DETAILED ACTION
Oath/Declaration
1. Oath and declaration filed on 9/30/2024 is accepted.
Information Disclosure Statement
2. The prior art documents submitted by application in the Information Disclosure Statement filed on 10/14/2024 have all been considered and made of record ( note the attached copy of form PTO – 1449).
Double Patenting
3. 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 75-84, 86,88,and 89 are rejected on the ground of nonstatutory obviousness -type double patenting as being unpatentable over claim 1-10,12-14, and 20 respectively U.S.Patent No. 12,106,861B2.
Although the conflicting claims are not identical they are not patentable distinct from each other because the instant claims are anticipated by the patented claims.
The claims of the instant application corresponds to the patented claim as follows
Instant application 18/902,687
Regarding claim 75,A method of improving vision in human patients, comprising: obtaining eye-health information from a first patient, the eye-health information including age, gender, and data obtained by an instrument that measures a characteristic of the eyes of the first patient; transmitting the eye-health information associated with the first patient to a central host; receiving, from the central host, an eye-health assessment of the first patient based on the eye-health information from the first patient, the eye-health assessment being determined by a statistical analysis of other eye-health information from a plurality of patients; and in response to the eye-health assessment, providing the first patient with a recommendation for improving visual performance of the first patient.
Regarding claim 76, wherein the instrument is a macular-pigment measurement machine for receiving macular-pigment data from the patient.
Regarding claim 77,wherein the instrument is a fundas camera.
Regarding claim 78, wherein the eye-health information further includes whether the first patient has a previously diagnosed eye disease is diabetic retinopathy.
Regarding claim 79, wherein the eye-health information further includes information regarding diabetes.
Regarding claim 80, wherein the recommendation includes a recommendation for a first carotenoid mixture to increase a macular pigment of the first patient.
Regarding claim 81, wherein the obtaining the eye-health information from the first patient includes receiving information from the first patient at a computer.
Regarding claim 82, wherein the obtaining the eye-health information from the first patient includes receiving information from a peripheral device that is coupled to the computer.
Regarding claim 83, wherein the instrument is one of a group consisting of a scanning laser opthalmoscope, a reflectometry device, a flicker photometry device, autofluorescence device, a Raman-scattering device, an anomalscope, and a modified fundas camera.
Regarding claim 84, wherein the recommendation includes a suggested dosage of a nutritional formulation that includes zeaxanthin.
Regarding claim 86, a method of improving vision in human patients, comprising: obtaining eye-health information from a first patient, the eye-health information includes age, gender, and an instrument that measures a characteristic of the eyes of a first patient transmitting the eye-health information associated with the first patient to a central host; and receiving, from the central host, an eye-health assessment for the first patient, the eye- health assessment for the first patient being based on the eye-health information associated with the first patient and a statistical analysis of other eye-health information from a plurality of patients.
Regarding claim 88, wherein the instrument is a macular-pigment measurement machine for receiving macular-pigment data from the first patient.
Regarding claim 89, wherein the eye-health assessment includes a recommendation for a nutritional formulation with carotenoids for improving visual performance of the first patient.
U.S.Patent No:12,106,861 B2
Regarding claim 1,A method of improving vision in human patients, comprising: obtaining eye-health information from a first patient, the eye-health information including data obtained by an instrument that measures a characteristic of the eyes of the first patient and at least three of the group consisting of eye color, age, gender, smoking status, medical status, previously diagnosed eye disease, intake of nutritional supplements, genetic information, and diet; transmitting the eye-health information associated with the first patient to a central host; receiving, from the central host, an eye-health assessment of the first patient based on the eye-health information from the first patient, the eye-health assessment being determined by-use of a statistical analysis of other eye-health information from a plurality of patients that is stored in a storage device accessible by the central ; and in response to the eye-health assessment, providing the first patient with a recommendation for improving visual performance of the first patient.
Regarding claim 2, The method of claim 1, wherein the instrument is a macular-pigment measurement machine for receiving macular-pigment data from the patient.
Regarding claim 3, The method of claim1 , wherein the instrument is a fundas camera.
Regarding 4, The method of claim 1, wherein the previously diagnosed eye disease is diabetic retinopathy.
Regarding claim 5, The method of claim 1, wherein the medical status includes information regarding diabetes.
Regarding claim 6, The method of claim 1, wherein the recommendation includes a recommendation for a first carotenoid mixture to increase a macular pigment of the first patient.
Regarding 7, The method of claim 1, wherein the obtaining the eye-health information from the first patient includes receiving information from the first patient at a computer.
Regarding claim 8, The method of claim 7, wherein the obtaining the eye-health information from the first patient includes receiving information from a peripheral device that is coupled to the computer.
Regarding claim 9, The method of claim 1, wherein the instrument is one of a group consisting of a scanning laser ophthalmoscope, a reflectometry device, a flicker photometry device, autofluorescence device, a Raman-scattering device, an anomalscope, and a modified fundas camera.
Regarding claim 10, The method of claim 1, wherein the recommendation includes a suggested dosage of a nutritional formulation.
Regarding claim 12, The system of claim 1, wherein the central host includes a website that is configured to receive the eye-health information for the plurality of patients.
Regarding claim 13, A method of improving vision in human patients, comprising: obtaining eye-health information from a first patient, the eye-health information including data obtained by an instrument that measures a characteristic of the eyes of a first patient and at least three of the group consisting of eye color, age, gender, smoking status, medical status, previously diagnosed eye disease, intake of nutritional supplements, genetic information, and diet; transmitting the eye-health information associated with the first patient to a central host; by use of a statistical analysis of other eye-health information from a plurality of patients that is stored in a storage device accessible by the central host, determining an eye-health assessment for the first patient based on the eye-health information from the first patient; and transmitting the eye-health assessment to the first patient.
Regarding claim 14, The method of claim 13, wherein the instrument is a macular-pigment measurement machine for receiving macular-pigment data from the first patient.
Regarding claim 20, The method of claim 13, wherein the eye-health assessment includes a recommendation for a nutritional formulation with carotenoids for improving visual performance of the first patient.
Analysis
the claims at issue are not identical, they are not patentably distinct from each other because they are but different definitions of the same disclosed subject matter, varying in breadth or scope of definition as set forth in MPEP 806.03. In this case, claims 1-10,12-14 and 20 of Patent “861 include a method of improving vision in human patient as now claimed. Note that the independent (claims 1 and 13) statistical analysis and storage device accessible by the central host.
Claim Rejections - 35 USC § 103
4. 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 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 75-94 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gierhart et al (2010/0241450 A1) in view of Gellermann et al (2006/0134004 A1).
Regarding claim 75, Gierhart et al discloses, a method ( i.e., system 10 ) of improving vision in human patients (paragraph 0162), comprising: obtaining eye-health information from a first patient, the eye-health information including age, gender, and data obtained by an instrument that measures a characteristic of the eyes of the first patient; transmitting the eye-health information associated with the first patient to a central host (12) (paragraph 0080); receiving, from the central host, an eye-health assessment of the first patient based on the eye-health information from the first patient, the eye-health assessment being determined by a statistical analysis of other eye-health information from a plurality of patients (paragraph 0080); and in response to the eye-health assessment (paragraph 0077-paragraph 0183).
Gierhart et al discloses all the claimed limitations except the first patient and providing the first patient with a recommendation for improving visual performance of the first patient (paragraph 0006 and paragraph 0051).
It would have been obvious to one of ordinary skill in the art at the time of invention was made to provide teaching the first patient and providing the first patient with a recommendation for improving visual performance of the first patient in to the Gierhart method for improving vision for the purpose lipofuscin is excited as taught by Gellermann et al (paragraph 0013).
Regarding claim 76, Gierhart et al discloses, wherein the instrument is a macular-pigment measurement machine for receiving macular-pigment data from the patient (abstract).
Regarding claim 77, Gierhart et al discloses wherein the instrument is a fundas camera (paragraph 0106).
Regarding claim 78, Gierhart et al discloses wherein the eye-health information further includes whether the patient has a previously diagnosed eye disease is diabetic retinopathy (paragraph 0135).
Regarding claim 79, Gierhart et al discloses wherein the eye-health information further includes information regarding diabetes (paragraph 0135).
Regarding claim 80, combination of Gierhart et al in view of Gellermann discloses, wherein the recommendation includes a recommendation for a first carotenoid mixture to increase a macular pigment of the patient.
Regarding claim 81, Gierhart et al discloses wherein the obtaining the eye-health information from the first patient includes receiving information from the first patient at a computer (20).
Regarding claim 82, Gierhart et al discloses, wherein the obtaining the eye-health information from the first patient includes receiving information from a peripheral device that is coupled to the computer (20) (paragraph 0113).
Regarding claim 83, Gierhart et al discloses, wherein the instrument is one of a group consisting of a scanning laser ophthalmoscope, a reflectometry device, a flicker photometry device, autofluorescence device, a Raman-scattering device, an anomaloscope, and a modified fundas camera (paragraph 0183).
Regarding claim 84, Gierhart et al discloses, wherein the recommendation includes a suggested dosage of a nutritional formulation that includes zeaxanthin (paragraph 0017).
Regarding claim 85, Gierhart et al discloses wherein the central host includes a website that is configured to receive the transmitted eye-health information for the plurality of patients and to store the transmitted eye-health information in a memory device (32) (paragraph 0113).
Regarding claim 86, Gierhart et al discloses a method of improving vision in human patients ( paragraph 0162), comprising: obtaining eye-health information from a first patient, the eye-health information includes age, gender, and an instrument that measures a characteristic of the eyes of a patient transmitting the eye-health information associated with the first patient to a central host (12) (paragraph 0080);
and receiving, from the central host, an eye-health assessment for the, the eye- health assessment for the first patient being based on the eye-health information associated with the first patient and a statistical analysis of other eye-health information from a plurality of patients (paragraph 0077-paragraph 0183).
Gierhart discloses all of the claimed limitations except the first patient and providing improving visual performance of the first patient
Gellerman et al discloses all the claimed limitations except the first patient and providing improving visual performance of the first patient (paragraph 0006 and paragraph 0051).
It would have been obvious to one of ordinary skill in the art at the time of invention was made to provide teaching the first patient and providing the first patient with a recommendation for improving visual performance of the first patient in to the Gierhart method for improving vision for the purpose lipofuscin is excited as taught by Gellermann et al (paragraph 0013).
Regarding claim 87, Gierhart et al discloses wherein the transmitting is from a computer (20) that is coupled to the instrument.
Regarding claim 88, Gierhart et al discloses wherein the instrument is a macular-pigment measurement machine for receiving macular-pigment data from the first patient (abstract).
Regarding claim 89, combination of Gierhart et al in view of Gellermann discloses wherein the eye-health assessment includes a recommendation for a nutritional formulation with carotenoids for improving visual performance of the first patient.
Regarding claim 90, Gierhart et al discloses wherein the central host (12) includes a website that is configured to receive and stored the eye-health information for the plurality of patients.
Regarding claim 91, Gierhart et al discloses wherein the instrument is a macular-pigment measurement machine for receiving macular-pigment data from the first patient (abstract).
Regarding claim 92, Gierhart et al discloses wherein the eye-health assessment includes a recommendation for improving visual performance of the first patient.
Regarding claim 93, Gierhart et al discloses wherein the recommendation includes a suggested nutritional formulation that includes zeaxanthin.
Regarding claim 94, Gierhart et al discloses, a method of improving vision (paragraph 0162), in human patients, comprising: receiving, at a central host (12) (paragraph 0080) , eye-health information , the eye-health information including age, gender, and data obtained by an instrument that measures a characteristic of the eyes of a patient; by use of a statistical analysis of other eye-health information from a plurality of patients, determining, at the host, an eye-health assessment for the on the eye-health information from the first patient; and transmitting, from the central host, the eye-health assessment to the patient (paragraph 0077-paragraph 0183).
Gierhart et al discloses all the claimed limitations except the first patient and providing the first patient with a recommendation for improving visual performance of the first patient (paragraph 0006 and paragraph 0051).
It would have been obvious to one of ordinary skill in the art at the time of invention was made to provide teaching the first patient and providing the first patient with a recommendation for improving visual performance of the first patient in to the Gierhart method for improving vision for the purpose lipofuscin is excited as taught by Gellermann et al (paragraph 0013).
Conclusion
5. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOHAMMED A HASAN whose telephone number is (571)272-2331. The examiner can normally be reached M-TH 6 AM -4 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bumsuk Won can be reached at 571-272-2713. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MOHAMMED A HASAN/Primary Examiner, Art Unit 2872 7/29/2026
Prosecution Insights