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 .
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,416,392. Although the claims at issue are not identical, they are not patentably distinct from each other because applicant merely uses slightly different claim language to claim the same invention. Furthermore, in this pending application, the claim recitation of ‘a near-infrared light source’ rather than ‘an infrared light source’ as claimed in U.S. Patent No. 12,416,392 still reads on the claims of U.S. Patent No. 12,416,392 because near-infrared light falls in the wavelength range of infrared light. Near-infrared is just a subset of infrared light.
Allowable Subject Matter
If a proper terminal disclaimer is filed, claims 1-20 would be allowable.
The most relevant prior art of record is the Li ‘233 reference. Li ‘233 teaches a visible-light engine comprising a plurality of channels, each channel is configured to emit white light (para. #’s 46-49) at a predetermined correlated color temperature (CCT) within about 1900 K to about 6500 K.
However, Independent claim 1 claims among other things " ………………………… at least one near-infrared light emitting radiation in a near-infrared region; and a controller configured to dynamically mix outputs of the visible-light engine and the near-infrared light source to emulate a spectral power distribution and intensity characteristic of natural sunlight.” which is not taught or fairly suggested by Li ‘233 or the other prior art of record. Claims 2-8 depend on independent claim 1.
Independent claim 9 claims among other things " ………………… a near-infrared channel comprising at least one infrared light emitter configured to emit radiation in a near-infrared region; and a controller configured to coordinate the light output of both the tunable white light source channel and the near-infrared channel, over time and in accordance with a predetermined schedule or in response to control signals, to emulate a spectral power distribution and illuminance characteristic of natural sunlight." which is not taught or fairly suggested by Li ‘233 or the other prior art of record. Claims 10-13 depend on independent claim 9.
Independent claim 14 claims among other things "………………….. driving, by the controller, one or more near-infrared light emitters to emit radiation in a near-infrared region; coordinating, by the controller, the drive signals to the tunable white light source channel and the near-infrared light emitters over time; and causing a combined spectral power distribution and illuminance to approximate those of natural sunlight, based on a predetermined schedule or in response to control signals" which is not taught or fairly suggested by Li ‘233 or the other prior art of record. Claims 15-20 depend on independent claim 14.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Morgenbrod and Minami disclose lighting devices which are similar to applicant’s invention.
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/THOMAS M SEMBER/Primary Examiner, Art Unit 2875