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
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 Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention 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.
Claims 1-10 are rejected under 35 U.S.C. 101 as claiming the same invention as that of Claims 1-10 of USPN 12,064,591, hereinafter Patent ‘591. This is a statutory double patenting rejection.
Re Claim 1: Claim 1 of Patent ‘591 discloses an insulin delivery system, comprising: an insulin delivery device; a near field communication (NFC) device to store and transmit data regarding insulin therapy; and a mobile device comprising: a display; at least one processor; and at least one non-transitory computer-readable storage medium storing instructions thereon that, when executed by the at least one processor, cause the mobile device to: responsive to the mobile device being tapped or bumped adjacent to or against the NFC device, receive the data regarding insulin therapy from the NFC device; responsive to receiving the data regarding insulin therapy from the NFC device, determine a suggested bolus dosage of insulin based at least partially on the data regarding insulin therapy; and cause a prompt for a user to confirm or deny the suggested bolus dosage of insulin be displayed on the display.
Re Claims 2-10: Claims 2-10 of Patent ‘591 disclose respectively the Claim 2 limitation wherein the instructions, when executed by the at least one processor, cause the mobile device to: responsive to a user interaction confirming the suggested bolus dosage of insulin, transmit insulin delivery instructions reflecting the suggested bolus dosage of insulin to the insulin delivery device; the Claim 3 limitation wherein responsive to the insulin delivery device being tapped or bumped adjacent to or against the NFC device, receive insulin delivery instructions from the NFC device; and deliver insulin the user according to the received insulin delivery instructions; the Claim 4 limitation wherein the instructions, when executed by the at least one processor, cause the mobile device to: responsive to a user interaction confirming the suggested bolus dosage of insulin, writing new data regarding insulin therapy to the NFC device; the Claim 5 limitation wherein the NFC device comprises an NFC tag; the Claim 6 limitation wherein the NFC tag stores data regarding a meal item; the Claim 7 limitation wherein the mobile device comprises an accelerometer; the Claim 8 limitation wherein the instructions, when executed by the at least one processor, cause the mobile device to: detect acceleration of the mobile device; and determine whether a movement value of the detected acceleration of the mobile device meets or exceeds a threshold movement value; the Claim 9 limitation wherein the instructions, when executed by the at least one processor, cause the mobile device to: responsive to determining that the movement value of the detected acceleration of the mobile device meets or exceeds the threshold movement value and detecting a proximity of the NFC device, initiating communication with the NFC device; and the Claim 10 limitation wherein the insulin delivery device comprises: a portable housing defining a space to receive the insulin; and a drive system for dispensing the insulin from the portable housing.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM R FREHE whose telephone number is (571)272-8225. The examiner can normally be reached 10:30AM-7:30PM.
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/WILLIAM R FREHE/Examiner, Art Unit 3783
/KEVIN C SIRMONS/Supervisory Patent Examiner, Art Unit 3783
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