DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 9/11/24 has/have been acknowledged and is/are being considered by the Examiner.
Specification
The disclosure is objected to because of the following informalities: the first paragraph of the specification should be updated to indicate the present status of the priority application.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 21-32 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Rothman et al. (U.S. Pub. 6,752,771 hereinafter "Rothman") in view of Tan et al. (U.S. Pub. 2013/0184600 A1 hereinafter "Tan").
Regarding claim 21, Rothman discloses an external defibrillator, comprising: a measurement circuit (e.g. 330) configured to detect an electrical signal indicative of an electrocardiogram (ECG) of an individual (e.g. Col. 11, ll. 32-40); a display (e.g. 341); and a processor (e.g. 322) configured to: select a filter mechanism (e.g. Col. 15, ll. 26-39; filter); generate filtered data applying the filter mechanism to unfiltered data representative of the ECG (e.g. Col. 15, ll. 26-39; filtered data); determine that the individual is receiving chest compressions during a first time interval (e.g. Col. 15, ll. 26-39); cause the display to output a segment of the filtered data during the first time interval (e.g. 341; Col. 16, ll. 30-34). Rothman discloses the claimed invention except for the exact filtering method for removing the chest compression data from the ECG. However, Tan teaches that it is known to use a series of notch filters at the harmonics as set forth in Paragraphs 39 and 48 to provide a means from removing chest compression data from an ECG so that the rescuer does not have to stop giving CPR during analysis. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the system as taught by Rothman, with the filter mechanism as taught by Tan, since such a modification would provide the predictable results of using filters for providing a means from removing chest compression data from an ECG so that the rescuer does not have to stop giving CPR during analysis.
Regarding claim 22, meeting the limitations of claim 21 above, Rothman further discloses a receiver configured to receive, from a mechanical chest compression device administering the chest compressions, a communication signal indicating: an estimated frequency that is within a range of ± 0.01 compressions/minute of an actual frequency of the chest compressions administered by the mechanical chest compression device; and the first time interval or the second time interval (e.g. Col. 15, ll. 26-39), the estimated frequency indicated by the communication signal; and harmonics of the estimated frequency indicated by the communication signal (e.g. Col. 15, ll. 26-39). Rothman discloses the claimed invention but fails to disclose the use of a comb filter. However, Tan discloses that the system uses a plurality of notch filters but fails to explicitly state that it can use a comb filter. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the plurality of notch filters at the repeating harmonics as taught by Tan, with a single comb filter since it was known in the art that a single comb filter can be used to accomplish the same result as a plurality of notch filters at repeating intervals (harmonics).
Regarding claim 23, meeting the limitations of claim 21 above, Tan further discloses a discharge circuit configured to output an electrical shock to the individual, wherein the processor is further configured to: determine that the segment of the filtered data during the first time interval or the segment of the unfiltered data during the second time interval is indicative of ventricular fibrillation (VF) (e.g. ¶¶3, 21; ventricular fibrillation and shock); in response to determining that the segment of the filtered data during the first time interval or the segment of the unfiltered data during the second time interval is indicative of VF, cause the display to output a recommendation to administer the electrical shock to the individual (e.g. ¶¶3, 21; ventricular fibrillation and shock).
Regarding claim 24, Rothman discloses a medical device, comprising: an output device (e.g. 341); and a processor (e.g. 322) configured to: receive unfiltered data representative of a physiological parameter of an individual (e.g. Col. 11, ll. 32-40); generate filtered data by applying a filter mechanism to the unfiltered data representative of the physiological parameter (e.g. Col. 15, ll. 26-39; filtered data); the filter mechanism being configured to remove a therapy artifact (e.g. Col. 15, ll. 26-39). Rothman discloses the claimed invention except for the exact filtering method for removing the chest compression data from the ECG. However, Tan teaches that it is known to use a series of notch filters at the harmonics as set forth in Paragraphs 39 and 48 to provide a means from removing chest compression data from an ECG so that the rescuer does not have to stop giving CPR during analysis. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the system as taught by Rothman, with the filter mechanism as taught by Tan, since such a modification would provide the predictable results of using filters for providing a means from removing chest compression data from an ECG so that the rescuer does not have to stop giving CPR during analysis.
Regarding claim 25, meeting the limitations of claim 24 above, Rothman further discloses wherein the output device comprises a display or a transmitter (e.g. 341).
Regarding claim 26, meeting the limitations of claim 24 above, Rothman further discloses wherein the physiological parameter comprises an ECG, a blood pressure, a blood oxygenation, a capnograph, or an impedance (e.g. Col. 11, ll. 32-40).
Regarding claim 27, meeting the limitations of claim 24 above, Tan further discloses wherein the filter mechanism comprises a comb filter, a Weiner filter, notch filters, an adaptive filter, or a non-adaptive filter (e.g. Paragraphs 39 and 48; Notch Filters).
Regarding claim 28, meeting the limitations of claim 24 above, Rothman further discloses wherein the therapy comprises chest compressions that are administered manually or by a mechanical chest compression device (e.g. 208).
Regarding claim 29, meeting the limitations of claim 24 above, Tan further discloses a receiver configured to receive a communication signal indicating whether the individual is receiving the therapy during the time interval (e.g. Paragraphs 39 and 48).
Regarding claim 30, meeting the limitations of claim 24 above, Tan further discloses wherein the processor is configured to determine that the therapy has been paused during the time interval, and wherein the processor is configured to cause the output device to output the unfiltered data (e.g. Paragraphs 39 and 48; active CPR).
Regarding claim 31, meeting the limitations of claim 24 above, Tan further discloses wherein the processor is further configured to: determine, by analyzing the unfiltered data, that the unfiltered data is indicative of a condition; and in response to determining that the unfiltered data is indicative of the condition, cause the output device to output a recommendation to administer a treatment to the individual (e.g. Paragraphs 39 and 48).
Regarding claim 32, meeting the limitations of claim 24 above, Rothman further discloses wherein the processor is further configured to remove, from the filtered data, a filter artifact by: identifying, in the filtered data, outlier data points that exceed two times a median of an absolute value of the filtered data over a time window; and removing the outlier data points from the filtered data (e.g. Col. 15, ll. 26-39).
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 and 24-32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-6 and 12 of U.S. Patent No. 9,545,211. Although the claims at issue are not identical, they are not patentably distinct from each other because the invention as currently claimed by the '211 patent are obvious variants of the currently claimed invention. Specifically filtering out chest compression data and displaying filtered data. Please see the chart below regarding the corresponding claims.
Claims 21 and 24-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5, 7 and 11 of U.S. Patent No. 9,801,561. Although the claims at issue are not identical, they are not patentably distinct from each other because the invention as currently claimed by the '561 patent are obvious variants of the currently claimed invention. Specifically filtering out chest compression data and displaying filtered and unfiltered data. Please see the chart below regarding the corresponding claims.
Claim 21 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 5 and 8 of U.S. Patent No. 9,538,931. Although the claims at issue are not identical, they are not patentably distinct from each other because the invention as currently claimed by the '931 patent are obvious variants of the currently claimed invention. Specifically filtering out chest compression data and displaying filtered and unfiltered data. Please see the chart below regarding the corresponding claims.
Current
9,545,211
9,801,561
9,538,931
21
1, 12
1,7
5, 8
24
1
1, 7
25
1
7
26
1
1
27
5
5
28
1
1
29
6
11
30
3
7
31
1-3
32
1
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. U.S. Pub. 2012/0010543; U.S. Pub. 2013/0296727; U.S. Pub. 2014/0088374; U.S. Pub. 2003/0060723; U.S. Pub. 2003/0109790; U.S. Pub. 2010/0222718; U.S. Pub. 2009/0112110; U.S. Pat. 6,865,413; U.S. Pat. 4,422,459; U.S. Pat. 9,084,545; U.S. Pat. 5,840,038; U.S. Pat. 9,538,931; U.S. Pat. 8,903,498.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REX R HOLMES whose telephone number is (571)272-8827. The examiner can normally be reached Monday-Thursday 7:00AM-5:30PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer McDonald can be reached at (571) 270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/REX R HOLMES/ Primary Examiner, Art Unit 3796
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