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 .
Status of the Claims
Claims 1-20 are pending in this application. Claims 1 and 19 have been amended.
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.
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Claims 1, 4-7, 18 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11908129 in view of Biondo et al. (US 20180037228 A1).
Here, claim 1 of U.S. Patent No. 11908129 recites an impairment analysis system comprising: a handheld image capture device that captures a plurality of images of an eye of a subject illuminated by ambient light over a period of time; a computing device comprising at least one processor and memory configured to: control a light source to emit light in a predetermined pattern for guiding the subject's eyes during capture of the plurality of images of the eye over the period of time; receive, from the image capture device, the captured plurality of images, wherein the images include pixels corresponding to a pupil, iris, background, or other features of the eye of the subject; maintain a database of machine learning analysis of other subject's normal eye movement in response to an applied light stimulus; classify pixels from the captured plurality of images as either pupil, iris, background, or other features of the eye of the subject based on the database of machine learning analysis; track movement of the classified pixels in the plurality of images over the period of time; analyze impairment of the subject based on the tracked movement as compared to the machine learning analysis in the database; and present, to a user, a result of the impairment analysis. The system of claim 1 of U.S. Patent No. 11908129 differs from claim 1 of the instant application herein in that it fails to disclose a vehicular impairment detection system for a vehicle, the vehicular impairment detection system comprising: an image capture device that captures a plurality of images of an eye of a subject illuminated by light over a period of time, wherein the image capture device is configured for attachment to an interior component of the vehicle; determine that the subject is at an unsafe level of impairment based on the analysis of impairment; and communicate a control signal to disable a start system of the vehicle based on a determination that the subject is at an unsafe level of impairment.
Biondo et al. teach a vehicular impairment detection system for a vehicle (fig. 1: apparatus for detecting impairment 100), the vehicular impairment detection system comprising: an image capture device that captures a plurality of images of an eye of a subject illuminated by light over a period of time (fig. 1: user input 106 being a camera; ¶0045), wherein the image capture device is configured for attachment to an interior component of the vehicle (fig. 1: user input 106 being a camera; ¶0045); determine that the subject is at an unsafe level of impairment based on the analysis of impairment (¶¶0058-0059); and communicate a control signal to disable a start system of the vehicle based on a determination that the subject is at an unsafe level of impairment (¶¶0058-0059). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system of claim 1 of U.S. Patent No. 11908129 such that the impairment analysis system is implemented in a vehicle, as taught by Biondo, in order to prevent a vehicle operator from operating the vehicle while impaired or prior to becoming impaired (Biondo, Abstract).
Concerning claims 4-5, Biondo further teaches wherein the computing device is configured to communicate a command signal to a user interface for instructing the subject to interact with the vehicular impairment detection system and wherein the instruction to the subject includes one of voice instructions and display instructions (figs. 4A-4B; ¶¶0063-0064).
Claim 6 of the instant application is not patentably distinct from claims 7 and 9 of U.S. Patent No. 11908129.
Claim 7 of the instant application is not patentably distinct from claims 7 and 9 of U.S. Patent No. 11908129.
Concerning claim 18, Biondo further teaches wherein the computing device is configured to communicate a command signal to a user interface for informing the subject that the start system of the vehicle is disabled based on the determination that the subject is at an unsafe level of impairment (figs. 4A-4B; ¶¶0063-0064).
Claim 20 of the instant application is not patentably distinct from claim 5 of U.S. Patent No. 11908129.
Claim 15 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11908129 in view of Whillock et al. (US 8226574 B2).
Here, claim 1 of U.S. Patent No. 11908129 recites an impairment analysis system comprising: a handheld image capture device that captures a plurality of images of an eye of a subject illuminated by ambient light over a period of time; a computing device comprising at least one processor and memory configured to: control a light source to emit light in a predetermined pattern for guiding the subject's eyes during capture of the plurality of images of the eye over the period of time; receive, from the image capture device, the captured plurality of images, wherein the images include pixels corresponding to a pupil, iris, background, or other features of the eye of the subject; maintain a database of machine learning analysis of other subject's normal eye movement in response to an applied light stimulus; classify pixels from the captured plurality of images as either pupil, iris, background, or other features of the eye of the subject based on the database of machine learning analysis; track movement of the classified pixels in the plurality of images over the period of time; analyze impairment of the subject based on the tracked movement as compared to the machine learning analysis in the database; and present, to a user, a result of the impairment analysis. The system of claim 1 of U.S. Patent No. 11908129 differs from claim 15 of the instant application herein in that it fails to disclose wherein the computing device is configured to identify the subject based on the captured images of the face or iris.
Whillock et al. teach an impaired subject detection system, wherein the computing device is configured to identify the subject based on the captured images of the face or iris (col. 3, ll. 20-30). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system of claim 1 of U.S. Patent No. 11908129 such that the impairment analysis system is configured to identify the subject based on the captured images of the face or iris, in order to obtain the identification of the subject (Whillock, Abstract).
Response to Arguments
Applicant’s arguments, see page 7 of the remarks, filed 05/22/2026, with respect to rejections of claims 1-15 under 35 U.S.C. § 112(b) have been fully considered and are persuasive. The rejections have been withdrawn.
Conclusion
THIS ACTION IS MADE FINAL. 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 JAMES M ANDERSON II whose telephone number is (571)270-1444. The examiner can normally be reached Monday - Friday 10AM-6PM.
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/James M Anderson II/Primary Examiner, Art Unit 2425
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