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 9 is objected to because of the following informalities: “periphery outer” in line 2 of claim 9 should read as “periphery”. 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 13 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.
Claim 13 recites that images are acquired by the first and second temperature sensors. However, it is unclear how temperature sensors can acquire images. It is unclear if the first and second cameras acquire the images as recited in claim 1. Clarification is requested.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 of U.S. Patent No. 12,251,197 in view of Abreu ‘087 (US Pub No. 2016/0287087).
Regarding claim 1, the US Patent teaches an apparatus (Claim 1) comprising:
a first optical member positioned on the support, the first optical member comprising a first temperature sensor positioned 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 subject and to transmit a first signal representing the first temperature (Claim 1);
a second optical member positioned on the support, the second optical member comprising a second temperature sensor positioned to measure a second temperature of a right ABTT terminus located between a right eyebrow and a right eye of the subject and to transmit a second signal representing the second temperature (Claim 1);
The US Patent teaches all of the elements of the current invention as mentioned above except for a support;
a first lens positioned to allow for the apparatus to view the left ABTT terminus; and
a first camera for acquiring an image of the left ABTT; and
a second lens positioned to allow for the apparatus to view the right ABTT terminus; and
a second camera for acquiring an image of the right ABTT;
wherein the first optical member and the second optical member are rotatably positioned on the support to allow for the apparatus to position the left ABTT terminus within a field of view of the first lens and to position the right ABTT terminus within a field of view of the second lens.
Abreu ‘087 teaches a support (Fig. 5 base 82 and [0247]);
a first lens positioned to allow for the apparatus to view the left ABTT terminus (Fig. 6 lens assembly 108 and [0252]); and
a first camera for acquiring an image of the left ABTT (Fig. 6 IR imaging array 106 and [0252]); and
a second lens positioned to allow for the apparatus to view the right ABTT terminus (Fig. 6 lens assembly 108 and [0252]; “at least one ABTT terminus”); and
a second camera for acquiring an image of the right ABTT (Fig. 6 IR imaging array 106 and [0252]; “at least one ABTT terminus”);
wherein the first optical member and the second optical member are rotatably positioned on the support to allow for the apparatus to position the left ABTT terminus within a field of view of the first lens and to position the right ABTT terminus within a field of view of the second lens ([0247]; “Each interface module 56 and 58 is positioned to be movable at least vertically on a post 60, which is also configured to permit each interface module 56 and 58 to swivel rotationally about post 60.”).
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 apparatus of the US Patent to include a support; a first lens positioned to allow for the apparatus to view the left ABTT terminus; and a first camera for acquiring an image of the left ABTT; and a second lens positioned to allow for the apparatus to view the right ABTT terminus; and a second camera for acquiring an image of the right ABTT; wherein the first optical member and the second optical member are rotatably positioned on the support to allow for the apparatus to position the left ABTT terminus within a field of view of the first lens and to position the right ABTT terminus within a field of view of the second lens as Abreu ‘087 teaches that this will aid in capturing the temperature profiles of both ABTT terminuses simultaneously ([0252]).
Regarding claim 2, the US Patent teaches a processor configured to receive the first signal and the second signal, the processor then configured:
to identify a temperature decrease of greater than or equal to 0.2 degrees Celsius at the left ABTT terminus and the right ABTT terminus after compensation of the temperature decrease for an ambient temperature, and to transmit a first alert signal when the temperature decrease of greater than or equal to 0.2 degrees Celsius is identified during a time interval of less than 120 minutes that occurs at a time that takes place before a sleep time (Claim 1);
to identify a temperature decrease of greater than or equal to 0.4 degrees Celsius at the left ABTT terminus and the right ABTT terminus after compensation of the temperature decrease for ambient temperature during a time interval of less than 96 hours, and to transmit a second alert signal when the temperature decrease of 0.4 degrees Celsius is identified (Claim 1); or
to identify a temperature decrease of greater than or equal to 0.5 degrees Celsius at the left ABTT terminus and the right ABTT terminus after compensation of the temperature decrease for ambient temperature during any time interval, and to transmit a third alert signal when the temperature decrease of 0.5 degrees Celsius is identified (Claim 1).
Regarding claim 3, the US Patent teaches an alert device configured to receive the transmitted first, second or third alert signals and to provide an alert (Claim 1),
wherein the alert provided when the first alert signal is received by the alert device is for at least one selected from the group consisting of a seizure, a stroke, a heart attack, and heart disease (Claim 1).
Regarding claim 4, the US Patent teaches wherein the alert provided when the second alert signal is received by the alert device is for at least one selected from the group consisting of a severe heart abnormality, a severe seizure, a severe stroke, and a severe heart attack (Claim 2).
Regarding claim 5, the US Patent teaches wherein the alert provided when the third alert signal is received by the alert device is for a severe neck artery thrombosis (Claim 3).
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 a connector configured to permit connection of the apparatus to a separate electronic device.
Abreu ‘087 teaches an external electronic device 80 that is connected to the control unit 54 and the system 50 via a transceiver 72 for bidirectional communication (Fig 5 and [0250]).
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 apparatus of the US Patent in view of Abreu ‘087 to include a connector configured to permit connection of the apparatus to a separate electronic device as Abreu ‘087 teaches that this will aid in bidirectional communication.
Regarding claim 7, the US Patent in view of Abreu ‘087 teaches all of the elements of the current invention as mentioned above except for wherein the separate electronic device is at least one selected from the group consisting of a laptop, a tablet, and a cell phone.
Abreu ‘087 teaches the external electronic device 80 is a cell phone, watch, television, laptop, eyewear, etc. ([0250]).
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 separate electronic device of the US Patent in view of Abreu ‘087 to include being selected from the group consisting of a laptop, a tablet, and a cell phone as Abreu ‘087 teaches that this will aid in bidirectional communication ([0250]).
Regarding claim 8, 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 optical member has a terminal end portion having a circular shape,
the first temperature sensor is positioned on an outer edge of the terminal end portion, and
the first temperature sensor being rotatably adjustable in a circumferential direction around the outer edge of the terminal end portion.
Abreu ‘087 teaches wherein the first optical member has a terminal end portion having a circular shape (Fig. 5 interface module 56 and [0247]-[0248]),
the first temperature sensor is positioned on an outer edge of the terminal end portion (Fig. 5 temperature or thermal sensor 62 and [0248]), and
the first temperature sensor being rotatably adjustable in a circumferential direction around the outer edge of the terminal end portion ([0247]).
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 apparatus of the US Patent in view of Abreu ‘087 to include for wherein the first optical member has a terminal end portion having a circular shape, the first temperature sensor is positioned on an outer edge of the terminal end portion, and the first temperature sensor being rotatably adjustable in a circumferential direction around the outer edge of the terminal end portion as Abreu ‘087 teaches that this will aid in measuring the ABTT terminuses bilaterally and simultaneously ([0248]).
Regarding claim 9, 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 protrudes past outer periphery outer in an axial direction of the first optical member so as to be positioned to view the left ABTT terminus when the apparatus is placed on a face of a subject.
Abreu ‘087 teaches each of first sensor 1222 and second sensor 1224 extend or protrude past outer periphery or edge 1230 into space or volume 2132 so as to be positioned to view ABTT terminus 10 when device 1220 is placed on the face of a subject (Fig. 25 and [0457]).
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 temperature sensor of the US Patent in view of Abreu ‘087 to include protruding past outer periphery outer in an axial direction of the first optical member so as to be positioned to view the left ABTT terminus when the apparatus is placed on a face of a subject as Abreu ‘087 teaches that this will aid in capturing a signal from the ABTT terminus while viewing an image ([0457]).
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 second optical member has a terminal end portion having a circular shape,
the second temperature sensor is positioned on an outer edge of the terminal end portion, and
the second temperature sensor being rotatably adjustable in a circumferential direction around the outer edge of the terminal end portion.
Abreu ‘087 teaches wherein the second optical member has a terminal end portion having a circular shape (Fig. 5 interface module 56 and [0247]-[0248]),
the second temperature sensor is positioned on an outer edge of the terminal end portion (Fig. 5 temperature or thermal sensor 62 and [0248]), and
the second temperature sensor being rotatably adjustable in a circumferential direction around the outer edge of the terminal end portion ([0247]).
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 apparatus of the US Patent in view of Abreu ‘087 to include for wherein the second optical member has a terminal end portion having a circular shape, the second temperature sensor is positioned on an outer edge of the terminal end portion, and the second temperature sensor being rotatably adjustable in a circumferential direction around the outer edge of the terminal end portion as Abreu ‘087 teaches that this will aid in measuring the ABTT terminuses bilaterally and simultaneously ([0248]).
Regarding claim 11, the US Patent in view of Abreu ‘087 teaches all of the elements of the current invention as mentioned above except for wherein the second temperature sensor protrudes past outer periphery outer in an axial direction of the second optical member so as to be positioned to view the right ABTT terminus when the apparatus is placed on a face of a subject.
Abreu ‘087 teaches each of first sensor 1222 and second sensor 1224 extend or protrude past outer periphery or edge 1230 into space or volume 2132 so as to be positioned to view ABTT terminus 10 when device 1220 is placed on the face of a subject (Fig. 25 and [0457]).
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 second temperature sensor of the US Patent in view of Abreu ‘087 to include protruding past outer periphery outer in an axial direction of the second optical member so as to be positioned to view the right ABTT terminus when the apparatus is placed on a face of a subject as Abreu ‘087 teaches that this will aid in capturing a signal from the ABTT terminus while viewing an image ([0457]).
Regarding claim 12, the US Patent in view of Abreu ‘087 teaches all of the elements of the current invention as mentioned above except for a display that is configured to allow the first optical member and the second optical member to provide the image that is viewable by the subject when the apparatus is placed on a face of the subject.
Abreu ‘087 teaches each of first sensor 1222 and second sensor 1224 extend or protrude past outer periphery or edge 1230 into space or volume 2132 so as to be positioned to view ABTT terminus 10 when device 1220 is placed on the face of a subject. Each of right sensor 1222 and left sensor 1224 include a sensor surface 1234 that is adapted to view ABTT terminus 10, allowing eyes of user to see an image, hologram, virtual reality, and/or augmented reality displayed by way of first optical member 1226 and second optical member 1228, thereby allowing capturing a signal from ABTT terminus 10 while viewing an image provided by first optical member 1226 and second optical member 1228 (Fig. 25 and [0457]).
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 apparatus of the US Patent in view of Abreu ‘087 to include a display that is configured to allow the first optical member and the second optical member to provide the image that is viewable by the subject when the apparatus is placed on a face of the subject as Abreu ‘087 teaches that this will aid in capturing a signal from the ABTT terminus while viewing an image.
Regarding claim 13, the US Patent in view of Abreu ‘087 teaches all of the elements of the current invention as mentioned above except for wherein the display is configured to display a temperature map or images acquired by the first and second temperature sensors.
Abreu ‘087 teaches each of right sensor 1222 and left sensor 1224 include a sensor surface 1234 that is adapted to view ABTT terminus 10, allowing eyes of user to see an image, hologram, virtual reality, and/or augmented reality displayed by way of first optical member 1226 and second optical member 1228, thereby allowing capturing a signal from ABTT terminus 10 while viewing an image provided by first optical member 1226 and second optical member 1228 (Fig. 25 and [0457]).
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 display of the US Patent in view of Abreu ‘087 to include being configured to display a temperature map or images acquired by the first and second temperature sensors as Abreu ‘087 teaches that this will aid in in capturing a signal from the ABTT terminus while viewing an image.
Regarding claim 14, the US Patent in view of Abreu ‘087 teaches all of the elements of the current invention as mentioned above except for wherein the image acquired by the camera is transmitted to a separate electronic device.
Abreu ‘087 teaches the device 1100 can further be configured with an integral display (not shown), or can include a connector 1110 that is configured to provide communication with an external electronic device, such as a laptop, cell phone, tablet, etc. (not shown). Device 1100 can also include a transceiver, transmitter, or receiver to transmit information to an external electronic device. In an exemplary embodiment, infrared sensor array or IR imaging camera 1104 can be configured to detect infrared light in the wavelength range of 8,200 to 11,200 nanometers ([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 image acquired by the camera of the US Patent in view of Abreu ‘087 to include being transmitted to a separate electronic device as Abreu ‘087 teaches that this will aid in providing communication.
Regarding claims 15-20, the US Patent, as modified by Abreu ‘087, teaches the apparatus as claimed as claims 15-20 are analogous to claims 1 and 6-12.
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.
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/AURELIE H TU/ Primary Examiner, Art Unit 3791
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