DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 13 December 2025 has been entered.
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.
Claims 1, 2, 7, 8, and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 14-16 of U.S. Patent No. 8,852,100. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘100 patent anticipates the present invention.
Claim 14 of the ‘100 patent recites each and every limitation of present claim 1 that obtains a cardiac signal indicative of heart rate, obtains a kinetic signal indicative of a body movement (e.g., generalized epileptic body movements), and functional performs the same function of detecting an epileptic event based on the cardiac signal and kinetic signal and for performing an action in response to the detection.
Claims 15 and 16 of the ‘100 patent recite features found in present claims 7 and 8.
Claims 1, 2, and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 18-20 of U.S. Patent No. 9,186,106. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘106 patent anticipates the present invention.
Claims 18 and 19 of the ‘106 patent structurally and functionally recite features of for obtaining a cardiac signal and kinetic signal to detection an occurrence of an epileptic seizure. In response to the detection, a therapy may be provided as required by present claim 1.
Claims 1-11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 9,545,226. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘226 patent anticipates the present invention.
Claims 1, 2, and 9 of the ‘226 patent recites a method that obtains a cardiac signal indicative of heart rate, obtains a kinetic signal indicative of a body movement (e.g., generalized epileptic body movements), and functional performs the same function of detecting an epileptic event based on the cardiac signal and kinetic signal. Claim 2 of the ‘226 recites the presently recited step for applying therapy in response to the detection of the seizure.
Claims 3-8 and 10-13 recites features that read on features of claims 4-8 and 11-13.
Claims 1-11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 10,405,792. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘792 patent anticipates the present invention.
Claims 1, 8, and 15 of the ‘226 patent structurally and functionally recites a technique that obtains a cardiac signal indicative of heart rate, obtains a kinetic signal indicative of a body movement (e.g., generalized epileptic body movements), and functional performs the same function of detecting an epileptic event based on the cardiac signal and kinetic signal and for performing a further action in response to the detection.
Claims 1-11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,006,890. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘890 patent anticipates the present invention.
Claims 1, 8, and 15 of the ‘890 patent structurally and functionally recites a technique that obtains a cardiac signal indicative of heart rate, obtains a kinetic signal indicative of a body movement (e.g., generalized epileptic body movements), and functional performs the same function of detecting an epileptic event based on the cardiac signal and kinetic signal and for performing a further action in response to the detection.
Allowable Subject Matter
Claims 1-11 would be allowable should Applicant’s replay overcome the requirements of the double patenting rejection set forth above.
Conclusion
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/BRIAN T GEDEON/Primary Examiner, Art Unit 3796 18 February 2026