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 Objections
Claim 17 is objected to because of the following informalities: “arm,” in line 4 of claim 17 should read as “arm”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 12 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “substantially” in claim 12 is a relative term which renders the claim indefinite. The term “substantially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what it means to be “substantially perpendicular” as an object is either perpendicular or not perpendicular to another object. Clarification is requested.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) as being rejected by Abreu ‘087 (US Pub No 2016/0287087).
Regarding claim 1, Abreu ‘087 teaches a system for measuring temperature (Title, Abstract) comprising:
a base member (Fig. 116 separable sensor device 2180 and [0529]) comprising a first flexible arm and a second flexible arm (Fig. 116 two flexible arms 2184 and [0529]) that extend from a center region of the base member (see Fig. 116), and configured to fit on a nose of a user ([0528]);
a first temperature sensor positioned on a distal end of the first flexible arm (Fig. 116 sensor 2186 and [0529]), the first temperature sensor configured to measure a first temperature of a left Abreu Brain Thermal Tunnel (ABTT) terminus located between a left eyebrow and a left eye of a user and to transmit a first signal representing the first temperature ([0532]-[0533]);
a second temperature sensor positioned on a distal end of the second flexible arm (Fig. 116 sensor 2186 and [0529]), the second temperature sensor configured to measure a second temperature of a right ABTT terminus located between a right eyebrow and a right eye of the user and to transmit a second signal representing the second temperature ([0532]-[0533]);
an electronic device comprising a processor configured to receive the first signal and the second signal (Fig. 124 processor 2262 and [0537]); and
an electrical connector attached to the center region of the base member, the electrical connector configured to connect the base member to the electronic device (Fig. 116 electrical jack or connector 2182 and [0529]-[0530]).
Regarding claim 2, Abreu ‘087 teaches wherein the processor is configured to identify from the first signal and the second signal a temperature decrease of greater than or equal to 0.2 degrees Celsius at the right ABTT terminus as compared to the left ABTT terminus ([0261]), and to transmit an alert signal when a temperature decrease of greater than or equal to 0.2 degrees Celsius at the one of the left ABTT terminus and the right ABTT terminus as compared to the other of the left ABTT terminus and the right ABTT terminus is identified (Claim 23).
Regarding claim 3, Abreu ‘087 teaches an alert device configured to receive the alert signal and to provide an alert ([0347], Claim 23).
Regarding claim 4, Abreu ‘087 teaches wherein the first and second flexible arms are adjustable to provide a gap between the first temperature sensor and the second temperature sensor, the gap ranging from a first spaced distance (Fig. 120 first spaced distance 2204 and [0529]) to a second spaced distance (Fig. 120 second spaced distance 2206 and [0529]), wherein the first spaced distance is greater than the second spaced distance (see Fig. 120).
Regarding claim 5, Abreu ‘087 teaches a spring arranged at the central region of the base member configured to allow the gap between the first temperature sensor and the second temperature sensor to be adjustable and to secure the base member (Fig. 122-124 spring mechanism 2276 and [0537]), the first flexible arm and the second flexible arm on the user’s nose by applying pressure against the nose ([0529]).
Regarding claim 6, Abreu ‘087 teaches wherein the first temperature sensor comprises a first measuring surface configured to contact the left ABTT terminus when measuring the temperature of the left ABTT terminus (Fig. 116 measuring surface 2190 and [0529]), and
the second temperature sensor comprises a second measuring surface configured to contact the right ABTT terminus when measuring the temperature of the left ABTT terminus (Fig. 116 measuring surface 2190 and [0529]).
Regarding claim 7, Abreu ‘087 teaches wherein when the processor determines that a temperature decrease of 0.2 degrees Celsius occurs during an elapsed time that is less than 12 hours, and a temperature reversal between the left ABTT terminus and the right ABTT terminus occurs ([0339]-[0341]), the processor transmits the alert signal to the alert device, and the alert device is configured to provide an alert indicative of a left brain stroke ([0364]).
Regarding claim 8, Abreu ‘087 teaches wherein the first signal and the second signal are adjusted by the processor to compensate for an ambient temperature, and wherein when the temperature decrease of greater than or equal to 0.2 degrees Celsius at the right ABTT terminus as compared to the left ABTT terminus is identified after compensating for ambient temperature ([0339]-[0340]), the processor transmits the alert signal ([0347]).
Regarding claim 9, Abreu ‘087 teaches wherein the temperature decrease on the right ABTT terminus is greater than or equal to 0.6 degrees Celsius ([0342]).
Regarding claim 10, Abreu ‘087 teaches wherein the electronic device is a cell phone, a tablet, or a computer device ([0450]).
Regarding claim 11, Abreu ‘087 teaches an apparatus for modifying a temperature of a body part (Title, Abstract) comprising:
a base member comprising a first flexible arm (Fig. 124 arms 2268 and [0537]) and a second flexible arm (Fig. 124 arms 2268 and [0537]) that extend from a center region of the base member, and configured to fit on a nose of a user (Fig. 124 temperature modification device 2260 and [0537]);
a first heat transfer device positioned on a distal end of the first flexible arm, the first heat transfer device configured to apply or remove heat to a left Abreu Brain Thermal Tunnel (ABTT) terminus located between a left eyebrow and a left eye of a user (Fig. 124 heat transfer device 2270 and [0537]);
a second heat transfer device positioned on a distal end of the second flexible arm, the second heat transfer device configured to apply or remove heat to a right ABTT terminus located between a right eyebrow and a right eye of the user (Fig. 124 heat transfer device 2270 and [0537]); and
an electrical connector attached to the center region of the base member, the electrical connector configured to be connected to an electronic device (Fig. 124 electrical jack or connector 2228).
Regarding claim 12, Abreu ‘087 teaches wherein the first heat transfer device extends in a direction substantially perpendicular to a longitudinal direction of the first flexible arm, and
the second heat transfer device extends in a direction substantially perpendicular to a longitudinal direction of the second flexible arm (Fig. 124 shows that the heat transfer devices 2270 extend perpendicularly from the flexible, parallel arms 2268.).
Regarding claim 13, Abreu ‘087 teaches a first temperature sensor positioned on a distal end of the first flexible arm, the first temperature sensor configured to measure a first temperature of the left ABTT terminus and to transmit a first signal representing the first temperature (Fig. 116 sensor 2186 and [0529]); and
a second temperature sensor positioned on a distal end of the second flexible arm, the second temperature sensor configured to measure a second temperature of a right ABTT terminus and to transmit a second signal representing the second temperature (Fig. 116 sensor 2186 and [0529]).
Regarding claim 14, Abreu ‘087 teaches a transmitter arranged in the first flexible arm, the transmitter being configured to communicate with a separate electronic apparatus (Fig. 124 transmitter 2264 and [0537]).
Regarding claim 15, Abreu ‘087 teaches a processor arranged in the first flexible arm (Fig. 124 processor 2262 and [0537]),
wherein the processor is configured to identify from the first signal and the second signal a temperature decrease of greater than or equal to 0.2 degrees Celsius at the right ABTT terminus as compared to the left ABTT terminus ([0261]), and to transmit an alert signal when a temperature decrease of greater than or equal to 0.2 degrees Celsius at the one of the left ABTT terminus and the right ABTT terminus as compared to the other of the left ABTT terminus and the right ABTT terminus is identified (Claim 23).
Regarding claim 16, Abreu ‘087 teaches wherein the first and second flexible arms are adjustable to provide a gap between the first heat transfer device and the second heat transfer device, the gap ranging from a first spaced distance (Fig. 120 first spaced distance 2204 and [0529]) to a second spaced distance (Fig. 120 second spaced distance 2206 and [0529]), wherein the first spaced distance is greater than the second spaced distance (see Fig. 120).
Regarding claim 17, Abreu ‘087 teaches a spring arranged at the central region of the base member configured to connect the first flexible arm and the second flexible arm to secure the base member (Fig. 122-124 spring mechanism 2276 and [0537]), the first flexible arm and the second flexible arm on the user’s nose by applying pressure against the nose ([0529]).
Regarding claim 18, Abreu ‘087 teaches a power source configured to power the apparatus (Fig. 124 power source 2266 and [0537]).
Regarding claim 19, Abreu ‘087 teaches wherein the first heat transfer device comprises a first heat transfer surface configured to contact the left ABTT terminus when applying or removing heat to the left ABTT terminus (Fig. 124 heat transfer surface 2274 and [0537]), and
the second heat transfer device comprises a second heat transfer surface configured to contact the right ABTT terminus when applying or removing heat to the left ABTT terminus (Fig. 124 heat transfer surface 2274 and [0537]).
Regarding claim 20, Abreu ‘087 teaches wherein the first temperature sensor comprises a first measuring surface configured to contact the left ABTT terminus when measuring the temperature of the left ABTT terminus (Fig. 116 measuring surface 2190 and [0529]), and
the second temperature sensor comprises a second measuring surface configured to contact the right ABTT terminus when measuring the temperature of the left ABTT terminus (Fig. 116 measuring surface 2190 and [0529]).
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 1-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 of U.S. Patent No. 12,251,196 in view of Abreu ‘087.
Regarding claim 1, the US Patent teaches a system for measuring temperature (Claim 1) comprising:
a first temperature sensor positioned on a distal end of the first flexible arm, the first temperature sensor configured to measure a first temperature of a left Abreu Brain Thermal Tunnel (ABTT) terminus located between a left eyebrow and a left eye of a user and to transmit a first signal representing the first temperature (Claim 1);
a second temperature sensor positioned on a distal end of the second flexible arm, the second temperature sensor configured to measure a second temperature of a right ABTT terminus located between a right eyebrow and a right eye of the user and to transmit a second signal representing the second temperature (Claim 1);
an electronic device comprising a processor configured to receive the first signal and the second signal (Claim 1).
The US Patent teaches all of the elements of the current invention as mentioned above except for a base member comprising a first flexible arm and a second flexible arm that extend from a center region of the base member, and configured to fit on a nose of a user; and
an electrical connector attached to the center region of the base member, the electrical connector configured to connect the base member to the electronic device.
Abreu ‘087 teaches a base member (Fig. 116 separable sensor device 2180 and [0529]) comprising a first flexible arm and a second flexible arm (Fig. 116 two flexible arms 2184 and [0529]) that extend from a center region of the base member (see Fig. 116), and configured to fit on a nose of a user ([0528]); and
an electrical connector attached to the center region of the base member, the electrical connector configured to connect the base member to the electronic device (Fig. 116 electrical jack or connector 2182 and [0529]-[0530]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of the US Patent to include the base member and the electrical connector as Abreu ‘087 teaches this would aid in positioning and adjusting the sensors to a particular nose ([0528]).
Regarding claim 2, the US Patent teaches wherein the processor is configured to identify from the first signal and the second signal a temperature decrease of greater than or equal to 0.2 degrees Celsius at the right ABTT terminus as compared to the left ABTT terminus, and to transmit an alert signal when a temperature decrease of greater than or equal to 0.2 degrees Celsius at the one of the left ABTT terminus and the right ABTT terminus as compared to the other of the left ABTT terminus and the right ABTT terminus is identified (Claim 1).
Regarding claim 3, the US Patent teaches an alert device configured to receive the alert signal and to provide an alert (Claim 1).
Regarding claim 4, the US Patent in view of Abreu ‘087 teaches all of the elements of the current invention as mentioned above except for wherein the first and second flexible arms are adjustable to provide a gap between the first temperature sensor and the second temperature sensor, the gap ranging from a first spaced distance to a second spaced distance, wherein the first spaced distance is greater than the second spaced distance.
Abreu ‘087 teaches wherein the first and second flexible arms are adjustable to provide a gap between the first temperature sensor and the second temperature sensor, the gap ranging from a first spaced distance (Fig. 120 first spaced distance 2204 and [0529]) to a second spaced distance (Fig. 120 second spaced distance 2206 and [0529]), wherein the first spaced distance is greater than the second spaced distance (see Fig. 120).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the first and second flexible arms of the US Patent in view of Abreu ‘087 to include being adjustable to provide a gap between the first temperature sensor and the second temperature sensor, the gap ranging from a first spaced distance to a second spaced distance, wherein the first spaced distance is greater than the second spaced distance as Abreu ‘087 teaches that this would aid in permitting a range of adaptability for the nose and facial anatomy ([0529]).
Regarding claim 5, the US Patent in view of Abreu ‘087 teaches all of the elements of the current invention as mentioned above except for a spring arranged at the central region of the base member configured to allow the gap between the first temperature sensor and the second temperature sensor to be adjustable and to secure the base member, the first flexible arm and the second flexible arm on the user’s nose by applying pressure against the nose.
Abreu ‘087 teaches a spring arranged at the central region of the base member configured to allow the gap between the first temperature sensor and the second temperature sensor to be adjustable and to secure the base member (Fig. 122-124 spring mechanism 2276 and [0537]), the first flexible arm and the second flexible arm on the user’s nose by applying pressure against the nose ([0529]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of the US Patent in view of Abreu ‘087 to include the spring as Abreu ‘087 teaches that this would aid in permitting a range of adaptability for the nose and facial anatomy ([0529]).
Regarding claim 6, the US Patent in view of Abreu ‘087 teaches all of the elements of the current invention as mentioned above except for wherein the first temperature sensor comprises a first measuring surface configured to contact the left ABTT terminus when measuring the temperature of the left ABTT terminus, and
the second temperature sensor comprises a second measuring surface configured to contact the right ABTT terminus when measuring the temperature of the left ABTT terminus.
Abreu ‘087 teaches wherein the first temperature sensor comprises a first measuring surface configured to contact the left ABTT terminus when measuring the temperature of the left ABTT terminus (Fig. 116 measuring surface 2190 and [0529]), and
the second temperature sensor comprises a second measuring surface configured to contact the right ABTT terminus when measuring the temperature of the left ABTT terminus (Fig. 116 measuring surface 2190 and [0529]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the first and second temperature sensors of the US Patent in view of Abreu ‘087 to include contacting the left/right ABBT terminus when measuring the temperature of the left/right ABTT terminus, respectively, as Abreu ‘087 teaches that this will aid in measuring an emitted signal of the ABTT terminuses ([0529]).
Regarding claim 7, the US Patent teaches wherein when the processor determines that a temperature decrease of 0.2 degrees Celsius occurs during an elapsed time that is less than 12 hours, and a temperature reversal between the left ABTT terminus and the right ABTT terminus occurs, the processor transmits the alert signal to the alert device, and the alert device is configured to provide an alert indicative of a left brain stroke (Claim 1).
Regarding claim 8, the US Patent teaches , wherein the first signal and the second signal are adjusted by the processor to compensate for an ambient temperature, and wherein when the temperature decrease of greater than or equal to 0.2 degrees Celsius at the right ABTT terminus as compared to the left ABTT terminus is identified after compensating for ambient temperature, the processor transmits the alert signal (Claim 2).
Regarding claim 9, the US Patent teaches wherein the temperature decrease on the right ABTT terminus is greater than or equal to 0.6 degrees Celsius (Claim 3).
Regarding claim 10, the US Patent in view of Abreu ‘087 teaches all of the elements of the current invention as mentioned above except for wherein the electronic device is a cell phone, a tablet, or a computer device.
Abreu ‘087 teaches wherein the electronic device is a cell phone, a tablet, or a computer device ([0450]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the electronic device of the US Patent in view of Abreu ‘087 to include being a cell phone, a tablet, or a computer device as Abreu ‘087 teaches that this would aid in bidirectional communication ([0250]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AURELIE H TU whose telephone number is (571)272-8465. The examiner can normally be reached [M-F] 7:30-3:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander Valvis can be reached at (571) 272-4233. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/AURELIE H TU/ Primary Examiner, Art Unit 3791
Prosecution Insights