Detailed Action
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This action is responsive to the 4/23/2026 communication(s). As per the claims filed 9/23/2024:
Claims 1-20 are pending.
Claim(s) 1, 7, 15 is/are independent claim(s).
Note Regarding Prior Art
Examiner cites particular columns, paragraphs, figures and line numbers in the references as applied to the claims below for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested that, in preparing responses, the applicant fully consider the references in their entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
Note Regarding AIA Status
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 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.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2-20 of U.S. Patent No. 12096997 (hereinafter: the patent). Although the claims at issue are not identical, they are not patentably distinct from each other because the patent anticipates all claims of the instant application.
The patent discloses:
Claim 1:
A computer-implemented system, comprising: an electromechanical machine configured to be manipulated by a user while the user performs a treatment plan, wherein the electromechanical machine includes at least one pedal [claim 1, col 40, lines 9-13]; and
a computing device of the user configured to: receive treatment data pertaining to the user who uses the electromechanical machine to perform the treatment plan, wherein the treatment data comprises at least one of a characteristic of the user, measurement information associated with the user, at least one characteristic of the electromechanical machine, and at least one aspect of the treatment plan [claim 1, col 40, lines 14-22];
generate treatment information using the treatment data[claim 1, col 40, lines 23-24];
transmit the patient information to a computing device of the healthcare provider [claim 1, col 40, lines 25-26];
communicate with an interface at the computing device of the healthcare provider, wherein the interface is configured to receive treatment plan input based on the treatment information [claim 1, col 40, lines 27-30];
modify the at least one aspect of the treatment plan in response to receiving the treatment plan input including a modification to the at least one aspect of the treatment plan[claim 1, col 40, lines 31-34]; and
control, based on the modification to the at least one aspect of the treatment plan, the operation of the electromechanical machine [claim 2, col 40, lines 35-39].
2. The computer-implemented system of claim 1, wherein the computing device of the user is further configured to control, while the user uses the electromechanical machine, and based on the modified at least one aspect of the treatment plan, the electromechanical machine [claim 2].
3. The computer-implemented system of claim 1, wherein the computing device of the user is further configured to control, while the user uses the electromechanical machine during a telemedicine session, and based on the modified at least one aspect of the treatment plan, the electromechanical machine [claim 3].
4. The computer-implemented system of claim 1, wherein the measurement information includes at least one of a vital sign of the user, a respiration rate of the user, a heartrate of the user, a temperature of the user, and a blood pressure of the user [claim 4].
5. The computer-implemented system of claim 1, wherein at least some of the treatment data corresponds to at least some sensor data from a sensor associated with the electromechanical machine[claim 5].
6. The computer-implemented system of claim 1, wherein at least some of the treatment data corresponds to at least some sensor data from a sensor associated with a wearable device worn by the user while the user uses the electromechanical machine[claim 6].
Independent claims 7, 15 are rejected for the same reasons as claim 1 above and are anticipated by the patent claims 8 and 16.
Dependent claims 8-14, 16-20 are anticipated by the patent claims 8-14 and 16-20.
Allowable Subject Matter
Claims 1-20 are allowed over the prior art but remain rejected on the ground of nonstatutory double patenting as set forth above.
The following is a statement of reasons for the indication of allowable subject matter: The allowed claims include narrower subject matter of that which was previously found to be allowable on parent application 17532450 now patent 12096997.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Contact
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HOWARD CORTES whose telephone number is (571)270-1383. The examiner can normally be reached on M-F, 8:00 am - 5:00 pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Scott T Baderman can be reached on (571)272-3644. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/HOWARD CORTES/ Primary Examiner, Art Unit 2118
Prosecution Insights