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.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,106,043 B2 in view of Fukuoka et al (US 2018/0231837 A1). Although the claims at issue are identical, they are not patentably distinct from each other. As shown below the underlined text is similar and italicized text are different limitations.
App # 19/457988
US 11,106,043 B2
1. A light control device comprising one or more layers configured for positioning anterior to a retina of an eye and configured to deliver environmental light to the retina from an ocular field of view through the one or more layers for viewing by the eye of a subject, wherein:
1. A light control device comprising one or more layers disposed anterior to a retina of an eye, wherein:
the one or more layers comprise or are configured to be adjustable to comprise multiple collimating apertures located at a distance greater than or equivalent to 0.75 mm from the eye's optical axis;
the one or more layers comprise multiple collimating apertures located at a distance at least greater than or equivalent to 1.5 mm from an optical axis;
anterior to the retina comprises extraocular, intracorneal, or intraocular placement;
anterior to the retina comprises one of extraocular, intracorneal or intraocular placement;
the light control device is configured to deliver approximately collimated environmental light from the ocular field of view through the multiple collimating apertures;
the light control device is configured to deliver approximately collimated environmental light from the ocular field of view through at least one of the multiple collimating apertures; and
the multiple collimating apertures generate a moving aperture effect at a rate of at least 50 hertz based on at least one of a speed of fixational movements of the eye or visual processing of the subject's visual system, and
the multiple collimating apertures generate a moving aperture effect at a rate of at least 50 hertz based on a speed of fixational movements of the eye.
the light control device is configured to produce at least one of
i. multiple regional variations of contrast within the ocular field of view before delivery to the retina; and
ii. selective wavelength attenuation or blocking to retinal areas receiving environmental light through the light control device.
As shown above the US Patent include the similar limitations to the Application.
US Patent does not expressly disclose configured to deliver environmental light to the retina from an ocular field of view through the one or more layers for viewing by the eye of a subject,
the light control device is configured to produce at least one of
i. multiple regional variations of contrast within the ocular field of view before delivery to the retina; and
ii. selective wavelength attenuation or blocking to retinal areas receiving environmental light through the light control device.
Fukuoka (Fig. 1-18) discloses configured to deliver environmental light (Paragraph [0160]; wherein discloses ambient light) to the retina from an ocular field of view (Fig. 10; wherein figure show shows eye of user) through the one or more layers (101, 102, 21, and 22; Fig. 17) for viewing by the eye of a subject (Fig. 10; wherein figure show shows eye of user),
the light control device (60 and 100; Fig. 17) is configured to produce at least one of
i. multiple regional variations of contrast within the ocular field of view before delivery to the retina; and
ii. selective (Paragraph [0160]; wherein discloses allowing ambient light to be transmitted or block light) wavelength attenuation (101 and 102; Fig. 17; Paragraph [0158]; wherein discloses absorptive polarizing plates) or blocking (100; Fig. 17; Paragraph [0160]; wherein discloses panel 100 functions as an active shutter) to retinal areas (Fig. 10; wherein figure show shows eye of user) receiving environmental light (Paragraph [0160]; wherein discloses ambient light) through the light control device (Paragraph [0160]; wherein discloses ambient light).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to modify US Patent’s light control device by applying selective ambient light, as taught by Fukuoka, so to use a light control device with selective ambient light for providing a display device serving as a see-through display which is capable of ensuring the clarity of a displayed image while maintaining high transparency and is less likely to be limited in terms of the location of installation (Paragraph [0006]).
With respect to dependent claims 2-14:
Claims 2 and 4-14 do not appear to be related to any claim of the US Patent.
Claim 3 is related to claim 4 of the US Patent.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,480,798 B2 in view of Fukuoka et al (US 2018/0231837 A1). Although the claims at issue are identical, they are not patentably distinct from each other. As shown below the underlined text is similar and italicized text are different limitations.
App # 19/457988
US 11,480,798 B2
1. A light control device comprising one or more layers configured for positioning anterior to a retina of an eye and configured to deliver environmental light to the retina from an ocular field of view through the one or more layers for viewing by the eye of a subject, wherein:
1. A light control device comprising one or more layers disposed anterior to a retina of an eye, wherein:
the one or more layers comprise or are configured to be adjustable to comprise multiple collimating apertures located at a distance greater than or equivalent to 0.75 mm from the eye's optical axis;
the one or more layers comprise multiple collimating apertures located at a distance greater than or equivalent to 1.5 mm from an optical axis;
anterior to the retina comprises extraocular, intracorneal, or intraocular placement;
anterior to the retina comprises extraocular, intracorneal or intraocular placement;
the light control device is configured to deliver approximately collimated environmental light from the ocular field of view through the multiple collimating apertures;
the light control device is configured to deliver approximately collimated environmental light from the ocular field of view through at least one of the multiple collimating apertures;
the multiple collimating apertures generate a moving aperture effect at a rate of at least 50 hertz based on at least one of a speed of fixational movements of the eye or visual processing of the subject's visual system, and
the multiple collimating apertures generate a moving aperture effect at a rate of at least 50 hertz based on a speed of fixational movements of the eye; and
the light control device is configured to produce at least one of
i. multiple regional variations of contrast within the ocular field of view before delivery to the retina; and
ii. selective wavelength attenuation or blocking to retinal areas receiving environmental light through the light control device.
at least one area surrounding and defining at least one of the multiple collimating apertures varies from the at least one of the multiple collimating apertures in at least one of defocus, index of refraction or optics.
As shown above the US Patent include the similar limitations to the Application.
US Patent does not expressly disclose configured to deliver environmental light to the retina from an ocular field of view through the one or more layers for viewing by the eye of a subject,
the light control device is configured to produce at least one of
i. multiple regional variations of contrast within the ocular field of view before delivery to the retina; and
ii. selective wavelength attenuation or blocking to retinal areas receiving environmental light through the light control device.
Fukuoka (Fig. 1-18) discloses configured to deliver environmental light (Paragraph [0160]; wherein discloses ambient light) to the retina from an ocular field of view (Fig. 10; wherein figure show shows eye of user) through the one or more layers (101, 102, 21, and 22; Fig. 17) for viewing by the eye of a subject (Fig. 10; wherein figure show shows eye of user),
the light control device (60 and 100; Fig. 17) is configured to produce at least one of
i. multiple regional variations of contrast within the ocular field of view before delivery to the retina; and
ii. selective (Paragraph [0160]; wherein discloses allowing ambient light to be transmitted or block light) wavelength attenuation (101 and 102; Fig. 17; Paragraph [0158]; wherein discloses absorptive polarizing plates) or blocking (100; Fig. 17; Paragraph [0160]; wherein discloses panel 100 functions as an active shutter) to retinal areas (Fig. 10; wherein figure show shows eye of user) receiving environmental light (Paragraph [0160]; wherein discloses ambient light) through the light control device (Paragraph [0160]; wherein discloses ambient light).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to modify US Patent’s light control device by applying selective ambient light, as taught by Fukuoka, so to use a light control device with selective ambient light for providing a display device serving as a see-through display which is capable of ensuring the clarity of a displayed image while maintaining high transparency and is less likely to be limited in terms of the location of installation (Paragraph [0006]).
With respect to dependent claims 2-14:
Claims 2-14 do not appear to be related to any claim of the US Patent.
If Applicant agrees that there exists a Non-provisional Non-Statutory Double Patenting between Application # 19/457988 and US Patent 11,106,043 B2 and US Patent 11,480,798 B2.
Then, the Examiner requests Applicant to provide a terminal disclaimer between Application and US Patents.
Allowable Subject Matter
Claim 1 is rejected under a Non-provisional Non-Statutory Double Patenting rejection and can be overcome by filing a terminal disclaimer.
The following is a statement of reasons for the indication of allowable subject matter:
Claims 1 contain the same allowable subject matter discussed in cases 16/933,376, and 17/392,957. Therefore once the terminal disclaimer is filed, then the claims will then be in condition for allowance.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADAM J SNYDER whose telephone number is (571)270-3460. The examiner can normally be reached Monday-Friday 8am-4:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chanh D Nguyen can be reached at (571)272-7772. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Adam J Snyder/Primary Examiner, Art Unit 2623 08/05/2026
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