DETAILED ACTION
Note: The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicant’s arguments filed in the reply on April 6, 2026 were received and fully considered. Claims 32-69 were cancelled. 70-90 are new. Please see corresponding rejection headings and response to arguments section below for more detail.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on April 6, 2026 has been entered.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 70-90 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 70 follows.
Regarding claim 1, the claim recites a system to determine a respiration rate of a subject. Thus, the claim is directed to a machine/product, which is one of the statutory categories of invention.
The claim is then analyzed to determine whether it is directed to any judicial exception. The following limitations set forth a judicial exception:
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These limitations describe a mathematical calculation. Furthermore, the limitations also describe a mental process as the skilled artisan is capable of performing the recited limitations and making a mental assessment thereafter. Examiner also notes that nothing from the claims suggest that the limitations cannot be practically performed by a human, or using simple pen/paper.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, integrates the identified judicial exception into a practical application.
For this part of the 101 analysis, the following additional limitations are considered:
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These additional limitations do not integrate the judicial exception into a practical application. Rather, the additional limitations are each recited at a high level of generality such that it amounts to insignificant extra-solution activity, e.g., mere data gathering steps necessary (via generically recited optically-based physiological sensor) to perform the identified judicial exception and outputting the result of a calculation do not integrate the abstract idea into a practical application. See MPEP 2106.05(g).
The additional limitations also do not add significantly more to the identified judicial exception because these limitations amount to conventional techniques for obtaining widely known PPG data and utilizing a generically recited processor to perform the identified calculation and/or mental process.
Dependent claims 71-90 also fail to add something more to the abstract independent claims as they merely further limit the abstract idea, recite limitations that do not integrate the claims into a practical application for substantially similar reasons as set forth above, and/or do not recite significantly more than the identified abstract idea for substantially similar reasons as set forth above.
Therefore, claims 70-90 are not patent eligible under 35 USC 101.
Response to Arguments
Applicant's arguments filed with respect to the 35 USC 101 rejections raised in the previous office action have been fully considered, but they are not persuasive. At the onset, Examiner acknowledges that applicant’s current arguments were directed to claims that have since been cancelled. Nonetheless, Examiner remains unconvinced that new claims 70-90 recite patent eligible subject matter. As set forth in the corresponding rejection heading above, the instant claims recite an abstract idea (mathematical calculations and/or mental process) (1) that is not integrated into a practical application; and (2) the additional/structural limitations fail to recite significantly more. Furthermore, applicant cites to other cases (Ex parte Durnin, CardioNet1, McRo, etc.), none of which are persuasive in overcoming the current patent eligibility rejections. For at least these reasons, the 35 USC 101 rejections are maintained.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PUYA AGAHI whose telephone number is (571)270-1906. The examiner can normally be reached M-F 8 AM - 5 PM.
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/PUYA AGAHI/Primary Examiner, Art Unit 3791
1 Appellant previously pointed to CardioNet, which the PTAB did not find persuasive upon affirming the 35 USC 101 rejection in the PTAB decision on January 29, 2026.
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