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 .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more. The judicial exception being an abstract idea. The claim(s) recite(s) abstract idea of detecting coronary artery disease from a sound signal, assessing the signal, deriving the signal, derives parameters from the data and outputs the data similar to In Re Grams, 888 F. 2d 835, 12 USPQ 2d 1824 (Fed, Cir. 1989) which was directed to diagnosing an abnormal condition and found to be patent ineligible. This judicial exception is not integrated into a practical application because when the claims are considered as a whole, there is no element or combination of elements in the claims that are sufficient to ensure that the claims amount to significantly more that the abstract idea itself. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims fail to recite any improvements to another technology or technical field, improvements to the functioning of the processor itself, and/or meaningful limitation beyond generally link the use of an abstract idea to a particular environment (i.e. there is not structural relationship between the abstract idea of the limitation amounts to necessary data gathering and outputting, (i.e., all uses of the recited judicial exception require such data gathering or data output). The use of a sensors is merely generic. Therefore, because there is no meaningful limitations in the claim to transform the exception into a patent eligible application such that the claim amounts to significantly more than the exception itself, the claim is rejected under 35 USC 101 as being directed to non-statutory subject matter.
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.
Claim 14-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 11284827. Although the claims at issue are not identical, they are not patentably distinct from each other because both the current application and the US Patent claim a method of assessing the quality of an auscultatory sound signal for use in detecting coronary artery disease (CAD), comprising: receiving an electrographic signal from an ECG sensor; receiving at least one auscultatory sound signal responsive to a corresponding at least one auscultatory sound sensor operatively associated with a test-subject; segmenting said at least one auscultatory sound signal responsive to said electrographic signal so as to associate a plurality of heart-cycle time series with said at least one auscultatory sound signal, wherein each heart-cycle time series of said plurality of heart- cycle time series spans a single corresponding heart-cycle; temporally aligning each of said plurality of heart-cycle time series with respect to a start of said single corresponding heart-cycle thereof.
Claim 14-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of US 20220061797. Although the claims at issue are not identical, they are not patentably distinct from each other because both the current application and the US Patent claim a method of assessing the quality of an auscultatory sound signal for use in detecting coronary artery disease (CAD), comprising: receiving an electrographic signal from an ECG sensor; receiving at least one auscultatory sound signal responsive to a corresponding at least one auscultatory sound sensor operatively associated with a test-subject; segmenting said at least one auscultatory sound signal responsive to said electrographic signal so as to associate a plurality of heart-cycle time series with said at least one auscultatory sound signal, wherein each heart-cycle time series of said plurality of heart- cycle time series spans a single corresponding heart-cycle; temporally aligning each of said plurality of heart-cycle time series with respect to a start of said single corresponding heart-cycle thereof.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JON ERIC C MORALES whose telephone number is (571)272-3107. The examiner can normally be reached Monday-Friday 830AM-530PM CST.
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/JON ERIC C MORALES/Primary Examiner, Art Unit 3796
/J.C.M/Primary Examiner, Art Unit 3796