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 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 21-40 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.
Claims 21-40 recite “receiving” by “at least one destination device” “at least two media streams from at least one source device, including a first media stream and a second media stream, wherein the first media stream is received from a first source device”. A reasonable interpretation of these limitations allows for the “at least two media streams” to be “received” by the “at least one destination device” “from” one “source device”. Therefore, the additional recitation of “wherein the first media stream is received from a first source device” is redundant and renders the claims indefinite.
The same applies to claims 24 and 34 which recite “wherein the second media stream is received from the first source device”. This additional recitation is redundant given the recitations cited immediately above and renders the claims indefinite.
Claims 29 and 39 recite “the one or more media streams”. There is insufficient antecedent basis for this limitation in the claims. Examiner will assume this refers to the previously recited “at least two media streams”.
Claim 33 recites “the control packer”. There is insufficient antecedent basis for this limitation in the claim. Examiner will assume that this limitation refers to the previously recited “control packet” which is commensurate with the recitations of claim 23.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 24 and 34 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claims 24 and 34 recite “wherein the second media stream is received from the first source device”. However, the claims already require by way of their dependency from claims 21 and 31 respectively the limitations of “receiving” by “at least one destination device” “at least two media streams from at least one source device, including a first media stream and a second media stream”. These additional recitations do not further limit the subject matter of the claims upon which they depend, therefore, they are in improper dependent form.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 21-29 and 31-39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2, 4, 6-7, 9-10, 12, 14, 16-17, and 19-20 of U.S. Patent No. 11,075,971 to Wei et al. (“Wei”).
Although the claims at issue are not identical, they are not patentably distinct from each other because claim 21 recites substantially the same limitations as recited in claim 4 of Wei with the main difference being the recitation of “at least one source device” versus the recitation of a “plurality of source devices” as recited in claim 4 of Wei, however, Examiner finds such to be a minor obvious variation of claim 4 of Wei which recites the “identif[ication]” of a “source device” from “the plurality of source devices” such that the “identified source device” corresponds to the “at least one source device”/”a first source device” recited in claim 21 and one skilled in the art would have been led to the conclusion that these limitations are merely an obvious variation over the recitations of claim 4 of Wei and is therefore patentably indistinct.
The rest of the claimed limitations of claim 21 are otherwise anticipated by the limitations of claim 4 of Wei.
The same rationale applies to claim 31 being not patentably distinct from the recitations of claim 14 of Wei.
Claims 22 and 32 are also anticipated by the limitations of claims 4 and 14 of Wei respectively.
Claims 23 and 33 are also anticipated by the limitations of claims 2 and 4 in combination and claims 12 and 14 in combination of Wei respectively.
Claims 24 and 34 are also anticipated by the limitations of claims 4 and 14 of Wei respectively.
Claims 25 and 35 are also anticipated by the limitations of claims 4 and 14 of Wei respectively.
Claims 26-29 are also anticipated by the limitations of claims 6-7 and 9-10 of Wei respectively and claims 36-39 are also similarly anticipated by the limitations of claim 16-17 and 19-20 of Wei respectively.
Therefore, claims 21-29 and 31-39 are rejected under the ground of nonstatutory double patenting.
Conclusion
An updated search did not reveal additional prior art that is relevant to the claimed invention or to the broader disclosure than of what is already of record within the prosecution history of the instant application including its parents.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to G. C. Neurauter, Jr. whose telephone number is (571)272-3918. The examiner can normally be reached Monday-Friday 9am-5pm Eastern Time.
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/G. C. Neurauter, Jr./Primary Examiner, Art Unit 2459