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 .
Response to Arguments
Applicant’s arguments and amendments, see page 8, filed 7/28/2026, with respect to claims 1-20 have been fully considered and are persuasive. The 101 rejection of claims 1-20 has been withdrawn.
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 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 8 of U.S. Patent No. 12023134. Although the claims at issue are not identical, they are not patentably distinct from each other because the application claim 1 is a broader version of patent claim 1 with treatment steps incorporated from patent claim 8 into claim 1. Although there are fewer treatments listed than the patent claims version, the Markush wording shows that any one of those treatments can be used, which reads on the claims. The mapping is shown below:
Application Claims
Patent Claims
Claim 1. A method comprising: generating, via a piezoelectric sensor, a signal representing vibrations originating from a blood vessel of a subject, wherein the vibrations are indicative of heart beats or respirations of the subject; obtaining a power spectral density of the signal; determining a respiration rate of the subject by identifying a lowest frequency of the power spectral density at which a peak exceeding a predetermined power threshold exists; selecting a portion of the signal that represents a time period that corresponds to the respiratory rate; determining a heart rate variability of the subject using the portion of the signal; and evaluating a parasympathetic nervous system response of the subject based on the heart rate variability; and performing a treatment protocol based on the parasympathetic nervous system response, wherein the treatment protocol comprises one or more of oxytocin administration, narcotics administration, sedative administration, anxiolytics administration, sympathetic colitics administration, or alpha and beta antagonists administration.
Claim 1. A method comprising: (a) generating, via a piezoelectric sensor, a signal representing vibrations originating from a blood vessel of a subject, wherein the vibrations are indicative of heart beats or respirations of the subject; (b) obtaining a power spectral density of the signal; (c) determining a respiration rate of the subject by identifying a lowest frequency of the power spectral density at which a peak exceeding a predetermined power threshold exists; (d) using the respiration rate as a basis for selecting a portion of the signal; (e) determining a heart rate variability of the subject using the portion of the signal; (f) evaluating a parasympathetic nervous system response of the subject based on the heart rate variability; (g) administering a treatment protocol to the subject; and (h) repeating steps (a)-(f) to determine an efficacy of the treatment protocol.
Claim 8. The method of claim 1, further comprising using the heart rate variability to diagnose over-training in athletes, optimization of athletic performance, post-traumatic stress disorder, anxiety, pain, eating disorders, obesity, obesity surgery, autonomic dysfunction, depression, addiction to opiates, alcohol or other substances, delirium, acute or chronic illness, critical illness, post-surgical stress, traumatic brain injury, cancer, post-myocardial infarction, complications caused by local anesthesia or conscious sedation, burns, and/or complications of childbirth.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J LAU whose telephone number is (571)272-2317. The examiner can normally be reached 8-5:30 PM.
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/MICHAEL J LAU/Examiner, Art Unit 3796
