DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Information Disclosure Statement
2. The information disclosure statement (IDS) submitted on 08/05/24 has been considered by the examiner.
Specification
3. The disclosure is objected to because of the following informalities: on line 6 of paragraph [0066], as was pointed out in parent case 17/541,010, a comma should be inserted after "LTE", and on the first line of paragraph [0085], "of the embodiments" should be changed to --described--, as was also pointed out in parent case 17/541,010.
Appropriate correction is required.
Double Patenting
4. Claims 1-20 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,058,221. Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations of claims 1-20 of the present application are fully anticipated by the claims of applicant's prior patent, as indicated below.
As to claim 1, the preamble recited on the first line of independent claim 1 of the present application is anticipated by what is recited in the preamble of independent claim 1 of the '221 patent; the processor and memory limitations recited on lines 2-5 of independent claim 1 of the present application are anticipated by what is recited on lines 2-5 of the '221 patent; the receiving operation recited on lines 6-8 of independent claim 1 of the present application is anticipated by what is recited on lines 6-9 of independent claim 1 of the '221 patent; the determining operation recited on lines 9-11 of independent claim 1 of the present application is anticipated by what is recited on lines 10-13 of independent claim 1 of the '221 patent; the collecting operation recited on line 12 of independent claim 1 of the present application is anticipated by what is recited on lines 14-15 of independent claim 1 of the '221 patent; the generating operation recited on lines 13-14 of independent claim 1 of the present application is anticipated by what is recited on lines 16-17 of independent claim 1 of the '221 patent; the determining operation recited on line 15 of independent claim 1 of the present application is anticipated by what is recited on line 18 of independent claim 1 of the '221 patent; and the presenting operation recited on lines 16-19 of independent claim 1 of the present application is anticipated by what is recited on lines 21-26 of independent claim 1 of the '221 patent.
As to claim 2, the limitation of this claim is anticipated by what is recited in claim 2 of the '221 patent.
As to claims 3 and 4, the limitations of these claims are anticipated by what is recited in claims 3 and 4, respectively, of the '221 patent.
As to claims 5 and 6, the limitations of these claims are anticipated by what is recited in claims 5 and 10, respectively, of the '221 patent.
As to claims 7 and 8, the limitations of these claims are anticipated by what is recited in claims 6 and 7, respectively, of the '221 patent.
As to claims 9 and 10, the limitations of these claims are anticipated by what is recited in claims 8 and 9, respectively, of the '221 patent.
As to claims 11-20, all of the limitations of these claims are similarly anticipated by what is recited in claims 11-20 of the '221 patent.
The non-statutory 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 non-statutory 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 non-statutory 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 non-statutory 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.
Allowable Subject Matter
5. Claims 1-20 would be allowable upon the filing of the above-noted terminal disclaimer.
The following is a statement of reasons for the indication of allowable subject matter: none of the prior art of record discloses or suggests a system comprising a processor and memory for executing instructions which perform the operations recited on lines 6-19 of independent claim 1, nor does any of the prior art of record disclose or suggest a method comprising the receiving, determining, obtaining, obtaining, generating, determining and outputting steps recited on lines 2-18 of independent claim 11, nor does any of the prior art of record disclose or suggest a non-transitory machine-readable medium for executing instructions which perform the operations recited on lines 4-16 of independent claim 17.
Conclusion
6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to KENNETH B WELLS whose telephone number is (571)272-1757. The examiner can normally be reached Monday-Friday, 8:30am-5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, LINCOLN DONOVAN can be reached at (571)272-1988. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KENNETH B WELLS/Primary Examiner, Art Unit 2842 December 19, 2025