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 § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-7 and 15-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because:
Claims 1-7 recite “A computer-implemented method” in the preamble, line 1. The claims are not directed to a process, machine, manufacture, or composition of matter). Rather, the claims are directed to signal per se. A review of the specification, in section 0145 teaches the computer implemented method may include instructions that may include code from computer programming languages. This would constitute a signal, per se, which is not eligible as a statutory category.
Claims 15-20 recite “a computer-readable storage medium comprising instructions” in the preamble. A review of the specification, as sec[0145] teaches that the computer readable storage medium could include, but is not limited to, electronic, optical, magnetic, or any other storage or transmission device capable of providing the processor with program instructions. The instructions may include code from any suitable computer programming language.
This does not constituted eligible subject matter, because the specification does not rule out non-statutory sources as the memory.
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 1-7 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.
Claim 1 recites the limitation "the one or more processors" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Appropriate correction is required.
Claim Objections
Claim 1 is objected to because of the following informalities: Claim 1 line 3, the term “by” should be inserted in between the terms “detecting,” and “the”. Appropriate correction is required.
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 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 of U.S. Patent No. 12,315,353(‘353). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following:
-- Claim 1 recites essentially the same subject matter as that of claim 1 of ‘353, including
1) generating, using a radar system within the room that includes a bed within the room, a first set of points corresponding to a first person is equivalent to the generating, using a radar system…….corresponding to the room, as recited in claim 1 of ‘353
2) generating a second set of points corresponding to a second person is equivalent to determining, from a point cloud, a location of a second representative point or second set of points of the point cloud corresponding to a second person, as recited in claim 1 of ‘353;
3) determining, in a processor, that an assault has occurred when the first set of points and the second set of points are both colocalized within a region of the room comprising the bed for greater than a duration threshold is equivalent to the determining, in a processor……….comprising the bed for greater than a duration, as recited in claim 1 of ‘353
4) triggering an assault alert when the processor determines that the assault has occurred is equivalent to the triggering an assault……….the assault has occurred, as recited in claim 1 of ‘353.
Although claim 1 does not teach point cloud, it would have been obvious that a point cloud would have been included, since this would have been necessary to create the data points for determining first and second persons in the room.
-- Claim 2 recites essentially the same subject matter as that of claim 2 of ‘353, including:
1) generating the first set of points corresponding to the first person comprises determining a relative position of a first centroid of the first set of points, and wherein determining the location of the second set of points corresponding to the second person comprises determining a relative position of a second centroid of the second set of points is equivalent to the determining the location………relative position of a second centroid of the second set of points.
-- Claim 3 recites essentially the same subject matter as that of claim 3 of ‘353, including:
1) determining the location of the representative first set of points corresponding to the first person comprises determining based on a relative movement of the points, and wherein determining the location of the representative second set of points corresponding to the second person comprises determining based on relative movement of points within the second set of points is equivalent to determining the location of the representative first point……….based on relative movement f points within the point cloud.
-- Claim 4 recites essentially the same subject matter as that of claim 4 of ‘353, including:
1) triggering comprises triggering the assault alert when the first set of points and the second set of points are both within the region of the room comprising the bed for greater than a duration threshold of 10 seconds or more is equivalent to triggering comprising………greater than a duration threshold of 10 seconds or more, as recited in claim 4 of ‘353.
-- Claim 5 recites essentially the same subject matter as that of claim 5 of ‘353.
-- Claim 6 recites essentially the same subject matter as that of claim 6 of ‘353.
-- Claim 7 recites essentially the same subject matter as that of claim 6 of ‘353.
-- Claim 8 recites essentially the same subject matter as that of claim 7 of ‘353.
-- Claims 9-26 recites essentially the same subject matter as that of claims 8-26 of ‘353, respectively.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DARYL C POPE whose telephone number is (571)272-2959. The examiner can normally be reached 9AM - 5PM M-F.
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/DARYL C POPE/Primary Examiner, Art Unit 2686
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