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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1-4,6-7,9-10,21-27 and 31-35 are rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1-18 of U.S. Patent 12,009,876. Although the conflicting claims are not identical, they are not patentably distinct from each other because the subject matter recited in the claims of the instant application are broader than the features included in the claims of the ‘876 patent. For example, claim 1 of this application recites some of the features in claim 1 of the ‘876 patent, but does not include features relating to “comparing the power spectrum to known sources” and “displaying the determined known source”, as in claim 1 of the ‘876 patent. Also, the dependent claims of these cases recite similar and/or the same features. Therefore, as the instant claims are a broader version of the patented claims, these claim sets anticipate each other and are rejected under obviousness-type double patenting.
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 1-4,6-7,9-10,21, 23-27 and 31-35 are rejected under this section as the claimed invention is directed to calculations of power spectrum of frequencies without significantly more than the calculations themselves. The independent claims essentially recite mathematical procedures.
This judicial exception is not integrated into a practical application because the values of the power spectrum of the frequencies are only calculated and are not used. The claims do not include any additional elements that are sufficient to amount to significantly more than the judicial exception because the calculated variables are not used to adjust any physical structure and/or perform a method step using the calculated values of the power spectrum of frequencies. Therefore, there are no practical limits on the claimed concepts of calculating these variables.
For example, using the Guidance Flowchart steps, Step 2A “is the claim directed toward an abstract idea”, the answer is yes, where the abstract idea is calculating the frequency power spectrum of a signal. Regarding Step 2B “does the claim require additional elements that amount to significantly more?”, the answer is no, as processors for executing steps of calculating variables are not significantly more than the calculating itself. As the claims only recite “outputting or providing the frequency power spectrum of a signal”, there is no significant step of using these calculated values of spectrum. The recitation of a practical application of using the calculated variables may add significantly more as required by this section.
It is also noted that the dependent claims do not add a feature which may be considered as “significantly more” as these claims also recite further “calculations”, which still render these claims as abstract ideas without any practical limits.
Claim 22 is not rejected under section 101 as it provides a practical application and significantly more than the calculations of the power spectrum of a signal, as claim 22 recites using and/or “analyzing the results to detect the presence of multiple objects”.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN SHAUN KELLEY whose telephone number is (571)272-5652. The examiner can normally be reached on Mondays to Fridays.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeanette Parker can be reached on (571)270-3647. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN S KELLEY/Primary Examiner, Art Unit 2646
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