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 non-statutory 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 non-statutory 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 non-statutory 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 non-statutory 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 1-20 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-20 of co-pending Application No. 18/432,204. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-20 of co-pending Application No. 18/432,204 encompassed all the claim limitations of the instant invention.
Regarding claim 1, claims 1 of co-pending Application No. 18/432,204 recited similar claimed subject matters with various wording, wherein disclosing a system, comprising: at least one processor; and at least one memory that stores executable instructions that, when executed by the at least one processor, facilitate performance of operations, comprising: determining an average of differences between uplink path losses between a cellular node and a fixed wireless access device, and downlink path losses between the cellular node and the fixed wireless access device; and in response to the average of the differences between the uplink path losses and the downlink path losses being determined to satisfy a defined difference threshold, determining that the fixed wireless access device is not transmitting according to a specified power level (see claim 1 of co-pending Application No. 18/432,204).
Regarding claims 2-8, claims 2-8 co-pending Application No. 18/432,204 recited similar claimed subject matters with various wording.
Regarding claim 9, claims 9 of co-pending Application No. 18/432,204 recited similar claimed subject matters with various wording, wherein disclosing a non-transitory machine-readable medium, comprising executable instructions that, when executed by at least one processor, facilitate performance of operations, comprising: determining a mean of differences between uplink path losses between network equipment and fixed wireless access equipment, and downlink path losses between the network equipment and the fixed wireless access equipment; and in response to the mean of the differences between the uplink path losses and the downlink path losses being determined to satisfy a defined difference criterion, determining that the fixed wireless access equipment is not transmitting according to a defined power level (see claim 9 of co-pending Application No. 18/432,204).
Regarding claims 10-16, claims 10-16 of co-pending Application No. 18/432,204 recited similar claimed subject matters with various wording.
Regarding claim 17, claims 17 of co-pending Application No. 18/432,204 recited similar claimed subject matters with various wording, wherein disclosing a method, comprising: determining, by network equipment comprising at least one processor, a result of applying a statistical function to differences between uplink path losses between cellular network equipment and customer premises equipment, and downlink path losses between the cellular network equipment and the customer premises equipment; and in response to the result of applying the statistical function to the differences between the uplink path losses and the downlink path losses being determined to satisfy a defined difference threshold, determining, by the network equipment, that the customer premises equipment is not transmitting according to a specified power level (see claim 17 of co-pending Application No. 18/432,204).
Regarding claims 18-20, claims 18-20 of co-pending Application No. 18/432,204 recited similar claimed subject matters with various wording.
This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Allowable Subject Matter
Claims 1-20 would be allowable if rewritten or amended to overcome the non-statutory double patenting rejection as set forth in this Office Action.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claims 1 and 9, Tsui (US Pat No. 9,781,685) disclose a both uplink spectral efficiency and downlink spectral efficiency are improved through adjustments made to various parameters that would otherwise be treated as static type parameters but fails to teach, disclose or render obvious the applicant's invention as claimed, particularly the feature describing the steps of determining an average or mean of differences between respective uplink path losses between a cellular node and a fixed wireless device, and corresponding downlink path losses between the cellular node and the fixed wireless device; and in response to the result of determining the average or mean of differences between the uplink path losses and the downlink path losses being determined to satisfy a defined difference threshold, determining, by the network equipment, that the customer premises equipment is not transmitting according to a specified power level. Dependent claims 2-8 and 10-16, respectively, are in condition for allowance for the same reasoning.
Regarding claim 17, Tsui (US Pat No. 9,781,685) disclose a both uplink spectral efficiency and downlink spectral efficiency are improved through adjustments made to various parameters that would otherwise be treated as static type parameters but fails to teach, disclose or render obvious the applicant's invention as claimed, particularly the feature describing the steps of determining a statistical function of differences between respective uplink path losses between a cellular network and a customer premises equipment, and corresponding downlink path losses between the cellular network and the customer premises equipment; determining an average or mean of differences; and in response to the result of applying the statistical function to the differences between the uplink path losses and the downlink path losses being determined to satisfy a defined difference threshold, determining, by the network equipment, that the customer premises equipment is not transmitting according to a specified power level. Dependent claims 18-20 are in condition for allowance for the same reasoning.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Pablo Tran whose telephone number is (571)272-7898. The examiner normal hours are 9:30 -5:00 (Monday-Friday). If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Jinsong Hu, can be reached at (571)272-3965. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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March 6, 2026
/PABLO N TRAN/Primary Examiner, Art Unit 2643
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