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 office action is in response to application 19/341,299 filed 9/26/25. Claims 1-20 are pending with claims 1, 10, and 19 in independent form.
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 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim1-20 of U.S. Patent No. 12,451,231 and over claims 1-20 of U.S. Patent No. 12,020,802 in view of Hadad et al. US 2019/0290172 A1. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application recite similar limitations of the claims of the ‘231 and ‘802 patents. For instance, in claim 1 of the instant application and in the ‘231 and ‘802 patents, the applicant claims:
Application 19/341,299
Patent No. 12,451,231
Patent No. 12,020,802
1. A method of determining glucose responses, the method comprising: obtaining, for a patient, historical data comprising activity data, food consumption data, and glucose data; predict glucose response parameters for the patient using the historical data as a training set, and utilize the predicted glucose response parameters to determine a recommendation associated with consumption of a product by the patient to maintain a glucose level within a target range during an activity.
1. A processor-implemented method comprising: determining, based on glucose data of a user and activity data indicating movement of the user during an activity, a recommendation associated with a consumption of a product by the user to maintain a glucose level within a target range during the activity; and in response to the recommendation indicating that the consumption of the product is recommended, providing the recommendation to the user.
1. A system, comprising: one or more processors; and one or more non-transitory processor-readable media storing instructions which, when executed by the one or more processors, cause performance of: receiving activity data from an activity monitoring device, the activity monitoring device comprising an activity sensor for tracking movement of a user during an activity; receiving glucose data from a continuous glucose monitoring device; determining a product consumption recommendation based on the glucose data and the activity data, wherein the product consumption recommendation includes a recommendation of when the user should consume a carbohydrate-containing product in order to maintain glucose levels within a specified target range during the activity; and causing display of the product consumption recommendation on a display device.
The claims of the instant application obviously encompass the claimed invention of the ‘231 and ‘802 patents and differ only in terminology.
The ‘231 and ‘802 patents fail to specifically teach training a machine learning model. However, Hadad teaches a system and method for food analysis and personalized recommendations to predict a user’s glucose metabolism and interaction with insulin based on food consumption ([0246]) where patterns can be found in a training set to generate a machine learning algorithm to be used in the food analysis and prediction with personalized recommendations ([0148]).
Therefore, in respect to above discussions, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the teaching of claims 1-20 of the ‘231 and ‘802 patents as a general teaching for a method and system of determining glucose responses, to perform the same function and method as claimed in the present invention and to incorporate the teachings of Hadad into the teachings of the aforementioned patents as an obvious matter of design choice to analyze and classify foods in real-time ([0163]) to automatically estimate types and amounts of unknown ingredients and provide food and health recommendations to a user ([0221], [0290]).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Applicant argues the prior art patents fails to teach a machine learning model in the previous double patenting rejections. The Examiner has submitted a new double patenting rejection with secondary reference to address the missing claim limitation.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRISTY A HAUPT whose telephone number is (571)272-8545 and email address is kristy.haupt@uspto.gov. The examiner can normally be reached on Mon-Sun 5:30 AM- 10PM; Flex during day.
If all attempts to reach the examiner by telephone and email are unsuccessful, the examiner’s supervisor, Michael Lee, can be reached at telephone number 571-272-2398. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KRISTY A HAUPT/
Primary Examiner, Art Unit 2876
KAH
Prosecution Insights