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 .
Priority
This application repeats a substantial portion of prior Application No. 18/342975, filed 28 June 2023, and adds disclosure not presented in the prior application. Because this application names the inventor or at least one joint inventor named in the prior application, it may constitute a continuation-in-part of the prior application. Should applicant desire to claim the benefit of the filing date of the prior application, attention is directed to 35 U.S.C. 120, 37 CFR 1.78, and MPEP § 211 et seq. The presentation of a benefit claim may result in an additional fee under 37 CFR 1.17(w)(1) or (2) being required, if the earliest filing date for which benefit is claimed under 35 U.S.C. 120, 121, 365(c), or 386(c) and 1.78(d) in the application is more than six years before the actual filing date of the application.
Double Patenting
The non-statutory 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 non-statutory 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 non-statutory 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 non-statutory 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 e-Terminal 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 e-Terminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-12 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 1 and 3-12 of co-pending Application No. 18/342975 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the only obvious difference between claim 1 of the instant application and claim 1 of reference application is that claim 1 of the co-pending application additionally recites: “…a controller coupled to the circuit, wherein the controller is to determine a length of the preamble and a length of the header based at least in part on the range…”which is also recited in claim 2 of the instant application.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include this limitation to modify packet headers based on distance between devices. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to reduce power consumption.
This, this is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 13-20 are provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 13-20 of co-pending Application No. 18/342975 (reference application).
This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
Claim Rejections - 35 USC § 103
11. 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 (i.e., changing from AIA to pre-AIA ) 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.
12. 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.
13. Claims 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Sudo (US 2005/0227645 A1) (hereinafter as Sudo) and in further view of Jang et al. (US 2021/0314022 A1) (hereinafter as Jang).
Regarding Claim 1. Sudo teaches an apparatus (transmission apparatus) comprising:
a circuit (104-fig. 1 and RF circuit would be 105-fig. 1, 104 controls the preamble and 105 transmits, in which transmission apparatus includes an antenna, which requires a circuit to function) to generate a packet having a preamble, a header, and a data portion, wherein the preamble and the header are dynamically adaptable (the preamble insertion section inserts various preambles, the number of AGC preambles is adaptively changed according to the transmission timing difference (pars [0026] and [0042], a preamble is a sequence of bits transmitted at the beginning of a data frame to synchronize devices and prepare them for data transmissions. Furthermore, it is well-known to one of ordinary skill in the art that all network packets include a header and data portion (payload), see page 1 , https://textbook.cs168.io/intro/headers.html which discloses that when we send a packet, we need to attach additional metadata that tells the network infrastructure what to do with that packet. This additional metadata is called a header. The rest of the bits (e.g. the file being sent, the letter inside the envelope) is called the payload); and
a radio frequency (RF) front end circuit coupled to the circuit to process and transmit the packet (the transmission section converts the frequency of the transmission signal from a baseband frequency to a radio frequency and transmits the converted signal from the antenna which includes AGC, pars [0041-0042], a preamble is a sequence of bits transmitted at the beginning of a data frame to synchronize devices and prepare them for data transmissions).
Jang does not explicitly teach wherein the wherein the preamble and the header are dynamically adaptable based at least in part on a range between the apparatus and a receiver.
However, Jang in a similar field of endeavor discloses a device and method for adaptively controlling preamble in UWB network including wherein the header is dynamically adaptable based at least in part on a range between the apparatus (electronic device/first device (301)) and a receiver (external device/second device (302)) (measure a distance between the electronic device and the external electronic device using the preamble having the first length, via the first wireless communication circuit, when the external electronic device does not support the mode associated with the control of the preamble, based on the mode information included in the second data, and measure a distance between the electronic device and the external electronic device using a preamble having a second length different from the first length, via the first wireless communication circuit, when the external electronic device supports the mode associated with the control of the preamble, based on the mode information included in the second data, includes changing the length of the preamble while data transmission between the first device (301) and second device (302), pars [0006-0007] and [0058-0059], and pars [0047-0048] discusses the structure of the PHY layer packet that is being changed).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the teachings of Jang in Sudo to modify packet headers based on distance between devices. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to combine the teachings of Sudo/Jang to reduce power consumption.
Regarding Claim 2. Sudo/Jang further teaches the apparatus of claim 1, further comprising a controller (101) coupled to the circuit (Jang: 101 can be implemented into one integrated circuit, par [0026]), wherein the controller to determine a length of the preamble and a length of the header based at least in part on the range (Jang: external device/second device (302) (measure a distance between the electronic device and the external electronic device using the preamble having the first length, via the first wireless communication circuit, when the external electronic device does not support the mode associated with the control of the preamble, based on the mode information included in the second data, and measure a distance between the electronic device and the external electronic device using a preamble having a second length different from the first length, via the first wireless communication circuit, when the external electronic device supports the mode associated with the control of the preamble, based on the mode information included in the second data, includes changing the length of the preamble while data transmission between the first device (301) and second device (302), pars [0006-0007], [0058-0059], and [0118], and pars [0047-0048] discusses the structure of the PHY layer packet that is being changed).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the teachings of Jang in Sudo to modify packet headers based on distance between devices. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to combine the teachings of Sudo/Jang to reduce power consumption.
Conclusion
14. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANTHONY MEJIA whose telephone number is (571)270-3630. The examiner can normally be reached Monday-Friday 10:30 AM-6:30 PM EST.
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, CHRISTOPHER PARRY can be reached at (571)272-8328. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANTHONY MEJIA/Primary Examiner, Art Unit 2451