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 .
Allowable Subject Matter
Claim 1 is allowable over the prior art.
The following is a statement of reasons for the indication of allowable subject matter:
Most pertinent prior art, including U.S. Patent Pub. No. 2010/0152621 to Janna et al., U.S. Patent Pub. No. 2002/0024450 to Townsend et al., and U.S. Patent No. 7,127,300 to Mazar et al. disclose a method for detecting and/or recording an event in a subject with an implanted medical device comprising one or more sensors. The method comprises the steps of monitoring a patient’s activity via the one or more sensors within the medical device. The sensor can send information to the subject from a wearable device. The method includes instructing an external signaling device to send an interrogation signal to the implanted medical device at a desired point in time, simultaneously obtaining the evaluation data at the desired point in time from the one or more sensors of the implanted medical device in response to the interrogation signal, and recording the reading in a memory. The one or more sensors are configured to obtain evaluation data characterizing motion or movement of the implanted medical device, wherein the one or more sensors comprises an accelerometer and wherein the instructing is performed by the subject at a desired point in time when the subject experiences a particular event.
The prior art fails to teach or disclose wherein the method comprises transmitting a wireless electrical signal from a location outside the subject’s body to a location inside the subject's body, receiving the signal at the ones or more sensors, powering the sensor using the received signal, sensing evaluation data at the sensor, and outputting the sensed data from the sensor to a receiving unit located outside of the body.
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. 11,596,347. Although the claims at issue are not identical, they are not patentably distinct from each other because both the present application and granted patent disclose a method for detecting and/or recording an event in a subject with an implanted medical device comprising one or more sensors. The method comprises the steps of monitoring a patient’s activity via the one or more sensors within the medical device. The sensor can send information to the subject from a wearable device. The method includes instructing an external signaling device to send an interrogation signal to the implanted medical device at a desired point in time, simultaneously obtaining the evaluation data at the desired point in time from the one or more sensors of the implanted medical device in response to the interrogation signal, and recording the reading in a memory. The one or more sensors are configured to obtain evaluation data characterizing motion or movement of the implanted medical device, wherein the one or more sensors comprises an accelerometer and wherein the instructing is performed by the subject at a desired point in time when the subject experiences a particular event. The method includes transmitting a wireless electrical signal from a location outside the subject’s body to a location inside the subject's body, receiving the signal at the ones or more sensors, powering the sensor using the received signal, sensing evaluation data at the sensor, and outputting the sensed data from the sensor to a receiving unit located outside of the body.
Conclusion
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/CHRISTOPHER J BECCIA/Primary Examiner, Art Unit 3775
