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 .
DETAILED ACTION
This office action is in response to applicant’s request for continued examination filed 11/21/25. Claims 1-15 are pending with claims 1 and 12 in independent form.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/21/25 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 1-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,002,514 B2 and over claims 1-20 of U.S. Patent No. 11,802,752 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations of the claims of the instant application are contained within the claims of the ‘514 and ‘752 patents with some minor changes in wording/terminology. The instant application is broader in scope than the ‘514 and ‘752 patents. For example, the instant application and the ‘514 and ‘752 patents teach a viewing optic comprising: a body, the body including a display; a ranging system for measuring a distance to a target and mounted within the body; a direction sensor mounted within the body for determining direction of wind and direction of the target; and a processor mounted within the body and capable of controlling information for showing on the display (as in claim 1 of the ‘514 and ‘752 patents); a rangefinder comprising: a body; a ranging system for measuring the distance to a target and mounted within the body, a direction sensor mounted within the body for determining direction of wind and direction of the target, wherein the direction sensor determines the direction of the target by pointing the viewing optic at the target (as in claim 16 of the ‘514 patent and claims 1 and 16 of the ‘752 patent); a processor mounted within the body and in communication with the ranging system and the direction sensor, the processor having a ballistics computer program that uses the distance from the ranging system, the wind direction and the direction of the target from the direction sensor to determine a ballistic trajectory (as in claim 12 of the ‘514 and ‘752 patents); and a method of calculating a ballistic trajectory comprising: pointing a viewing optic in a direction corresponding to a direction from which wind originates; the viewing optic having a body, a direction sensor mounted within the body, and a processor in communication with the direction sensor and having a ballistics program; capturing the wind direction by activating the direction sensor; communicating the wind direction to the processor; and using the ballistics program to determine a ballistic trajectory (as in claim 16 of the ‘514 and ‘752 patents).
Response to Arguments
Applicant's arguments filed 11/21/25 have been fully considered but they are not persuasive. Applicant has stated a terminal disclaimer would be filed however no terminal disclaimer has been received.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRISTY A HAUPT whose telephone number is (571)272-8545 and email address is kristy.haupt@uspto.gov. The examiner can normally be reached on Mon-Sun 5:30 AM- 10PM; Flex during day.
If all attempts to reach the examiner by telephone and email are unsuccessful, the examiner’s supervisor, Michael Lee, can be reached at telephone number 571-272-2398. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KRISTY A HAUPT/
Primary Examiner, Art Unit 2876
KAH