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 .
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.
1. Claims 1-3 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In regards to claim 1, it is unclear what exactly the reference element is. The Applicant argues it is a physical, structural element; however, the specification notes that it can be an image having measurement lines (such as a ruler generated by a display) that is used to compare/measure height or other relevant data (Par. 0087-0088). The reference element is not shown in the drawings. Further clarification is needed by the applicant. For examination purposes, the Examiner is interpreting this as something that can be used to measure/compare the relevant data to.
Claims 2-3 are rejected by virtue of their dependency.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
2. Claim(s) 1 and 3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by DeBusschere (US 20170296119 A1).
In regards to claim 1, DeBusschere discloses an apparatus for capturing a video of a human patient suitable for monitoring a cardiac, respiratory or cardiorespiratory condition (Abstract), the apparatus comprising:
an electronic imager (Par. 0042 teaches an imaging camera), the imager positionable with respect to a neck of the patient to be able to capture electronic video of the neck of the patient (Par. 0045 discloses the neck can be imaged and recorded);
a locator object external to the body of the patient, the locator object structured to be repeatedly stably positionable on the body of the patient with respect to an anatomic location on a torso of the patient, the locator object being connected to the imager (The Applicant’s specification details the locator object as an adjustable object that can contain sensors and be worn by the subject/placed on the subject. Par. 0024 of DeBusschere teaches an abdominal pressure cuff [108] located on the torso of the patient); and
a reference element, the reference element being positionable with respect to the neck of the patient by positioning of the locator object; wherein the reference element has predetermined dimensions that render a height of the column of blood in a jugular vein of the patient with respect to at least one of the patient's sternal angle and another grossly immobile anatomic feature of the patient's torso determinable by a computer processor from the captured electronic video (Fig 1 and Par. 0032 teach there being a line [118] that measurement data is compared to/measured by; see also U.S.C. 112b rejection above. Par. 0050-0051 discloses using the imaging/recordings of the neck against the reference to determine the height of the blood that rises in the jugular vein);
In regards to claim 3, DeBusschere discloses the apparatus of claim 1 wherein the height of the column of blood in the jugular vein of the patient with respect to at least one of the patient's sternal angle and another grossly immobile anatomic feature of the patient's upper body is determinable by the computer processor from the captured electronic video without having reference to a different image of the neck of the patient and without requiring the imager having been fixed in a precise position with respect to the neck of the patient at the time that the electronic video was captured (Par. 0093 discloses processor means [710]. Par. 0050-0051 discloses using the imaging/recordings of the neck against the reference to determine a height of the blood that rises in the jugular vein. Fig 1 also shows the imager can be a phone which would not have to be in a fixed position).
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.
3. Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over DeBusschere in view of Rogers (US 20210113099 A1)
In regards to claim 2, DeBusschere discloses the apparatus of claim 1, except for wherein another grossly immobile anatomic feature of the patient's torso is one of a patent's clavicular head, suprasternal notch, and sternum.
However, in the same field of endeavor, Rogers discloses a medical sensing device (Abstract) that can take relevant measurements and images of the of the user (Par. 0110) wherein the device is places on the suprasternal notch (Par. 0106 and Fig 2) in order to allow for accelerometric measurement of both the chest and neck.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have taken the teachings of DeBusschere and modified them by having the device sit within a suprasternal notch of the patient, as taught and suggested by Rogers, in order to allow for accelerometric measurement of both the chest and neck.
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 1-2 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3 of U.S. Patent No. 12295707 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because they contain the same subject matter. The claims of the application under examination and claims of the other application/patent are not consonant with the restriction requirement made by the examiner, since the claims have been changed in material respects from the claims at the time the requirement was made.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SKYLAR LINDSEY CHRISTIANSON whose telephone number is (571)272-0533. The examiner can normally be reached Monday-Friday, 7:30-5:30 EST.
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/S.L.C./Examiner, Art Unit 3792
/LYNSEY C Eiseman/Primary Examiner, Art Unit 3796
