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 § 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.
Claims 14-33 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Claims 14-22 are drawn to a system, claims 23-31 are drawn to a method, and claims 32-33 are drawn to a non-transitory computer readable medium, each of which is within the four statutory categories.
Step 2A(1)
Claim 14 recites, in part, performing the steps of:
accessing a network connectivity log comprising a plurality of connect-disconnect event pairs, wherein each one of the connect-disconnect event pairs comprises (a) a time at which one of a plurality of messages from a device was received by the one or more servers and (b) a time of a cessation of receipt of messages from the device to the one or more servers;
receiving a message;
storing, in response to receiving the message, a first event in the network connectivity log that comprises a time at which the message was received by the one or more servers;
detecting a cessation of receipt of messages when no messages are received for a predetermined period of time;
storing, in response to detecting the cessation of receipt of messages, a second event in the network connectivity log that comprises a time of the detected cessation of receipt of messages, wherein the first and second events form a new connect-disconnect event pair in the network connectivity log;
receiving a request for information stored in a file comprising non-contiguous data, wherein the requested information was captured at the device, and wherein the request comprises a time at which the requested information was captured at the device;
calculating an index by locating a connect-disconnect pair in the network connectivity log that comprises (a) a first time before the time at which the requested information was captured and (b) a second time after the time at which the requested information was captured; and
providing, in response to the request, a portion of the non-contiguous data that corresponds to the calculated index.
These steps fall constitute a form of managing personal behavior or relationships or interactions between people (including social activities) and therefore fall within the scope of an abstract idea in the form of a method of organizing human activity. Fundamentally the process is that of keeping a time log of the last message received from a device and a time when no message was received for a predetermined period of time, accessing the log, determining an index using the log to identify a connected period corresponding to a time of requested information, and providing the requested information using the index. This constitutes a form of record-keeping, such as an individual receiving information and logging it according to its start and end times, and providing a segment containing a requested portion of information. Examiner notes that the log being a “network connectivity” log constitutes a label describing its information, and does not constitute recitation of an actual network performing functions within the claim.
Independent claims 23 and 32 recite similar limitations and also recite an abstract idea under the same analysis.
Step 2A(2)
This judicial exception is not integrated into a practical application because the additional elements within the claims only amount to:
A. Instructions to Implement the Judicial Exception. MPEP 2106.05(f)
Claim 14 recites additional elements of a) one or more servers used to perform the subsequent data access, receiving, storage, and processing functions, and b) a device used to provide the message.
Claim 23 recites additional elements of a) one or more servers used to perform the recited data access, receiving, storage, and processing functions, and b) a device used to provide the message.
Claim 32 recites additional elements of a) a non-transitory computer readable storage medium used to store instructions and a processor used to execute the instructions and perform the recited data access, receiving, storage, and processing functions, and b) a device used to provide the message.
Paragraphs 69, 71, and 73-75 describe a media server as receiving the messages and recording information in a log. Paragraphs 132 and 133 further state that the media server “may be implemented by one or more processors executing, or controlled by, instructions stored in a memory,” that “[e]ach processor may be a general-purpose processor, such as a central processing unit (CPU), a graphic processing unit (GPU), digital signal processor (DSP), a special purpose processor, etc., as appropriate, or combination thereof,” and that “[t]he memory may be random access memory (RAM), read-only memory (ROM), flash memory or any other memory, or combination thereof, suitable for storing control software or other instructions and data.” The one or more servers, non-transitory computer readable storage medium, and processor are each construed as encompassing generic computing elements.
Paragraphs 63, 69, and 85 describe a medical device controller sending the messages over the network. Given that the “device” is only broadly recited as the source of the messages, the “device” is construed as having generic computing elements responsible for the communication.
The above elements only amount to mere instructions to implement the abstract idea using computing elements as tools. As noted above, the one or more servers, non-transitory computer readable storage media, and processor are each recited at a high level of generality and are disclosed broadly as encompassing generic computing elements. The device is likewise recited only at a high level of generality as a source of the received messages. These elements are not sufficient to integrate the abstract idea into a practical application.
The above claims, as a whole, are therefore directed to an abstract idea.
Step 2B
The present claims do not include additional elements that are sufficient to amount to more than the abstract idea because the additional elements or combination of elements amount to no more than a recitation of:
A. Instructions to Implement the Judicial Exception. MPEP 2106.05(f)
As explained above, claims 14, 23, and 32 only recite the one or more servers, device, non-transitory computer readable storage media, and processor as tools for performing the steps of the abstract idea, and mere instructions to perform the abstract idea using a computer is not sufficient to amount to significantly more than the abstract idea. MPEP 2106.05(f)
Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually.
Depending Claims
Claims 15 and 24 recite wherein the first and second events further comprise a field identifying the device. These limitations fall within the scope of the abstract idea as set out above.
Claims 16 and 25 recite wherein the first event further comprises a field identifying the first event as a connect event, and wherein the second event further comprises a field identifying the second event as a disconnect event. These limitations fall within the scope of the abstract idea as set out above.
Claims 17 and 26 recite wherein the first and second events further comprise a field identifying the file. These limitations fall within the scope of the abstract idea as set out above.
Claims 18, 27, and 33 recite wherein the time of the detected cessation of receipt of messages is calculated by subtracting the predetermined period of time from a time at which the cessation of receipt of messages was detected. These limitations fall within the scope of the abstract idea as set out above.
Claims 18, 27, and 33 further recite the additional element of the one or more servers as detecting the cessation of receipt of messages.
As cited above, paragraphs 132 and 133 state that the media server “may be implemented by one or more processors executing, or controlled by, instructions stored in a memory.” The one or more servers are construed as encompassing generic computing elements.
The recited one or more servers only amount to mere instructions to implement the abstract idea using computing elements as tools. As noted above, the one or more servers are recited at a high level of generality and are disclosed broadly as encompassing generic computing elements. These elements are not sufficient to integrate the abstract idea into a practical application or to amount to significantly more than the abstract idea.
Claims 19 and 28 recite wherein the non-contiguous data comprises a sequence of video frames. These limitations fall within the scope of the abstract idea as set out above.
Claims 20 and 29 recite wherein the video frames comprise copies of images displayed on a display of the device. These limitations fall within the scope of the abstract idea as set out above.
Claims 21 and 30 recite the additional element of the device being a medical device controller coupled to a blood pump.
As cited above, Paragraphs 63, 69, and 85 describe a medical device controller connected to a medical device and sending the messages over the network. Paragraph 78 further describes an exemplary medical device being a blood pump. Examiner notes that the device is still only broadly recited as the source of the messages, and that the device being a medical device controller coupled to a blood pump does not change its function as the source of those messages. The medical device controller is construed as having generic computing elements responsible for the communication.
The recitation of the device being a medical device controller coupled to a blood pump only amounts to mere instructions to implement the abstract idea using computing elements as tools. As noted above, the device is still recited only as a source of the received messages, and the device being a medical device controller coupled to a blood pump does not change its function within the claim. These elements are not sufficient to integrate the abstract idea into a practical application or to amount to significantly more than the abstract idea.
Claims 22 and 31 recite generating an alert when a total amount of time in which no messages are received exceeds a predetermined threshold. These limitations fall within the scope of the abstract idea as set out above.
Claims 22 and 31 further recite the additional elements of a) the one or more servers as generating the alert, and b) the device as the source of the messages.
As cited above, paragraphs 132 and 133 state that the media server “may be implemented by one or more processors executing, or controlled by, instructions stored in a memory.” The one or more servers are construed as encompassing generic computing elements.
Paragraphs 63, 69, and 85 describe a medical device controller sending the messages over the network. Given that the “device” is only broadly recited as the source of the messages, the “device” is construed as having generic computing elements responsible for the communication.
The above elements only amount to mere instructions to implement the abstract idea using computing elements as tools. As noted above, the one or more servers are recited at a high level of generality as used to generate the alert and are disclosed broadly as encompassing generic computing elements. The device is likewise recited only at a high level of generality as a source of the received messages. These elements are not sufficient to integrate the abstract idea into a practical application or to amount to significantly more than the abstract idea.
Claims 14-33 are therefore rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
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 14-17, 23-26, and 34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, and 13 of U.S. Patent No. 11,120,908. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of claims 1, 2, and 13 of U.S. Patent No. 11,120,908 encompasses the subject matter recited in present claims 14-17, 23-26, and 34.
Claims 14-17, 19-26, 28-31, and 33-34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6-11, and 18 of U.S. Patent No. 11,676,718. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of claims 1, 6-11, and 18 of U.S. Patent No. 11, 676,718 encompasses the subject matter recited in present claims 14-17, 19-26, 28-31, and 33-34.
Claims 14-17, 19-26, 28-31, and 33-34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7-12, and 15 of U.S. Patent No. 12,183,459. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of claims 1, 7-12, and 15 of U.S. Patent No. 12,183,459 encompasses the subject matter recited in present claims 14-17, 19-26, 28-31, and 33-34.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Maeda et al (US Patent Application Publication 2015/0378619);
Yoshida (US Patent Application Publication 2015/0163113);
Medhurst et al (US Patent Application Publication 2013/0163956);
Mesinger et al (US Patent Application Publication 2016/0335409);
Mohr et al (US Patent Application Publication 2018/0322949).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM G LULTSCHIK whose telephone number is (571)272-3780. The examiner can normally be reached 9am - 5pm.
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/Gregory Lultschik/Examiner, Art Unit 3682
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