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 .
Status of the Application
Claims 2-97 have been cancelled. Claim 1 is currently pending in this application.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claim 1 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 1 of prior U.S. Patent No. 10,275,679. This is a statutory double patenting rejection. See claim analysis in Table 1 below.
Table 1: Instant Application No. 19/291,034 vs. U.S. Patent No. 10,275,679
Instant Application No. 19/291,034 Claims
U.S. Patent No. 10,275,679 Claims
1. An avian detection system for detecting a flying avian in an airspace comprising: a first imager having a wide field of view for detecting a moving object; a second imager having a high zoom; a positioner operably connected to the second imager for positioning the second imager to image the moving object detected by the first imager; a processor operably connected to receive image data from the first imager, the second imager, or both to identify a moving object that is a flying avian based on said image data; wherein the avian detection system provides substantially complete hemispherical coverage of said airspace surrounding the avian detection system.
1. An avian detection system for detecting a flying avian in an airspace comprising: a first imager having a wide field of view for detecting a moving object; a second imager having a high zoom; a positioner operably connected to the second imager for positioning the second imager to image the moving object detected by the first imager; a processor operably connected to receive image data from the first imager, the second imager, or both to identify a moving object that is a flying avian based on said image data; wherein the avian detection system provides substantially complete hemispherical coverage of said airspace surrounding the avian detection system.
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 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,544,490. Although the claims at issue are not identical, they are not patentably distinct from each other because they cover mutually associated subject matter. Thus, a terminal disclaimer is required. An analysis of the claims can be seen in Table 2 below.
Table 2: Instant Application No. 19/291,034 vs. U.S. Patent No. 11,544,490
Instant Application No. 19/291,034 Claims (Difference Emphasis Added)
U.S. Patent No. 11,544,490 Claims (Difference Emphasis Added)
1. An avian detection system for detecting a flying avian in an airspace comprising: a first imager having a wide field of view for detecting a moving object; a second imager having a high zoom; a positioner operably connected to the second imager for positioning the second imager to image the moving object detected by the first imager; a processor operably connected to receive image data from the first imager, the second imager, or both to identify a moving object that is a flying avian based on said image data; wherein the avian detection system provides substantially complete hemispherical coverage of said airspace surrounding the avian detection system.
1. A detection system for detecting a flying object in an airspace comprising: a plurality of first imagers that are fixably positioned in each of a plurality of distinct alignment directions, each of the plurality of first imagers having a wide field of view for detecting a moving object, wherein the plurality of first imagers are arranged in a spatial configuration to provide from the plurality of alignment directions a substantially complete hemispherical coverage; a plurality of second imagers each having a high zoom, wherein the plurality of second imagers is a stereo imager; a positioner operably connected to the stereo imager for positioning the stereo imager to image the moving object detected by the plurality of first imagers, wherein the positioner moves an alignment direction of the stereo imager based on an output from at least one of the plurality of first imagers without moving any of the plurality of first imagers; a processor operably connected to receive image data from the plurality of first imagers, the plurality of second imagers, or both to identify the moving object that is an artificially-constructed flying object or a flying avian based on said image data; wherein the plurality of first imagers arranged in the plurality of distinct alignment directions provides full 360° and the substantially complete hemispherical coverage for detection of the moving object in any direction relative to the detection system.
Some of the differences in the claim limitations in the U.S. Patent are narrower than the instant application, and thus it would have been obvious to make the claim limitations in the instant application broader by removing the specific language found in the U.S. Patent.
The U.S. Patent fails to explicitly disclose an avian detection system for detecting a flying avian in an airspace comprising: wherein the avian detection system provides substantially complete hemispherical coverage of said airspace surrounding the avian detection system.
Stiesdal discloses an avian detection system for detecting a flying avian in an airspace ([0020] An evaluation system is coupled with the camera-system and the evaluation system is configured to evaluate the images to detect a flying animal within the environment of the wind turbine.) comprising: wherein the avian detection system provides substantially complete hemispherical coverage of said airspace surrounding the avian detection system ([0020] Accordingly, a collision of a flying animal with a wind turbine is prevented, whereby a camera-system is arranged at the wind turbine and the camera-system is configured to generate images of the environment of the wind turbine. [0029] As a flying animal approaches the wind turbine in a mainly horizontal way the panoramic camera observes the surrounding area horizontally. Thus the panoramic camera covers the main flight path of the flying animal approaching the wind turbine.).
It would have been obvious to one of ordinary skill in the art at the time of the claimed invention to modify the invention with the teachings of Stiesdal in order to improve the detection of flying animals near the wind turbines [See Stiesdal].
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 21 of U.S. Patent No. 12,399,933. Although the claims at issue are not identical, they are not patentably distinct from each other because they cover mutually associated subject matter. Thus, a terminal disclaimer is required. An analysis of the claims can be seen in Table 3 below.
Table 3: Instant Application No. 19/291,034 vs. U.S. Patent No. 12,399,933
Instant Application No. 19/291,034 Claims (Difference Emphasis Added)
U.S. Patent No. 12,399,933 Claims (Difference Emphasis Added)
1. An avian detection system for detecting a flying avian in an airspace comprising: a first imager having a wide field of view for detecting a moving object; a second imager having a high zoom; a positioner operably connected to the second imager for positioning the second imager to image the moving object detected by the first imager; a processor operably connected to receive image data from the first imager, the second imager, or both to identify a moving object that is a flying avian based on said image data; wherein the avian detection system provides substantially complete hemispherical coverage of said airspace surrounding the avian detection system.
21. A detection system for detecting a flying object in an airspace volume comprising: a plurality of first imagers that are fixably positioned in each of a plurality of distinct alignment directions, each of the plurality of first imagers having a wide field of view for detecting a moving object in the airspace volume, wherein the plurality of first imagers are arranged in a spatial configuration to provide coverage of the airspace volume that surrounds the detection system and the airspace volume has a volume of between 0.45 km.sup.3 and 16.8 km.sup.3; a second imager having a high zoom; a positioner operably connected to the second imager for positioning the second imager to image the moving object detected by the plurality of first imagers, wherein the positioner moves an alignment direction of the second imager based on an output from at least one of the plurality of first imagers; and a processor operably connected to the plurality of first imagers and the second imager receive image data from the plurality of first imagers, the second imager, or both to identify the moving object that is an artificially-constructed flying object or a flying avian based on said image data.
Some of the differences in the claim limitations in the U.S. Patent are narrower than the instant application, and thus it would have been obvious to make the claim limitations in the instant application broader by removing the specific language found in the U.S. Patent.
The U.S. Patent fails to explicitly disclose an avian detection system for detecting a flying avian in an airspace comprising: wherein the avian detection system provides substantially complete hemispherical coverage of said airspace surrounding the avian detection system.
Stiesdal discloses an avian detection system for detecting a flying avian in an airspace ([0020] An evaluation system is coupled with the camera-system and the evaluation system is configured to evaluate the images to detect a flying animal within the environment of the wind turbine.) comprising: wherein the avian detection system provides substantially complete hemispherical coverage of said airspace surrounding the avian detection system ([0020] Accordingly, a collision of a flying animal with a wind turbine is prevented, whereby a camera-system is arranged at the wind turbine and the camera-system is configured to generate images of the environment of the wind turbine. [0026] A panoramic camera is a camera that is configured to provide images that cover a wide angle in one direction of the image provided. This wide angle can cover up to 360°. The wide angle is used to check the environment in a mainly horizontal orientation or direction. [0029] As a flying animal approaches the wind turbine in a mainly horizontal way the panoramic camera observes the surrounding area horizontally. Thus the panoramic camera covers the main flight path of the flying animal approaching the wind turbine. [0099] The cameras 3 and 4 are panoramic cameras that take 360° images in mainly the horizontal direction.).
It would have been obvious to one of ordinary skill in the art at the time of the claimed invention to modify the invention with the teachings of Stiesdal in order to improve the detection of flying animals near the wind turbines [See Stiesdal].
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Stiesdal et al. (Hereafter, “Stiesdal”) [US 2013/0050400 A1].
In regards to claim 1, Stiesdal discloses an avian detection system for detecting a flying avian in an airspace ([Abstract] An evaluation system is coupled with the camera-system and the evaluation system evaluates the images to detect a flying animal within the environment of the wind turbine.) comprising: a first imager having a wide field of view for detecting a moving object ([0026] A panoramic camera is a camera that is configured to provide images that cover a wide angle in one direction of the image provided. [0027] A panoramic camera is configured to provide a wide image up to a complete image of the area, mainly horizontal around the camera. [0028] A wide angle image provided by the panoramic camera is referred to as a panoramic image. [0029] As a flying animal approaches the wind turbine in a mainly horizontal way the panoramic camera observes the surrounding area horizontally. Thus the panoramic camera covers the main flight path of the flying animal approaching the wind turbine.); a second imager having a high zoom ([0040] The camera-system comprises a second camera, which is configured to generate images of a section of the wind turbine environment. [0044] The second camera is needed to obtain three-dimensional information about the environment of the wind turbine, especially about the direction where the flying animal is detected.); a positioner operably connected to the second imager for positioning the second imager to image the moving object detected by the first imager ([0045] In one embodiment only the three-dimensional information about the flying animal is needed, the second camera covers the section of the wind turbine environment where the flying animal was detected. To adjust the camera to the position of the flying animal the camera is mounted in a way that it is configured to be positioned according to the direction of the flying animal.); a processor operably connected to receive image data from the first imager, the second imager, or both to identify a moving object that is a flying avian based on said image data ([0030] The evaluation system is an arrangement being capable to evaluate the images and to detect the flying animal based on the evaluation.); wherein the avian detection system provides substantially complete hemispherical coverage of said airspace surrounding the avian detection system ([0026] A panoramic camera is a camera that is configured to provide images that cover a wide angle in one direction of the image provided. This wide angle can cover up to 360°. The wide angle is used to check the environment in a mainly horizontal orientation or direction.).
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kaitlin A Retallick whose telephone number is (571)270-3841. The examiner can normally be reached Monday-Friday 8am-5pm.
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/KAITLIN A RETALLICK/Primary Examiner, Art Unit 2482
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