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.
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 1-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-30 of U.S. Patent No. 12,096,376. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding instant independent claim 1, it is broader in scope and thus encompasses the subject to conflicting claim 1.
Regarding claim 2, see conflicting claim 2.
Regarding claim 3, see conflicting claim 3.
Regarding claim 4, see conflicting claim 4.
Regarding claim 5, see conflicting claim 5.
Regarding claim 6, see conflicting claim 6.
Regarding claim 7, see conflicting claim 7.
Regarding claim 8, see conflicting claim 8.
Regarding claim 9, see conflicting claim 9.
Regarding claim 10, see conflicting claim 10.
Regarding claim 11, see conflicting claim 11.
Regarding claim 12, see conflicting claim 12.
Regarding claim 13, see conflicting claim 13.
Regarding claim 14, see conflicting claim 14.
Regarding claim 15, see conflicting claim 15.
Regarding claim 16, see conflicting claim 16.
Regarding claim 17, see conflicting claim 17.
Regarding claim 18, see conflicting claim 18.
Regarding claim 19, see conflicting claim 19.
Regarding instant independent claim 20, it is broader in scope and thus encompasses the subject to conflicting claim 20.
Regarding claim 21, see conflicting claim 21.
Regarding claim 22, see conflicting claim 22.
Regarding claim 23, see conflicting claim 23.
Regarding claim 24, see conflicting claim 24.
Regarding claim 25, see conflicting claim 25.
Regarding claim 26, see conflicting claim 26.
Regarding claim 27, see conflicting claim 27.
Regarding claim 28, see conflicting claim 28.
Regarding instant independent claim 29, it is broader in scope and thus encompasses the subject to conflicting claim 29.
Regarding instant independent claim 30, it is broader in scope and thus encompasses the subject to conflicting claim 30.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Cai (US 2020/0374818 A1); Han (US 2020/0021421 A1); Logan (US 2017/0064641); Forrester (US 2012/0021707 A1) disclose controlling transmit power based at least in part on a radio frequency exposure limit.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NGUYEN THANH VO whose telephone number is (571)272-7901. The examiner can normally be reached Mon-Fri 8-5.
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, Jeanette J Parker can be reached at (571) 270-3647. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NGUYEN T VO/Primary Examiner, Art Unit 2646
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