DETAILED ACTION
This Notice of Allowance is in response to the Application filed November 20, 2024.
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, 5, 6, 16, 21, 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 12, 16, 17, and 18 respectively, of U.S. Patent No. 9,718,487. Although the claims at issue are not identical, they are not patentably distinct from each other because both the claims 1 they both teach physical elements of the train and their respective control systems, virtual control systems in a cloud computing facility that interact with the physical systems, and a two-way communication network between the two. Any differences are obvious variations. Claim 5 is obviously taught by claim 2 of US Patent No. 9,718,487 since they both refer to movement authority limit. Claim 6 is obviously taught by claim 12 since it has all the physical, virtual, cloud computing, and two way communication features along with the wayside features. Claim 16 is obviously taught by claim 16 of US Patent No. 9,718,487 since they refer to (1) two main parts (2) physical components (3) cloud computing environments (4) two way communication (5) determining operational data within the first part (6) transmitting from the first part to the second part (7) continuing to transmit movement information between the two parts. Claims 17 and 18 teach claims 21 and 23 for similar reasons since they disclose the allowable portion and the other portions of the claims are known variations. Accordingly, a terminal disclaimer needs to be filed reducing the term of the patent from US Patent No. 9,718,487.
REASONS FOR ALLOWANCE
4. Claims 1-26 are allowable over the references of record for at least the following reasons:
Claim 1: a second part located in a cloud computing facility that includes computing resources that virtualize control functions for the train control system.
Claims 6 and 21: a second part located in a cloud computing facility, which includes computing resources that virtualize train control functions.
Claim 16: wherein the second part is implemented in a cloud computing facility that includes computing resources that are programmed to provide virtualization of train control functions . . . generating control data in the second part that are needed for the operation of the physical train control elements of the first part.
Claim 23: wherein the second part is implemented in a cloud computing environment that includes processor resources programmed to virtualize train control application platform . . . transmitting said control data for the physical train control elements from the second part to the first part.
The closest prior art is the Hilleary reference (US Patent Publication No. 2014/0166820). The Hilleary reference fails to disclose all of the features of the independent claims. Furthermore, no located reference teaches or suggests the features of the independent claims individually or in combination with the Hilleary reference or any other located reference. Accordingly, there is allowable subject matter.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES J BRAUCH whose telephone number is (313)446-6511. The examiner can normally be reached Monday-Friday 9:00 AM to 6 PM.
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/CHARLES JOSEPH BRAUCH/
Examiner
Art Unit 3747
/LONG T TRAN/Primary Examiner, Art Unit 3747