DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application is being examined under the pre-AIA first to invent provisions.
Double Patenting
2. 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 1-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. US 9,228.997 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the cited ‘997 patent teaches all of the basic features of the claimed.
Claim Rejections - 35 USC § 102
3. 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.
The following is a quotation of the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
Claim(s) 1-10, 12 & 13 is/are rejected under pre-AIA 35 U.S.C. 102(a)(1) as being anticipated by Der Ghazarian et al. (US 7341693 B2).
Regarding claims 1, 12 & 13 Der Ghazarian et al teaches a handheld breath testing device comprising (figs. 1 & 2) a sensor 21, the breath testing device operable to receive a user’s breath and generate a breath test signal therefrom (abstract); and a transceiver 40 for (Intended use recitation) receiving the breath test signal and transmitting 37 the breath test signal to a monitoring station (fig 2A); wherein the breath test signal indicates the presence of a controlled substance in the breath of the user (Abstract)(Summary of Invention)(Claims 1-11).
Regarding claim 2 Der Ghazarian et al teaches a mass spectroscopy sensor, a fiber optic fluorescent sensor, and a surface acoustic wave sensor (figs. 1A-3).
Regarding claims 3-4 Der Ghazarian et al teaches the sensor is operable to detect the presence of at least one of: methamphetamines, amphetamines, barbituates, tetrahydrocannabinol, benzoylmethylecgonine, diacetylmorphine, lysergic acid diethylamide, psilocin, and phencyclidine. (Inherent / implied).
Regarding claim 5 Der Ghazarian et al teaches the monitoring station is at least one of: a mobile device, an email, and an internet website (col.3 lines 13-26).
Regarding claim 6 Ghazarian et al teaches the monitoring station is operable to store the breath test signal and wherein the stored breath test signal is accessible by at least one of: a family member, sober coach, and parole officer (col. 3 lines 1-60)(col. 4 lines 32-56)
Regarding claim 7 Ghazarian et al teaches the monitoring station is a vehicle interlock device (col. 4 lines 10-65).
Regarding claim 8 Ghazarian et al teaches the breath test signal is an encrypted signal (col. 3 lines 1-60)(col. 4 lines 32-56)
Regarding claim 9 Ghazarian et al teaches a user identification device for (Intended use recitation) generating user identification data, the transceiver receiving the user identification data and transmitting the user identification data to the monitoring station. (col. 3 lines 1-60)(col. 4 lines 32-56).
Regarding claim 10 Ghazarian et al teaches the user identification data comprises at least one of: photographic, video, biometric, location, retinal, fingerprint, heat signature, voice, password, and verification key data (abstract).
4. Claim(s) 1 & 7 is/are rejected under pre-AIA 35 U.S.C. 102(a)(1) as being anticipated by Koehm (US 20090325639 A1).
Regarding claim 1 Koehm teaches a handheld breath testing device 10 comprising a sensor 22 [Claim 1] , the breath testing device operable to receive a user’s breath and generate a breath test signal therefrom (Abstract)(fig. 1); and a transceiver (implied / inherent via use of cell phone device) for (Intended use recitation) receiving the breath test signal and transmitting the breath test signal to a monitoring station; wherein the breath test signal indicates the presence of a controlled substance in the breath of the user.
Regarding claim 7 Koehm teaches the monitoring station is a vehicle interlock device [0007][0012][Claims 2-3]
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 11460466 B2 Rapid test breathalyzer and methods of use thereof
US 10421358 B1 Smart phone with integrated breathalyzer
US 20180313818 A1 REMOTE SOBRIETY MONITORING SYSTEMS, DEVICES AND METHODS
US 20080227466 A1 Positional information transmitting/receiving system, has interlock position communication system including position information receiver connected to microcontroller and wireless communication device
US 20060193749 A1 Front page inconsistent with disclosure, abstract based on front page. Patent Office notified-Radio frequency breathalyzer system for e.g. automobile alarm system, has breathalyzer analyzing breathe sample
US 20050053523 A1 Portable communications device, e.g. cellular telephone, includes breath analyzer for providing breath analyzer output, and user interface for providing output based on results of performed breath test
US 6726636 B2 Breathalyzer with voice recognition
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDRE J ALLEN whose telephone number is (571)272-2174. The examiner can normally be reached Mon-Fri. 9am-5PM.
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/ANDRE J ALLEN/ Primary Examiner, Art Unit 2855