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 .
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 2-21 is/are rejected under 35 U.S.C. 102(a) (1) as being anticipated by Kuhn et al. (USPN 2010/0317937-Cited by the Applicant).
Regarding claims 2 and 12, Kuhn et al. discloses A physiological monitoring system for measuring total hemoglobin in a wearer, the physiological monitoring system comprising: a first sensor configured to measure a first total hemoglobin estimate with a first resolution, the first sensor comprising: a first plurality of LEDs and a first detector, the first plurality of LEDs configured to emit light at one or more wavelengths at a measurement site of a wearer, the first detector configured to generate a first physiological signal associated with the one or more light wavelengths after attenuation by tissue at the measurement site; and one or more hardware processors in communication with the first sensor and a display, the one or more hardware processors configured to: receive the first physiological signal from the first detector; determine the first total hemoglobin estimate based at least in part on the first physiological signal; determine whether the first total hemoglobin estimate is below a predetermined threshold; and responsive to a determination that the first total hemoglobin estimate is below the predetermined threshold, cause presentation of a visual indication in a graphical user interface of the display for visualization by the wearer such that the wearer is informed of a need to use a second sensor for measurement of a second total hemoglobin estimate, wherein the second sensor is configured to measure the second total hemoglobin estimate with a second resolution that is greater than the first resolution, the second sensor comprising: a second plurality of LEDs and a second detector, the second plurality of LEDs configured to emit light at one or more wavelengths at the measurement site of the wearer, the second detector configured to generate a second physiological signal associated with the one or more light wavelengths after attenuation by tissue at the measurement site. See (emitters 67, [0047], [0029] figure 1C), (photodetector 68, [0047], figure 1C), ([0047]), ([0080]-[0082]).
Regarding claims 3 and 13, Kuhn et al. discloses the second plurality of LEDs comprises more LEDs than does the first plurality of LEDs ([0053], [0051]).
Regarding claims 4 and 14, Kuhn et al. discloses the one or more hardware processors are further configured to determine one or more of at least oxygen saturation, respiration rate, pulse rate, and pulse rate variability of the wearer based at least in part on the first physiological signal ([0003], [0029], [0047]).
Regarding claims 5 and 15, Kuhn et al. discloses the one or more hardware processors are further configured to determine a total hemoglobin trend of the wearer based at least in part on the first physiological signal over time ([0080]-[0082]).
Regarding claims 6 and 16, Kuhn et al. discloses the visual indication is configured to dynamically change responsive to a change in a total hemoglobin estimate of the wearer ([0080]-[0082]).
Regarding claims 7 and 17, Kuhn et al. discloses the one or more hardware processors are configured to continuously measure physiological data by sampling the first sensor at a sampling rate configured to capture real-time changes in total hemoglobin of the wearer ([0080]-[0082]).
Regarding claims 8 and 18, Kuhn et al. discloses the physiological monitoring system further comprises the display ([0080]-[0082]).
Regarding claims 9 and 19, Kuhn et al. discloses the measurement site comprises pulsatile blood flow ([0004], [0020], [0047]).
Regarding claims 10 and 20, Kuhn et al. discloses the first plurality of LEDs comprises a plurality of LED channels ([0004], [0020], [0047]).
Regarding claims 11 and 21, Kuhn et al. discloses the first sensor is further configured to sequentially emit light at different wavelengths at the measurement site of the wearer ([0004], [0020], [0047]).
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 2-21 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,231,657. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application are broader than those of the Patent. As, such, any invention meeting the limitations of the claims of the Patent would necessarily meet those of the instant application as well.
Claims 2-21 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,331,013. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application are broader than those of the Patent. As, such, any invention meeting the limitations of the claims of the Patent would necessarily meet those of the instant application as well.
Claims 2-21 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 12,201,420. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application are broader than those of the Patent. As, such, any invention meeting the limitations of the claims of the Patent would necessarily meet those of the instant application as well.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARJAN FARDANESH whose telephone number is (571)270-5508. The examiner can normally be reached on Monday-Friday 9:00-17:00.
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/MARJAN FARDANESH/Primary Examiner, Art Unit 3791
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