DETAILED ACTION
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 1-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. US 12,213,804 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application is anticipated by the cited patent.
Instant Application
US 12,213,804 B2
1. An earbud with temperature sensing, comprising: a housing defining a second opening and a third opening; a first temperature sensor positioned along an interior surface of the housing and aligned with the second opening in the housing for non-contact temperature sensing; a second temperature sensor positioned along the interior surface of the housing and aligned with the third opening in the housing for non- contact temperature sensing, wherein, in response to the earbud being positioned for use within an ear of a user, the second opening aligns with one of an inner side of the tragus close to the ear canal, the cavum conchae, and an inner edge of the antitragus, and the third opening aligns with the cheek close to the ear, such that the first temperature sensor and the second temperature sensor detect a body temperature of the user through the second opening and the third opening, respectively, and the body temperature is estimated by considering sensor data of the first temperature sensor and the second temperature sensor.
1. An earbud with temperature sensing, comprising: a housing defining a first opening, a second opening and a third opening; a speaker disposed within the housing and oriented so that audio emitted by the speaker exits the housing through the first opening defined by the housing; a first temperature sensor positioned along an interior surface of the housing and aligned with the second opening in the housing for non-contact temperature sensing; a second temperature sensor positioned along the interior surface of the housing and aligned with the third opening in the housing for non-contact temperature sensing, wherein, in response to the earbud being positioned for use within an ear of a user, the second opening aligns with one of an inner side of the tragus close to the ear canal, the cavum conchae, and an inner edge of the antitragus, and the third opening aligns with the cheek close to the ear, such that the first temperature sensor and the second temperature sensor detect a body temperature of the user through the second opening and the third opening, respectively, and the body temperature is estimated by considering sensor data of the first temperature sensor and the second temperature sensor.
Claims 2-14
See Claims 2-14
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Zhao et al. (CN 210274438) discloses an earphone with a temperature sensor close to the cheek.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES K MOONEY whose telephone number is (571)272-2412. The examiner can normally be reached Monday-Friday, 9:00 AM -5:00 PM EST.
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/JAMES K MOONEY/Primary Examiner, Art Unit 2695
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