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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Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. [12/050,672, hereinafter refers '672].
Regarding claim 1, the claim limitation of “at least one sensor sized, constructed, and arranged for receiving input ECG signals from the individual claiming to be the known user; a processor operably connected to the at least one sensor and constructed and arranged for processing the received input ECG signals; and a memory operably connected with the processor and including processor instructions for: converting the received input ECG signals into an input biometric template; comparing the input biometric template to a previously stored reference biometric template corresponding to previously received ECG signals from the known user; and authenticating the individual as the known user based on the comparison of the input biometric template and the reference biometric template; the memory further including processor instructions for machine-learning based signal processing of one or both of the previously received ECG signals from the known user and the received input ECG signals from the individual being authenticated to distinguish true ECG signal elements from signal noise” corresponds to claim imitation of ” receiving input electrocardiogram (ECG) signals from an individual claiming to be an authorized user; transferring the received input ECG signals to a computer processor; converting the input ECG signals into an input biometric template using the computer processor; comparing the input biometric template to a previously stored reference biometric template corresponding to previously received ECG signals from the authorized user; authenticating the individual claiming to the authorized user as the authorized user based on the comparison of the input biometric template and the reference biometric template; wherein one or both of the previously received ECG signals from the authorized user and received input ECG signals from the individual claiming to be the authorized user undergo machine-learning based signal processing to distinguish true ECG signal elements from signal noise” of claim 1 of ‘672. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 1 is met by the claim limitation of claim 1 of ‘672.
Allowable Subject Matter
Claims 2-19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 2 and its dependents, the art of record either alone or in combination fails to particular disclose or suggest the claim limitation of “further comprising a biosensor operably between the at least one sensor and the processor and constructed and arranged for pre-processing the received input ECG signals.”
As to the art of record, El Saddick et al. reference discloses the concept of processing patient’s ECG signal. However, El Saddick et al. does not teach with respect to the entire or combination claim limitation stated as above.
Regarding claim 3 and its dependents, the art of record either alone or in combination fails to particular disclose or suggest the claim limitation of “wherein the machinc-learning based signal processing is one of: using a support-vector machine (SVM) previously trained using a first plurality of generic ECG signals and a first plurality of noise signals to generate a classification model for distinguishing true ECG signal elements from signal noise; and using a trained neural network for ECG feature classification.”
As to the art of record, El Saddick et al. reference discloses the concept of processing patient’s ECG signal. However, El Saddick et al. does not teach with respect to the entire or combination claim limitation stated as above.
Regarding claim 4 and its dependents, the art of record either alone or in combination fails to particular disclose or suggest the claim limitation of “wherein: the at least one sensor is also sized, constructed, and arranged for receiving ECG signals from the known user; and the memory additionally includes processor instructions for: converting the ECG signals from the known user into the reference biometric template; and for machine-learning based signal processing of the ECG signals from the known user to distinguish true ECG signal elements from signal noise.”
As to the art of record, El Saddick et al. reference discloses the concept of processing patient’s ECG signal. However, El Saddick et al. does not teach with respect to the entire or combination claim limitation stated as above.
Regarding claim 5 and its dependents, the art of record either alone or in combination fails to particular disclose or suggest the claim limitation of “wherein the memory is constructed and arranged to store the reference biometric template onboard the device.”
As to the art of record, El Saddick et al. reference discloses the concept of processing patient’s ECG signal. However, El Saddick et al. does not teach with respect to the entire or combination claim limitation stated as above.
Regarding claim 6 and its dependents, the art of record either alone or in combination fails to particular disclose or suggest the claim limitation of “a power source constructed and arranged to supply power to the device.”
As to the art of record, El Saddick et al. reference discloses the concept of processing patient’s ECG signal. However, El Saddick et al. does not teach with respect to the entire or combination claim limitation stated as above.
Regarding claim 7 and its dependents, the art of record either alone or in combination fails to particular disclose or suggest the claim limitation of “wherein the at least one sensor is a capacitive touch sensor constructed and arranged to additionally function as a fingerprint scanner.”
As to the art of record, El Saddick et al. reference discloses the concept of processing patient’s ECG signal. However, El Saddick et al. does not teach with respect to the entire or combination claim limitation stated as above.
Regarding claim 8 and its dependents, the art of record either alone or in combination fails to particular disclose or suggest the claim limitation of “wherein the device is a single structural unit comprising therein the assembly of the at least one sensor, the processor, and the memory.”
As to the art of record, El Saddick et al. reference discloses the concept of processing patient’s ECG signal. However, El Saddick et al. does not teach with respect to the entire or combination claim limitation stated as above.
Regarding claim 9 and its dependents, the art of record either alone or in combination fails to particular disclose or suggest the claim limitation of “wherein the device is a single structural unit comprising therein the assembly of the at least one sensor, the processor, and the memory.”
As to the art of record, El Saddick et al. reference discloses the concept of processing patient’s ECG signal. However, El Saddick et al. does not teach with respect to the entire or combination claim limitation stated as above.
Conclusion
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/CAI Y CHEN/ Primary Examiner, Art Unit 2425
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