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 .
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claim 13 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 1 of prior U.S. Patent No. 12,121,360 B2. This is a statutory double patenting rejection.
Claim 18 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 6 of prior U.S. Patent No. 12,121,360 B2. This is a statutory double patenting rejection.
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 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,266,342 B2. The instant claim broadens the claim of the parent claim by removing 3 limitations (see below). The limitation “presenting” is now recited as “displaying.” Which appears to be co-extensive in scope.
App. 18/896,488
US 11,266,342 B2
A/O
1. (Original) A computer-implemented method for determining answers to a cognitive assessment test, comprising:
1. A computer-implemented method for determining answers to a cognitive assessment test, the method comprising:
displaying, by one or more processors, images corresponding to multiple-choice
answers for the cognitive assessment test;
presenting, by one or more processors, images corresponding to multiple-choice answers for the cognitive assessment test;
A
receiving, by one or more processors, electroencephalograph (EEG) signals based upon a user's brain activity during administration of the cognitive assessment test;
receiving, by one or more processors, electroencephalograph (EEG) signals based upon a user's brain activity during administration of the cognitive assessment test;
A
determining, by one or more processors, whether the user intends to decide upon an answer from the multiple-choice answers based upon the EEG signals;
determining, by one or more processors, whether the user intends to decide upon an answer from the multiple-choice answers based upon the EEG signals;
A
determining, by one or more processors, the user's answer from the multiple-choice answers based upon the EEG signals after it is determined that the user intends to decide upon the answer; and
in response to determining that the user intends to decide upon an answer, waiting until a pre-determined time period expires before determining the user's answer;
determining, by one or more processors, the user's answer from the multiple-choice answers by determining that the user is paying attention to an image of the answer based upon the EEG signals;
while the user is determined to be paying attention to the image of the answer, presenting a cancellation image indicative of an option to allow the user to cancel the determined answer when the user pays attention to the cancellation image;
A
verifying, by one or more processors, the user's answer based upon the EEG signals received after the user's answer has been determined.
verifying, by one or more processors, the user's answer based upon the EEG signals received after the user's answer has been determined,
wherein the act of verifying the user's answer comprises determining, based upon the received EEG signals, whether the user continues paying attention to the image of the determined answer while the cancellation image is being presented.
A
Conclusion
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/GARY COLLINS/Primary Examiner, Art Unit 2115
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