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 .
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 2-4, 6, 9, and 10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 5, and 7 of U.S. Patent No. 10335065 herein after referred to as Patent ‘065. Although the claims at issue are not identical, they are not patentably distinct from each other because the Claimed limitations in the Patent as broadly interpreted disclose the limitations of the pending claims in the instant application.
Regarding Claim 2 of the instant application, Patent ‘065 Claim 1 discloses all the limitations including an analyte sensor system configured for wireless data communication with a mobile device, the analyte sensor system comprising: an analyte sensor; a transceiver configured to transmit and receive wireless signals; and a processor operatively coupled to the analyte sensor and the transceiver and configured to: cause the transceiver to transmit a series of advertisement signals; receive a data connection request from a mobile device; cause the transceiver to establish a data connection with a radio unit of the mobile device; cause the transceiver to transmit a connection interval for use by the mobile device for calculating an exit time at which the mobile device is to exit an inactive mode and start to search for an advertisement signal, wherein the connection interval is indicative of an amount of time elapsed between a beginning of transmission, by the transceiver of the analyte sensor system, of the series of advertisement signals and a reception, by the transceiver of the analyte sensor system, of the data connection request; cause the transceiver to transmit an analyte value; cause the transceiver to terminate the data connection; and cause the transceiver to enter a sleep mode.
Regarding Claim 3 of the instant application, Patent ‘065 Claim 2 discloses all of the limitations including the processor is further configured to: cause the transceiver to exit the sleep mode after a predetermined time period; and cause the transceiver to transmit a second series of advertisement signals.
Regarding Claim 4 of the instant application, Patent ‘065 Claim 1 discloses the connection interval is a function of a difference between a first time at which the transceiver began to transmit a series of advertisement signals and a second time at which the transceiver received the data connection request from the mobile device.
Regarding Claim 6 of the instant application, Patent ‘065 Claim 5 discloses all of the limitations including a mobile device configured for wireless data communication with an analyte sensor system, the mobile device comprising: a memory for storing a custom application; a radio unit for transmitting and receiving wireless signals; and a processor operatively coupled to the memory and the radio unit and configured to: cause the radio unit to search for advertisement signals; receive an advertisement signal from a transceiver associated with the analyte sensor system; cause the radio unit to transmit a data connection request to the transceiver; receive a grant of the data connection request from the transceiver; cause the radio unit to establish a data connection with the transceiver; receive a connection interval indicative of an amount of time elapsed between a beginning of transmission of a series of advertisement signals by the transceiver and a reception of a data connection request by the transceiver; cause the radio unit to terminate the data connection with the transceiver; cause the radio unit to enter an inactive mode during which the radio unit does not communicate with the transceiver; calculate an exit time at which the radio unit is to exit the inactive mode and start to search for the advertisement signals, wherein calculation of the exit time is a function of a current time and based at least partly on the connection interval; cause the radio unit to exit from the inactive mode at the exit time; and cause the radio unit to search for advertisement signals after exiting the inactive mode.
Regarding Claim 9 of the instant application, Patent ‘065 Claim 5 discloses all of the limitations including the custom application is an analyte data management application (the broadest reasonable interpretation of a analyte data management application is any custom application that performs the limitations of claim 6 of the instant application thus the limitation is taught by Claim 5 of the Patent which discloses steps thus software to perform the functions as claimed.
Regarding Claim 10 of the instant application, Patent ‘065 Claim 7 discloses all of the limitations including the exit time is given by: current time + update interval - the connection interval time - notification delay - safeguard, wherein the update interval is a time duration between two consecutive wireless communication sessions between the transceiver and the mobile device.
Claims 5 and 7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 5 of U.S. Patent No. 10335065 respectively in view of Hayter et al. (US 7928850).
Regarding Claim 5 of the instant application, Patent ‘065 Claim 1 discloses an analyte sensor however the Patented claims fail to disclose the sensor is a continuous glucose sensor.
In an analogous art, Hayter et al. discloses a continuous glucose sensor (continuous glucose monitor is a type of sensor that wakes and sleeps, Col 8, Lines 62- Col 9, Lines 3, Col. 17, Lines 54-67).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have used a continuous glucose sensor as the analyte sensor because it allows a person’s body to be monitored for known substance (Col. 3, Lines 4-23, Col. 4, Lines 11-26, Hayter et al.).
Regarding Claim 7 of the instant application, Patent ‘065 Claim 5 discloses an analyte sensor however the Patented claims fail to disclose the sensor is a continuous glucose sensor system.
In an analogous art, Hayter et al. discloses a continuous glucose sensor system (continuous glucose monitor is a type of sensor that wakes and sleeps, Col 8, Lines 62- Col 9, Lines 3, Col. 17, Lines 54-67).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have used a continuous glucose sensor as the analyte sensor because it allows a person’s body to be monitored for known substance (Col. 3, Lines 4-23, Col. 4, Lines 11-26, Hayter et al.).
Claims 8 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of U.S. Patent No. 10335065 respectively in view of Hayter et al. (US 7928850).
Regarding Claim 8 of the instant application, Patent ‘065 Claim 5 discloses an mobile device however the claims of Patent ‘065 fails to explicitly disclose the mobile device is a mobile phone.
In an analogous art, Hayter et al. discloses a analyte monitoring system using a mobile phone (Col. 3, Lines 37-60).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have used a mobile phone as a mobile device as mobile phone usage is prevalent amongst the general population thus allows for convenience and portability.
Allowable Subject Matter
Claims 11-19 are allowed.
Response to Arguments
Applicant’s arguments, see amendment and arguments, filed 6/25/2026, with respect to the rejection(s) of claim(s) 2-19 have been fully considered and are persuasive with the newly added amendments. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of U.S. Patent No. 10335065 respectively in view of Hayter et al. (US 7928850).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Steven Lim whose telephone number is (571)270-1210. The examiner can normally be reached Mondays 9am-5pm, Tuesday-Friday 8:30am-5pm.
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/STEVEN LIM/Supervisory Patent Examiner, Art Unit 2688
