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 .
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 1-20 of U.S. Patent No. 11/721,192(‘192). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following:
-- Claims 1-20 recites essentially the same subject matter as that of claims 1-20 of the present invention, except for the protective housing enclosing one or more of the sensor, power source or communication circuitry, the housing being biocompatible factor resistant housing comprising a seal and coating. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate a protective housing, since the product is intended for consumption, and therefore protection against germs and other contaminants would have been of the highest importance, to ensure that the consumer of the product would not get sick.
ART REJECTION:
Claim Rejections - 35 USC § 103
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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Baym et al(USPGPUB 2013/0049934) in view of Weling et al(USPGPUB 2015/0323430).
-- In considering claim 1, the claimed subject matter that is met by Baym includes:
1) a sensor and an associated receiver is met by the food tag interrogation circuit, which includes sensor and associated receiver in the form of electromagnetic energy generation circuit(216);
2) the monitoring system comprising a monitor/detector component, communication circuitry and a first power source operatively coupled to the detector component and the communication circuitry for supplying power thereto, is met by interrogation interface(204) which is configured to interrogate radio frequency identification tags in a food volume of food product(see: Baym, sec[0123]), and includes receiver, transmitter and transceiver, as seen in figure 3;
3) wherein the communication circuitry is configured to transmit data to the associated receiver is met by the interface configured to interrogate RFID tags(114) and receive data(see: Baym, sec[0123]).;
4) wherein the system further determines at least one of a location or operating status of the sensor is met by the interrogation stimulus determining one or more radio frequency Identification tag locations within the field(see: Baym, sec[0157]),
5) the communication circuitry configured to transmit the location and operating status to the associated receiver would have been inherent, since the interrogation desires to determine locations within a wide field;
- Baym does not teach:
1) the sensor including a monitoring system and a flow induction device;
2) wherein at least one of the monitoring system monitor/detector component, communication circuitry and first power source is removeable and replaceable.
Although not specifically taught by Baym, use of flow induction devices for sensor apparatus is well known. In related art, Weling et al(Weling) teaches a chemical sensing device, which utilizes an induction heater(30), which functions as a flow induction device, by acting as a sample collector by providing predetermined temperature to release any bound analytes, such that the analyte may then be free to be carried by an airflow(21) into a detector(12)(see: Weling, sec[0045]).
As well, Weling teaches that the heaters may be powered by rechargeable batteries(see: Weling, sec[0047]), which are known to be replaceable power sources. Since the use of devices which detect analytes by utilizing flow induction is well known, as seen by Weling, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate the sensing device, including induction heating and detector(30) and rechargeable batteries of Weling, into the device of Baym, since this would have provided a more comprehensive means of determining analytes in products that are intended for consumption.
-- With regards to claim 2,
1) the monitor/detector component includes a plurality of detectors for monitoring at least one of location, speed, temperature, humidity, moisture, flow, pH, nutrients, light, radiation, pressure, vibration and shock is met by the tags including a sensor component including one or more sensors that measure food attributes(see: sec[0027], and wherein the device detects any of a multitude of attributes, including irradiation data(see: Baym, sec[0058]).
-- With regards to claim 3,
1) an environment of the product intended for consumption is at least one of an environment internal to the product intended for consumption and an environment external to the product intended for consumption is met by the tags and sensor including edible food products, and is included in the internal environment of the food product box, as seen in figure 2.
-- With regards to claim 4,
1) the environment external to the product intended for consumption is at least one of enclosed areas, semi-enclosed areas, open-air areas or surface areas that come into contact with the product intended for consumption is met by the food producing including tags that come in contact with surface areas, such as utensils(202) that the food is placed upon(see: figure 2).
-- With regards to claim 5,
1) the environment external to the product intended for consumption is at least one of a absorbent material, box, bag, band, bin, bowl, bottle, bucket, case, can, cap, carton, cover, chiller, crate, container, countertop, conveyor, cup, drawer, dumpster, display, freezer, jar, label, mixer, package, pad, paper, plastic, plate, processor, pan, pallet cover, pallet wrap, pouch, rack, refrigerator, seal, strip, shaker, shelf, stand, strainer, stirrer, slicer, separator, sticker, tray, tank, pipes, flow conduits, tape, vats, wrapping or other material or equipment or component or infrastructure used to harness, hold, process, package, display, store, transport or control the product intended for consumption is met by the food product box as seen in figure 2.
-- With regards to claim 6,
1) one or more component of the system is at least one of remote to, fixed to, adhered to, embedded in or printed on a surface and printed on a lining and printed on an carried material and printed on a layer and printed on a cover and printed on a portion of the at least one environment external to the product intended for consumption is met by the components being printed on a substrate(see: Baym, sec[0052]).
-- With regards to claim 7,
1) at least one component and element of the system is mobile within an environment is met by the tags being mobile within the enclosed food box during movement of the box, such as cereal or rice or noodles would be mobile within the boxes that they are enclosed within, as seen in figure 2 of Baym.
-- With regards to claim 8,
1) the induction device is at least one entirely embedded in the product intended for consumption or partially embedded in the product intended for consumption attached to a surface of the product intended for consumption and remote from the surface of the product intended for consumption is not specifically taught by Baym. However, upon incorporation of the flow induction device of Weling, into the system of Baym as discussed in claim 1 above, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate the flow induction apparatus of Weling, into the RID tags of Baym, and embedded in the product to be consumed, since the flow induction would have been in closer proximity to the product to be consumed, and thereby able to more readily detect analytes in the product.
-- With regards to claim 9,
Upon incorporation of the device of Weling, into the system of Baym, the flow induction device is at least one of cases, concentrators, fans, flows paths, pumps, micropumps, pouches, envelopes, mixers, valves, vacuums, conduits, channels, louvers, vents and housings would have been met by the air suction pump to produce air flow to the pre-concentrator, as taught by Weling(see: Weling, sec[0006]).
-- With regards to claim 10,
Upon incorporation of the device of Weling into the system of Baym, the flow induction device to configured to receive power from the first power supply of the monitoring system is met by the rechargeable batteries(see: Weling, sec[0047]).
-- With regards to claim 11,
1) at least one of the first power source of the monitoring system and the second power source of the flow induction device includes an antenna configured to receive energy wirelessly and supply the received energy to at least one of the detector components, the communication circuitry and the flow induction device is met by the antenna which is coupled so as to provide power to components of the system(see: Baym, sec[0021]).
-- Claims 12-20 recite systems and methods that substantially correspond to the system of claims 1-11, and therefore, are also met by Baym in view of Weling for the reasons discussed in the rejection of claims 1-11 above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DARYL C POPE whose telephone number is (571)272-2959. The examiner can normally be reached 9AM - 5PM M-F.
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/DARYL C POPE/Primary Examiner, Art Unit 2686