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 filed 4/30/26 have been fully considered but they are not persuasive. Examiner has withdrawn the 101 and the art rejection, however a TD must be filed to overcome the DP rejection below.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.
Claim 16-35 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 12,077,170, Although the claims at issue are not identical, they are not patentably distinct from each other because of the following:
Claim 16 is rejected under the judicially-created doctrine of obviousness-type double patenting over claim 1 of U.S. Patent No. 12,077,170. Claim 1 of the ’170 patent recites a method of controlling a remotely operated vehicle, including (i) monitoring a latency of a communication link by a control unit of the vehicle, (ii) requesting an emergency stop of the vehicle when the latency exceeds a predetermined latency threshold, and (iii) cancelling the emergency stop request in response to recovery of the communication link within a brake reaction time period, thereby permitting the system to safely operate under lower latency tolerance values. The present claim 16 recites substantially the same core elements, namely monitoring latency of a communication link by a control unit, and requesting an emergency stop maneuver in response to said latency exceeding a latency threshold. The claim further recites cancelling the emergency stop request upon latency recovery, which is fully taught by the patented claim 1. Therefore, the base operational mechanism of latency-monitoring, threshold-triggered emergency breaking, and communication-recovery cancellation is fully anticipated by the patented claim 1.
The applicant attempts to differentiate claim 16 through the recitation of a dynamic predetermined latency threshold that varies by current driving scenario and by additionally reciting steps of updating the driving scenario and adjusting the threshold based on that scenario. However, the patented claim 1, when read in view of dependent issued claim 2, already discloses use of a dynamic latency threshold that varies depending on operating conditions. The modification of dynamically adjusting the threshold based on updated scenario inputs represents no more than an obvious refinement of the same feature already protected in claim 1 and claim 2 of the ’170 patent, because the purpose of threshold adaptivity—to ensure safe braking response under changing operational conditions—remains the same. One of ordinary skill in vehicle autonomy and remote-operation control would have found it obvious to adjust latency thresholds based on updated driving conditions, such as weather, traffic, or cargo weight, particularly where the patented claims already teach dynamic threshold variability as a safety-modulation mechanism. The difference in implementation constitutes an expected optimization rather than a patentably distinct inventive concept.
Accordingly, claim 16 is not materially different in scope from the patented claim 1 and instead constitutes an obvious variation of the previously claimed method of network-latency triggered emergency stop-control in a remote vehicle. The claim is therefore rejected as not patentably distinct under the doctrine of obviousness-type double patenting.
Conclusion
THIS ACTION IS MADE FINAL. 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 or earlier communications from the examiner should be directed to MASUD AHMED whose telephone number is (571)270-1315. The examiner can normally be reached M-F 9:00-8:30 PM PST with IFP.
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, Abby Lin can be reached at 571 270 3976. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MASUD AHMED/Primary Examiner, Art Unit 3657
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