DETAILED ACTION
Applicant’s amendment filed 7/22/2026 has been fully considered.
Claims 2-21 have been examined. Claim 1 has been canceled.
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 .
Response to Amendment
The rejection under 35 USC § 112 is withdrawn.
Applicant’s arguments with respect to Fuchs (20150297081) and Peluso (20140380419) have been fully considered and are persuasive. The prior art rejection has been withdrawn.
Information Disclosure Statement
It is noted that no Information Disclosure Statement has been filed.
No IDS has been received for this application. Applicants are reminded of the Duty to Disclose, from section 2001 of the MPEP (emphasis added). MPEP 2001 Duty of Disclosure, Candor, and Good Faith [R-08.2012] 37 C.F.R. 1.56 Duty to disclose information material to patentability.
(a) A patent by its very nature is affected with a public interest. The public interest is best served, and the most effective patent examination occurs when, at the time an application is being examined, the Office is aware of and evaluates the teachings of all information material to patentability. Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section.
Double Patenting
Claims 2-21 are provisionally rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims of Patent Nos. 11457809 and 12251187. Although the conflicting claims are not identical, they are not patentably distinct from each other because
“A sensing device comprising: an analyte sensor; a memory; a processor; and a transceiver comprising: first radio circuitry configured for first communication with an external device using a first radio communication protocol, wherein: the first radio protocol uses a first frequency range; and the first communication comprises receiving configuration data from the external device; and second radio circuitry configured, based on the configuration data, for second communication with the external device using a second radio communication protocol different from the first radio communication protocol, wherein: the second radio protocol uses a second frequency range the second communication comprises the second radio circuitry transmitting a second radio signal to the external device; and the first frequency range uses lower frequencies than the second frequency range” (claim 2, instant application) is analogous to
“A sensing device comprising: an analyte sensor; a memory; a processor; a transceiver comprising: a first radio unit configured for bidirectional communication with an external device using a first radio communication protocol, wherein the bidirectional communication comprises receiving configuration data for configuring at least one component of the sensing device via a first radio signal from the external device; a second radio unit configured by the configuration data for unidirectional communication with the external device using a second radio communication protocol different from the first radio communication protocol, wherein the unidirectional communication comprises the second radio unit transmitting a second radio signal to the external device, wherein the second radio signal communicates data based on a plurality measurements obtained by the analyte sensor, and wherein the second radio signal comprises an advertisement packet based on sensor data; and wherein the first radio unit has a shorter range than the second radio unit” (claim 1, patent 11457809) and analogous to
“A sensing device comprising: an analyte sensor; a memory; a processor; and a transceiver comprising: a first radio unit configured for bidirectional communication with an external device using a first radio communication protocol, wherein the bidirectional communication comprises receiving configuration data from the external device; and a second radio unit configured by the configuration data for unidirectional communication with the external device using a second radio communication protocol different from the first radio communication protocol, wherein the unidirectional communication comprises the second radio unit transmitting a second radio signal to the external device, wherein the second radio signal communicates data based on a plurality of measurements obtained by the analyte sensor; and wherein the first radio communication protocol has a shorter range than the second radio communication protocol” (claim 1, patent 12251187).
This is a provisional obviousness-type double patenting rejection because the conflicting claims of the instant application have not in fact been patented.
The claims of the conflicting patents and/or applications contain every element of claims 2-21 of the instant application and thus anticipate the claims of the instant application. Claims 2-21 of the instant application therefore are not patently distinct from the copending application claims and as such are unpatentable for obvious-type double patenting. A later patent/application claim is not patentably distinct from an earlier claim if the later claim is anticipated by the earlier claim.
“A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim. In re Longi, 759 F.2d at 896, 225 USPQ at 651 (affirming a holding of obviousness-type double patenting because the claims at issue were obvious over claims in four prior art patents); In re Berg, 140 F.3d at 1437, 46 USPQ2d at 1233 (Fed. Cir. 1998) (affirming a holding of obviousness-type double patenting where a patent application claim to a genus is anticipated by a patent claim to a species with that genus). “ELI LILLY AND COMPANY v BARR LABORATORIES, INC., United States Court of Appeals for the Federal Circuit, ON PETITION FOR REHEARING EN BANC (DECIDED: May 30, 2001).
“Claim 12 and Claim 13 are generic to the species of invention covered by claim 3 of the patent. Thus, the generic invention is “anticipated” by the species of the patented invention. Cf., Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (holding that an earlier species disclosure in the prior art defeats any generic claim) 4. This court’s predecessor has held that, without a terminal disclaimer, the species claims preclude issuance of the generic claim. In re Van Ornum, 686 F.2d 937, 944, 214 USPQ 761, 767 (CCPA 1982); Schneller, 397 F.2d at 354. Accordingly, absent a terminal disclaimer, claims 12 and 13 were properly rejected under the doctrine of obviousness-type double patenting.” (In re Goodman (CA FC) 29 USPQ2d 2010 (12/3/1993).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: the remaining references put forth on the PTO-892 form are directed to communication between sensors and devices, Gothe (20160374124) teaches a similar system for exchanging measurements with an implantable medical device.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to David García Cervetti whose telephone number is (571)272-5861. The examiner can normally be reached Monday-Friday 8AM-5PM.
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/David Garcia Cervetti/Primary Examiner, Art Unit 2409
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