DETAILED ACTION
Status of the Application
1. Claim 1 is cancelled. Claims 2 – 20 are newly added. Claims 2 – 20 are pending and are under examination in this action.
2. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Double Patenting
3. 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.
4. Claims 2 – 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 20 of U.S. Patent No. 12,333,109.
For Example:
Claim 11 (App. 19/228,590)
Claim 1 (Patent 12,333,096)
1. A wearable device, comprising: (line 1)
1. A wearable device, comprising: (line 1)
a primary processor configured to operate in a first power mode; and (line 2)
the primary processor that is configured to: before receiving the indication, operate in a low-power mode (lines 14 – 16)
a supplementary processor configured to: (line 3)
a supplementary processor configured to: (line 6)
sample digital biopotential signals from an analog-to-digital converter (ADC) configured to produce the digital biopotential signals based at least in part on analog biopotential signals received from biopotential-signal-sensing channels; and (lines 4 – 6)
an analog-to-digital converter (ADC) configured to produce digital biopotential signals based on analog biopotential signals received from biopotential-signal-sensing channels; (lines 2 – 5)
sample the digital biopotential signals from the ADC; (line 7)
transmit, to the primary processor, an indication relating to the sampled digital biopotential signals when a first condition is met, (lines 7 – 8)
transmit, to a primary processor, an indication that the particular number of the digital biopotential signals is stored in the buffer; and (lines 11 – 13)
wherein the primary process is configured to identify, after receiving the indication, a hand gesture performed by a user of the wearable device based at least in part on the sampled digital biopotential signals. (lines 9 – 11)
the primary processor that is configured to: (line 14)
process the particular number of digital biopotential signals from the buffer to detect in-air hand gestures performed by a user of the wearable device. (lines 17 – 20)
Claim 11 of the present application is broader than claim 1 of U.S. Patent No. 12,333,096. Accordingly, it is clear that the recitations of claim 1 of Patent No. 12,333,096 anticipates claim 1 of the present application.
Pertinent Prior Art
5. The prior art made of record and not relied upon which is considered pertinent to applicant's disclosure includes: Levenberg (U.S. Pub. 2021/0005104), McLaurin et al. (U.S. Pub. 2024/0103627), Schorey et al. (U.S. Pub. 2019/0142349), Cha (U.S. Pub. 2020/0064906), Ang et al. (U.S. Pub. 2024/0103628), Kang et al. (U.S. Pub. 2017/0244827), Stern et al. (U.S. Pub. 2023/0019413), Park et al. (U.S. Pub. 2023/0168761), Bundalo et al. (U.S. Pub. 2019/0005953), Araujo et al. (U.S. Pub. 2020/0272236), Wagner et al. (U.S. Pub. 2023/0305633), and Nguyen et al. (U.S. Pub. 2022/0374085).
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Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN A LUBIT whose telephone number is (571)270-3389. The examiner can normally be reached M - F, ~6am - 3pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Temesghen Ghebretinsae can be reached at 571-272-3017. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RYAN A LUBIT/Primary Examiner, Art Unit 2626
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