NON-FINAL REJECTION
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 .
Claim Interpretation
Claim 1 recites in part: “the physiological signal comprises at least one of: a pressure signal, a flow signal, a flow rate signal, a carbon dioxide partial pressure signal, a carbon dioxide signal, a blood oxygen signal and a blood pressure signal”. This limitation takes the form of “at least one of: [A], [B], [C], [D], [E], [F] and [G]”.
[A], [B], [C], [D], [E], [F] and [G] appear to be different types/categories of physiological signals. Further, in the way that these signal types/categories are used in a diagnostic medical sense, they may not necessarily be considered alternatives of one another because the physiologies that they respectively measure/represent can be considered distinct from each other (e.g., pressure signal vs. blood oxygen signal, etc.). For example, a blood oxygen signal is a measure/representation of the level of oxygen in the blood and therefore used, for example, to diagnose hypoxia (i.e., low levels of oxygen in the blood). Another signal type/category such as a pressure signal would not be considered an alternative for a blood oxygen signal because a pressure signal does not contain the same kind of information as a blood oxygen signal.
Since the listed signals appear to be different types/categories of physiological signals and are not alternatives of one another, the limitation in question is being construed conjunctively (not disjunctively) in the manner of SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870 (Fed. Cir. 2004); i.e., the limitation is being construed as meaning at least one of [A], at least one of [B], at least one of [C], at least one of [D], at least one of [E], at least one of [F], and at least one of [G].
Claims 2 and 17 recite the same limitation using the same language; therefore the corresponding limitations in claims 2 and 17 are also being construed conjunctively for the same reasons.
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f):
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: first monitoring device first recited in claim 2.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The specification discloses that the first monitoring device comprises a respirator, an anesthesia machine, a central stations, or a respiratory signal bedside system.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f).
Claim Objections
Claims 16 and 19 are objected to as being dependent upon a rejected base claim1 (see double patenting rejection below).
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 1-15, 17, and 18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,471,889 B2 (hereinafter “reference patent”). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the reference patent anticipate the claims of the instant application. The claims correspond as follows:
Instant Application
Reference Patent
Claim 1
Claim 1
Claim 2
Claim 1
Claim 3
Claim 2
Claim 4
Claim 3
Claim 5
Claim 4
Claim 6
Claim 5
Claim 7
Claim 6
Claim 8
Claim 7
Claim 9
Claim 8
Claim 10
Claim 9
Claim 11
Claim 10
Claim 12
Claim 11
Claim 13
Claim 12
Claim 14
Claim 13
Claim 15
Claim 14
Claim 17
Claim 15
Claim 18
Claim 16
Allowable Subject Matter
Claims 1-19 would be allowed with a properly filed Terminal Disclaimer to overcome the non-statutory double patenting rejection.
The following is a statement of reasons for the indication of allowable subject matter:
The claims are substantially the same as the prior-filed application 18/132,123 (now US Patent 12,471,889 B2) and therefore considered allowable over the prior art for substantially the same reason(s).
Regarding claim 1: Within the context of an ultrasonic imaging method for combining physiological signals, comprising:
obtaining an ultrasonic image of an examination object acquired by an ultrasonic imaging system at a first time;
obtaining a physiological signal of the examination object acquired by a first monitoring device at a second time;
aligning the ultrasonic image and the physiological signal with time; and
displaying the aligned ultrasonic image and physiological signal on a same display interface.
the prior art of record does not teach or reasonably suggest the first monitoring device comprises a respirator, an anesthesia machine, a central station, or a respiratory signal bedside system and that the physiological signal comprises at least one of a pressure signal, a flow signal, a flow rate signal, a carbon dioxide partial pressure signal, a carbon dioxide signal, a blood oxygen signal and a blood pressure signal (construed conjunctively as discussed above).
Regarding claim 2: Within the context of an ultrasonic imaging method for combining physiological signals, comprising:
obtaining an ultrasonic image of an examination object acquired by an ultrasonic imaging system at a first time;
obtaining a physiological signal of the examination object acquired by a first monitoring device at a second time, wherein the first time and the second time at least partially overlap;
aligning the ultrasonic image and the physiological signal with time; and
displaying the aligned ultrasonic image and physiological signal on a same display interface,
the prior art of record does not teach or reasonably suggest that the that the first monitor device is as discussed above regarding §112(f) and that the physiological signal comprises at least one of: a pressure signal, a flow signal, a flow rate signal, a carbon dioxide partial pressure signal, a carbon dioxide signal, a blood oxygen signal and a blood pressure signal (construed conjunctively as discussed above).
Regarding claim 17: Within the context of an ultrasonic imaging method for combining physiological signals, comprising:
obtaining an ultrasonic image of an examination object acquired by an ultrasonic imaging system;
obtaining a physiological signal of the examination object acquired by a first monitoring device;
analyzing a time phase of the physiological signal and the ultrasonic image, or analyzing a quantitative parameter of the physiological signal and the ultrasonic image to obtain an analysis result; and
displaying the analysis result,
the prior art of record does not teach or reasonably suggest that the first monitoring device comprises a respirator, an anesthesia machine, a central station, or a respiratory signal bedside system, and that the physiological signal comprises at least one of: a pressure signal, a flow signal, a flow rate signal, a carbon dioxide partial pressure signal, a carbon dioxide signal, a blood oxygen signal and a blood pressure signal (construed conjunctively as discussed above).
The Pagoulatos and Zhai references cited in the prior filed application are considered prior art closest to the claimed invention, but do not teach the aforementioned limitations discussed above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to COLIN T. SAKAMOTO whose telephone number is (571)272-4958. The examiner can normally be reached Monday - Friday, ~9AM-5PM Pacific.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KEITH M. RAYMOND can be reached at (571) 270-1790. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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COLIN T. SAKAMOTO
Primary Examiner
Art Unit 3798
/COLIN T. SAKAMOTO/Primary Examiner, Art Unit 3798
8 August 2026
1 Claims 2 and 17 respectively
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