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 .
Prioritized Examination
Original Application (Track One) - Prioritized Examination under § 1.102(e)(1) is acknowledged and granted.
Double Patenting
The non-statutory 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 non-statutory obviousness-type 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 LongL 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Omum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Patent No. 12,565,747
Claims 1-30 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-34 of US Patent # 12,565,747. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following.
Regarding claim 1, claim 1 of the instant application discloses a method for operating a flux sensing system having at least one processor, a memory and at least one sensor.
Regarding claim 1 of US Patent # 12,565,747, it discloses a flux sensing system. The combination of claims 1 and 16 discloses all features of claim 1 of the instant application.
Conflicting claims in the instant application are not patentable distinct because they are broader with respect to the applied reference claims, i.e. an obvious variation. Many decisions support the fact that a broad or generic claim is obvious from a specific claim, i.e. an obvious variation. See In re Van Ornum and Stang, 214 USPQ 761 (CCPA 1982); In re Goodman (CA FC) 29 USPQ2d 2010 (12/3/1993); In re Vogel and Vogal, 164 USPQ 619 (CCPA 1970); In re Berg (CA FC) 46 USPG2d 1226 (3/30/1998); Eli Lilly and Co. v. Barr Laboratories Inc., 58 USPQ2d 1865 (CA FC 2001). It is well settled that omission of an element and its function in a combination is an obvious expedient if the remaining element perform the same function as before. This notion is supported by In re Karlson, 136 USPG 184 (1963); In re Nelson, 95 USPQ 82 (CCPA 1952); and In re Eliot, 25 USPQ 111 (CCPA 1935).
Hence, it is obvious that the claimed combination or the narrower claims of the patent would encompass the broader claimed combination of the claims of the instant application.
Regarding claims 2-30, claims 2-34 of US Pat # 12,565,747, discloses similar features further claimed.
Conclusion
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/MANUEL A RIVERA VARGAS/Primary Examiner, Art Unit 2857
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