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 .
Claim Objections
Claim 44 is objected to because of the following informalities: Online 2 of claim 44, after “forming”, insert --at--. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 42-47 and 49 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US Patent Application Publication 2013/0085443 to Lowery et al. (Lowery).
Claim 42
With regard to a fluid chamber; Lowery teaches a drip chamber (Fig. 1, drip chamber 12; pars. 41, 44).
With regard to an image sensor positioned to capture an image of at least a portion of the fluid chamber; Lowery teaches a camera to capture an image of a drop within the drip chamber (pars. 41, 42).
With regard to a processor operatively coupled to the image sensor to receive data corresponding to the image captured by the image sensor, the image being a plurality of pixels, the processor being configured to determine a characteristic of the plurality of pixels; Lowery teaches estimating the volume of a drop by counting the pixels that constitute the drop (pars. 42-44).
Claim 43
Lowery teaches that the fluid chamber is a drip chamber (Fig. 1, drip chamber 12).
Claim 44
Lowery teaches that the processor is configured to determine a baseline of a fluid drop forming an opening of the drip chamber (par. 44).
Claim 45
Lowery teaches that the processor is further configured to determine an area of interest, the area of interest being a subset of the plurality of pixels (pars. 44, 45, considers drop and splash effects corresponding to an area or region of interest, which is a subset of the pixels in the image).
Claim 46
Lowery teaches that the processor is configured to determine a baseline, and the area of interest is determined at least in part based on comparison with the baseline (pars. 44, 45).
Claim 47
Lowery teaches that the baseline is a predetermined group of pixels (par. 44).
Claim 49
Lowery teaches that the baseline is generated based on at least one fiducial markers disposed within the fluid chamber (par. 48; Figs. 3A, 3B, common elements in each image).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 59 and 60 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lowery in view of US Patent No. 5,612,890 to Strasser et al. (Strasser).
Claim 59
Lowery teaches all the limitations of claim 42 upon which claim 59 depends. Lower does not teach that the flow meter is configured to be remotely controlled by a monitoring client. Strasser teaches a remote controller that sends a job to a flow meter (col. 17, lines 36-46). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the flow rate controller, as taught by Lowery, to include a remote controller, as taught by Strasser, because then the flow meter could have been controlled from other locations.
Claim 60
Lower teaches that the monitoring client is configured to update a treatment programmed on the flow meter based on an electronic medical records database (pars. 75, 77).
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 42-47 and 59 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21, 23, 37 and 40 of U.S. Patent No. 10,876,868. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘868 patent claims teach all the limitations of claims 42-47 and 59 of the present application. The claims of the present application correspond to the claims of the ‘868 application as follows:
Present Application claim
US Patent No.10,876,868 claim
42
21
43
21
44
37
45
21
46
21
47
23
59
40
.
Claims 50-53, 55-58 and 60 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 28,33-35, 37-39 and 59 of U.S. Patent No. 10,876,868 in view of Lowery. The claims of the present application correspond to the claims of the ‘868 patent as follows:
Present Application claim
US Patent No. 10,876,868 claim
50
33
51
34
52
35
53
33
55
28
56
37
57
38
58
39
60
59
The claims of the ‘868 patent teach substantially all the limitations of the claims in the present application.
With regard to claims 50-53 and 55-58, the corresponding claims do not teach the limitations of claim 44 upon which claims 50-53 and 55-58 depend. Lowery teaches that the processor is configured to determine a baseline of a fluid drop forming an opening of the drip chamber (par. 44, preprogrammed ratio of pixels-to-volume). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the claims of the present application, to include a preprogrammed ratio, as taught by Lowery, because then a consistent standard for determining the ratio of the drop would have resulted in a more accurate determination of flow rate.
With regard to claim 60, claim 40 of the ‘868 patent teaches all the limitations of claim 60 depends. Claim 40 of the ‘868 patent does not teach that the monitoring client is configured to update a treatment program on the flow meter based on an electric medical records database. Lowery teaches that the monitoring client is configured to update a treatment programmed on the flow meter based on an electronic medical records database (pars. 75, 77). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the claims of the present application, to include updating a treatment, as taught by Lowery, because then the patient would have received more effective treatment.
Claims 42-47 and 59 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21, 24, 37 and 41 of U.S. Patent No. 10,088,346. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘346 patent claims teach all the limitations of claims 42-47 and 59 of the present application. The claims of the present application correspond to the claims of the ‘346 application as follows:
Present Application claim
US Patent No. 10,088,346 claim
42
21
43
21
44
37
45
21
46
21
47
24
59
41
Claims 50-58 and 60 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 27, 29, 34-36 and 38-41 of U.S. Patent No. 10,088,346 in view of Lowery. The claims of the present application correspond to the claims of the ‘346 patent as follows:
Present Application claim
US Patent No. 10,088,346 claim
50
34
51
35
52
36
53
34
54
27
55
29
56
38
57
39
58
40
60
41
The claims of the ‘346 patent teach substantially all the limitations of the claims in the present application.
With regard to claims 50-58, the corresponding claims do not teach the limitations of claim 44 upon which claims 50-58 depend. Lowery teaches that the processor is configured to determine a baseline of a fluid drop forming an opening of the drip chamber (par. 44, preprogrammed ratio of pixels-to-volume). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the claims of the present application, to include a preprogrammed ratio, as taught by Lowery, because then a consistent standard for determining the ratio of the drop would have resulted in a more accurate determination of flow rate.
With regard to claim 60, claim 41 of the ‘346 patent teaches all the limitations of claim 60 depends. Claim 41 of the ‘346 patent does not teach that the monitoring client is configured to update a treatment program on the flow meter based on an electric medical records database. Lowery teaches that the monitoring client is configured to update a treatment programmed on the flow meter based on an electronic medical records database (pars. 75, 77). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the claims of the present application, to include updating a treatment, as taught by Lowery, because then the patient would have received more effective treatment.
Claims 42-47 and 59 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 19, 21, 32 and 36 of U.S. Patent No. 12,100,507. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘507 patent claims teach all the limitations of claims 42-47 and 59 of the present application. The claims of the present application correspond to the claims of the ‘507 application as follows:
Present Application claim
US Patent No. 12,100,507 claim
42
19
43
19
44
32
45
19
46
19
47
21
59
36
Claims 50-58 and 60 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 26-31 and 33-36 of U.S. Patent No. 12,100,507 in view of Lowery. The claims of the present application correspond to the claims of the ‘507 patent as follows:
Present Application claim
US Patent No. 12,100,507 claim
50
26
51
27
52
28
53
29
54
30
55
31
56
33
57
34
58
35
60
36
The claims of the ‘507 patent teach substantially all the limitations of the claims in the present application.
With regard to claims 50-58, the corresponding claims do not teach the limitations of claim 44 upon which claims 50-58 depend. Lowery teaches that the processor is configured to determine a baseline of a fluid drop forming an opening of the drip chamber (par. 44, preprogrammed ratio of pixels-to-volume). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the claims of the present application, to include a preprogrammed ratio, as taught by Lowery, because then a consistent standard for determining the ratio of the drop would have resulted in a more accurate determination of flow rate.
With regard to claim 60, claim 36 of the ‘507 patent teaches all the limitations of claim 60 depends. Claim 36 of the ‘507 patent does not teach that the monitoring client is configured to update a treatment program on the flow meter based on an electric medical records database. Lowery teaches that the monitoring client is configured to update a treatment programmed on the flow meter based on an electronic medical records database (pars. 75, 77). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the claims of the present application, to include updating a treatment, as taught by Lowery, because then the patient would have received more effective treatment.
Claims 42-46 and 59 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 35, 40, 54 and 66 of U.S. Patent No. 9,976,665. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘665 patent claims teach all the limitations of claims 42-46 and 59 of the present application. The claims of the present application correspond to the claims of the ‘665 application as follows:
Present Application claim
US Patent No. 9,976,665 claim
42
35
43
35
44
54
45
40
46
49
59
66
Claims 50-58 and 60 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 42, 43, 45, 50-52, 54-56 and 66 of U.S. Patent No. 9,976,665 in view of Lowery. The claims of the present application correspond to the claims of the ‘665 patent as follows:
Present Application claim
US Patent No. 9,976,665 claim
50
50
51
51
52
52
53
42
54
43
55
45
56
54
57
55
58
56
60
66
The claims of the ‘665 patent teach substantially all the limitations of the claims in the present application.
With regard to claims 50-58, the corresponding claims do not teach the limitations of claim 44 upon which claims 50-58 depend. Lowery teaches that the processor is configured to determine a baseline of a fluid drop forming an opening of the drip chamber (par. 44, preprogrammed ratio of pixels-to-volume). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the claims of the present application, to include a preprogrammed ratio, as taught by Lowery, because then a consistent standard for determining the ratio of the drop would have resulted in a more accurate determination of flow rate.
With regard to claim 60, claim 66 of the ‘665 patent teaches all the limitations of claim 60 depends. Claim 66 of the ‘665 patent does not teach that the monitoring client is configured to update a treatment program on the flow meter based on an electric medical records database. Lowery teaches that the monitoring client is configured to update a treatment programmed on the flow meter based on an electronic medical records database (pars. 75, 77). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the claims of the present application, to include updating a treatment, as taught by Lowery, because then the patient would have received more effective treatment.
Allowable Subject Matter
Claims 48 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MANUEL L BARBEE whose telephone number is (571)272-2212. The examiner can normally be reached M-F: 9-5:30..
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/MANUEL L BARBEE/Primary Examiner, Art Unit 2857
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