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 .
Claims 1-3 are pending.
Claim Objections
Claims 2 and 3 are objected to because of the following informalities:
Claim 2 recites “the factor of the data stream” (line 9), which appears to be a typographical error. Examiner suggests the amendment “the factor of the data steam standard”, as the claim previously recites “a factor of a data stream standard” (line 7). For the purposes of examination, this limitation will be interpreted as reciting “the factor of the data stream standard”.
Claim 3 recites “a-third” (line 12), which appears to be a typographical error. Examiner suggests the amendment “a[[-]] third”.
Appropriate correction is required.
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 1-3 are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1, 2, and 16 of prior U.S. Pat. 10,979,507. This is a statutory double patenting rejection.
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 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Pat. 10,356,179. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of the instant claims is anticipated by the patented claims. For example, compare instant claims 1, 2, and 3 with patented claims 1, 2, 13, and 16:
U.S. Pat. 10,356179
App. No. 18/748,808
1. A method, comprising:
1. A method, comprising:
commutatively coupling a processing device in communication with a first sensor and a second sensor, the first sensor being adapted to provide a first primary data stream and the second sensor being adapted to provide a second primary data stream;
instantiating a sensor controller on the processing device;
instantiating an operating system on the processing device;
instantiating a data stream analyzer on the processing device, the data stream analyzer comprising a data stream standard;
instantiating an input detector on the processing device;
instantiating an input executor on the processing device;
instantiating the data stream standard on the processing device;
communicating the first primary data stream from the first sensor and the second primary data stream from the second sensor to the sensor controller;
communicating the first primary data stream and the second primary data stream from the sensor controller to the operating system;
communicating the first primary data stream and the second primary data stream from the operating system to the data stream analyzer;
generating a first data stream using a first sensor;
generating a second data stream using a second sensor;
instantiating a data stream standard on a processing device;
determining, by the data stream analyzer, a first quality value for the first primary data stream by comparing the first primary data stream to a factor of the data stream standard;
determining, by a data stream analyzer, a first quality value for the first data stream by comparing the first data stream to a factor of the data stream standard;
determining, by the data stream analyzer, a second quality value for the second primary data stream by comparing the second primary data stream to the factor of the data stream standard;
determining, by the data stream analyzer, a second quality value for the second data stream by comparing the second data stream to the factor of the data stream standard;
combining the first primary data stream with the second primary data stream to synthesize a secondary data stream;
combining the first data stream with the second data stream to synthesize a third data stream;
determining, by the data stream analyzer, a third quality value for the secondary data stream by comparing the secondary data stream to the factor of the data stream standard, wherein the first quality value, the second quality value, and the third quality value are values defined by a value rating scale;
determining, by the data stream analyzer, a third quality value for the third data stream by comparing the third data stream to the factor of the data stream standard, wherein the first quality value, the second quality value, and the third quality value are values defined by a value rating scale; and
in response to the third quality value being greater than the first quality value and the second quality value, communicating the secondary data stream from the data stream analyzer to the input detector;
in response to the third quality value being greater than the first quality value and the second quality value, communicating the third data stream from the data stream analyzer to an input detector.
detecting with the input detector an input in the secondary data stream; and
communicating the input from the input detector to the input executor.
U.S. Pat. 10,356179
App. No. 18/748,808
2. A method, comprising:
2. A method, comprising:
commutatively coupling a processing device in communication with a first sensor and a second sensor, the first sensor being adapted to provide a first primary data stream and the second sensor being adapted to provide a second primary data stream;
detecting, by a processing device, a first data stream;
detecting, by the processing device, a second data stream;
commutatively coupling the processing device with a data stream recipient;
establishing, by the processing device, a data stream standard;
communicating, to the processing device, the first primary data stream and the second primary data stream;
determining, by the processing device, a first quality value for the first primary data stream by comparing the first primary data stream to a factor of the data stream standard;
determining, by the processing device, a first quality value for the first data stream by comparing the first data stream to a factor of a data stream standard;
determining, by the processing device, a second quality value for the second primary data stream by comparing the second primary data stream to the factor of the data stream standard;
determining, by the processing device, a second quality value for the second data stream by comparing the second data stream to the factor of the data stream;
combining, by the processing device, the first primary data stream with the second primary data stream to synthesize a secondary data stream;
synthesizing a third data stream by combining the first data stream and the second data stream;
determining, by the processing device, a third quality value for the secondary data stream by comparing the secondary data stream to the factor of the data stream standard, wherein the first quality value, the second quality value, and the third quality value are values defined by a value rating scale; and
determining, by the processing device, a third quality value for the third data stream by comparing the third data stream to the factor of the data stream standard, wherein the first quality value, the second quality value, and the third quality value are values defined by a value rating scale;
13. The method of claim 2, wherein:
comparing the first primary data stream and the second primary data stream comprises assigning a quality value to the first primary data stream and the second primary data stream, respectively, with respect to the data stream standard; and
selecting the secondary data stream comprises selecting one of the first primary data stream or the second primary data stream that exhibits a highest quality value.
selecting one of the first data stream, the second data stream, or the third data stream based on a highest relative value of the first quality value, the second quality value, and the third quality value; and
in response to the third quality value being greater than the first quality value and the second quality value, communicating the secondary data stream from the processing device to the data stream recipient.
communicating the selected one of the first data stream, the second data stream, and the third data stream from the processing device to a data stream recipient.
U.S. Pat. 10,356179
App. No. 18/748,808
16. An apparatus, comprising:
3. An apparatus, comprising:
a processing device;
a first sensor and a second sensor in communication with the processing device, the first sensor being adapted to provide a first primary data stream and the second sensor being adapted to provide a second primary data stream;
a sensor controller instantiated on the processing device, the sensor controller being adapted to control the first sensor and the second sensor, wherein the sensor controller is adapted to receive the first primary data stream and the second primary data stream;
an operating system instantiated on the processing device, the operating system being adapted to receive the first primary data stream and the second primary data stream from the sensor controller;
a data stream analyzer instantiated on the processing device, the data stream analyzer adapted to:
receive the first primary data stream and the second primary data stream from the operating system;
establish a data stream standard;
determine a first quality value for the first primary data stream by comparing the first primary data stream to a factor of the data stream standard;
determine a second quality value for the second primary data stream by comparing the second primary data stream to the factor of the data stream standard;
combine the first primary data stream with the second primary data stream to synthesize a secondary data stream;
determine a third quality value for the secondary data stream by comparing the secondary data stream to the factor of the data stream standard, wherein the first quality value, the second quality value, and the third quality value are values defined by a value rating scale;
a data stream analyzer instantiated on a processing device, the data stream analyzer adapted to:
receive a first data stream and a second data stream;
establish a data stream standard;
determine a first quality value for the first data stream by comparing the first data stream to a factor of the data stream standard;
determine a second quality value for the second data stream by comparing the second data stream to the factor of the data stream standard, wherein the factor of the data stream standard relates to an environmental property describing a source location of at least one of the first data stream or the second data stream;
combine the first data stream with the second data stream to synthesize a-third data stream;
determine a third quality value for the third data stream by comparing the third data stream to the factor of the data stream standard, wherein the first quality value, the second quality value, and the third quality value are values defined by a value rating scale;
in response to the third quality value being greater than the first quality value and the second quality value, an input detector instantiated on the processing device, the input detector being adapted to:
receive the secondary data stream from the data stream analyzer; and
to identify an input in the secondary data stream; and
an input executor instantiated on the processing device, the input executor being adapted to:
receive the input from the input detector; and
execute a control command corresponding with the input.
in response to the third quality value being greater than the first quality value and the second quality value, an input detector instantiated on the processing device, the input detector being adapted to:
receive the third data stream from the data stream analyzer; and
to identify an input in the third data stream; and
an input executor instantiated on the processing device, the input executor being adapted to:
receive the input from the input detector; and
execute a control command corresponding with the input.
Allowable Subject Matter
Claims 1-3 are allowable over the prior art with regards to 35 U.S.C. 102 and 35 U.S.C. 103. However, while the nonstatutory double patenting rejection can be overcome upon the filing of a terminal disclaimer, the statutory double patenting rejection above cannot be overcome by a terminal disclaimer.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH R MANIWANG whose telephone number is (571)270-7257. The examiner can normally be reached 8:30AM - 4:30PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Wing F Chan can be reached at (571) 272-7493. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH R MANIWANG/Primary Examiner, Art Unit 2441