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 .
Applicant’s amendments and remarks filed on 08/10/2026 have been fully considered.
Claims 11, 13-29 and 31-32 are pending for examination. Claims 1-10, 12 and 30 are cancelled.
Claim Objections
Claim 14 is objected to because of the following informalities: In regard to claim 14, line 2, “adjusting” should be set forth “adjust”. Appropriate correction is required.
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 11, 14, 18-21, 24-26, 29, and 31-32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 15-16 of U.S. Patent No. 11,974,843. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1 and 15-16 of ‘843 anticipate, recite similar limitations, and/or relate to limitations within ordinary skill in the art of claims 11, 14, 18-21, 24-26, 29, and 31-32 of present application.
Claims 13, 15-17 and 27-28 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 15-16 of U.S. Patent No. 11,974,843 in view of Henderson et al. (USPGPUB 2006/0074283). In regard to claims 13, 15-17 and 27-28, claims 1 and 15-16 of ‘843 recite all the claimed limitation except the inflatable wearable device comprises at least one of an arm sleeve and a leg sleeve; the substrate, the first light source, the optical detector, and the processor are provided as a wearable article; the wearable article is inflatable; the wearable article comprises one or more of a helmet, a hat, a body suit, a leg covering, a torso covering, an arm covering, a foot covering, and combinations thereof; and the wearable article comprises at least one of an arm sleeve and a leg sleeve. Henderson teaches a wearable medical device (Figs. 1-11) comprises at least one of an arm sleeve and a leg sleeve; the substrate, the first light source, the optical detector, and the processor are provided as a wearable article; the wearable article is inflatable; the wearable article comprises one or more of a helmet, a hat, a body suit, a leg covering, a torso covering, an arm covering, a foot covering, and combinations thereof; and the wearable article comprises at least one of an arm sleeve and a leg sleeve (Figs. 1-11). 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 and the method (claims 1 and 15-16 of ‘843) to incorporate the teachings of Henderson in order to better integrate the components and apply to a desired location(s) for monitoring.
Claims 22 and 23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 15-16 of U.S. Patent No. 11,974,843 in view of Ayers et al. (USPGPUB 2008/0076991). In regard to claims 22-23, claims 1 and 15-16 of ‘843 recite all the claimed limitations except adjust/maintain an output level of the oxygenation device when the oxygenation level is below the first predetermined threshold, or when the oxygenation level is above the second predetermined threshold. Ayers teaches a medical device (Figs. 1-2) comprises the use of at least in part of blood oxygenation measurement with thresholds to automate adjust the settings of a ventilator to the user ([0021]). 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 method (claims 1 and 15-16 of ‘843) to incorporate the teachings of Ayers in order to better provide/ adjust/ maintain oxygen status of the user based on the blood oxygenation measurements.
Claims 11 and 18-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 19 of U.S. Patent No. 12,708,269. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1 and 19 of ‘269 anticipate, recite similar limitations, and/or relate to limitations within ordinary skill in the art of claim 11 of present application.
Response to Arguments
Applicant’s arguments, see page 7 of Remarks, filed on 08/10/2026, with respect to claims 18 and 25 have been fully considered and are persuasive. The objections of claims 18 and 25 have been withdrawn.
Applicant’s arguments, see pages 7-8 of Remarks, filed on 08/10/2026, with respect to claims 11-30 have been fully considered and are persuasive. The 35 USC 112(b) rejections of claims 11-30 have been withdrawn.
Applicant’s arguments, see page 8 of Remarks, filed on 08/10/2026, with respect to claims 11-12, 15, 18-20, and 24-29 have been fully considered and are persuasive. The 35 USC 102 rejections of claims 11-12, 15, 18-20, and 24-29 have been withdrawn.
Applicant’s arguments, see pages 8-9 of Remarks, filed on 08/10/2026, with respect to claims 13-14, 16-17, 21-23, and 30 have been fully considered and are persuasive. The 35 USC 103 rejections of claims 13-14, 16-17, 21-23, and 30 have been withdrawn.
In regard to the double patenting rejection, applicant requested the rejection to be held. In response, updated DP rejections are provided above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 CHU CHUAN LIU whose telephone number is (571)270-5507. The examiner can normally be reached M-Th (6am-6pm).
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/CHU CHUAN LIU/Primary Examiner, Art Unit 3791
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