of the plurality of electrodes are on a patient side of the probe housing surrounding a diaphragm of the tocodynamometer (e.g. ¶¶ 46-59).
Regarding claim 10, Jaeschke discloses at least a portion of the plurality of electrodes are on a patient-contacting side of a diaphragm of the tocodynamometer (e.g. Fig. 1).
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.
In considering patentability of the claims under 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of 35 U.S.C. 103(c) and potential 35 U.S.C. 102(e), (f) or (g) prior art under 35 U.S.C. 103(a).
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 of this title, 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 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Jaeschke.
Regarding claim 11, Jaeschke fails to expressly disclose a second detection probe as claimed. In this case, the components of the claimed second probe share the same components as addressed above with respect to independent claim 1; therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the Fetal monitoring system of Jaeschke having second or plurality of detection probes, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
Regarding claim 12, Gaster as modified above would result in at least one controller further configured to select one of the biopotential physiological data from the tocodynamometer detection probe and the second biopotential physiological data from the second detection probe for determining the mHr based on mHR signal quality parameters (e.g. ¶¶ 30, 46, 65, etc.)
Regarding claim 13, Gaster as modified above would result in at least one controller is further configured to prompt a user to select one of the biopotential physiological data from the tocodynamometer detection probe and the second biopotential physiological data from the second detection probe for determining the mHr (e.g. ¶¶ 30, 46, 65, etc.).
Conclusion
Applicant's amendment necessitated the 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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael D’Abreu whose telephone number is (571) 270-3816. The examiner can normally be reached on 7AM-4PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Hamaoui can be reached at (571) 270-5625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL J D'ABREU/Primary Examiner, Art Unit 3796