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 .
Election/Restrictions
Claim 12-20 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 03/12/2026 is persuasive. Therefore, claims 12-20 are hereby rejoined.
Claim status
This action is in response to applicant filed on 03/12/2026. Claims 1-20 are pending for examination.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
the claimed invention is directed to an abstract idea without significantly more. The claimed invention is directed to an abstract idea without significantly more. The claim recites:
A method for determining a calf circumference of a patient for diagnosing peripheral arterial disease, comprising:
wrapping around the calf a measuring apparatus (human physical wrapping apparatus) that comprises a strip of material comprising opposing first and second surfaces, wherein the first surface comprises:
a first segment corresponding to a first range of calf circumference that represents a low likelihood that the patient has peripheral arterial disease,
a second segment corresponding to a second range of calf circumference that represents a medium likelihood that the patient has peripheral arterial disease, and
a third segment corresponding to a third range of calf circumference that represents a high likelihood that the patient has peripheral arterial disease, wherein the first segment, the second segment, and the third segment are arranged in series; (judicial exemption)
reading a marking on the first surface where a starting point of the measuring apparatus intersects the second surface (human visually reading the apparatus); noting the marking corresponds to the first segment, the second segment, or the third segment (human visually and/or by touch noting the marking); prescribing a walking program based on said noting the marking; and tracking a compliance of the patient to the prescribed walking program (doctor providing the patient with a walking program and observing the patient to track compliance with the walking program). This judicial exception is not integrated into a practical application because the additional element does amount to significantly more as it merely add a piece of strip for the user to perform the measurements. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional element is merely operating as a tool to perform an abstract idea. Even if the strip of material is somewhat unique or “different” from the prior art, the claim is a claim method so the weight of the structure of the piece of strip is not as relevant in an apparatus claim and hence, it does not amount to significantly more in a method claim.
Claims 1-11 merely further limit the abstract idea and/or add generic computer (first and second computer) to perform action. This is merely generic computing and it does not amount to significantly more.
Claims 12-20 are rejected for the same reasons.
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 claims at issue 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); and 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 a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form 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 http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-l.isp.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 - 20 of U.S. Patent No. 10,716,493. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1 - 20 of 10,716,493 disclose every limitation of claims 1-20 in the instant application.
The same rationale is applied in view of US Patent 11,642,044 & 12,220,225
Allowable Subject Matter
Claims 1-20 are allowed.
Response to Arguments
Applicant's arguments filed 09/04/2026 have been fully considered but they are not persuasive.
Applicant argue that the new amended claims makes the abstract idea implement into a practical application.
Examiner respectfully disagrees: the amended feature of the claims, more specifically “prescribing a walking program based on said noting the marking; and tracking a compliance of the patient to the prescribed walking program” is not adding anything more to the claims let along any structure nor practical application the new limitation are merely adding to the abstract idea of (doctor providing the patient with a walking program and observing the patient to track compliance with the walking program). The new limitation have not added any meaningful structure and ore limitation that a human (doctor) with a pen and paper and or visually could perform said steps, hence is still rejected under 35 USC 101.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OMAR CASILLASHERNANDEZ whose telephone number is (571)270-5432. The examiner can normally be reached Monday-Friday, 8:30AM-4:30PM.
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/OMAR CASILLASHERNANDEZ/ Primary Examiner, Art Unit 2689
