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 .
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.
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Claims 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 12,216,962. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 21-40 are anticipated by claims 1-17 of the patent.
Claim 21 (present application)
1 (US 12,216,962)
A method for quantitatively tracking food intake using a smart device, the method comprising:
A method for quantitatively tracking food intake using smart glasses, the method comprising:
capturing motion data indicative of motion by a user of the smart device;
capturing at least one image of food, and motion data indicative of motion by a user of the smart glasses;
identifying a plurality of hand-to-mouth motions by the user by analyzing the motion data;
identifying a plurality of hand-to-mouth motions by the user by analyzing the motion data;
identifying a plurality of chewing motions by the user using the smart device;
identifying a plurality of chewing motions by the user using the smart glasses;
calculating a weighted average of a number of the plurality of hand-to-mouth motions and a number of the plurality of chewing motions, wherein calculating the weighted average includes weighing the number of the plurality of hand-to-mouth motions more heavily than the number of the plurality of chewing motions;
calculating a weighted average of a number of the plurality of hand-to-mouth motions and a number of the plurality of chewing motions, wherein calculating the weighted average includes weighing the number of the plurality of hand-to-mouth motions more heavily than the number of the plurality of chewing motions;
generating food intake frequency data by comparing the weighted average of the number of the plurality of hand-to-mouth motions and the number of the plurality of chewing motions to baseline metrics; and
generating food intake frequency data by comparing the weighted average of the number of the plurality of hand-to-mouth motions and the number of the plurality of chewing motions to baseline metrics; and
providing output, based on the food intake frequency data, to the user of the smart device.
displaying the nutritional performance data and the food intake frequency data to the user on the smart glasses.
Allowable Subject Matter
Claims 21-40 recite allowable subject matter.
Connor (US 2021/0249116 A1) is the closest prior art of record and teaches a wearable device which measures food consumption based on detected chewing motions/sounds and hand-near-mouth activity (para. 0064-0068). However, Connor differs from claims 21-40 in that it does not teach or fairly suggest: calculating a weighted average of a number of the plurality of hand-to-mouth motions and a number of the plurality of chewing motions, wherein calculating the weighted average includes weighing the number of the plurality of hand-to-mouth motions more heavily than the number of the plurality of chewing motions.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Stella L Woo whose telephone number is (571)272-7512. The examiner can normally be reached Monday - Friday, 8 a.m. to 5 p.m.
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STELLA L. WOO
Primary Examiner
Art Unit 2693
/Stella L. Woo/Primary Examiner, Art Unit 2693
Prosecution Insights