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
Claims 4, 5, 12, 14, and 18 are objected to because of the following informalities:
“the alert device” in line 4 of claim 4 should read as “an alert device”
“hypertension or heart disease” in line 2 of claim 5 should read as “hypertension and heart disease”
“alert, or a vibrational alert” in line 2 of claim 12 should read as “alert, and a vibrational alert”
“stroke or a family history of stroke” in line 3-4 of claim 14 should read as “stroke and a family history of stroke”
“mild stroke or brain ischemia” in line 6 of claim 14 should read as “mild stroke and brain ischemia”
“thrombosis. mild stroke or brain ischemia” in lines 9-10 of claim 14 should read as “thrombosis, mild stroke and brain ischemia”
“alert, or a vibrational alert” in line 2 of claim 18 should read as “alert, and a vibrational alert”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 8 and 15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “conventional” in claim 8 is a relative term which renders the claim indefinite. The term “conventional” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what a “conventional wall outlet” is. It is unclear if this is referring to US-type outlet, EU-type outlet, AUS-type outlet, UK-type outlet, or all of the above listed outlets. It is noted that disclosure fails to provide details for a “conventional outlet.” Clarification is requested.
Claim 15 recites “wherein the temperature sensor (singular) comprises a first temperature sensor…and a second temperature sensor…” (plural) in lines 1-2. It is unclear if “the temperature sensor” should read as “the at least one temperature sensor,” “the temperature sensors,” or another limitation that reflects a plurality of temperature sensors. Clarification is requested. It is noted that “the temperature sensor” is recited throughout the claims. The Examiner also suggests to amend all the claims to properly reflect that there are more than one temperature sensors.
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, 9, 10, 13-15, 19, and 20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 and 9-11 of U.S. Patent No. 12,127,815 in view of the U.S. Patent.
Regarding claim 1, the U.S. Patent teaches an apparatus comprising:
a first temperature sensor positioned to measure a first temperature of a left Abreu Brain Thermal Tunnel (ABTT) terminus located between a left eyebrow and a left eye of a subject and configured to transmit a first signal representing the first temperature (Claim 1);
a second temperature sensor positioned to measure a second temperature of a right ABTT terminus located between a right eyebrow and a right eye of the subject and configured to transmit a second signal representing the second temperature (Claim 1);
a control unit comprising:
a processor (Claim 1);
a non-transitory memory (Claim 1);
a transceiver (Claim 1);
a display (Claim 5); and
a power source (Claim 1),
wherein the processor is configured to receive the first signal and the second signal, to identify a temperature decrease of greater than or equal to 0.1 degrees Celsius (Claim 1) at the left ABTT terminus as compared to the right ABTT terminus, and to transmit an alert signal when the temperature decrease of greater than or equal to 0.1 degrees Celsius is identified during any interval of time (Claim 1).
The US Patent teaches all of the elements of the current invention as mentioned above except for the temperature decrease being greater than or equal to 0.1 degrees Celsius (Claim 1) and lower than 0.25 degrees Celsius.
The US Patent teaches that bilateral measurements can predict the onset of seizure or can be used to diagnose seizure, wherein there is a gradient between two ABTT terminuses 10 of a patient or subject, with an increase greater than or equal to 0.25 degrees Celsius on the affected side as compared to the opposite, non-affected or “good” side (Column 7 Lines 26-31).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the temperature decrease of the US Patent to include being greater than or equal to 0.1 degrees Celsius (Claim 1) and lower than 0.25 degrees Celsius as the US Patent teaches that this will aid in predicting the onset of seizure or can be used to diagnose seizure.
Regarding claim 2, the US Patent teaches an alert device configured to receive the alert signal and to provide an alert. (Claim 2)
Regarding claim 3, the US Patent teaches wherein the alert indicates the onset of mild stroke or heart ischemia (Claim 3)
Regarding claim 4, the US Patent teaches wherein the non-transitory memory includes a medical history of the subject that includes a medical condition of the subject, the processor reads the non-transitory memory to identify the medical history and then the alert signal transmitted to the alert device corresponds to the medical condition of the subject and the alert device outputs an alert of the medical condition of the subject (Claim 4).
Regarding claim 5, the US Patent teaches wherein the medical condition is at least one of hypertension or heart disease (Claim 2).
Regarding claim 9, the US Patent teaches wherein the alert is transmitted to an output device and the output device provides an output (Claim 4).
Regarding claim 10, the US Patent teaches wherein the output device is the display (Claim 5).
Regarding claims 13-15, 19, and 20, claims 9-11 of the US Patent, as modified by the US Patent, teaches the apparatus as claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AURELIE H TU whose telephone number is (571)272-8465. The examiner can normally be reached [M-F] 7:30-3:30.
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/AURELIE H TU/ Primary Examiner, Art Unit 3791
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