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 .
Response to Arguments
Applicant's arguments filed 30 August 2026 have been fully considered but they are not persuasive.
The objection to the specification is withdrawn.
Applicant argues that the non-statutory double patenting rejection is improper.
Applicant argues that there is no corresponding item in the ‘248 patent to the “falling below a minimum requirement for the link quality” limitation. The “predict a link quality measure indicative of a probability that the link will fall within a future time interval having a predetermined length” in the ‘248 patent is the more specific version of “predict whether a link quality of the first link is trending towards falling below a minimum requirement for the link quality” in the instant application.
Applicant argues that “initiating a responsive action depending on the predicted link quality measure” and “initiating a diversion of subsequent communication, at least partially, from the link to another link” in the ‘248 patent is not equivalent to the “initiate a remedial measure to prevent data loss, wherein the remedial measure to prevent data loss includes diverting the data traffic from the first link to a second link” in the instant application. Applicant’s argument is not persuasive. “to prevent data loss” is intended use.
Applicant argues there is no obviousness rationale present in the rejection. As shown above, the instant application is broader than the ‘248 patent, and the ‘248 patent anticipates the instant application.
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 1-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,273,248. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 9-10 of the ‘248 patent anticipate claim 1 of the instant application, for example as shown below.
Claim 9 of ‘248 patent
Claim 1 of instant application
A method for use in a network device, the method comprising:
An integrated circuit for use in a network device, the integrated circuit comprising:
using a receiver, receiving a signal over a link and processing the received signal;
a receiver having one or more settings, wherein the receiver is configured to receive, based on the one or more settings, data traffic over a first link; and
a link quality estimation circuit configured to:
running an Artificial Prediction (AI) model that predicts a link quality measure indicative of a probability that the link will fail within a future time interval having a predefined length, wherein the AI model predicts the link quality measure by analyzing at least one or more settings of circuitry of the receiver; and
run a pre-trained machine learning model configured to (i) analyze the one or more settings of the receiver, and (ii) predict whether a link quality of the first link is trending towards falling below a minimum requirement for the link quality; and
initiating a responsive action depending on the predicted link quality measure
responsive to the pre-trained machine learning model predicting that the link quality of the first link is trending towards falling below the minimum requirement, initiate a remedial measure to prevent data loss,
(claim 10) wherein initiating the responsive action comprises initiating a diversion of subsequent communication, at least partially, from the link to another link.
wherein the remedial measure to prevent data loss includes diverting the data traffic from the first link to a second link.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jeffrey R. Swearingen whose telephone number is (571)272-3921. The examiner can normally be reached M-F 8:00 am - 5:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Oscar Louie can be reached at 571-270-1684. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Jeffrey R. Swearingen
Primary Examiner
Art Unit 2445
/Jeffrey R Swearingen/Primary Examiner, Art Unit 2445
Prosecution Insights