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 § 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.
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.
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.
Claim(s) 1-7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (2016/0377457 A1) in view of Kates (USP 8,101,892 B2)
Regarding claim 1, Zhang discloses a computer-implemented method for food safety mapping, the method comprising: acquiring, via a wireless receiver, (Zhang, ¶0003; ... digital logging systems, consisting of a tablet or a computer, paired with a wirelessly tethered thermometer.)
an encoded unique identifier for a food item; (Zhang, ¶0028; the computing hardware device 14 may receive the sample type from a Near Field Communication (NFC) tag (e.g., an RFID tag) or by scanning an optical machine-readable code such as a two-dimensional or three dimensional barcode (e.g., barcode or Quick Reference (QR) code), etc.... the sample types may include various food items and food preparation items, such as poultry or the like...)
saving, in a database of a memory element, food situation metadata for the food item and the encoded unique identifier in a food item record, (Zhang, ¶0032; the steady state measurement value is recorded in the storage device 26 for the selected sample type (e.g., poultry). ...additional data and/or metadata may also be stored in the storage device 26. For example, the probe device 12 may also record a time at which the temperature was taken, the number and iteration of that particular sample type that has been taken)
the food situation metadata including one or both of a physical location or an associated equipment type; (Zhang, ¶0010; automatically recording the steady state measurement value can include recording a time that the steady state measurement was detected, an identifier for the sample type, a geographic location where the steady state measurement value was detected,)
determining a regulatory rule for the food item (Zhang, ¶0003; The temperature readings are taken in accordance with the food safety regulations established by the U S. Food and Drug Association (FDA) or other regulations established by the restaurant for health and liability reasons; ¶0028; ... the one or more sensors 16 may transmit an identifier used by the probe device 12 to look up the appropriate sample type information in the storage device 26. ... using the identifier, the probe device 12 may look up a sample type associated with the particular proximity sensor 18, and the predetermined measurement value ranges associated with that sample type.)
based at least in part on the food situation metadata; ( Zhang, ¶0028... each of the sample types may have a corresponding predetermined range of the sample type's physical measurement values. ... a predetermined range for poultry may be 165-170 degrees Fahrenheit. The ranges of measurement values can be different for each of multiple sample types... a reference temperature threshold or range for chicken may be different from the reference temperature threshold or range for beef. The probe device may store data that indicates the range for each sample type, or may obtain the information from a server system through communication over a network...)
acquiring, via a temperature sensor, current food temperature data for the food item; (Zhang, ¶0026; the probe device 12 may include a thermometer as the one or more sensors 16 for measuring the temperature of various food items and/or food preparation items. ... the probe device 12 may ... automatically determines when to take a measurement, such that no human interaction is required to trigger the measuring and/or recording of the measured data (e.g., such as temperature, or the like))
and analyzing the current food temperature data under the regulatory rule (Zhang, ¶0003; the temperature readings of a number of cooked and/or raw food items are routinely measured to ensure that the food is being stored at a safe and desired temperature. The temperature readings are taken in accordance with the food safety regulations established by the U S. Food and Drug Association (FDA) or other regulations established by the restaurant for health and liability reasons; ¶0011; The probe device may determine that a level of variation among the measurement values acquired during the measurement cycle exceeds a predetermined threshold, and ... provide an alert indicating that a steady state measurement value is not achieved in response; ¶0033; ...the alert may convey to the user that the measured value is not within a predetermined range for that sample type...)
While Zhang discloses determining that a predetermined threshold has been exceeded and providing an alert, Zhang does not specifically disclose that the threshold or the alert is for the violation of a regulatory rule and therefore does not disclose to determine whether an exception has occurred. [The instant Application indicates that exceptions identify or describe violations of regulatory rules, ¶0021 ¶0051, ¶0081]. Kates in the same field of endeavor, however, teaches determining whether an exception has occurred. (Kates, Col. 2, Lines 52-62; In one embodiment, the processor is configured to store data regarding regulatory violations in an encrypted manner that can be read by an inspector. In one embodiment, the processor is configured to send a message to a regulatory inspector when a regulatory violation is detected.) Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement Zhang with the known technique of determining whether an exception has occurred, as taught by Kates, in order to provide regulatory inspectors with an improved method of monitoring the safety and quality of food. (Kates, Col. 1, Lines 40-51)
Regarding claim 2, which depends from claim 1, Zhang discloses wherein - the food situation metadata is acquired via a user interface, (Zhang, ¶0008; Receiving data that indicates a sample type to be measured can include receiving user input that selects a sample type from among the multiple sample types indicated by the user interface.)
the user interface comprises a smart phone,( Zhang, ¶0009; the probe device is a mobile phone in communication with a sensor ; ¶0023; the computing hardware device 14 may be a mobile computing device, such as a smartphone, a tablet, a laptop, personal digital assistant (PDA), smartwatch, or other mobile computing device)
the memory element comprises a cloud server, (Zhang, ¶0024; the computing hardware device 14 may include wired or wireless a communication module 24 configured to communicate with a local or cloud server... the computing hardware device 14 may be connected to ...a cloud computing storage environment)
the wireless receiver and temperature sensor comprise a thermometer. (Zhang, ¶0003; digital logging systems, consisting of a tablet or a computer, paired with a wirelessly tethered thermometer; ¶0026; the probe device 12 may include a thermometer as the one or more sensors)
Regarding claim 3, which depends from claim 2, Zhang discloses wherein the smart phone includes one or more processors and non-transitory computer-readable storage media having computer-executable instructions thereon that, when executed by the one or more processors, (Zhang, Fig. 1 and ¶0009; the probe device is a mobile phone in communication with a sensor ; ¶0023; the computing hardware device 14 may be a mobile computing device, such as a smartphone, a tablet, a laptop, personal digital assistant (PDA), smartwatch, or other mobile computing device; ¶0024; the computing hardware device 14 may use the communication module 24 and/or telecommunication network(s) to exchange data with a storage device 26. As would be appreciated by one of skill in the art, the storage device 26 may be a local storage device resident on the probe device 12)
cause the one or more processors to - link the thermometer to a local wireless communication network to facilitate electronic communication between the thermometer and the cloud server, (Zhang, ¶0023; a specialized computer system configured to automatically measure and record a temperature of one or more items... the computing hardware device 14 may include ... a cloud computing infrastructure; ¶0024; the computing hardware device 14 may include wireless a communication module 24 configured to communicate with a local or cloud server... the computing hardware device 14 may be connected to ...a cloud computing storage environment; ¶0026; the probe device 12 may include a thermometer as the one or more sensors)
receive the food situation metadata via the user interface of the smart phone, (Zhang, ¶0008; Receiving data that indicates a sample type to be measured can include receiving user input that selects a sample type from among the multiple sample types indicated by the user interface.)
transmit the food situation metadata to the cloud server over the local wireless communication network for the saving in the food item record with the encoded unique identifier. (Zhang, ¶0010; automatically recording the steady state measurement value can include recording a time that the steady state measurement was detected, an identifier for the sample type, a geographic location where the steady state measurement value was detected, or a user identifier for a user taking the steady state measurement.; ¶0011; Automatically recording the steady state measurement value can include transmitting the steady state measurement value over a network to a server system for storage by the server system; ¶0028; the computing hardware device 14 may receive the sample type from a Near Field Communication (NFC) tag (e.g., an RFID tag) or by scanning an optical machine-readable code such as a two-dimensional or three dimensional barcode (e.g., barcode or Quick Reference (QR) code), etc... the sample types may include various food items and food preparation items, such as poultry or the like; ¶0032;... the probe device 12 may also record a time at which the temperature was taken, the number and iteration of that particular sample type that has been taken, an employee identifier of the user taking the measurements...;)
Regarding claim 4, which depends from claim 1, Zhang discloses the encoded unique identifier being acquired from a label positioned proximate to the food item. (Zhang, ¶0010; Receiving data that indicates the sample type to be measured can include: receiving, by the probe device, an indication of the sample type from a near field communication tag, an optical machine-readable code, a wireless beacon; ¶0028; the computing hardware device 14 may receive the sample type from a Near Field Communication (NFC) tag (e.g., an RFID tag) or by scanning an optical machine-readable code such as a two-dimensional or three dimensional barcode (e.g., barcode or Quick Reference (QR) code), etc... the sample types may include various food items and food preparation items, such as poultry or the like,)
Regarding claim 5, which depends from claim 4, Zhang discloses the wireless receiver being an optical sensor and the encoded unique identifier being embodied by visual pattern coding in one or two dimensions on the label. (Zhang, ¶0010; Receiving data that indicates the sample type to be measured can include: receiving, by the probe device, an indication of the sample type from ... an optical machine-readable code; ¶0028; the computing hardware device 14 may receive the sample type from ... scanning an optical machine-readable code such as a two-dimensional or three dimensional barcode (e.g., barcode or Quick Reference (QR) code), etc... the sample types may include various food items and food preparation items, such as poultry or the like,)
Regarding claim 6, which depends from claim 4, Zhang discloses the wireless receiver being a wireless communication element configured for receipt of radio waves from the label encoded with the encoded unique identifier. (Zhang, ¶0010; Receiving data that indicates the sample type to be measured can include: receiving, by the probe device, an indication of the sample type from a near field communication tag... a wireless beacon; ¶0028; the computing hardware device 14 may receive the sample type from a Near Field Communication (NFC) tag (e.g., an RFID tag)... the sample types may include various food items and food preparation items, such as poultry or the like,)
Regarding claim 7, which depends from claim 1, Zhang discloses wherein the temperature sensor comprises a thermometer including a thermal probe, (Zhang, ¶0026; the probe device 12 may include a thermometer as the one or more sensors)
one or more processors and non-transitory computer-readable storage media having computer-executable instructions thereon (Zhang, Fig. 1 and ¶0009; the probe device is a mobile phone in communication with a sensor ; ¶0023; the computing hardware device 14 may be a mobile computing device, such as a smartphone, a tablet, a laptop, personal digital assistant (PDA), smartwatch, or other mobile computing device; ¶0024; the computing hardware device 14 may use the communication module 24 and/or telecommunication network(s) to exchange data with a storage device 26. As would be appreciated by one of skill in the art, the storage device 26 may be a local storage device resident on the probe device 12)
that, when executed by the one or more processors, cause the one or more processors to – analyze sensor output from the thermal probe to determine when a change in temperature for the food item over time is below a threshold, (Zhang, Fig. 2B and ¶0031; The probe device 12 may also determine that the ... temperature is unchanging over a period of time (e.g., steady state) and is within a given threshold, such that the greater temperature falls within the predetermined range of the selected sample type; ¶0034; step 260, the measurement values from steps 254 and 258 are compared to determine a rate of change of the measurements values ...subsequent determinations of the rate of change, from the initial change of temperature, will compare the most recent sample measurement values, e.g., the last two measured values.; ¶0035; At step 262, a determination is made, e.g., by computing hardware device 14, as to whether the rate of change is less than (e.g., <) a predetermined threshold)
based on the determination, transmit the current food temperature data. (Zhang, ¶0011; Automatically recording the steady state measurement value can include transmitting the steady state measurement value over a network to a server system for storage by the server system)
Regarding claim 16, which depends from claim 1, Zhang discloses the temperature sensor comprising a thermometer to generate the current food temperature data, (Zhang, ¶0026; the probe device 12 may include a thermometer as the one or more sensors)
the thermometer including a built-in probe configured for instant-read measurements (Zhang, ¶0031; The probe device 12 may measure an ambient temperature value of the space is 70 degrees Fahrenheit)
and an external probe plugged into an external probe port of the thermometer. (Zhang, ¶0023; the computing hardware device 14 in communication with at least one sensor 16. ..The computing hardware device 14 may include one or more communication ports 22.; ¶0031, and upon insertion of the one or more sensors 16 into a sample item (e.g., poultry) detects that the measured temperature increased to 165 degrees Fahrenheit.)
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (2016/0377457 A1) in view of Kates (USP 8,101,892 B2) in view of Couser et al. (US Pub. 2016/0232536).
Regarding claim 17, claim 17 depends from claim 1. As already discussed the limitations of claim 1 are obvious over Zhang in view of Kates. Concerning claim 7, Zhang does not disclose further comprising preparing, based on the food item record in the database, a structured regulatory report including at least some of the current food temperature data and food situation metadata. Couser, in the same field of endeavor, however, teaches the limitation. (Couser, Fig. 1A-1E and Abstract; The database of deployed compliance activities is used to generate compliance activity reporting; ¶0025; a comprehensive auditing, compliance, monitoring, and on demand facility auditing and compliance management system... create and manage multiple audit/survey deployments; real time executive dashboard reporting and the ability to create ad hoc reports; ¶0041; As depicted in FIG. 1D, temperature data sensed by sensor hardware 101 is sent to mobile device 105 by Bluetooth. As depicted in FIG. 1E, the temperature data is integrated into an automated auditing process. The automated monitoring process can be performed by mobile device 105 or at a remote location through a network. Communications between sensor hardware 101 and mobile device 105 can be identified by time stamp. This allows the automated monitoring process to be monitored over time and monitored as a time-temperature series.; ¶0074; Reports can be created based on anything from survey results to auditor efficiency and performance to location activity or any other data management wishes to extract) Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement Zhang with the known technique of preparing a structured report, as taught by Couser, in order to provide and efficient means to meet the need for compliance and oversight reporting (Couser, ¶¶0005-0007)
Claim(s) 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Gayer et al. (US Pub. 11,293,813 B1) in view of Chapman (US Pub. 2005/0157775 A1)(hereinafter Chapman) in view of Zhang et al. (2016/0377457 A1).
Regarding claim 18, Gayer discloses a system for food safety mapping, (Gayer, Figs. 1 and 9 and Col. 7, Line 48-Col. 8, Line 36; The invention provides... an identification of the location of the food; ... provides a system that continues to monitor and log food conditions and time without risk of inadvertently using unsafe food ....)
comprising: a thermometer (Gayer, Fig. 1 and 2A and Col. 3 Lines 46-55; ...one or more thermometers 12 that are in bidirectional communication with a computer such as a smart device 14)
comprising a wireless communication element, (Gayer, Fig. 1 and 2A and Col. 3, Line 56-Col. 4, Line 9; a Bluetooth brand device positioned within the housing 20 to allow for bidirectional communication between the thermometer 12 and a smart device 14. Col. 7, Line 48-Col. 8, Line 35; The invention...allows a thermometer to receive and send data... )
a thermal probe, (Gayer, Fig. 2A and Col. 4, Lines 15-32; ... the temperature measurement device 42 is an elongated probe 44 that extends from the bottom 28 of the housing 20 )
and non-transitory computer-readable storage media having computer-executable instructions thereon (Gayer, Col. 4, Lines 33-40; The thermometer 12 may include a memory device to store data such as temperature data from the temperature measurement device 42; Col. 5, Lines 1-18; The application 50 provides for bidirectional communication with one or more thermometers 12. The thermometer 12 can transfer such data to the application 50 when the thermometer 12 is connected to the smart device 14. The thermometer 12 is capable of storing a certain amount of data. In an embodiment, the thermometer 12 can store up to 200 individual temperatures. The thermometer 12 is capable of storing timestamp data. Col. 7, Line 48-Col. 8, Line 35; The invention...allows a thermometer to receive and send data... provides an identification of the location of the food... )
that, when executed by the one or more processors, cause the one or more processors to - acquire, via the thermal probe, current food temperature data for a food item, (Gayer; Col. 7, Line 48-Col. 8, Line 35; The invention...allows a thermometer to receive and send ... an identification of the location of the food... provides for live temperature monitoring... )
and an electronic device including a wireless communication element and one or more processors and non-transitory computer-readable storage media having computer-executable instructions thereon (.Gayer, Fig. 1 and 9 and Col. 4, Lines 41-67; the smart device 14 may be an electronic device that can be connected to other devices or networks by one or more wireless protocols. ... such devices include smartphones, tablets, phablets, and smartwatches. ... the smart device 14 has a Bluetooth brand device for communication with the Bluetooth ...the thermometer 12. The smart device 14 may include a device for communication with the cloud 16...... The smart device 14 may include a program product including a machine-readable program code, such as an application)
that, when executed by the one or more processors of the electronic device, cause the one or more processors of the electronic device to -save, in a database of a memory element, an encoded unique identifier associated with the food item in a food item record, save, in the food item record of the database, the current food temperature data. (Gayer, Col. 6, Lines 54-57; Referring to FIG. 1, the application 50 may allow the smart device 14 to transmit and receive data concerning one or more thermometers 12 to one or more control centers 18 through a network such as the cloud 16. Col. 7, Line 48- Col. 8, Line 35; allows for the tracking and the recordation of temperature during the complete lifecycle of food... provides a system ... to simultaneously measure, monitor, and log temperature and age of individual food products with bidirectional communication of such information between a thermometer, a smart device, and a control center....)
While Gayer disclose functionality that is indicative of a processor, Gayer does not specifically state the thermometer includes a processor. Chapman, in the same field of endeavor, however teaches a thermometer includes a processor. (Chapman, ¶0009; a microprocessor used in a thermometer; ¶0016; the thermometer display further preferably comprises a microprocessor; ¶0041; A microprocessor is included within the main body 218.) Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement Gayer with the known technique of including a processor, as taught by Chapman, in order enable Gayer’s thermometer to carry out its disclosed data communication, storage and label display functionality.
Gayer does not disclose analyze sensor output from the thermal probe to determine when a change in temperature for the food item over time is below a threshold. Zhang, in the same field of endeavor, however, teaches the functionality. (Zhang, Fig.2B and ¶0034; ... the measurement values from steps 254 and 258 are compared to determine a rate of change of the measurements values.; ¶0035; a determination is made as to whether the rate of change is less than a predetermined threshold.) Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement Gayer with the known technique of determining when a change in temperature for the food item over time is below a threshold, as taught by Zhang, in order to determine if a food item has reached a steady state value. (Zhang, ¶0036)
based on the determination, transmit the current food temperature data, (Zhang, ¶0036; a determination is made that the correct steady state value has been detected. Once the correct measured value has been determined, then the measured value may be automatically recorded; Claim 24; automatically recording the steady state temperature value comprises: automatically transmitting the steady state temperature value to a server system based on determining that the steady state temperature value has been achieved within the predetermined range.)
Regarding claim 19, which depends from claim 18, Gayer discloses the memory element and database comprising a cloud server. (Gayer, Col. 6, Lines 54-57; Referring to FIG. 1, the application 50 may allow the smart device 14 to transmit and receive data concerning one or more thermometers 12 to one or more control centers 18 through a network such as the cloud 16. Col. 7, Line 48- Col. 8, Line 64; provides a system including a cloud-based application to simultaneously measure, monitor, and log temperature and age of individual food products with bidirectional communication of such information between a thermometer, a smart device, and a control center...; And Zhang, ¶0024; a communication module 24 configured to communicate with a cloud server.)
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Law (US Pub. 2017/0229000 A1)(hereinafter Law) in view of Chapman (USP 7,102,107 B1)(hereinafter Chapman ‘107) in view of Zhang et al. (2016/0377457 A1).
Regarding claim 20, Law discloses a computer-implemented method for food safety mapping, (Law, Figs. 1, 3-4 and 6 and Abstract; A time-temperature tracking and indicator system including a laminated label and a computer application...; ¶0007; The present subject matter relates to a tracking and indicator system for a perishable product such as pharmaceuticals, food stuffs, or other products that may become unsuited for their intended purpose when exposed to certain conditions exceeding a predetermined threshold.)
acquiring, via an external probe in communication with the thermometer (Law, ¶0027; the label acts to track the time-temperature information associated with the product, and communicates such information to the computer application ...; ¶0029; computing devices 20 that are in direct communication with the labels 30 are also in communication with the central communication device 21 via communication channels 121;)
subsequent data of the current food temperature data for the food item; (Law, ¶0027; the label acts to track the time-temperature information associated with the product, and communicates such information to the computer application.)
transmitting, via a wireless communication element of the thermometer, the current food temperature data to an electronic device; (Law, .Fig. 1 and ¶0029; The several computing devices 20 that are in direct communication with the labels 30; ¶0030; the uploaded data from the labels 30 via computing devices 20.)
and saving, in a food item record of a database, the current food temperature data in association with an encoded unique identifier for the food item. (Law, Fig. 1 and ¶0097; a database or other record retention means on one or more central computers 21 is updated upon an NFC computing device or other high frequency-enabled device interrogating the NFC tag in the laminated label... the database in the central computer 21, information regarding the product is transferred from the device 20 to the central computer 21, and the database is updated; ¶0098; food, that require monitoring in order to assure that critical practices during the chain of events are conducted and documented. The use of NFC can enable the creation of a trail of events, such as taking temperature of frozen food shipping containers, or by uploading an interaction between a mobile device and a database established for tracking events. Once the information, along with the time date and user ID is uploaded to the database, such information represents a permanent and unalterable record of a product's history in a supply chain.)
Concerning the method comprising: acquiring, via a built-in probe of a thermometer inserted into a food item, initial data of current food temperature data for a food item. Law does not specifically disclose a probe, and therefore does not disclose comprising a thermometer including a built-in probe. Chapman ‘107, however, teaches the limitation. (Chapman ‘107, Col. 5, Lines 63-Col. 6 Line 7; ...the user could also insert the temperature probe 114 into the food item so that internal temperature readings of the food item may be acquired and used at the desired temperature;) Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement Law with the known technique of the thermometer including a built in probe as taught by Chapman ‘107, in order to implement Law optional teaching of providing a contact type temperature sensor.
Concerning via a port of the thermometer, Law does not specifically disclose a port and therefore does not disclose the acquiring is via a port of the thermometer. Zhang in the same field of endeavor, however, teaches the functionality. (Zhang, ¶0023; the computing hardware device 14 in communication with at least one sensor 16. ..The computing hardware device 14 may include one or more communication ports 22.) Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement Law with the known technique of acquiring via a port, as taught by Zhang, in order to provide a system capable of wireless or wired connection. (Zhang, ¶0011)
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, 4, 6, 8-10, 12 and 18-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 10-11 of U.S. Patent No. 12,313,471 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the ‘471 patent anticipates the claims of the instant application.
Claim Number of the Instant Application
Claim Number of USP 12,313,471 B2
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Claims 2-3 and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,313,471 B2 in view of Law in view of Gayer. The claims of the ‘471 patent do not recite, the user interface comprises a smart phone. Law, in the same field of endeavor, however, teaches the limitation. (Law, Figs. 1 and 3 and ¶0089; Typically, interrogation is performed by “tapping” the NFC tag using an NFC mobile device such as a smart phone.) Consequently, it would have been obvious for a person of ordinary skill in the art, to implement the ‘471 patent with the known technique of employing a smart phone, as taught by Law in order to enable any person along the chain of distribution of the product to receive a variety of useful information. (Law, ¶0088)
Concerning the memory element comprises a cloud server, while Law teaches employing a server, Law does not specifically disclose a cloud server. Gayer, in the same filed of endeavor however, teaches employing a cloud server. (Gayer, Col. 6, Lines 54-57; the application 50 may allow the smart device 14 to transmit and receive data concerning one or more thermometers 12 to a network such as the cloud 16. Col. 7, Line 48- Col. 8, Line 64; provides a system including a cloud-based application to simultaneously measure, monitor, and log temperature and age of individual food products...)Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement Law with the known technique of employing a cloud server, as taught by Gayer in order to achieve the cost effective and scalable solutions benefits provide by employing cloud servers.
the wireless receiver and temperature sensor comprise a thermometer. (Gayer, Fig. 1 and 2A and Col. 3 Lines 46-55; the system 10 may include one or more thermometers 12 that are in bidirectional communication with a computer such as a smart device 14; Col. 3, Line 56-Col. 4, Line 9; a Bluetooth brand device positioned within the housing 20 to allow for bidirectional communication between the thermometer 12 and a smart device 14; Col. 7, Line 48-Col. 8, Line 35; The invention...allows a thermometer to receive and send data... ;)
Claim Number of the Instant Application
Claim Number of USP 12,313,471 B2
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11
11 (Law ¶0101 In addition, information about the specific phone being used, its location, time/date, and additional information may optionally be passed along to the site of the URL establishing a record of the point of contact in the database of the central computer.)
Claim 5 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,313,471 B2 in view of Kaye (2016/0012337 A1)(hereinafter Kaye). The claims of the ‘471 patent do not recite, the encoded unique identifier being embodied by visual pattern. Kaye, however, teaches the limitation. (Kaye, ¶0024; When the sensor or monitoring device includes optical recognition, the perishable can be tracked automatically using a barcode or optical recognition of the departing and returning objects.) Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement the ‘471 patent with the known technique of the encoded unique identifier being embodied by visual pattern coding in one or two dimensions on the label, as taught by Kaye, in order to allow for the placement of the label on the packaging and containers of perishable items. (Kaye, ¶0021)
Claim Number of the Instant Application
Claim Number of USP 12,313,471 B2
5
11
Claims 7 and 13-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,313,471 B2 in view of Zhang. While the claims of the ‘471 patent do not recite “to determine when a change in temperature for the food item over time is below a threshold...” ; “...a built-in probe ... and an external probe plugged into an external probe port...;” “generating an alarm notification...” Zhang, as discussed above discloses the limitations. Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement the ‘471 patent with the claimed techniques in order to provide a system capable determining if a food item is at or has reached a steady state value across various environments. (Zhang, ¶0036)
Claim Number of the Instant Application
Claim Number of USP 12,313,471 B2
7
11
13
11
14
11
15
11
16
11
Claim 17 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,313,471 B2 in view of Couser et al. (US Pub. 2016/0232536). While the claims of the ‘471 patent do not recite preparing a structured report. Couser, in the same field of endeavor, however, teaches the limitation. (Couser, Abstract; The database of deployed compliance activities is used to generate compliance activity reporting; ¶0025; a comprehensive auditing, compliance, monitoring, and on demand facility auditing and compliance management system... create and manage multiple audit/survey deployments; real time executive dashboard reporting and the ability to create ad hoc reports.) Consequently, it would have been obvious for a person of ordinary skill in the art, prior to the effective filing date of the claimed subject matter, to implement the ‘471 patent with the known technique of preparing a structured report, as taught by Couser, in order to provide and efficient means to meet the need for compliance and oversight reporting (Couser, ¶¶0005-0007)
Claim Number of the Instant Application
Claim Number of USP 12,313,471 B2
17
11
Allowable Subject Matter
Claim 8-15 are objected to as being dependent upon a rejected base claim, but would be allowable if a timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome the rejection based on nonstatutory double patenting and if written in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: the prior art of record does not disclose the system of claim 8 including; “acquiring second current food temperature data for the second food item via a second temperature sensor contemporaneously with the acquisition of the current food temperature data via the temperature sensor”.
Claims 9-15 depend from claim 8 and would therefore be allowable for the same reasons as inherited from claim 8.
Conclusion
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/JEROLD B MURPHY/ Examiner, Art Unit 2687
/STEVEN LIM/ Supervisory Patent Examiner, Art Unit 2688