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, 7-11, 23, 27, and 29-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 17-20 of U.S. Patent No. 12,167,171. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application claim is broader in every aspect than the patent claim and is therefore an obvious variant thereof.
Regarding claim 1, patented claims 17 and 20 together meets all the feature of the claimed invention except responsive to determining that the second object is part of the first object, the vehicular vision system tracks the first object in subsequent frames of captured image data. Instead, the patented claim 20 claims the vehicular vision system tracks the first object using a tracking-by-detection algorithm. Despite the different claim languages, the patented claim 20 can be interpreted as the equivalent of the claimed limitation since the patented tracking is performed under all conditions, such as during same object detection or not same object detection, and the tracking-by-detection algorithm inherently utilizes subsequent frames of the captured image data. Thus, it would have been obvious to one of ordinary skill in the art to recognize that, when interpreted broadly, the patented claims 17 and 20 are essentially the equivalent of the claimed invention.
Claim 7 is met by patented claim 18.
Claim 8 is met by patented claim 19.
Claims 9-11 are met by patented claim 17 and 20.
Regarding claim 23, see rejection to claim 1.
Claim 27 is met by patented claim 19.
Claims 29 and 30 are met by patented claims 17 and 20.
Allowable Subject Matter
Claims 2-6, 12-15, 24-26 and 28 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claims 16-22 are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL LEE whose telephone number 571-272-7349. The examiner can normally be reached on Monday through Thursday from 9:00 am to 6:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, John Miller, can be reached on 571-272-7353. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL LEE/ Primary Examiner,
Art Unit 2422