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
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.
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Claims 1-5, 7-11, 13 and 14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 9,829,578 or claims 1-14 of U.S. Patent No. 12,025,700. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of claims 1-5, 7-11, 13 and 14 of the present application is essentially disclosed by either claims 1-14 of U.S. Patent No. 9,829,578 or claims 1-14 of U.S. Patent No. 12,025,700 – the difference being that independent claims 1, 7 and 13 recited that the returns are derived from reflections resulting the lidar being directed to different spots on the target.
This difference can be inferred from either claim 6 of U.S. Patent No. 9,829,578 or claims 6 of U.S. Patent No. 12,025,700.
Claims 1-5, 7-11, 13 and 14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 10,761,210. Although the claims at issue are not identical, they are not patentably distinct from each other because:
With respect to claim 1, the claims of USPN 10,761,210 teach or suggest:
A method for determining ranges to a target disposed behind a transparent surface [ taught by lines 1-2 of claim 1 of USPN 10,761,210 ] the method comprising: receiving a plurality of lidar returns, at least some of which are from different spots on a target and at least some of which are from a transparent surface [ taught by lines 3-5 of claim 1 of USPN 10,761,210; claim 1 also recited a first spot and second spot ] the lidar returns corresponding to a portion of a lidar signal generated by a lidar, directed toward the different spots on the target [ taught by lines 5-7 of claim 1 of USPN 10,761,210 claim 1 also recited a first spot and second spot ], and reflected back to the lidar from either the different spots on the target or the transparent surface [ taught by lines 7-8 of claim 1 of USPN 10,761,210; claim 1 also recited a first and second spot ]; determining a range measurement for each of the plurality of lidar returns [ taught by lines 18-19 of claim 1 of USPN 10,761,210 ]; generating a histogram of the range measurements [ taught by line 20 of claim 1 of USPN 10,761,210], the histogram comprising an array including a plurality of range bins [ taught by lines 1-3 of claim 3 of USPN 10,761,210 ], each range bin defining a unique portion of a predetermined distance from the lidar [ this limitation can be inferred from a count in each range bin, thus being obvious 1 ], the histogram further comprising a count associated with each respective range bin [ taught by line 7 of claim 3 of USPN 10,761,210 ] the count corresponding to a number of range measurements falling within the unique portion of the predetermined distance corresponding to that respective range bin [ taught by lines 5-7 of claim 3 of USPN 10,761,210 ]; and determining which of the range measurements correspond to the target based on the histogram [ taught by lines 21-22 of claim 1 of USPN 10,761,210 ].
Claim 2 is taught by claim 2 of USPN 10,761,210.
Claim 3 is taught by claim 3 of USPN 10,761,210.
Claim 4 is taught by claim 4 of USPN 10,761,210.
Claim 5 is taught by lines 9-10 of claim 4 of USPN 10,761,210.
With respect to claim 7, the claims of USPN 10,761,210 teach or suggest:
A system for determining ranges to a target disposed behind a transparent surface [ taught by lines 1-2 of claim 6 of USPN 10,761,210] comprising: a lidar configured to direct a lidar signal toward different spots on a target and to receive a plurality of lidar returns, the plurality of lidar returns corresponding to a portion of the lidar signal reflected back to the lidar from either the different spots on the target or a transparent surface, wherein at least some of the plurality of lidar returns are from the different spots on the target and at least some of the plurality of lidar returns are from the transparent surface [ taught by lines 3-9 of claim 6 of USPN 10,761,210; claim 1 recites a first and second spot ]; and a processor configured to [ taught by line 18 of claim 6 of USPN 10,761,210 ] determine a range measurement for each of the plurality of lidar returns [ taught by lines 19-20 of claim 6 of USPN 10,761,210 ]; generate a histogram of the range measurements [ taught by line 21 of claim 6 of USPN 10,761,210 ] the histogram comprising an array including a plurality of range bins, each range bin defining a unique portion of a predetermined distance outward from the lidar [ the plurality of range bins in claim 8 of USPN 10,761,210 suggest an array ], the histogram further comprising a count associated with each respective range bin, the count corresponding to a number of range measurements falling within the unique portion of the predetermined distance corresponding to that respective range bin [ suggested by lines 7-8 of claim 8 of USPN 10,761,210 ]; determining which of the range measurements correspond to the target based on the histogram [ taught by lines 22-23 of claim 6 of USPN 10,761,210 ].
Claim 8 is taught by claim 7 of USPN 10,761,210.
Claim 9 is taught by claim 8 of USPN 10,761,210.
Claim 10 is taught by claim 9 of USPN 10,761,210.
Claim 11 is taught by claim 10 of USPN 10,761,210.
Claims 13 and 14 are taught by the subject matter of the claims of USPN 10,761,210; as applied to claims 1-6 of the present application.
Response to Arguments
The claims amendments and arguments filed 5/28/2026 are not convincing because the claims of USPN 9,829,578 (claim 6), USPN 12,025,700 (claim 6) and USPN 10,761,210 (claim 1) suggest returns are derived from reflections resulting the lidar being directed to different spots on the target.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
Claim Rejections - 35 USC § 102
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3 and 7-9 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Inaba et al (United States Patent application Publication No. 2004/0070748).
With respect to claim 1, Inaba et al disclose: A method for determining ranges to a target
disposed behind a transparent surface [ taught by the title and abstract ], the method comprising: receiving a plurality of lidar returns, at least some of which are from different spots on a target and at least some of which are from a transparent surface [ taught by paragraphs [0097] and [0099]; figure 6 show a spread of returns over time, thus indicating multiple range points (spots) on a target object ], the lidar returns corresponding to a portion of a lidar signal generated by a lidar, directed toward the different spots on the target [ figure 2 shows a light signal being generated by a source (32); figure 3 shows the target (0B) having a complex shape thus creating different reflective spots ], and reflected back to the lidar from either the different spots on the target or the transparent surface [ figure 2 shows light being reflected back to a detector (42); figure 3 defines a window reflection (B2) and a target reflection (B1) ]; determining a range measurement for each of the plurality of lidar returns [ taught by paragraph [0102] ]; generating a histogram of the range measurements, the histogram comprising an array including a plurality of range bins, each range bin defining a unique portion of a predetermined distance from the lidar [ taught by paragraph [0108] ], the histogram further comprising a count associated with each respective range bin, the count corresponding to a number of range measurements falling within the unique portion of the predetermined distance corresponding to that respective range bin [ taught by paragraph
[0109] ]; and determining which of the range measurements correspond to the target based on the histogram [ taught by distance zone (16) in figure 8; paragraph [0110]].
Claim 2 is taught by zone 5 in figure 8.
Claim 3 is met by the group of counts clustered around zone 16 in figure 8.
With respect to claim 7, Inaba et al disclose:
A system for determining ranges to a target disposed behind a transparent surface [ taught by the title and abstract] comprising: a lidar configured to direct a lidar signal toward different spots on a target and to receive a plurality of lidar returns [ figure 2 shows a light signal being generated by a source (32); figure 3 shows the target (0B) having a complex shape thus creating different reflective spots ], the plurality of lidar returns corresponding to a portion of the lidar signal reflected back to the lidar from either the different spots on the target or a transparent surface, wherein at least some of the plurality of lidar returns are from the different spots on the target and at least some of the plurality of lidar returns are from the transparent surface [ taught by paragraphs [0097] and [0099] and a processor [ taught by distance computer (10) ] configured to: determine a range measurement for each of the plurality of lidar returns [ taught by paragraph [0102] ]; generate a histogram of the range measurements, the histogram comprising an array including a plurality of range bins, each range bin defining a unique portion of a predetermined distance outward from the lidar [ taught by paragraph [0108] ], the histogram further comprising a count associated with each respective range bin, the count corresponding to a number of range measurements falling within the unique portion of the predetermined distance corresponding to that respective range bin [ taught by paragraph [0109] ]; determining which of the range measurements correspond to the target based on the histogram [ taught by distance zone (16) in figure 8; paragraph [0110]].
Claim 8 is taught by zone 5 in figure 8.
Claim 9 is met by the group of counts clustered around zone 16 in figure 8.
Response to Arguments
Independent claims 1 and 7 were amended to recite that the returns are derived from reflections resulting the lidar being directed to different spots on the target.
Figure 6 of Inaba et al teaches returns are derived from reflections resulting the lidar being directed to different spots on the target wherein figure 3 shows the target (OB) having a non-flat shape.
Therefore, it is the examiner’s position that Inaba et al teaches directing a lidar to different spots on a target wherein reflections from the different spots are detected and processed.
Allowable Subject Matter
Upon filing of terminal disclaimers to overcome their rejections under non-statutory double patenting, claims 4, 5, 8 and 9 would be objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Upon filing of terminal disclaimers to overcome their rejections under non-statutory double patenting, claims 13 and 14 would be allowed.
The cited prior art does not teach or suggest the steps of generating at least two clusters of adjacent range bins in the histogram for which the associated count exceeds a threshold; determining that a nearest of the at least two clusters corresponds to the transparent surface; and determining that a second nearest of the at least two clusters corresponds to the target – as these steps are set forth in the entire context of claim 13.
Claim 14 depends on claim 13.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication should be directed to MARK HELLNER at telephone number (571)272-6981.
Examiner interviews are available via a variety of formats. See MPEP § 713.01. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
/MARK HELLNER/Primary Examiner, Art Unit 3645
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