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 .
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 4 of U.S. Patent No. 10238341 in view of Lipoma (2015/0105608) and Hong (2013/0317815). The patent discloses a children’s apparatus with processors configured to perform a method of receiving sound from a microphone, processing the sound by determining a standard deviation of a Fourier transform and a spectral density estimate of the sound and determining a baby status based on both the standard deviation and power spectral density estimate which is used to generate an output action. The patent discloses the basic inventive concept with the exception of disclosing the apparatus is a baby support apparatus configured to provide different actions in response to different baby statuses, wherein the statuses correspond to a degree of distress of the baby determined from comparing the standard deviation and estimates to threshold values in a table that associates the values with respective baby statuses. Lipoma discloses a baby support apparatus with a sleeping surface in the form of a crib (204) configured as a system (paragraph 52) that includes a computer processor (214) that executes computer-executable instructions (paragraphs 43-44), a microphone (220) and an output device (208) configured to generate an output action in the form of light-emitting diodes with configurable intensities or patterns (paragraphs 5 and 91). The processor is configured to perform a method of receiving by the microphone (220) at least first and second sound data related to an audio signal generated by a baby positioned in the support apparatus and processing the data to determine a first baby status corresponding to a degree of distress or irritation based on the first sound data and output a first output action with a first intensity and pattern for a predetermined time or determine a second baby status such as a non-irritated baby status based on the second sound data and output a second output action with a second intensity and pattern for a predetermined time (paragraphs 9, 12, 19-21, 40, 45, 69, 89-92, 110, 114, 117-118). It would have been obvious to one of ordinary skill in the art to configure the apparatus as a baby support apparatus configured to output different actions in response to different baby statuses as taught by Lipoma for the predictable result of implementing the method into a known children’s apparatus that provides soothing and comfort to a baby. Hong discloses a method of processing sound data corresponding to a baby received at a microphone by determining spectral data determined using Fourier transform analysis comparing the data to threshold values in a table associating the threshold values with a baby status corresponding to a degree of distress and determining a baby status from the table to correlate with an output response (Fig. 1, paragraphs 25-35). It would have been obvious to one of ordinary skill in the art to use a table as taught by Hong for determining baby statuses for the predictable result of more accurately determining between different distress statuses of a baby using only sound.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 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 ALYSSA HYLINSKI whose telephone number is (571)272-2684. The examiner can normally be reached Mon - Fri 9:30 - 6:00.
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/A.M.H/Examiner, Art Unit 3711 /EUGENE L KIM/Supervisory Patent Examiner, Art Unit 3711
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