DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Specification
The disclosure is objected to because of the following informalities: Any application numbers listed in the disclosure should be updated to reflect their patent
status (e.g. pending, patented, abandoned) and publication numbers should be provided for any applications that have been published. Specifically, paragraph [0001] needs to be corrected. Furthermore, any reference to attorney docket numbers appearing therein should be removed. Appropriate correction is required.
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claim 12 is objected to because of the following informalities: Claim 12 recites “electrode on the ambulatory housing ambulatory housing configured” which should recite similar to --electrode on the ambulatory housing configured—in order to fix an inadvertent typographical error. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 20 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 20 recites the limitation "the type of electrode" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
(e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language.
Claim(s) 1-3 and 12-18 is/are rejected under pre-AIA 35 U.S.C. 102(e) as being anticipated by US Patent No 8,116,841 to Bly et al. (herein Bly).
In reference to at least claim 1
Bly disclose a remote ambulatory cardiac monitoring system for acquiring ECG signals (e.g. adherent device 100) comprising: an ambulatory housing configured to be worn by a patient (e.g. 160 and 162); a microprocessor for controlling the remote ambulatory cardiac monitoring system (e.g. “processor supported with the adherent patch”, Col. 8, ll. 5-11), and the microprocessor is disposed within the ambulatory housing (e.g. “processor”, Col. 8, ll. 5-11); an electrode for sensing ECG signals and the electrode being in communication with the microprocessor (e.g. “electrodes”, Col. 8, ll. 21-25), an integrated cellular module connected to the microprocessor and disposed within the ambulatory housing, wherein the integrated cellular module transmits ECG signals to a remote center (e.g. “The adherent device can wirelessly communicate with remote center 106.”, Col. 7, l. 66 – Col. 8, l. 1; Col. 9, ll. 53-66).
In reference to at least claim 2
Bly discloses a controller connected to the microprocessor and disposed within the ambulatory housing, the controller switches the functionality of the remote ambulatory cardiac monitoring system by causing the microprocessor to initiate one of a plurality of different modes (e.g. can utilize the electrodes for multiple tasks including impedance for determining respiration and hydration, Col. 10, ll. 27-43 and for ECG measuring, Col. 11, ll. 18-26) including an EKG/ECG mode (e.g. “ECG circuitry 138 can generate electrocardiogram signals and data from two or more electrodes”, Col. 11, ll. 18-26), an ECG Holter mode and an MCT/Event mode.
In reference to at least claim 3
Bly discloses wherein the electrode in communication with the microprocessor performs one of a multiple channel EKG/ECG mode (e.g. “ECG circuitry 138 can generate electrocardiogram signals and data from two or more electrodes”, Col. 11, ll. 18-26), ECG Holter mode, or an MCT/Event mode.
In reference to at least claim 12
Bly discloses a method for controlling the functionality of a monitoring device, the method comprising: sensing ECG signals (e.g. “ECG circuitry 138 can generate electrocardiogram signals and data from two or more electrodes”, Col. 11, ll. 18-26) with an electrode on an ambulatory housing ambulatory housing configured to be worn by a patient (e.g. “electrodes”, Col. 8, ll. 21-25); and transmitting ECG signals with a cellular module to a remote center (e.g. “The adherent device can wirelessly communicate with remote center 106.”, Col. 7, l. 66 – Col. 8, l. 1; Col. 9, ll. 53-66), wherein the cellular module is integrated within the ambulatory housing of the monitoring device (e.g. “The adherent device can wirelessly communicate with remote center 106.”, therefore some form of cellular module is present within the adherent device, i.e. housing of the monitoring device, Col. 7, l. 66 – Col. 8, l. 1; Col. 9, ll. 53-66).
In reference to at least claim 13
Bly discloses wherein transmitting ECG signals to the remote center with the cellular module automatically occurs upon detecting an arrhythmic event (e.g. “In many embodiments, the adherent device may continuously monitor physiological parameters, communicate wirelessly with a remote center, and provide alerts when necessary.” Col. 7, ll. 5-18. Since the parameters are continuously monitored and wirelessly communicated to the remote center, in real time monitoring the ECG signal would be transmitted to the remote center when an arrhythmic event is detected).
In reference to at least claim 14
Bly discloses wherein transmitting ECG signals to the remote center with the cellular module automatically occurs upon detecting a patient-activated event (e.g. “In many embodiments, the adherent device may continuously monitor physiological parameters, communicate wirelessly with a remote center, and provide alerts when necessary.” Col. 7, ll. 5-18, “The adherent device can wirelessly communicate with remote center 106. The communication may occur directly (via a cellular or Wi-Fi network),”, Col. 7, l. 66 – Col. 8, l. 2).
In reference to at least claim 15
Bly discloses further comprising storing ECG signals into a memory module of the monitoring device (e.g. “The system may comprise an adherent patch, which attaches to the patient's thorax and contains sensing electrodes, battery, memory, logic, and wireless communication capabilities.”, Col. 7, ll. 8-11, “ Electronics circuitry 130 may comprise a processor 146. Processor 146 comprises a tangible medium, for example read only memory (ROM), electrically erasable programmable read only memory (EEPROM) and/or random access memory (RAM).”, Col. 9, ll. 40-44. Since the adherent patch contains a memory and communicate directly with the remote center it is inherent that the memory on the adherent device stores the sensed data such as the ECG data before transmitting).
In reference to at least claim 16
Bly discloses wherein storing ECG signals into a memory of the monitoring device when cellular service is unavailable (e.g. “The system may comprise an adherent patch, which attaches to the patient's thorax and contains sensing electrodes, battery, memory, logic, and wireless communication capabilities.”, Col. 7, ll. 8-11, “ Electronics circuitry 130 may comprise a processor 146. Processor 146 comprises a tangible medium, for example read only memory (ROM), electrically erasable programmable read only memory (EEPROM) and/or random access memory (RAM).”, Col. 9, ll. 40-44. Since the adherent patch contains a memory and communicate directly with the remote center it is inherent that the memory on the adherent device stores the sensed data such as the ECG data before any transmission).
In reference to at least claim 17
Bly discloses further comprising receiving information from a service facility using the cellular module of the monitoring device (e.g. “instructions are transmitted from remote site 106 to a processor supported with the adherent patch on the patient, and the processor supported with the patient can receive updated instructions for the patient treatment and/or monitoring,” Col. 8, ll. 5-10).
In reference to at least claim 18
Bly discloses performing one of an EKG/ECG mode (e.g. “ECG circuitry 138 can generate electrocardiogram signals and data from two or more electrodes”, Col. 11, ll. 18-26), ECG Holter mode, or an MCT/Event mode with a microprocessor disposed within the ambulatory housing.
Claim(s) 1-3 and 6 is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by US Patent No 5,678,562 to Sellers (herein Sellers).
In reference to at least claim 1
Sellers disclose a remote ambulatory cardiac monitoring system for acquiring ECG signals (e.g. ambulatory physiological monitor, 10) comprising: an ambulatory housing configured to be worn by a patient (e.g. monitor 10 has a housing, Fig. 3; “ As indicated previously, the monitor 10 may be positioned in holster 11 for attachment to the patient's belt with belt loops 42”, Col. 5, ll. 12-16); a microprocessor for controlling the remote ambulatory cardiac monitoring system (e.g. “ The outputs of analog circuit 50 are connected to an acquisition processor 52, which controls a portion of the monitor operation and converts amplified analog ECG signals into digital data words. The acquisition processor 52 is connected to a memory 54 which includes a program storage area 56 and a data buffer 58.” Col. 5, ll. 23-34), and the microprocessor is disposed within the ambulatory housing (e.g. processor is within the ambulatory physiological monitor 10, Fig. 4, “A block diagram of the ambulatory physiological monitor 10 is shown in FIG. 4.”, Col. 5, ll. 19-34); an electrode for sensing ECG signals and the electrode being in communication with the microprocessor (e.g. electrodes 34A, 34B,36A,35B,38A,38B, Fig. 3, “The monitor 10 is used with a set of electrodes or other transducers. For most ECG applications, either two or three sets of electrodes are employed. As shown in FIG. 3, three sets of electrodes 34A, 34B, 36A, 36B, 38A and 38B are employed to provide a three-dimensional view of heart activity. The three pairs of electrodes provide ECG signals from X, Y and Z axes of the patient, respectively. Each electrode is connected to monitor 10 via a lead wire 33 and connector 18.”, Col. 4, l. 65- Col. 5, l. 7), an integrated cellular module connected to the microprocessor and disposed within the ambulatory housing (e.g. wireless data modem 28), wherein the integrated cellular module transmits ECG signals to a remote center (e.g. “The wireless data modem 28 permits transmission and reception of data through the cellular telephone network as described below. The wireless data modem 28 may be omitted from monitor 10 when wireless communication is not required.)”, Col. 6, ll. 63-67).
In reference to at least claim 2
Sellers discloses a controller connected to the microprocessor and disposed within the ambulatory housing, the controller switches the functionality of the remote ambulatory cardiac monitoring system by causing the microprocessor to initiate one of a plurality of different modes including an EKG/ECG mode, an ECG Holter mode (e.g. Fig. 3, ECG monitoring is Holter monitoring, Col. 1, ll. 10-17, Col. 7, ll. 1-5), and an MCT/Event mode.
In reference to at least claim 3
Sellers discloses wherein the electrode in communication with the microprocessor performs one of a multiple channel EKG/ECG mode, ECG Holter mode (e.g. Fig. 3, ECG monitoring is Holter monitoring, Col. 1, ll. 10-17, Col. 7, ll. 1-5), or an MCT/Event mode.
In reference to at least claim 6
Sellers discloses a cable socket disposed on the ambulatory housing an connected to the electrode (e.g. patient connector, 18, Fig. 3, “The patient connector 18 provides an electrical connection between the circuitry of the ambulatory physiological monitor 10 and electrodes or other transducers affixed to the patient for monitoring the patient's condition”, Col. 4, ll. 27-31)
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-5 and 9-19 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over US 2011/0112418 to Feild (hereinafter "Feild" – cited by applicant) in view of U.S. Patent No. 2009/0240297 to Shavit (hereinafter "Shavit" – cited by applicant).
In reference to at least claim 1
Feild disclose a remote ambulatory cardiac monitoring system for acquiring ECG signals comprising: an ambulatory housing configured to be worn by a patient (e.g. 20 and 30); a microprocessor for controlling the remote ambulatory cardiac monitoring system, and the microprocessor is disposed within the ambulatory housing (e.g. 240, para. [0067]); an electrode for sensing ECG signals and the electrode being in communication with the microprocessor (e.g. S1-S3). Feild further discloses a wireless transceiver in the ECG monitor that transmits the event information to a monitoring center (e.g. “a wireless transceiver in the ECG monitor transmits the event information and an ECG strip to a monitoring center”, abstract, para. [0060]).
However, Feild does not disclose an integrated cellular module connected to the microprocessor and disposed within the ambulatory housing, wherein the integrated cellular module transmits ECG signals to a remote center.
Shavit discloses a mobile defibrillator/ECG sensing unit comprising an integrated cellular module connected to the microprocessor and disposed within the ambulatory housing, wherein the integrated cellular module transmits ECG signals to a remote center (e.g. “ and a wireless communication circuit communicating with said hand held device.”, para. [0040] [0041], “the held device adopted to transmit to said emergency center information indicative of the ECG signal of said patient.”, para. [0046]). It would have been obvious at the time of the claimed invention to modify Feild to include an integrated cellular module within the housing such as taught by Shavit in order to compartmentalize the components into a device which is easy to carry (‘297, para. [0074]).
In reference to at least claim 2
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses a controller connected to the microprocessor and disposed within the ambulatory housing, the controller switches the functionality of the remote ambulatory cardiac monitoring system by causing the microprocessor to initiate one of a plurality of different modes including an EKG/ECG mode (e.g. “ ECG monitoring”, para. [0049]), an ECG Holter mode and an MCT/Event mode (e.g. Abstract, para. [0063] [0070] [0080]).
In reference to at least claim 3
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses wherein the electrode in communication with the microprocessor performs one of a multiple channel EKG/ECG mode, ECG Holter mode, or an MCT/Event mode (e.g. “ ECG monitoring”, para. [0049]).
In reference to at least claim 4
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses wherein the plurality of different modes includes a USB data transfer mode (e.g. “a USB port which is coupled to the row of contacts on the back of the monitor case, enabling data and programs to be coupled to the microcontroller and its data storage devices”, para. [0067]).
In reference to at least claim 5
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses a non-transitory computer readable medium associated with the microprocess or, the non-transitory computer readable medium including instructions to perform the plurality of different modes (e.g. para. [0056] [0063] [0070]).
In reference to at least claim 9
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses wherein the controller automatically switches the functionality of the remote ambulatory cardiac monitoring system from the ECG Holter mode to the MCT/Event mode if the ECG Holter mode is negative after a period (e.g. Abstract, para. [0063] [0070]).
In reference to at least claim 10
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses wherein the controller automatically switches the functionality of the remote ambulatory cardiac monitoring system from the ECG Holter mode to the MCT/Event mode if the ECG Holter mode is negative after at least a 24-hour period (e.g. Abstract, para. [0056] [0063] [0070]).
In reference to at least claim 11
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses wherein the controller switches the functionality of the remote ambulatory cardiac monitoring system to the EKG mode when a multi-wire electrode is in communication with the microprocessor (e.g. “ ECG monitoring”, para. [0049]).
In reference to at least claim 12
Feild disclose a method for controlling the functionality of a monitoring device, the method comprising: sensing ECG signals (e.g. “ ECG monitoring”, para. [0049]), with an electrode on an ambulatory housing ambulatory housing configured to be worn by a patient (e.g. S1-S3). Feild further discloses a wireless transceiver in the ECG monitor that transmits the event information to a monitoring center (e.g. “a wireless transceiver in the ECG monitor transmits the event information and an ECG strip to a monitoring center”, abstract, para. [0060]).
However, Feild does not disclose transmitting ECG signals with a cellular module to a remote center, wherein the cellular module is integrated within the ambulatory housing of the monitoring device.
Shavit discloses a mobile defibrillator/ECG sensing unit comprising an integrated cellular module connected to the microprocessor and disposed within the ambulatory housing, wherein the integrated cellular module transmits ECG signals to a remote center (e.g. “ and a wireless communication circuit communicating with said hand held device.”, para. [0040] [0041], “the held device adopted to transmit to said emergency center information indicative of the ECG signal of said patient.”, para. [0046]). It would have been obvious at the time of the claimed invention to modify Feild to include an integrated cellular module within the housing such as taught by Shavit in order to compartmentalize the components into a device which is easy to carry (‘297, para. [0074]).
In reference to at least claim 13
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses wherein transmitting ECG signals to the remote center with the cellular module automatically occurs upon detecting an arrhythmic event (e.g. “ If an arrhythmia is detected, a wireless transceiver in the ECG monitor transmits the event information and an ECG strip to a monitoring center.”, abstract, para. [0007] “If an arrhythmia is detected by the monitor, an alert and an ECG strip are wirelessly sent to the cellphone handset in the carrying case 10. The cellphone handset silently calls a monitoring center which may be hundreds or thousands of miles away and relays the alert and ECG strip to the monitoring center”, para. [0049]).
In reference to at least claim 14
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses wherein transmitting ECG signals to the remote center with the cellular module automatically occurs upon detecting a patient-activated event (e.g. “ If an arrhythmia is detected, a wireless transceiver in the ECG monitor transmits the event information and an ECG strip to a monitoring center.”, abstract, para. [0007] “If an arrhythmia is detected by the monitor, an alert and an ECG strip are wirelessly sent to the cellphone handset in the carrying case 10. The cellphone handset silently calls a monitoring center which may be hundreds or thousands of miles away and relays the alert and ECG strip to the monitoring center”, para. [0049]).
In reference to at least claim 15
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses storing ECG signals into a memory module of the monitoring device (e.g. “ the ECG monitor 12 continuously monitors, analyzes, and records the ECG of each heartbeat.”, para. [0049]).
In reference to at least claim 16
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses wherein storing ECG signals into a memory of the monitoring device when cellular service is unavailable (e.g. “In this situation the monitor will begin to operate as a loop recorder. Newly acquired ECG signal data will be stored in the memory and the oldest stored ECG data in the memory will be overwritten and lost.”, para. [0081]).
In reference to at least claim 17
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses receiving information from a service facility using the cellular module of the monitoring device (e.g. “The display is accompanied by a tone or beep from the handset, drawing the patient's attention to the displayed message, and may also be accompanied by a voice prompt instructing the patient to take the necessary action. If the patient is unsure what to do, the patient may press an information button "i" on the handset in embodiments having this button, and a context-based voice message is played with a description of the problem shown in the graphic and its resolution.”, para. [0102]).
In reference to at least claim 18
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses performing one of an EKG/ECG mode (e.g. “ ECG monitoring”, para. [0049]), ECG Holter mode (e.g. Holter 2010 system”, para. [0069]-[0070]), or an MCT/Event mode with a microprocessor disposed within the ambulatory housing.
In reference to at least claim 19
Feild modified by Shavit renders obvious a system according to claim 1. Feild further discloses detecting the selection of one of a plurality of modes on the monitoring device, the plurality of modes on the monitoring device including the EKG/ECG mode (e.g. “ ECG monitoring”, para. [0049]), the ECG Holter mode e.g. Holter 2010 system”, para. [0069]-[0070]),, and the MCT/Event mode, and initiating one of the plurality of modes.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 9,808,165. Although the claims at issue are not identical, they are not patentably distinct from each other because both claims 1-20 in the instant application and claims 1-18 in U.S. Patent No. 9,808,165 recite almost identical systems and methods that include an ambulatory housing, microprocessor, an electrode and an integrated cellular network with the claims in the instant application being more generic, see claim correlation chart below. The entire scope of claims 1-20 in the instant application falls within the scope of claims 1-18 of U.S. Patent No. 9,808,165, therefore a patent to the generic claims within the instant application would improperly extend the right to exclude granted by U.S. Patent No. 9,808,165, see MPEP 804.
Claims 1-2 and 5-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of U.S. Patent No. 10,993,633. Although the claims at issue are not identical, they are not patentably distinct from each other because both claims 1-2 and 5-7 in the instant application and claims 1-4 in U.S. Patent No. 10,993,633 recite almost identical systems that include an ambulatory housing, microprocessor, an electrode and an integrated cellular network with the claims in the instant application being more generic, see claim correlation chart below. The entire scope of claims 1-2 and 5-7 in the instant application falls within the scope of claims 1-4 of U.S. Patent No. 10,993,633, therefore a patent to the generic claims within the instant application would improperly extend the right to exclude granted by U.S. Patent No. 10,993,633, see MPEP 804.
Claims 1-2,4-6 and 9-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2-3,5,9 and 12-13 of U.S. Patent No. 11,980,452. Although the claims at issue are not identical, they are not patentably distinct from each other because both claims 1-2,4-6 and 9-10 in the instant application and claims 2-3,5,9 and 12-13 in U.S. Patent No. 11,980,452 recite almost identical systems that include an ambulatory housing, microprocessor, an electrode and an integrated cellular network with the claims in the instant application being more generic, see claim correlation chart below. The entire scope of claims 1-2,4-6 and 9-10 in the instant application falls within the scope of claims 2-3,5,9 and 12-13 of U.S. Patent No. 11,980,452, therefore a patent to the generic claims within the instant application would improperly extend the right to exclude granted by U.S. Patent No. 11,980,452, see MPEP 804.
Instant Application
U.S. Patent No. 9,808,165
U.S. Patent No. 10,993,633
U.S. Patent No. 11,980,452
Claim 1
Claim 1
Claims 1 and 4
Claim 2
Claim 2
Claim 2
Claims 1 and 4
Claim 2
Claim 3
Claim 1
Claim 4
Claim 3
Claim 5
Claim 5
Claim 4
Claim 2
Claim 3
Claim 6
Claim 5
Claim 3
Claim 13
Claim 7
Claim 6
Claims 1 and 4
Claim 8
Claim 7
Claim 9
Claim 8
Claim 9
Claim 10
Claim 9
Claim 12
Claim 11
Claim 10
Claim 12
Claim 11
Claim 13
Claim 12
Claim 14
Claim 13
Claim 15
Claim 14
Claim 16
Claim 15
Claim 17
Claim 16
Claim 18
Claim 11
Claim 19
Claim 17
Claim 20
Claim 18
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER L GHAND whose telephone number is (571)270-5844. The examiner can normally be reached Mon-Fri 7:30AM - 3:30PM ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JENNIFER MCDONALD can be reached at (571)270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JENNIFER L GHAND/Examiner, Art Unit 3796
Prosecution Insights