DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/24/2025 has been entered.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The remarks filed on 11/26/2025 has been entered and fully considered.
Claims 1-4, 6-12, 14-20, and 22-24 pending in Instant Application.
Examiner Note
Examiner attempted to contact Applicant’s Representative, Mark C. Zimmerman (reg. no. 44,006), to file a Terminal Disclaimer in order to expedite prosecution to overcome the Double Patenting rejection. However, Examiner was not able to get a hold of Applicant’s Representative.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 11/24/2025 and 12/17/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement(s) is/are being considered if signed and initialed by the Examiner.
Double Patenting
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 Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957); and In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the conflicting claims 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.
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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1, 3, 6,-7, 9, 11, 14-15, 17, 19, and 22-23 are provisionally rejected on the ground of non-statutory non-obviousness-type double patenting as being unpatentable over claims 1-2, 4-5, 7, 9-10, 12-13, 17-18, 20-21, and 23 of Vandike et al., co-pending Application 18/446,189. Although the claims at issue are not identical, they are not patentably distant from each other because they are drawn to obvious variations.
In view of the above, since the subject matters recited in the claims 1, 3, 6,-7, 9, 11, 14-15, 17, 19, and 22-23 of the instant application were fully disclosed in and covered by the claims 1-2, 4-5, 7, 9-10, 12-13, 17-18, 20-21, and 23 of US co-pending application 18/446,189, allowing the claims to result in an unjustified or improper timewise extension of the "right to exclude" granted by a patent.
Allowable Subject Matter
Claims 1-4, 6-12, 14-20, and 22-24 would be allowable if a terminal disclaimer would be filed and approved to overcome the rejection(s) under Double Patenting, set forth in this Office action.
Relevant Art
The prior art made of record and not relied upon are considered pertinent to applicant’s disclosure: USPGPub 2024/0020331 - Provides electronic data processing, and more particularly, relates to image processing methods, computer program products and systems for enhancing a plant image database for improved damage identification on plants. USPGPub 2022/03989928 - Provides reducing erroneous classification results even in a case where there is a class with an insufficient training images acquired.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAHMOUD S ISMAIL whose telephone number is (571)272-1326. The examiner can normally be reached M - F: 8:00AM- 4:00PM.
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/MAHMOUD S ISMAIL/Primary Examiner, Art Unit 3662