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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 3-7-2025 and 8-22-2025 are being considered by the examiner.
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 8 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.
As per claim 8, the phrase “sub-objects” lacks sufficient antecedent basis.
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 and 6-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2 and 6-8 of copending Application No. 19071230. Although the claims at issue are not identical, they are not patentably distinct from each other because They both provide for the same apparatus identifying a wall and an object with minor changes to sentence structure.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Examiner’s Note: For applicant’s benefit portions of the cited reference(s) have been cited to aid in the review of the rejection(s). While every attempt has been made to be thorough and consistent within the rejection it is noted that the PRIOR ART MUST BE CONSIDERED IN ITS ENTIRETY, INCLUDING DISCLOSURES THAT TEACH AWAY FROM THE CLAIMS. See MPEP 2141.02 VI.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Liedtke, et. al., U.S. Patent Number 6,163,292, published December 2000 in view of Sentelle, et. al., U.S. Patent Application Publication Number 2015/0301167, published October 22, 2015.
As per claim 1, Liedtke discloses a computer-implemented method of operating a measuring device, comprising:
receiving radar data of a radar sensor unit of the measuring device, wherein the radar data depicts a wall to be diagnosed (Liedtke, Col. 4, lines 6-12);
performing a wall diagnostics by performing an analysis of the radar data and generating diagnostic results using a diagnostic module of the measuring device, wherein the performing the wall diagnostics comprises: performing a wall type classification and providing wall type classification results of a wall type of the wall using the diagnostic module based on the radar data (Liedtke, Fig. 3, S3 and S4);
performing an object recognition of an object disposed in the wall using the diagnostic module based on the radar data and taking into account the wall type classification results of the wall type, wherein the object recognition comprises an object detection and an object classification (Liedtke, Fig. 3, S6 and Col. 1, lines 25-35).
Liedtke fails to explicitly disclose classifying the object and providing the information on a display.
Sentelle teaches detection of objects through a medium and classifying them (¶249) and outputting the position to a display (¶86).
It would have been obvious to a person of ordinary skill in the art at the time of the invention to classify and display in order to gain the obvious benefit of informing the user.
As per claim 2, Liedtke as modified by Sentelle discloses the method according to claim 1, wherein the received radar data comprises a plurality of radar signals of different frequencies reflected by the wall, and wherein the received radar data is summarized to a plurality of windows (Liedtke, Col. 3, line 54 using multiple frequencies).
As per claim 3, Liedtke as modified by Sentelle further discloses the method according to claim 2, wherein performing the wall type classification comprises: performing partial classifications on individual windows of the radar data and providing partial classification results of the wall type; and merging a plurality of partial classification results to an overall classification result and determining the wall type based on the overall classification result (Liedtke, Col. 3, lines 55-65 tracking medium changes and Col. 4, lines 38-65 combining the data).
As per claim 4, Liedtke as modified by Sentelle further discloses the method according to claim 3, wherein the merger is affected by performing a merger algorithm, and/or wherein, during the merger, the partial classification results are considered with a weighting with respect to the results of the object recognition (Liedtke, Col. 4, lines 38-65).
As per claim 5, Liedtke as modified by Sentelle further discloses the method according to claim 1, wherein performing the wall type classification comprises: storing the wall type classification results for the wall type; comparing the currently determined wall type classification results for the wall type with stored wall type classification results for the wall type; and providing the current wall type classification results for the wall type if the current wall type classification results for the wall type deviate from the stored wall type classification results for the wall type for a predetermined number of windows of the radar data (Liedtke, Col. 4, lines 29-35 comparing to a look up table).
Liedtke fails to disclose using a predetermined number of windows however it would have been obvious to one having ordinary skill in the art at the time the invention was made, to contrive any number of desirable ranges for the window limitation disclosed by Applicant, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
As per claim 6, Liedtke as modified by Sentelle further discloses the method according to claim 1, wherein: the radar data is received for a plurality of positions of the measuring device relative to the wall, and the method further comprises receiving movement data of a movement detection unit of the measuring device, wherein the movement data represents a movement of the measuring device relative to the wall between the plurality of positions of the measuring device relative to the wall (Sentelle, ¶108).
It would have been obvious to a person of ordinary skill in the art at the time of the invention to move the sensor in order to gain the obvious benefit of covering more surface area of the wall.
As per claim 7, Liedtke as modified by Sentelle further discloses the method according to claim 6, further comprising: checking, based on the movement data of the movement detection unit, whether a movement of the measuring device relative to the wall by a predefined distance has been detected; if no movement has been detected, storing the radar data and performing the check again; and if movement by the predefined distance has been detected, performing the wall diagnostics based on the radar data using the diagnostic module (Sentelle, ¶108 where the movement is known).
As per claim 8, Liedtke as modified by Sentelle further discloses the method according to claim 1, wherein the wall diagnostics further comprises: summarizing sub-objects detected and classified at various positions of the measuring device relative to the wall, based on radar data to a contiguous object, if there is a predefined distance dependency between the sub-objects (Sentelle, ¶218 where clustering associates returns between targets).
It would have been obvious to a person of ordinary skill in the art at the time of the invention to identify a contiguous object in order to gain the obvious benefit of reducing the number of false targets.
As per claim 9, Liedtke as modified by Sentelle further discloses a computing unit configured to perform the method of operating a measuring device according to claim 1 (Liedtke, Col. 3, lines 2-5).
As per claim 10, Liedtke as modified by Sentelle further discloses a computer program product comprising instructions which, when the program is executed by a data processing unit, cause the data processing unit to perform the steps of the method for operating a measuring device according to claim 1 (Liedtke, Col., 3, lines 2-5).
As per claim 11, Liedtke as modified by Sentelle further discloses the method according to claim 1, wherein the measuring device includes a wall diagnostic device (Liedtke, Col. 4, lines 6-12).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and is provide on form PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARCUS E WINDRICH whose telephone number is (571)272-6417. The examiner can normally be reached M-F ~7-3:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jack Keith can be reached at 5712726878. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARCUS E WINDRICH/Primary Examiner, Art Unit 3646
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