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 .
DETAILED ACTION
Claims 25-44 are pending.
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 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.
Nonstatutory 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 25-44 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of US Pat. 12,257,021. Although the conflicting claims are not identical, they are not patentably distinct from each other because they are directed to substantially similar methods, systems, and media. For example, contrast instant claim 25 and claim 1 of ‘021:
‘889 Claim 1
Instant claim 25
A medical device monitoring system comprising:
a server having one or more processors configured to:
A medical device monitoring system comprising one or more processors configured to:
receive, via a computer network, from at least one medical device controller of a plurality of medical device controllers, at least one image of contents displayed on a screen of the at least one medical device controller;
receive, via a computer network, from at least one medical device controller of a plurality of medical device controllers, at least one image of contents displayed on a screen of the at least one medical device controller;
send a request to an optical character recognition (OCR) engine to extract textual information from at least a portion of the at least one image;
receive, from the OCR engine, extracted textual information; and
send, in response to at least two trigger conditions of a plurality of trigger conditions being met, a request to the at least one medical device controller to change a first rate at which the at least one medical device controller sends images to the server to a second rate, the first and second rates being non-zero,
send, in response to at least two trigger conditions of the plurality of trigger conditions being met, a request to the at least one medical device controller to change a first rate at which the at least one medical device controller sends images to the one or more processors to a second rate,
wherein the first and second rates are non-zero,
wherein the plurality of trigger conditions comprises:
a first condition based on whether the extracted textual information comprises alarm text;
a second condition based on whether the extracted textual information comprises an indication that a medical device is connected to the at least one medical device controller; or
a third condition based on the results of a validation test performed on the extracted textual information,
wherein each one of the plurality of trigger conditions is specific to at least one of a plurality of predetermined rates at which the at least one medical device controller sends images to the server,
wherein each one of the plurality of trigger conditions is associated with at least one of a plurality of predetermined rates at which the at least one medical device controller sends images to the one or more processors,
wherein two or more of the plurality of trigger conditions are specific to different ones of the plurality of predetermined rates, and
wherein two or more of the plurality of trigger conditions are associated with different ones of the plurality of predetermined rates, and
wherein the second rate is selected by the one or more processors in response to a determination that the second rate is the fastest or the slowest of the predetermined rates specific to one or more of the at least two trigger conditions.
wherein the second rate is selected by the one or more processors in response to a determination that the second rate is the fastest or the slowest of the predetermined rates associated with one or more of the at least two trigger conditions.
Further, remaining instant claims 26-44 correspond with subject matter disclosed by claims 2-25 of ‘021. Therefore, if a patent were to be granted, it may result in an improper timewise extension of the “right to exclude” of the subject matter and may lead to possible harassment by multiple assignees.
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.
Claims 25-39 are 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 pre-AIA the applicant regards as the invention.
Claim 25 recites, “analyze the at least one image to determine whether one or more trigger conditions of a plurality of trigger conditions are met; and send, in response to at least two trigger conditions of the plurality of trigger conditions being met.” It is unclear how many triggers are met in the determination/in response to functionalities as it refers to both “one or more” and “at least two” thus lacking consistency and clarity.
Claim 25 recites, “at least one image…sends images to the one or more processors.” It is unclear what “images” refers to since the claim only previously recites, “at least one image.”
Claim 25 recites, “in response to a determination that the second rate is the fastest or the slowest of the predetermined rates associated with one or more of the at least two trigger conditions.” The terms “fastest” and “slowest” are relative terms and without any context render the claim indefinite. In other words, it is unclear what makes a rate fast or slow in the context of the claim and thus the claim limitation cannot be given a reasonable interpretation.
As to claim 32, it recites similar language to that of claim 25 and is similarly rejected.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 40-44 are rejected under 35 U.S.C. 103 as being unpatentable over Applicant’s Admitted Prior Art (Citations taken directly from the Applicant’s Instant Specification), hereafter, “AAPA,” in view of Yokomitsu et al (US Pub. No. 20214/0313415), hereafter, “Yokomitsu.”
As to claim 40, AAPA discloses a medical device monitoring system comprising a server having one or more processors configured to:
receive, via a computer network, from at least one medical device controller of a plurality of medical device controllers, at least one image of contents displayed on a screen of the at least one medical device controller ([0004]-[0005], particularly, “The servers request and receive images of contents displayed on the screens of the medical device controllers.”);
send a request to an optical character recognition engine to extract textual information from at least a portion of the at least one image ([0005], particularly, “Some servers use optical character recognition (OCR) technology to parse the images and extract textual information, such as heart pump serial number, blood flow rate, warning message text and the like.”).
However, AAPA does not explicitly disclose the server having one or more processors configured to send a request to the at least one medical device controller to change a first rate at which the at least one medical device controller sends images to the server to a second rate, wherein the first and second rates are non-zero, and wherein the second rate is selected by the one or more processors based on information about the computer network.
But, Yokomitsu discloses a server having one or more processors configured to send a request to at least one device controller to change a first rate at which the at least one device controller sends images to the server to a second rate, wherein the first and second rates are non-zero, and wherein the second rate is selected by the one or more processors based on information about the computer network (Abstract, Fig. 3, and [0052], particularly, “For example, when the network load is high, threshold Th1 is raised to transmit a reliable cutout image to the server while preventing an increase in the transmission frequency for cutout images. When the network load is low, threshold Th1 is lowered to transmit a cutout image with certain reliability to the server and while increasing the transmission frequency for cutout images.”).
Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the application to combine the teachings of AAPA and Yokomitsu in order to permit the system to efficiently use available resources (Yokomitsu, [0015]-[0016]).
As to claim 41, the teachings of AAPA and Yokomitsu as combined for the same reasons set forth in claim 40’s rejection further disclose the information about the computer network comprises information about a load on the computer network or information about a reliability of the computer network (Yokomitsu, [0052]).
As to claim 42, the teachings of AAPA and Yokomitsu as combined for the same reasons set forth in claim 40’s rejection further disclose the information about the computer network comprises information about a signal strength of a wireless network connection available to the at least one medical device controller (Yokomitsu, [0052]).
As to claim 43, the teachings of AAPA and Yokomitsu as combined for the same reasons set forth in claim 40’s rejection further disclose the information about the computer network comprises information about a number of other medical device controllers co-located with the at least one medical device controller at a facility (AAPA, [0004]-[0005] and Yokomitsu, [0052]).
As to claim 44, the teachings of AAPA and Yokomitsu as combined for the same reasons set forth in claim 40’s rejection further disclose the selection of the second rate by the one or more processors is further based on information about a timing of a connection of a medical device to the at least one medical device controller (AAPA, [0004]-[0005] and Yokomitsu, [0052]) or information about an accuracy of an optical character recognition of at least one image previously received by the server from the at least one medical device controller.
Allowable Subject Matte
Claims 25-39 and would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action while alleviating the Double Patenting Rejections, provided such amendments do not necessitate new rejections.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS J DAILEY whose telephone number is (571)270-1246. The examiner can normally be reached 9:30am-6:00pm.
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/THOMAS J DAILEY/ Primary Examiner, Art Unit 2458
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