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 .
Applicant’s preliminary amendments filed on 07/02/2025 are acknowledged.
Claims 31-50 are pending for examination. Claims 1-30 are cancelled.
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
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.
Claim 31-50 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 12,303,642. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-21 of ‘642 anticipate or recite similar limitations of claims 31-50 of present application.
Claim 31-50 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of U.S. Patent No. 12,594,389. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-25 of ‘389 anticipate or recite similar limitations of claims 31-50 of present application.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Luxon et al. (USPGPUB 2018/0140252) teaches a ventilation system (Figs. 1-10 and 19 ; ventilator, [0015]; [0018]) for non-invasive determination of a hemodynamic parameter ([0013]; [0018]; [0198]) of a mechanically ventilated subject based on a point in time, thb, of a heartbeat of the subject (start of the cardiogenic oscillation curve, [0155]; time for the R peak, [0198]; Figs. 3-4 ) and an arrival point in time, tarr_pulm, at which a blood pressure pulse caused by the heartbeat reaches the lungs of the subject ([0008]; end of the cardiogenic oscillation curve, [0155]; peak in the cardiogenic oscillation curve, [0198]; Figs. 3-4), the ventilation system comprising: a breathing apparatus mechanically ventilating the subject (ventilator, [0015]; [0018]); at least one pressure sensor measuring a respiratory pressure and/or at least one flow sensor measuring a respiratory flow ([0083] and [0089]); and a computer determining the hemodynamic parameter (element 1103, Fig. 11 ; controller, abstract, [0007] and [0021]; [0130-0131]), wherein the computer is configured to: determine tarr_pulm from a change in the measured respiratory pressure and/or the respiratory flow resulting from a change in lung volume caused by the arrival of the blood pressure pulse to the lungs of the subject ([0008]; end of the cardiogenic oscillation curve, [0155]; peak in the cardiogenic oscillation curve, [0198]; Figs. 3-4 ); determine a pulmonary pulse transit time, PTTpulm, for the blood pressure pulse based on thb and tarr_pulm ([0198]) and determine the hemodynamic parameter based on PTTpulm ([0019]; [0198]). Martin et al. (USPGPUB 2010/0016694) teaches “An alternate means of calculating pulse-transit time is to replace the timing of electrical systole with mechanical systole, e.g., cardiogenic flow (CGF) seen in a respiratory flow signal (e.g., acquired during ventilator or CPAP therapy or using a nasal pressure transducer), after deducting a fixed propagation delay from lung to nares. By combining the timing of the cardiogenic respiratory flow signal with the timing of the plethysmographic pulse it may be possible to calculate relative variations in pulse-transit time more accurately than traditional PTT (pulse transmission time) estimates, since the left-ventricle's pre-ejection period is not included in the measured duration (the pre-ejection period is known to sometimes detract from the sensitivity of the ECG-derived PTT measurement). In addition, by acquiring the CGF pulse at a consistent place within the respiratory cycle (end expiration, when it is most readily seen), the respiratory-induced fluctuations in PTT can be ignored. That leaves just the PTT variations due to either BP variation or changes in arterial tone (sympathetic activation), both of which shorten the PTT, and both of which are associated with arousal, thereby offering another important SDB parameter” ([0060]).
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/CHU CHUAN LIU/Primary Examiner, Art Unit 3791
