DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The action is in response to the application filed on 07/25/2024. Claims 21-36 are pending and examined below.
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.
Claims 21-35 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. US 12076141 B2 Although the claims at issue are not identical, they are not patentably distinct from each other because US 12076141 B2 teaches all the limitations of the claims of the Instant Application.
Conclusion
Claims 21 and 31 are rejected under a Double Patenting rejection but contain subject matter not found in the prior art search.
Regarding claims 21 and 31, US 20190183363 A1 (hereinafter referred to as “Lisogurski”) teaches A physiological monitoring system (abstract), comprising:
a sensor (150; paragraph [0025]-[0029]; as shown in Figure 1) comprising:
a light-emitting diode (LED) to provide a light emission (160; paragraph [0027]; Figures 1), wherein the light emission comprises a full spectrum distribution; and
a sensor memory that stores configuration data (165; paragraph [0032]; Figure 1), wherein the configuration data comprises a calibration coefficient based on characterization of the full spectrum distribution of the light emission and a mapping of the calibration coefficient to the characterized full spectrum distribution; and
a monitor (101; Figure 1) comprising:
a communication component to communicatively couple to the sensor to receive the configuration data from the sensor (paragraph [0034]-[0035]; Figure 1);
monitor processing circuitry (115; paragraph [0034]-[0035]; Figure 1); and
a monitor memory comprising instructions (“Processor 115 may be configured to execute a variety of algorithm stages stored by monitor memory 120 to process the detection signal. Processor 115 may also be configured to execute any software (e.g., algorithm stages comprising executable code segments) stored in monitor memory 120, which may also include an operating system and one or more applications, as part of performing the functions described herein”; paragraph [0035) that, when executed by the monitor processing circuitry, cause the monitor processing circuitry to:
adjust a sensing signal algorithm with modifications based on the configuration data (paragraph [0045]-[0048]; Figure 4); and
delete the configuration data or deactivate the modifications to the sensing signal algorithm in response to communicatively decoupling from the sensor (paragraphs [0048], [0065]-[0066]; Figures 3-4).
US 20080081966 A1 (hereinafter referred to as “Debreczeny”) teaches a pulse oximetry sensor having LEDs and expressly recognizes that individual LEDs exhibit differing spectral content, that sensor to sensor spectral variation affects pulse oximeter accuracy, and that the calibration model may therefore be modified according to the actual spectral content of the LED (paragraphs [0011], [0034]; Figures 1, 3-4).
US 8145287 B2 (hereinafter referred to as “Diab”) teaches measuring for a wavelength shift and having a calibration coefficient (column 2, line 6 to column 5, line 7).
However, the prior art fails to teach or suggest “wherein the light emission comprises a full spectrum distribution and wherein the configuration data comprises a calibration coefficient based on characterization of the full spectrum distribution of the light emission and a mapping of the calibration coefficient to the characterized full spectrum distribution” in combination with the other limitations of the claims.
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/ABID A MUSTANSIR/ Examiner, Art Unit 3791
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