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 .
DETAILED ACTION
This action is in response to the communication as filed on 21 AUG 2025.
Claims 1, 8, 15-20 amended.
Claims 1-20 present and examined.
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.
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Claims 1-20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12380977. Although the claims at issue are not identical, they are not patentably distinct from each other because the “retrieving a stored healthcare treatment model trained to identify…thereby treating the myopia wherein the stored healthcare treatment model includes a healthcare model for treating the myopia; in response to receiving input… using the healthcare treatment model to select one or more treatment programs…; receiving data related to a new treatment program… including at least one selected from the group consisting of performing day exercise/outdoor exercise, positive affection training, meditation/deep breathing, audible high tempo music, and physical exercise; and providing a new treatment user interface...” limitations of the ‘977 patent read on the “retrieving stored healthcare treatment model that has been trained to identify…one or more respective treatment programs based on respective behavior associated with one or more neurohumeral factors associated with a respective health condition…provide one or more tasks for a user to follow thereby treating the myopia wherein the stored healthcare treatment model includes a health care model…; in response to receiving input… using the healthcare treatment model to select one or more treatment programs…; providing the treatment user interfaces for one or more treatment programs, wherein the programs include at least one selected from the group consisting of performing day exercise/outdoor exercise, positive affection training, meditation/deep breathing, audible high tempo music, and physical exercise.” Limitations of the pending application.
Prior Art
The closest prior art of record is believed to be:
Kutzko et al (US 20200273578 A1, hereinafter Kutzko)
Brust (US 20170329933 A1, hereinafter Brust).
Qu, Yuan et al “Correlation of Myopia with Physical Exercise and Sleep Habits among Suburban Adolescents” , hereinafter Qu.
Kutzko as cited teaches using models to suggest a treatment using models for a plurality of conditions. Kutzko uses adherence to a treatment regimen to suggest an alternative treatment for an identified condition, and presenting the treatment to the user. Brust as cited teaches a plurality of treatments for a given condition, and monitoring and adjusting the treatment as the user progresses through. Brust also teaches monitoring a user’s progress with sensors, and using the compliance with the prior training to make adjustment to the training going forward. Qu references a study done on myopia prevention means in children, and considers the effects of exercise, time outside, and sleep in this effort. However, the references as cited do not separately nor in combination teach not specifically teach the claimed means of treating myopia and providing an updated treatment for myopia from the specific treatments suggested.
The Examiner hereby asserts that the totality of the evidence neither anticipates nor renders obvious the particular combination of elements as claimed. That is, the Examiner emphasizes the claims as a whole and hereby asserts that the totality of the evidence fails to set forth, either explicitly or implicitly, an appropriate rationale for combining or otherwise modifying the available prior art to arrive at the claimed invention. The combination of features as claimed would not be obvious to one of ordinary skill in the art because any combination of the evidence at hand to reach the combination of features as claimed would require a substantial reconstruction of Applicant’s claimed invention relying on improper hindsight bias.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE KOLOSOWSKI-GAGER whose telephone number is (571)270-5920. The examiner can normally be reached Monday - Friday.
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/KATHERINE . KOLOSOWSKI-GAGER/
Primary Examiner
Art Unit 3687
/KATHERINE KOLOSOWSKI-GAGER/Primary Examiner, Art Unit 3687
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