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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 20 July 2026 has been entered.
The Examiner acknowledges the amendments to claims 1 and 30, the cancelation of claims 39-40 and 44, and the addition of new claims 49-51. Claims 1, 3, 6, 9, 28, 30-32, 34-38, 41, and 46-51 are pending.
Claim Objections
Claim(s) 37 is/are objected to because of the following informalities:
Claim 37 should read “tracking a second movement of the subject using the first IMU as the subject performed the second predetermined movement; generating second feedback data by comparing the second tracked movement of the subject” [lines 12-14] and “a visual representation reflecting the second tracked movement” [lines 19-20].
Appropriate correction is required.
Claim Interpretation
Examiner Notes: currently, NO limitation invokes interpretation under § 112(f).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim(s) 35 and 37-38 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 35 recites the limitations “the tracked movement of the subject” [lines 2-3], “the predetermined direction… of the first predetermined movement” [lines 3-4], “the… predetermined amount of the first predetermined movement” [lines 3-4], and “the first predetermined movement” [lines 3-4], which are each considered to lack antecedent basis, as claims 1 and 35 fail to previously define a tracked movement of the subject or any step of tracking movement of the subject [the Examiner notes that claim 1 only recites estimating an instance of a posture of the subject as opposed to tracking movement (lines 10-13)], or wherein the series of predetermined movements of the assigned vestibular therapy comprises a first predetermined movement that is particularly defined by a predetermined direction and a predetermined amount. For examination purposes, the Examiner has interpreted lines 2-4 of claim 35 to read “comparing [[the]] a tracked movement of the subject against [[the]] a predetermined direction and predetermined amount of [[the]] a first predetermined movement of the series of predetermined movements”. Claim 37 is considered to recite similar limitations that are considered to lack antecedent basis [lines 2-4] that are interpreted similar to the interpretation of claim 35 above mutatis mutandis. Claim 38 is considered to recite similar limitations that are considered to lack antecedent basis [lines 1-3] that are interpreted similar to the interpretation of claim 35 above mutatis mutandis. The Examiner further notes that based on at least the language of claims 34 [not dependent from claim 1, but includes similar language to claims 35 and 37-38] and 37, an IMU is used to track movement [line 11 in claim 34; lines 12-13 in claim 37], but claims 35 and 37-38 are not presently written to positively recite use of an/the first IMU [as defined in claim 1] to track movement.
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.
Claim(s) 1, 3, 6, 9, 28, 30-32, 34-38, 41, and 46-51 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more. Each claim has been analyzed to determine whether it is directed to any judicial exceptions.
Representative claim(s) 30 [representing all independent claims] recite(s):
A hearing assistance system comprising:
a hearing assistance device comprising
a first control circuit;
a first inertial measurement unit (IMU) in electrical communication with the first control circuit, wherein the first IMU is configured to be disposed in a fixed position relative to a head of a subject wearing the hearing assistance device;
a first microphone in electrical communication with the first control circuit;
a first electroacoustic transducer for generating sound in electrical communication with the first control circuit;
a memory in electrical communication with the first control circuit comprising data associated with a selection of vestibular therapies, each of the vestibular therapies comprising a series of predetermined movements;
a first power supply circuit in electrical communication with the first control circuit;
wherein the first control circuit is configured to execute operations to:
receive an assigned vestibular therapy from the selection of vestibular therapies for the subject to perform based on a vestibular-related problem of the subject;
estimate a posture of the subject's body using the first IMU and at least one sensor other than the first IMU, the at least one other sensor comprising a blood pressure sensor, wherein the IMU and the blood pressure sensor are mounted in a first hearing assistance device; wherein the assigned vestibular therapy requires the subject's body to be in one of a plurality of predetermined postures, the plurality of predetermined postures comprising a first predetermined posture and a second predetermined posture;
compare the estimated posture of the subject's body to the predetermined posture;
if the assigned vestibular therapy requires the subject's body to be in the first predetermined posture and upon determining that the estimated posture of the subject's body does not match the first predetermined posture, prompt the subject to move to the first predetermined posture;
if the assigned vestibular therapy requires the subject's body to be in the second predetermined posture and upon determining that the estimated posture of the subject's body does not match the second predetermined posture, prompt the subject to move to the second predetermined posture;
wherein the estimated posture of the subject matches the first predetermined posture if a measured blood pressure is at or above a threshold value, and wherein the estimated posture of the subject matches the second predetermined posture if the measured blood pressure is below the threshold value, wherein the first predetermined posture comprises a standing position, and wherein the second predetermined posture comprises a sitting or a supine position.
(Emphasis added: abstract idea, additional element)
Step 2A Prong 1
Representative claim(s) 30 recites the following abstract ideas, which may be performed in the mind or by hand with the assistance of pen and paper:
“receive an assigned vestibular therapy from the selection of vestibular therapies for the subject to perform based on a vestibular-related problem of the subject… wherein the assigned vestibular therapy requires the subject's body to be in one of a plurality of predetermined postures, the plurality of predetermined postures comprising a first predetermined posture and a second predetermined posture” – may be performed by merely observing at least a limited amount of known or previously collected data
“estimate a posture of the subject's body… if the assigned vestibular therapy requires the subject's body to be in the first predetermined posture and upon determining that the estimated posture of the subject's body does not match the first predetermined posture, prompt the subject to move to the first predetermined posture… wherein the estimated posture of the subject matches the first predetermined posture if a measured blood pressure is at or above a threshold value, and wherein the estimated posture of the subject matches the second predetermined posture if the measured blood pressure is below the threshold value, wherein the first predetermined posture comprises a standing position” – may be performed by merely observing at least a limited amount of known or previously collected data, and drawing mental conclusions therefrom based on derived thresholds, under no particular time constraints; wherein “prompt the subject to move…” may be considered to refer to a step of organizing human activity [The phrase "methods of organizing human activity" is used to describe concepts relating to:… managing personal behavior or relationships or interactions between people, (including social activities, teaching, and following rules or instructions) (MPEP § 2106.04(a)(2)(II))]
“estimate a posture of the subject's body… if the assigned vestibular therapy requires the subject's body to be in the second predetermined posture and upon determining that the estimated posture of the subject's body does not match the second predetermined posture, prompt the subject to move to the second predetermined posture… wherein the estimated posture of the subject matches the first predetermined posture if a measured blood pressure is at or above a threshold value, and wherein the estimated posture of the subject matches the second predetermined posture if the measured blood pressure is below the threshold value, … wherein the second predetermined posture comprises a sitting or a supine position” – may be performed by merely observing at least a limited amount of known or previously collected data, and drawing mental conclusions therefrom based on derived thresholds, under no particular time constraints; wherein “prompt the subject to move…” may be considered to refer to a step of organizing human activity [MPEP § 2106.04(a)(2)(II)]
“compare the estimated posture of the subject's body to the predetermined posture” – may be performed by merely observing at least a limited amount or known or previously collected data, and drawing mental conclusions therefrom based on derived thresholds, under no particular time constraints
If a claim, under BRI, covers performance of the limitations in the mind but for the mere recitation of extra-solutionary activity (and otherwise generic computer elements) then the claim falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea under Step 2A Prong 1 of the Mayo framework as set forth in the 2019 PEG.
No limitations are provided that would force the complexity of any of the identified evaluation steps to be non-performable by pen-and-paper practice.
Alternatively or additionally, these steps describe the concept of using implicit mathematical formula(s) [i.e., “estimate a posture of the subject’s body…” / “compare the estimated posture…”(comparing and matching values to thresholds)] to derive a conclusion based on input of data, which corresponds to concepts identified as abstract ideas by the courts [Diamond v. Diehr. 450 U.S. 175, 209 U.S.P.Q. 1 (1981), Parker v. Flook. 437 U.S. 584, 19 U.S.P.Q. 193 (1978), and In re Grams. 888 F.2d 835, 12 U.S.P.Q.2d 1824 (Fed. Cir. 1989)]. The concept of the recited limitations identified as mathematical concepts above is not meaningfully different than those mathematical concepts found by the courts to be abstract ideas.
The dependent claims merely include limitations that either further define the abstract idea [e.g. limitations relating to the data gathered or particular steps which are entirely embodied in the mental process] and amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they are merely incidental or token additions to the claims that do not alter or affect how the process steps are performed.
Thus, these concepts are similar to court decisions of abstract ideas of itself: collecting, displaying, and manipulating data [Int. Ventures v. Cap One Financial], collecting information, analyzing it, and displaying certain results of the collection and analysis [Electric Power Group], collection, storage, and recognition of data [Smart Systems Innovations].
Step 2A Prong 2
The judicial exception is not integrated into a practical application.
Representative claim 30 only recites additional elements of extra-solutionary activity – in particular, extra-solution activity [generic computer function, pre-solution data gathering, post-solution output (providing a prompt/prompting the subject based on an analysis)] – without further sufficient detail that would tie the abstract portions of the claim into a specific practical application (2019 PEG p. 55 – the instant claim, for example does not tie into a particular machine, a sufficiently particular form of data or signal collection – via the claimed extra-solution activity identified above, or a sufficiently particular form of display or computing architecture/structure).
Dependent claim(s) 28, 35-38, 46-48, 50, 51 merely add detail to the abstract portions of the claim but do not otherwise encompass any additional elements which tie the claim(s) into a particular application/integration [the dependent claim(s) recite generic ‘units’ or ‘steps’ which encompass mere computer instructions to carry out an otherwise wholly abstract idea].
Dependent claim(s) 9, 31, 35, 37-38, 41, 49-50 encounter substantially the same issues as the independent claim(s) from which they depend in that they encompass further generic extra-solutionary activity [generic data gathering] and/or generic computer elements [storage, memory per se].
Accordingly, the claim(s) are not integrated into a practical application under Step 2A Prong 2.
Step 2B
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Independent claims 1 and 30 as individual wholes fail to amount to significantly more than the judicial exception at Step 2B. As discussed above with respect to integration of the abstract idea into a practical application, the additional elements of extra-solutionary activity [i.e., generic computer function, pre-solution data gathering, post-solution output] and generic computer elements cannot amount to significantly more than an abstract idea [MPEP § 2106.05(f)] and is further considered to merely implement an abstract idea on a generic computer [MPEP § 2106.05(d)(II) establishes computer-based elements which are considered to be well understood, routine, and conventional when recited at a high level of generality].
For the independent claim portions and dependent claims which provide additional elements of extra-solutionary data gathering, MPEP § 2106.05(g) establishes that mere data gathering for determining a result does not amount to significantly more. The extra-solutionary activity of processor steps [acquiring, storing, transmitting signals, etc.] as presently recited, cannot provide an inventive concept which amounts to significantly more than the recited abstract idea.
For the independent claims as well as the dependent claims merely reciting generic computer elements and functions [control circuit, memory, power supply, battery, each recited at a high level of generality and corresponding functions therein], MPEP § 2106.05(d)(II) establishes computer-based elements which are considered to be well understood, routine, and conventional when recited at a high level of generality.
Accordingly, the generic computer elements and functions therein, as presently limited, cannot provide an inventive concept since they fall under a generic structure and/or function that does not add a meaningful additional feature to the judicial exception(s) of the claim(s).
Claim 1 and 30 recites “a hearing assistance device comprising… a first microphone in electrical communication with the first control circuit; a first electroacoustic transducer for generating sound in electrical communication with the first control circuit;…a first power supply circuit in electrical communication with the first control circuit” [wherein the Examiner notes that in claim 1, the recitation of ‘using’ a hearing assistance system is considered to refer intended use subject matter within the preamble, such that the hearing assistance system of claim 1 is not positively recited as being part of the method, but for the sake of compact prosecution is analyzed under Step 2A Prong 2 and Step 2B], wherein claim(s) 32 and 34 recite “a second hearing assistance device comprising… a second microphone in electrical communication with the second control circuit; a second electroacoustic transducer for generating sound in electrical communication with the second control circuit; a second power supply circuit in electrical communication with the second control circuit”. Such a hearing assistance device comprising the corresponding claimed elements and a second hearing device comprising the corresponding claimed elements is considered well-understood, routine, and conventional, as known by at least:
Beck (US-20080123865-A1, previously presented) [In principle, hearing aids have the following essential components: an input transducer, an amplifier and an output transducer. The input transducer is generally a sound pickup, for example a microphone, and/or an electromagnetic receiver, for example an induction coil. The output transducer is generally implemented as an electroacoustic transducer, for example a miniature loudspeaker, or as an electromechanical transducer, for example a bone conduction hearing aid. The amplifier is usually integrated in a signal processing unit… The power supply for the hearing aid and in particular for the signal processing unit 3 is provided by a battery 5 which is also integrated in the hearing aid housing 1 (Beck ¶0003)]
Claim(s) 1 and 30 recite “a first inertial measurement unit (IMU) that is in electrical communication with the first control circuit”, wherein claim(s) 3, 32, and 34 recite “a second IMU disposed in a fixed position relative to the subject’s head, wherein the second IMU is spaced apart from the first IMU by a distance of at least three centimeters”, and wherein claim(s) 6 recites “wherein the first IMU is mounted in the first hearing assistance device and a second IMU is mounted in a second hearing assistance device”. Such a first IMU and a second IMU is considered well-understood, routine, and conventional, as known by at least:
Applicant’s disclosure is not particular regarding the particular structure of the generically claimed IMUs, and recites the IMUs at a high level of generality [As used herein the term "inertial measurement unit" or "IMU" shall 30 refer to an electric device that can generate signals related to a body's specific force and/or angular rate. IMUs herein can include one or more of an accelerometer (3, 6, or 9 axis) to detect linear acceleration and a gyroscope to detect rotational rate. In some embodiments, an IMU can also include a magnetometer to detect a magnetic field (Applicant’s Specification p. 22-23)]. This lack of disclosure is acceptable under 35 U.S.C. 112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the medical technology arts. Thus, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the field of activity monitoring. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional element because it describes such an additional element in a manner that indicates that the additional element is sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. 112(a) [see Berkheimer memo from April 19, 2018, Page 3, (III)(A)(1), not attached]. Adding hardware that performs “well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible [TLI Communications].
Helwani (US-9848273-B1, previously presented) [The motion sensor 951a, 952a may comprise one or more accelerometers, one or more magnetometers, and/or one or more gyroscopes. A motion sensor may be disposed within the shell of each of the left and right hearing devices 901a, 902a (Helwani Col 14:44-48)]
Pedersen (US-20150230036-A1, previously presented) [The hearing aid device 2 comprises a sensor member 8 that is configured to detect motion of the hearing aid device 2 and thus the level of physical activity of the hearing aid user 4. The sensor member 8 comprises an accelerometer or a gyroscope or both (Pedersen ¶0143), wherein the Examiner notes that an accelerometer in combination with a gyroscope is considered to define an inertial measurement unit]
Samuels (US-20120300965-A1, previously presented) [In illustrative embodiments, the inertial sensor 46 may be physically positioned within the housing 12A of the behind the ear hearing aids 10A, or within the sound processor housing 12B of the cochlear implant 10B (Samuels ¶0045)]
Claim(s) 1 and 30 recite “at least one sensor other than the first IMU, the at least one other sensor comprising a blood pressure sensor, wherein… the blood pressure sensor [is] mounted in a first hearing assistance device”. Such a blood pressure sensor is considered well-understood, routine, and conventional, as known by at least:
Applicant’s disclosure is not particular regarding the particular structure of the generically claimed blood pressure sensor, and recites the blood pressure sensor at a high level of generality [The blood pressure sensor can be, for example, a pressure sensor (Applicant’s Specification p. 23)]. This lack of disclosure is acceptable under 35 U.S.C. 112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the medical technology arts. Thus, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the field of activity monitoring. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional element because it describes such an additional element in a manner that indicates that the additional element is sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. 112(a) [see Berkheimer memo from April 19, 2018, Page 3, (III)(A)(1), not attached]. Adding hardware that performs “well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible [TLI Communications].
Husung (US-20170127193-A1, previously presented) [The sensor or biosensor captures a measurement value of the biological measured variable. By way of example, the pulse or the heartbeat, the body temperature or sweating are able to be captured as measured variables. It is also possible to measure oxygen saturation, blood sugar levels, blood pressure or further medical parameters (Husung ¶0017); a hearing aid system 1 containing a hearing aid 3 and an optical sensor 5 for capturing the heart rate of a hearing aid wearer (Husung ¶0040)]
Bennett (US-20130343584-A1, previously presented) [Examples of health monitoring technology that may be incorporated in a hearing assist device include health sensors that determine (for example, sense/detect/measure/collect, or the like) various physical characteristics of the user, such as blood pressure (Bennett ¶0035); Sensors 106a and 106b are medical sensors that each sense a characteristic of the user and generate a corresponding sensor output signal. Although two sensors 106a and 106b are shown in hearing assist device 102 in FIG. 1, any number of sensors may be included in hearing assist device 102, including three sensors, four sensors, five sensors, etc. (e.g., tens of sensors, hundreds of sensors, etc.). Examples of sensors for sensors 106a and 106b include a blood pressure sensor,… a motion sensor (e.g., to detect falling down impacts, long periods of activity, etc.) (Bennett ¶0039)]
Frederiksen (US-20170289704-A1, previously presented) [The hearing device 8 may comprise sensors configured to detect or estimate one or more of the following parameters: heart rate, heart rate variability, oxygen saturation (level of oxygen), blood pressure (Frederiksen ¶0139)]
Claim(s) 9, 31, 35, 37, 49-50 recite “a visual display device” / “a display screen of a visual display device”. Such a “visual display device” is considered well-understood, routine, and conventional, as known by at least:
Applicant’s disclosure is not particular regarding the particular structure of the generically claimed visual display device, and recites visual display device at a high level of generality [an external visual display device such as a smart phone, a video monitor, a video display screen, a smart mirror, a virtual reality device, an augmented reality device, a hologram generator, a tablet, a computer, or the like (Applicant’s Specification p. 7)]. This lack of disclosure is acceptable under 35 U.S.C. 112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the medical technology arts. Thus, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the field of image display. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional element because it describes such an additional element in a manner that indicates that the additional element is sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. 112(a) [see Berkheimer memo from April 19, 2018, Page 3, (III)(A)(1), not attached]. Adding hardware that performs “well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible [TLI Communications].
Claim 40 recites “collecting heart rate data using a heart rate sensor”. Such a “heart rate sensor” is considered well-understood, routine, and conventional, as known by at least:
Applicant’s disclosure is not particular regarding the particular structure of the generically claimed heart rate sensor, and recites the heart rate sensor at a high level of generality [The blood pressure sensor can be, for example, a pressure sensor (Applicant’s Specification p. 23)]. This lack of disclosure is acceptable under 35 U.S.C. 112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the medical technology arts. Thus, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the field of biological sensors. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional element because it describes such an additional element in a manner that indicates that the additional element is sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. 112(a) [see Berkheimer memo from April 19, 2018, Page 3, (III)(A)(1), not attached]. Adding hardware that performs “well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible [TLI Communications].
Husung [Husung ¶0040]; Frederiksen [Frederiksen ¶0139]; Bennett [¶¶0035, 0039]
Examiner’s Note Regarding Particular Treatment or Prophylaxis: Claim(s) 37 recites subject matter regarding “generating feedback data… and generating a feedback image… after generating the feedback data for the first predetermined movement of the assigned vestibular therapy: prompting the subject to move in a second predetermined direction by a second predetermined amount as part of a second predetermined movement of the series of predetermined movements of the assigned vestibular therapy; tracking movement of the subject… generating second feedback data… and generating a second feedback image”, which the Examiner notes is not considered to be a particular treatment or prophylaxis, as none of the identified claims positively recite or include language that is considered to be a particular treatment or prophylaxis as an additional element to integrate the judicial exception into a practical application or allow the identified claims to amount to significantly more than the judicial exception [MPEP § 2106.04(d)(2)]. Claim 37 is considered to recite separate steps of abstract ideas [generating feedback data/images], steps of abstract ideas of organizing human activity [prompting the subject to move], and steps of pre-solution data gathering [tracking movement of the subject…]. The Examiner notes that merely prompting the subject to move in a certain direction and that providing a visual representation of a tracked movement as compared to an expected movement are not considered to positively recite a treatment. The Examiner further notes that the claimed displaying of information [generated feedback data and feedback image] fail to be particularly tied to further steps of the subject performing movements based on the visualized information.
Accordingly, the claim(s) as whole(s) fail amount to significantly more than the judicial exception under Step 2B.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 3, 6, 9, 28, 30-32, 34-38, 46, and 48-50 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bennett (US-20130343584-A1, previously presented) in view of Crane (US-20120218285-A1, previously presented), Curchod (US-5826578-A, previously presented), and Zachariah et al. (“Office blood pressures in supine, sitting, and standing positions: correlation with ambulatory blood pressures”, NPL attached), hereinafter Zachariah.
Regarding claim 1, Bennett teaches
A method of providing vestibular therapy to a subject using a hearing assistance system comprising a first control circuit [processing logic 108 may store and/or access sensor data in storage 112, processed or unprocessed. Furthermore, processing logic 108 may access one or more programs stored in storage 112 for execution. Storage 112 may include one or more types of storage, including memory (e.g., random access memory (RAM), read only memory (ROM), etc.) that is volatile or non-volatile (Bennett ¶0041); For instance, FIG. 5 shows a hearing assist device 500 that is an example of hearing assist device 102 according to an exemplary embodiment (Bennett ¶0051)], a first microphone in electrical communication with the first control circuit [at least one microphone 524 (Bennett ¶0053, Fig. 5)], a first electroacoustic transducer for generating sound in electrical communication with the first control circuit [hearing assist device 500 further includes a speaker 512 (Bennett ¶0053, Fig. 5)], a first power supply circuit in electrical communication with the first control circuit [Rechargeable battery 114 is a rechargeable battery that includes one or more electrochemical cells that store charge that may be used to power components of hearing assist device 102 (Bennett ¶0045)], and a memory [Bennett ¶0041], the method comprising:
estimating a posture of the subject's body using a first inertial measurement unit (IMU) that is in electrical communication with the first control circuit [hearing assist device 500 includes a plurality of medical sensors, including at least one… position/motion sensor 518 (Bennett ¶0053, Fig. 5); Position/motion sensor 518 includes one or more sensors that may be present to measure time of day, location, acceleration, orientation, vibrations, and/or other movement related characteristics of the user. For instance, position/motion sensor 518 may include one or more of… an accelerometer (to measure acceleration of the user), a gyroscope (to measure orientation of the head of the user), a magneto (to determine a direction the user is facing) (Bennett ¶0067), wherein the Examiner notes that an accelerometer in combination with a gyroscope is considered to define an “IMU”], wherein the IMU and a blood pressure are mounted in a first hearing assistance device [Examples of health monitoring technology that may be incorporated in a hearing assist device include health sensors that determine (for example, sense/detect/measure/collect, or the like) various physical characteristics of the user, such as blood pressure (Bennett ¶0035); Sensors 106a and 106b are medical sensors that each sense a characteristic of the user and generate a corresponding sensor output signal. Although two sensors 106a and 106b are shown in hearing assist device 102 in FIG. 1, any number of sensors may be included in hearing assist device 102, including three sensors, four sensors, five sensors, etc. (e.g., tens of sensors, hundreds of sensors, etc.). Examples of sensors for sensors 106a and 106b include a blood pressure sensor,… a motion sensor (e.g., to detect falling down impacts, long periods of activity, etc.) (Bennett ¶0039)].
However, while Bennett is generally directed towards assessing head orientation, Bennett fails to explicitly disclose the memory comprising data associated with a selection of vestibular therapies, each of the vestibular therapies comprising a series of predetermined movements; and wherein the method includes receiving an assigned vestibular therapy from the selection of vestibular therapies for the subject to perform based on a vestibular-related problem of the subject; wherein the assigned vestibular therapy requires the subject's body to be in one of a plurality of predetermined postures, the plurality of predetermined postures comprising a first predetermined posture and a second predetermined posture, wherein the first predetermined posture comprises a standing position, and wherein the second predetermined posture comprises a sitting or a supine position.
Crane discloses systems for providing vestibular therapies to a subject using a head-worn device [Described herein are systems and methods for treatment of vestibular disorders, such as those that may produce vertigo for example, using a visual image such as a displayed graphic for example (Crane ¶0041); The measurement of the head movement can involve the use of one or more gyroscopes on a headgear, counting cycles, or other means of determining the velocity, frequency, and amplitude of head movement (Crane ¶0056)], wherein Crane discloses storing data associated with a selection of vestibular therapies, each of the vestibular therapies comprising a series of predetermined movements [the headgear module 360 can be configured to (1) facilitate, by a processor, requesting movement of the user's head, so as to provide the relative movement between the graphic and the user's head, (2) receive, by a processor, information regarding movement of the user's head, (3) facilitate, by a processor, determining whether the user's head movement exceeds a threshold, and (4) facilitate, by a processor and responsive to the obtained information, displaying the graphic only when the user's head movement exceeds the threshold (Crane ¶0072); The processing system 602 may include a processor for executing instructions and may further include a machine-readable medium 619, such as a volatile or non-volatile memory, for storing data and/or instructions for software programs (Crane ¶0082)]; and executing operations to receive an assigned vestibular therapy from the selection of vestibular therapies for the subject to perform based on a vestibular-related problem of the subject [Referring to FIG. 1, various methods for treating a vestibular disorder can include generating a graphic 100. The method can include prompting relative movement between a graphic and a user's head 120. The relative movement can be provided while the user views the graphic… Responsive to the obtained information, the method can include repeating various steps, such as, for example, generating the display output 100, providing relative movement between the graphic and the user's head 120, and obtaining information regarding the user's perception of the graphic 130 (Crane ¶0042)]; wherein the assigned vestibular therapy requires the subject's body to be in one of a plurality of predetermined postures, the plurality of predetermined postures comprising a first predetermined posture and a second predetermined posture, wherein the first predetermined posture comprises a standing position, and wherein the second predetermined posture comprises a sitting or a supine position [Visual motion exposure can be useful as a rehabilitation strategy. The mainstay of vestibular rehabilitation is habituation to actual motion (Crane ¶0037); Side-to-side motion can be provided by rotation of the head about a generally vertical axis when the user is standing or seated generally upright. Up-and-down motion, can be provided by rotation of the head about a generally horizontal axis when the user is standing or seated generally upright. Although the nature of the motion has been described with reference to the user being in a standing or generally upright seated position, the similar motion of the head relative to the body can be provided with the user in a partially or fully reclined position (Crane ¶0044), wherein certain motions being measured while the user is standing, or when the user is partially or fully reclined, are considered to respectively read on first and second predetermined postures of standing and sitting/supination, respectively].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett to employ the memory to comprise data associated with a selection of vestibular therapies, each of the vestibular therapies comprising a series of predetermined movements; and employ wherein the method includes receiving an assigned vestibular therapy from the selection of vestibular therapies for the subject to perform based on a vestibular-related problem of the subject; wherein the assigned vestibular therapy requires the subject's body to be in one of a plurality of predetermined postures, the plurality of predetermined postures comprising a first predetermined posture and a second predetermined posture, wherein the first predetermined posture comprises a standing position, and wherein the second predetermined posture comprises a sitting or a supine position, so as to train the central nervous system to appropriately recalibrate vestibular function and utilize proprioception in order to improve vestibular function over time [Crane ¶0036].
However, while Bennett in view of Crane as presently modified discloses that certain vestibular therapies requires certain predetermined postures to perform the vestibular therapies, Bennett in view of Crane fails to explicitly disclose wherein the method further comprises comparing the estimated posture of the subject's body to the predetermined posture; wherein if the assigned vestibular therapy requires the subject's body to be in the first predetermined posture and upon determining that the estimated posture of the subject's body does not match the first predetermined posture, prompting the subject to move to the first predetermined posture; and wherein if the assigned vestibular therapy requires the subject's body to be in the second predetermined posture and upon determining that the estimated posture of the subject's body does not match the second predetermined posture, prompting the subject to move to the second predetermined posture.
Curchod discloses a system for measuring subject movement and determining adherence of the subject’s movement to a predetermined movement, wherein Curchod discloses estimating a posture of the subject’s body [In the present embodiment, image 50 represents the body position and body movements of golfer 20 of FIG. 2 (Curchod, Col 5:59-60, Figs. 6A-B)]; comparing the estimated posture of the subject’s body to a predetermined posture [With reference next to FIG. 6A, yet another embodiment of the present claimed invention is shown in which two images 50 and 60 are displayed concurrently on display unit 32. In the present embodiment, image 50 represents the body position and body movements of golfer 20 of FIG. 2. Dotted image 60 represents a "sample" golfer whose body position and movements are stored in the memory of processor 30. Image 60 represents, for example, a stored record of the best previous golf swing of golfer 20, a golf swing of the instructor of golfer 20, a golf swing of a professional golfer, or a computer generated golf swing. Therefore, the present invention allows for real time observation by golfer 20 of his own golf swing, and also allows for real time comparison by golfer 20 of his golf swing with an "ideal" golf swing. Thus, golfer 20 is able to immediately alter his body position and movements during his golf swing so that his movements duplicate the body position and body movements of an ideal golfer (Curchod, Col 5:56-Col 6:6)]; and upon determining that the estimated posture of the subject’s body does not match the required predetermined posture, prompting the subject to move to the predetermined posture [Therefore, the present invention allows for real time observation by golfer 20 of his own golf swing, and also allows for real time comparison by golfer 20 of his golf swing with an "ideal" golf swing. Thus, golfer 20 is able to immediately alter his body position and movements during his golf swing so that his movements duplicate the body position and body movements of an ideal golfer (Curchod, Col 5:56-Col 6:6, Figs. 6A-B); With reference next to FIG. 7, another embodiment of the present invention is shown in which two images 50 and 60 are displayed concurrently and overly each other on display unit 32. As in FIGS. 6A and 6B, image 50 represents the body position and body movements of golfer 20 of FIG. 2. Image 60 again represents, for example, a stored record of the best previous golf swing of golfer 20, a golf swing of the instructor of golfer 20, or a golf swing of a professional golfer whose body position and movements are stored in the memory of processor 30. By overlying the images as set forth in the present embodiment, golfer 20 can easily determine differences between his body position as represented by image 50 and the ideal body position as represented by image 60 (Curchod, Col 7:1-14, Figs. 6A-B, 7)].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett in view of Crane to employ comparing the estimated posture of the subject's body to the predetermined posture; wherein if the assigned vestibular therapy requires the subject's body to be in the first predetermined posture and upon determining that the estimated posture of the subject's body does not match the first predetermined posture, prompting the subject to move to the first predetermined posture; and wherein if the assigned vestibular therapy requires the subject's body to be in the second predetermined posture and upon determining that the estimated posture of the subject's body does not match the second predetermined posture, prompting the subject to move to the second predetermined posture, so as to allow for the subject to be in a correct starting posture for performing the assigned vestibular therapy prior to performing the assigned vestibular therapy [Crane ¶0044; Curchod, Col 5:56-Col 6:6; Curchod, Col 7:1-14, Figs. 6A-B and 7].
However, Bennett fails to explicitly disclose wherein at least one sensor other than the first IMU, the at least one other sensor comprising the blood pressure sensor, is used in estimating a posture of the subject's body; and wherein the estimated posture of the subject matches the first predetermined posture if a measured blood pressure is at or above a threshold value, and wherein the estimated posture of the subject matches the second predetermined posture if the measured blood pressure is below the threshold value.
Zachariah discloses methods for measuring blood pressure in different postures, wherein Zachariah discloses that there is a measurable difference in blood pressure between sitting, supine, and standing, wherein a measured value of blood pressure while standing is above a measured value of blood pressure while sitting/in a supine position [Two measurements were made in the supine, sitting, and standing positions on each of 2 consecutive days, and 24-hour ambulatory blood pressure monitoring was performed. The mean supine, sitting, and standing blood pressures were 146 f 15/91 f 7, 144 f 15/% f 8, and 149 f 17/103 f 7 mm Hg, respectively. Diastolic blood pressures were significantly different from each other (P < 0.0901). Supine and sitting systolic blood pressures were not different, but they were different from standing blood pressure (P < 0.0001) (Zachariah p. 353); See also Table 1 on Zachariah p. 355].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett in view of Crane and Curchod to employ wherein the blood pressure sensor is used in estimating a posture of the subject's body; and wherein the estimated posture of the subject matches the first predetermined posture if a measured blood pressure is at or above a threshold value, and wherein the estimated posture of the subject matches the second predetermined posture if the measured blood pressure is below the threshold value, so as to further provide additional context on patient health based on posture-induced changes in blood pressure.
Regarding claim 3, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1, further comprising tracking movement of the subject using a second IMU disposed in a fixed position relative to the subject’s head, wherein the second IMU is spaced apart from the first IMU by a distance of at least three centimeters [As shown in FIG. 15, system 1500 includes a first hearing assist device 1501, a second hearing assist device 1503, and a portable electronic device 1505. First and second hearing assist devices 1501 and 1503 may each be implemented in a like manner to any of the hearing assist devices described above in Sections II-IV (Bennett ¶0144, Fig. 15), wherein as each hearing assist device is considered to comprise an IMU (Bennett ¶¶0053, 0067) and are considered to be worn in respective ears, a second is considered to be spaced apart at least three centimeters away from the first IMU].
Regarding claim 6, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1, wherein the first IMU is mounted in the first hearing assistance device and a second IMU is mounted in a second hearing assistance device [Bennett ¶¶0053, 0067, 0144, Fig. 15]
Regarding claim 9, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 6, further comprising wirelessly transmitting data derived from the first IMU to a visual display device with the first hearing assistance device [Sensor data captured by hearing assist device 500 may likewise be delivered via such or other wired or wireless pathways to the external supporting device for (further) processing… Sensor data may be stored and displayed in some form locally on the external supporting device along with similar audio, graphical or textual content, commands or queries… Sensors within one or both hearing assist device 500 and an external supporting device may be medical sensors or environmental sensors (e.g., latitude/longitude, velocity, temperature, wearer's physical orientation, acceleration, elevation, tilt, humidity, etc.) (Bennett ¶0063)], and
wirelessly transmitting data derived from the second IMU to the visual display device with the second hearing assistance device [Bennett ¶0063].
Regarding claim 28, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1, wherein estimating the posture of the subject’s body includes matching data from the first IMU and the blood pressure sensor against a set of predetermined data patterns representing body postures using a pattern matching algorithm [information provided by any accelerometers, gyros or magnetos included within device 1603 may be used to provide enhanced information regarding a current body position (for example, standing up, leaning over or lying down) and/or orientation of the wearer of hearing assist device 1601 (Bennett ¶0212); Zachariah p. 353, wherein identifying a measured value for either IMU data and blood pressure data that is associated with a certain posture is considered to read on the claimed limitation].
Regarding claim 30, Bennett teaches
A hearing assistance system comprising:
a hearing assistance device comprising a first control circuit [processing logic 108 may store and/or access sensor data in storage 112, processed or unprocessed. Furthermore, processing logic 108 may access one or more programs stored in storage 112 for execution. Storage 112 may include one or more types of storage, including memory (e.g., random access memory (RAM), read only memory (ROM), etc.) that is volatile or non-volatile (Bennett ¶0041); For instance, FIG. 5 shows a hearing assist device 500 that is an example of hearing assist device 102 according to an exemplary embodiment (Bennett ¶0051)];
a first inertial measurement unit (IMU) in electrical communication with the first control circuit, wherein the first IMU is configured to be disposed in a fixed position relative to a head of a subject wearing the hearing assistance device [hearing assist device 500 includes a plurality of medical sensors, including at least one… position/motion sensor 518 (Bennett ¶0053, Fig. 5); Position/motion sensor 518 includes one or more sensors that may be present to measure time of day, location, acceleration, orientation, vibrations, and/or other movement related characteristics of the user. For instance, position/motion sensor 518 may include one or more of… an accelerometer (to measure acceleration of the user), a gyroscope (to measure orientation of the head of the user), a magneto (to determine a direction the user is facing) (Bennett ¶0067), wherein the Examiner notes that an accelerometer in combination with a gyroscope is considered to define an “IMU”, and wherein the IMU being included in the hearing assist device is considered to read on being disposed in a fixed position relative to the subject’s head];
a first microphone in electrical communication with the first control circuit [at least one microphone 524 (Bennett ¶0053, Fig. 5)];
a first electroacoustic transducer for generating sound in electrical communication with the first control circuit [hearing assist device 500 further includes a speaker 512 (Bennett ¶0053, Fig. 5)];
a memory in electrical communication with the first control circuit [Bennett ¶0041];
a first power supply circuit in electrical communication with the first control circuit [Rechargeable battery 114 is a rechargeable battery that includes one or more electrochemical cells that store charge that may be used to power components of hearing assist device 102 (Bennett ¶0045)];
wherein the first control circuit is configured to execute operations to:
estimate a posture of the subject's body using the first IMU [Bennett ¶¶0053, 0067; For example, information provided by any accelerometers, gyros or magnetos included within device 1603 may be used to provide enhanced information regarding a current body position (for example, standing up, leaning over or lying down) and/or orientation of the wearer of hearing assist device 1601 (Bennett ¶0212)], wherein the IMU and a blood pressure sensor are mounted in a first hearing assistance device [Examples of health monitoring technology that may be incorporated in a hearing assist device include health sensors that determine (for example, sense/detect/measure/collect, or the like) various physical characteristics of the user, such as blood pressure (Bennett ¶0035); Sensors 106a and 106b are medical sensors that each sense a characteristic of the user and generate a corresponding sensor output signal. Although two sensors 106a and 106b are shown in hearing assist device 102 in FIG. 1, any number of sensors may be included in hearing assist device 102, including three sensors, four sensors, five sensors, etc. (e.g., tens of sensors, hundreds of sensors, etc.). Examples of sensors for sensors 106a and 106b include a blood pressure sensor,… a motion sensor (e.g., to detect falling down impacts, long periods of activity, etc.) (Bennett ¶0039)].
However, while Bennett is generally directed towards assessing head orientation, Bennett fails to explicitly disclose wherein the memory comprising data associated with a selection of vestibular therapies, each of the vestibular therapies comprising a series of predetermined movements; and wherein the first control circuit is configured to execute operations to receive an assigned vestibular therapy from the selection of vestibular therapies for the subject to perform based on a vestibular-related problem of the subject; wherein the assigned vestibular therapy requires the subject's body to be in one of a plurality of predetermined postures, the plurality of predetermined postures comprising a first predetermined posture and a second predetermined posture, wherein the first predetermined posture comprises a standing position, and wherein the second predetermined posture comprises a sitting or a supine position.
Crane discloses systems for providing vestibular therapies to a subject using a head-worn device [Described herein are systems and methods for treatment of vestibular disorders, such as those that may produce vertigo for example, using a visual image such as a displayed graphic for example (Crane ¶0041); The measurement of the head movement can involve the use of one or more gyroscopes on a headgear, counting cycles, or other means of determining the velocity, frequency, and amplitude of head movement (Crane ¶0056)], wherein Crane discloses storing data associated with a selection of vestibular therapies, each of the vestibular therapies comprising a series of predetermined movements [the headgear module 360 can be configured to (1) facilitate, by a processor, requesting movement of the user's head, so as to provide the relative movement between the graphic and the user's head, (2) receive, by a processor, information regarding movement of the user's head, (3) facilitate, by a processor, determining whether the user's head movement exceeds a threshold, and (4) facilitate, by a processor and responsive to the obtained information, displaying the graphic only when the user's head movement exceeds the threshold (Crane ¶0072); The processing system 602 may include a processor for executing instructions and may further include a machine-readable medium 619, such as a volatile or non-volatile memory, for storing data and/or instructions for software programs (Crane ¶0082)]; and executing operations to receive an assigned vestibular therapy from the selection of vestibular therapies for the subject to perform based on a vestibular-related problem of the subject [Referring to FIG. 1, various methods for treating a vestibular disorder can include generating a graphic 100. The method can include prompting relative movement between a graphic and a user's head 120. The relative movement can be provided while the user views the graphic… Responsive to the obtained information, the method can include repeating various steps, such as, for example, generating the display output 100, providing relative movement between the graphic and the user's head 120, and obtaining information regarding the user's perception of the graphic 130 (Crane ¶0042)]; wherein the assigned vestibular therapy requires the subject's body to be in one of a plurality of predetermined postures, the plurality of predetermined postures comprising a first predetermined posture and a second predetermined posture, wherein the first predetermined posture comprises a standing position, and wherein the second predetermined posture comprises a sitting or a supine position [Visual motion exposure can be useful as a rehabilitation strategy. The mainstay of vestibular rehabilitation is habituation to actual motion (Crane ¶0037); Side-to-side motion can be provided by rotation of the head about a generally vertical axis when the user is standing or seated generally upright. Up-and-down motion, can be provided by rotation of the head about a generally horizontal axis when the user is standing or seated generally upright. Although the nature of the motion has been described with reference to the user being in a standing or generally upright seated position, the similar motion of the head relative to the body can be provided with the user in a partially or fully reclined position (Crane ¶0044), wherein certain motions being measured while the user is standing, or when the user is partially or fully reclined, are considered to respectively read on first and second predetermined postures of standing and sitting/supination, respectively].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Bennett to employ the memory to comprise data associated with a selection of vestibular therapies, each of the vestibular therapies comprising a series of predetermined movements; and employ the first control circuit to execute operations to receive an assigned vestibular therapy from the selection of vestibular therapies for the subject to perform based on a vestibular-related problem of the subject; wherein the assigned vestibular therapy requires the subject's body to be in one of a plurality of predetermined postures, the plurality of predetermined postures comprising a first predetermined posture and a second predetermined posture, wherein the first predetermined posture comprises a standing position, and wherein the second predetermined posture comprises a sitting or a supine position, so as to train the central nervous system to appropriately recalibrate vestibular function and utilize proprioception in order to improve vestibular function over time [Crane ¶0036].
However, while Bennett in view of Crane as presently modified discloses that certain vestibular therapies requires certain predetermined postures to perform the vestibular therapies, Bennett in view of Crane fails to explicitly disclose wherein the first control circuit further executes operations to compare the estimated posture of the subject's body to the predetermined posture; wherein if the assigned vestibular therapy requires the subject's body to be in the first predetermined posture and upon determining that the estimated posture of the subject's body does not match the first predetermined posture, prompt the subject to move to the first predetermined posture; and wherein if the assigned vestibular therapy requires the subject's body to be in the second predetermined posture and upon determining that the estimated posture of the subject's body does not match the second predetermined posture, prompt the subject to move to the second predetermined posture.
Curchod discloses a system for measuring subject movement and determining adherence of the subject’s movement to a predetermined movement, wherein Curchod discloses estimating a posture of the subject’s body [In the present embodiment, image 50 represents the body position and body movements of golfer 20 of FIG. 2 (Curchod, Col 5:59-60, Figs. 6A-B)]; comparing the estimated posture of the subject’s body to a predetermined posture [With reference next to FIG. 6A, yet another embodiment of the present claimed invention is shown in which two images 50 and 60 are displayed concurrently on display unit 32. In the present embodiment, image 50 represents the body position and body movements of golfer 20 of FIG. 2. Dotted image 60 represents a "sample" golfer whose body position and movements are stored in the memory of processor 30. Image 60 represents, for example, a stored record of the best previous golf swing of golfer 20, a golf swing of the instructor of golfer 20, a golf swing of a professional golfer, or a computer generated golf swing. Therefore, the present invention allows for real time observation by golfer 20 of his own golf swing, and also allows for real time comparison by golfer 20 of his golf swing with an "ideal" golf swing. Thus, golfer 20 is able to immediately alter his body position and movements during his golf swing so that his movements duplicate the body position and body movements of an ideal golfer (Curchod, Col 5:56-Col 6:6)]; and upon determining that the estimated posture of the subject’s body does not match the required predetermined posture, prompting the subject to move to the predetermined posture [Therefore, the present invention allows for real time observation by golfer 20 of his own golf swing, and also allows for real time comparison by golfer 20 of his golf swing with an "ideal" golf swing. Thus, golfer 20 is able to immediately alter his body position and movements during his golf swing so that his movements duplicate the body position and body movements of an ideal golfer (Curchod, Col 5:56-Col 6:6, Figs. 6A-B); With reference next to FIG. 7, another embodiment of the present invention is shown in which two images 50 and 60 are displayed concurrently and overly each other on display unit 32. As in FIGS. 6A and 6B, image 50 represents the body position and body movements of golfer 20 of FIG. 2. Image 60 again represents, for example, a stored record of the best previous golf swing of golfer 20, a golf swing of the instructor of golfer 20, or a golf swing of a professional golfer whose body position and movements are stored in the memory of processor 30. By overlying the images as set forth in the present embodiment, golfer 20 can easily determine differences between his body position as represented by image 50 and the ideal body position as represented by image 60 (Curchod, Col 7:1-14, Figs. 6A-B, 7)].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Bennett in view of Crane to employ the first control circuit to execute operations to compare the estimated posture of the subject's body to the predetermined posture; wherein if the assigned vestibular therapy requires the subject's body to be in the first predetermined posture and upon determining that the estimated posture of the subject's body does not match the first predetermined posture, prompt the subject to move to the first predetermined posture; and wherein if the assigned vestibular therapy requires the subject's body to be in the second predetermined posture and upon determining that the estimated posture of the subject's body does not match the second predetermined posture, prompt the subject to move to the second predetermined posture, so as to allow for the subject to be in a correct starting posture for performing the assigned vestibular therapy prior to performing the assigned vestibular therapy [Crane ¶0044; Curchod, Col 5:56-Col 6:6; Curchod, Col 7:1-14, Figs. 6A-B and 7].
However, Bennett fails to explicitly disclose wherein at least one sensor other than the first IMU, the at least one other sensor comprising the blood pressure sensor, is used in estimating a posture of the subject's body; and wherein the estimated posture of the subject matches the first predetermined posture if a measured blood pressure is at or above a threshold value, and wherein the estimated posture of the subject matches the second predetermined posture if the measured blood pressure is below the threshold value.
Zachariah discloses methods for measuring blood pressure in different postures, wherein Zachariah discloses that there is a measurable difference in blood pressure between sitting, supine, and standing, wherein a measured value of blood pressure while standing is above a measured value of blood pressure while sitting/in a supine position [Two measurements were made in the supine, sitting, and standing positions on each of 2 consecutive days, and 24-hour ambulatory blood pressure monitoring was performed. The mean supine, sitting, and standing blood pressures were 146 f 15/91 f 7, 144 f 15/% f 8, and 149 f 17/103 f 7 mm Hg, respectively. Diastolic blood pressures were significantly different from each other (P < 0.0901). Supine and sitting systolic blood pressures were not different, but they were different from standing blood pressure (P < 0.0001) (Zachariah p. 353); See also Table 1 on Zachariah p. 355].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Bennett in view of Crane and Curchod to employ wherein the blood pressure sensor is used in estimating a posture of the subject's body; and wherein the estimated posture of the subject matches the first predetermined posture if a measured blood pressure is at or above a threshold value, and wherein the estimated posture of the subject matches the second predetermined posture if the measured blood pressure is below the threshold value, so as to further provide additional context on patient health based on posture-induced changes in blood pressure.
Regarding claim 31, Bennett in view of Crane, Curchod, and Zachariah teaches
The hearing assistance system of claim 30, wherein the hearing assistance system is configured to wirelessly transmit feedback data to a visual display device [Bennett ¶0063].
Regarding claim 32, Bennett in view of Crane, Curchod, and Zachariah teaches
The hearing assistance system of claim 31, further comprising
a second hearing assistance device comprising
a second control circuit [As shown in FIG. 15, system 1500 includes a first hearing assist device 1501, a second hearing assist device 1503, and a portable electronic device 1505. First and second hearing assist devices 1501 and 1503 may each be implemented in a like manner to any of the hearing assist devices described above in Sections II-IV (Bennett ¶0144, Fig. 15): Bennett ¶¶0041, 0051],
a second IMU in electrical communication with the second control circuit, wherein the second IMU is disposed in a second fixed position relative to the head of the subject wearing the hearing assistance device [Bennett ¶¶0053, 0067, 0144],
a second microphone in electrical communication with the second control circuit [Bennett ¶¶0053, 0144],
a second electroacoustic transducer for generating sound in electrical communication with the second control circuit [Bennett ¶¶0053, 0144],
a second power supply circuit in electrical communication with the second control circuit [Bennett ¶¶0045, 0144].
Regarding claim 34, Bennett in view of Crane, Curchod, and Zachariah teaches
The hearing assistance system of claim 30, further comprising
a second control circuit [Bennett ¶¶0041, 0051, 0144];
a second IMU in electrical communication with the second control circuit, wherein the second IMU is configured to be disposed in a second fixed position relative to the head of the subject wearing the hearing assistance device [Bennett ¶¶0053, 0067, 0144];
a second microphone in electrical communication with the second control circuit [Bennett ¶¶0041, 0144];
a second electroacoustic transducer for generating sound in electrical communication with the second control circuit [Bennett ¶¶0041, 0144];
a second power supply in electrical communication with the second control circuit [Bennett ¶¶0045, 0144];
wherein the second control circuit is configured to execute operations to:
track movement of the subject using the second IMU [Bennett ¶¶0053, 0067, 0144, 0212].
However, Bennett in view of Crane, Curchod, and Zachariah as presently modified fails to explicitly disclose wherein the second control circuit is configured to execute an operation to generate feedback data reflecting a comparison of the tracked movement of the subject against a predetermined direction and predetermined amount of movement using data from the second IMU.
Curchod discloses generating feedback data reflecting a comparison of tracked movement of the subject against a predetermined direction and predetermined amount of movement using data from a plurality of movement sensors [Curchod, Col 7:1-14, Figs. 6A-B, 7].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Bennett in view of Crane, Curchod, and Zachariah to employ an operation to generate feedback data reflecting a comparison of the tracked movement of the subject against a predetermined direction and predetermined amount of movement using data from the second IMU, so as to allow the subject to modify their movements in real time in order to match the ideal movements [Curchod, Col 5:56-Col 6:6].
Regarding claim 35, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1, further comprising,
generating feedback data at the first control circuit by comparing the tracked movement of the subject against the predetermined direction and predetermined amount of the first predetermined movement [see § 103 modification of claim 1 above; Curchod, Col 5:56-Col 6:6, Figs. 6A-B].
However, Bennett in view of Crane, Curchod, and Zachariah fails to explicitly disclose further comprising generating a feedback image on a display screen of a visual display device using the feedback data, the feedback image simultaneously including a visual representation of the first predetermined movement of the assigned vestibular therapy and a visual representation reflecting the tracked movement, wherein the visual representation of the first predetermined movement comprises a display of a head reflecting a position in which the subject's head needs to be moved to in order to complete the first predetermined movement, and wherein the visual representation of the tracked movement comprises an image of the subject's head reflecting a current position of the subject's head.
Curchod discloses generating a feedback image, the feedback image simultaneously including a visual representation of the first predetermined movement and a visual representation reflecting the tracked movement [Curchod, Col 5:56-Col 6:6], and wherein the first predetermined movement comprises a display of a head reflecting a position in which the subject’s head needs to be moved to in order to complete the first predetermined movement, and wherein the visual representation of the tracked movement comprises an image of the subject’s head reflecting a current position of the subject’s head [Curchod, Col 5:56-Col 6:6].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett in view of Crane, Curchod, and Zachariah to employ generating a feedback image on a display screen of a visual display device using the feedback data, the feedback image simultaneously including a visual representation of the first predetermined movement of the assigned vestibular therapy and a visual representation reflecting the tracked movement, wherein the visual representation of the first predetermined movement comprises a display of a head reflecting a position in which the subject's head needs to be moved to in order to complete the first predetermined movement, and wherein the visual representation of the tracked movement comprises an image of the subject's head reflecting a current position of the subject's head, so as to allow the subject to modify their movements in real time in order to match the ideal movements [Curchod, Col 5:56-Col 6:6].
Regarding claim 36, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1, wherein the selection of vestibular therapies comprises any of Brandt-Daroff exercises, the Epley maneuver, habituation [Crane ¶0037], gaze stabilization, and balance training.
Regarding claim 37, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1.
However, Bennett in view of Crane, Curchod, and Zachariah as presently modified fails to explicitly disclose the method further comprising: generating feedback data at the first control circuit by comparing the tracked movement of the subject against the predetermined direction and predetermined amount of the first predetermined movement; and generating a feedback image on a display screen of a visual display device using the feedback data; after generating the feedback data for the first predetermined movement of the assigned vestibular therapy: prompting the subject to move in a second predetermined direction by a second predetermined amount as part of a second predetermined movement of the series of predetermined movements of the assigned vestibular therapy; tracking movement of the subject using the first IMU as the subject performs the second predetermined movement; generating second feedback data by comparing the tracked movement of the subject against the second predetermined direction and the second predetermined amount of the second predetermined movement; and generating a second feedback image on the display screen of the visual display device using the feedback data, the feedback image simultaneously including a visual representation of the second predetermined movement of the assigned vestibular therapy and a visual representation reflecting the tracked movement of the second predetermined movement of the series of predetermined movements of the assigned vestibular therapy.
Curchod discloses generating feedback data by comparing the tracked movement of the subject against a predetermined direction and predetermined amount of a first predetermined movement; and generating a feedback image on a display screen of a visual display device using the feedback data, the feedback image simultaneously including a visual representation of the predetermined movement and a visual representation reflecting the tracked movement of the subject [Curchod, Col 5:56-Col 6:6, Col 7:1-14; wherein the stored record is considered to read on the claimed silhouette].
As such, since Bennett in view of Crane, Curchod, and Zachariah as presently modified teaches that the assigned vestibular therapy may comprise a series of predetermined movements [Crane ¶0042] and tracking the subject’s movements [Bennett ¶¶0053, 0067, 0212], it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett in view of Crane, Curchod, and Zachariah to employ generating feedback data at the first control circuit by comparing the tracked movement of the subject against the predetermined direction and predetermined amount of the first predetermined movement; and generating a feedback image on a display screen of a visual display device using the feedback data; after generating the feedback data for the first predetermined movement of the assigned vestibular therapy: prompting the subject to move in a second predetermined direction by a second predetermined amount as part of a second predetermined movement of the series of predetermined movements of the assigned vestibular therapy; tracking movement of the subject using the first IMU as the subject performs the second predetermined movement; generating second feedback data by comparing the tracked movement of the subject against the second predetermined direction and the second predetermined amount of the second predetermined movement; and generating a second feedback image on the display screen of the visual display device using the feedback data, the feedback image simultaneously including a visual representation of the second predetermined movement of the assigned vestibular therapy and a visual representation reflecting the tracked movement of the second predetermined movement of the series of predetermined movements of the assigned vestibular therapy, so as to allow the subject to modify their movements in real time in order to match the ideal movements [Curchod, Col 5, line 56-Col 6, line 6] as the subject performs vestibular therapies [Crane ¶0042].
Regarding claim 38, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1.
However, Bennett in view of Crane, Curchod, and Zachariah fails to explicitly disclose further comprising, generating feedback data at the first control circuit by comparing the tracked movement of the subject against the predetermined direction and predetermined amount of the first predetermined movement; and generating a feedback image on a display screen of a visual display device using the feedback data, wherein the feedback image comprises a silhouette illustrating the position the subject’s head needs to be moved to in order to complete the first predetermined movement of the assigned vestibular therapy.
Curchod discloses generating feedback data by comparing the tracked movement of the subject against a predetermined direction and predetermined amount of a first predetermined movement; and generating a feedback image on a display screen of a visual display device using the feedback data, wherein the feedback image comprises a silhouette illustrating the position the subject’s head needs to be moved to in order to complete the first predetermined movement [Curchod, Col 7:1-14; wherein the stored record is considered to read on the claimed silhouette].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett in view of Crane, Curchod, and Zachariah to employ generating feedback data at the first control circuit by comparing the tracked movement of the subject against the predetermined direction and predetermined amount of the first predetermined movement; and generating a feedback image on a display screen of a visual display device using the feedback data, wherein the feedback image comprises a silhouette illustrating the position the subject’s head needs to be moved to in order to complete the first predetermined movement of the assigned vestibular therapy, so as to allow the subject to modify their movements in real time in order to match the ideal movements [Curchod, Col 5:56-Col 6:6] and determine differences between the subject’s movements and known predetermined ideal movements [Curchod, Col 7:1-14].
Regarding claim 46, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1, wherein estimating the posture of the subject’s body comprises determine a position of the subject’s head [Bennett ¶0067].
Regarding claim 48, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1, wherein estimating the posture of the subject’s body comprises determining whether the subject is sitting or standing [Zachariah p. 353].
Regarding claim 49, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 6, further comprising duty cycling between:
wirelessly transmitting data from the first hearing assistance device to a visual display device;
wirelessly transmitting data from the second hearing assistance device to the visual display device [Sensor data captured by hearing assist device 500 may likewise be delivered via such or other wired or wireless pathways to the external supporting device for (further) processing… Sensor data may be stored and displayed in some form locally on the external supporting device along with similar audio, graphical or textual content, commands or queries… Sensors within one or both hearing assist device 500 and an external supporting device may be medical sensors or environmental sensors (e.g., latitude/longitude, velocity, temperature, wearer's physical orientation, acceleration, elevation, tilt, humidity, etc.) (Bennett ¶0063); Furthermore, sensors that are present in a hearing assist device may all operate simultaneously, or one or more sensors may be run periodically, and may be off at other times (e.g., based on an algorithm in program code, etc.). By running fewer sensors at any one time, battery power may be conserved. Note that in addition to one or more of sensor data compression, analysis, encryption, and processing, sensor management (duty cycling, continuous operations, threshold triggers, sampling rates, etc.) can be performed in whole or in part in any one or both hear assist devices, the assisting local device (e.g., smart phone, tablet computer, set top box, TV, etc.), and/or remote computing systems (at medical staff offices or as might be available through a cloud or portal service) (Bennett ¶0086)].
Regarding claim 50, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 6, wherein wirelessly transmitting data to the visual display device comprises:
determining whether the first hearing assistance device or the second hearing assistance device has more remaining battery [In accordance with certain embodiments, hearing assist device 1601 can also utilize resources of a second hearing assist device to perform certain operations. For example, hearing assist device 1601 may communicate with a second hearing assist device worn by the same user to coordinate distribution or shared execution of particular operations… The determination of whether a particular operation should be performed by hearing assist device 1601 versus the second hearing assist device may be made by battery management module 1633, a battery management module of the second hearing assist device, or via coordination between both battery management modules (Bennett ¶0169); For example, if hearing assist device 1601 has more battery power available then the second hearing assist device, hearing assist device 1601 may be selected to perform a particular operation, such as taking a blood pressure reading or the like (Bennett ¶0170)];
if the first hearing assistance device has more remaining battery, wirelessly transmitting data from the first hearing assistance device to a visual display device [Bennett ¶0170; wherein data transmission as described in Bennett ¶0063 is interpreted as being an operation that may be performed by either of the first hearing assistance device or the second hearing assistance device based on battery information between the first hearing assistance device and second hearing assistance device];
if the second hearing assistance device has more remaining battery, wirelessly transmitting data from the second hearing assistance device to the visual display device [Bennett ¶0170; wherein data transmission as described in Bennett ¶0063 is interpreted as being an operation that may be performed by either of the first hearing assistance device or the second hearing assistance device based on battery information between the first hearing assistance device and second hearing assistance device].
Claim(s) 41 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bennett in view of Crane, Curchod, and Zachariah, as applied to claim 1 above, in further view of Wells (US-20180096111-A1, previously presented).
Regarding claim 41, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1.
However, Bennett in view of Crane, Curchod, and Zachariah as presently modified fails to explicitly that upon determining that the estimated posture of the subject’s body matches the required predetermined posture, performing a step to prompt the subject to perform a first predetermined movement of the series of predetermined movements of the assigned vestibular therapy.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett in view of Crane, Curchod, and Zachariah to employ that upon determining that the estimated posture of the subject’s body matches the required predetermined posture, performing a step to prompt the subject to perform a first predetermined movement of the series of predetermined movements of the assigned vestibular therapy, so as to train the central nervous system to appropriately recalibrate vestibular function and utilize proprioception in order to improve vestibular function over time [Crane ¶0036].
However, Bennett in view of Crane, Curchod, and Zachariah fails to explicitly disclose performing a step of transmitting a warning to a care provider if the subject does not respond to the prompt to move to the first predetermined posture or the second predetermined posture.
Wells discloses systems and methods for monitoring and evaluating a subject’s adherence to a therapy, wherein Wells discloses transmitting a warning to a care provider if the subject misses a certain exercise or routine [In an example, a machine learning technique (e.g., as provided by a cloud service, via a remote server, or the like) may be used to determine whether to notify a clinician using the clinician user interface 100. For example, when a patient missed a specified number of days in a row of exercises, routines, or protocol elements, then the clinician may be notified. In another example, when a surgery is completed, the clinician may be notified within a few hours if the patient has not done an activity. In an example, a patient user interface may notify the patient when there are situations that the patient needs to move. The clinician user interface 100 may recommend that the clinician cause a notification or alert to be sent to a patient if the patient has not moved in a while or has not done an exercise (Wells ¶0021)].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett in view of Crane, Curchod, and Zachariah to employ transmitting a warning to a care provider if the subject does not respond to the prompt to move to the first predetermined posture or the second predetermined posture, so as to allow for a care provider to monitor subject adherence to a therapy routine or progress [Wells ¶0021].
Claim(s) 47 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bennett in view of Crane, Curchod, and Zachariah, as applied to claim 1 above, in further view of Wong (US-20120139722-A1, previously presented).
Regarding claim 47, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1.
However, Bennett in view of Crane, Curchod, and Zachariah fails to explicitly disclose wherein estimating the posture of the subject’s body comprises determining whether the subject is lying on their side.
Wong discloses systems and methods for monitoring user orientation, wherein Wong discloses head-worn sensors configured to pro [The sleeping pose sensing system of the present invention is configured to differentiate and identify sleeping poses including, but not limited to, flat on the back, flat on the stomach, and on the left side or the right side, or some orientation in between, for example, where the head is inclined to one side while the back is horizontal on the bed surface (Wong ¶0007); Sleeping pose sensors 12 may each take the form of an accelerometer, a position ball switch, a bubble switch, a gyroscope, a gyroscope I.C., etc. (Wong ¶0058); A sleeping pose sensor 12 may be in the form and size of an "in-ear" ear plug which could completely locate inside the external ear well (Wong ¶0060)].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett in view of Crane, Curchod, and Zachariah to employ wherein estimating the posture of the subject’s body comprises determining whether the subject is lying on their side, so as to provide additional context with respect to the subject’s orientation and position.
Claim(s) 51 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bennett in view of Crane, Curchod, and Zachariah, as applied to claim 1 above, in further view of Sohn et al. (“Sedentary behavior and blood pressure control among osteoarthritis initiative participants”, NPL attached), hereinafter Sohn.
Regarding claim 51, Bennett in view of Crane, Curchod, and Zachariah teaches
The method of claim 1.
However, while Bennett does disclose monitoring blood pressure data [Bennett ¶¶0035, 0039], Bennett fails to explicitly disclose further comprising: monitoring for sedentary behavior of the subject over a predefined time window, wherein sedentary behavior of the subject is detected when blood pressure data crosses a threshold value; upon detecting sedentary behavior, prompting the subject to perform a first predetermined movement of the series of predetermined movements of the assigned vestibular therapy.
Sohn discloses methods for analyzing sedentary behavior and blood pressure, wherein Sohn discloses that measured blood pressure during sedentary behavior showed elevated blood pressure [Our main outcomes were systolic and diastolic blood pressures (SBP and DBP) and “elevated BP” defined as BP ≥ 130/85 mm Hg… A strong graded association was demonstrated between sedentary behavior and increased SBP and elevated BP, independent of time spent in MV physical activity. Reducing daily sedentary time may lead to improvement in BP and reduction in cardiovascular risk (Sohn p. 1234); Our results show that objectively measured sedentary behavior is associated with higher SBP and with elevated BP, independent of age, MV physical activity, and other demographic and health factors. The most sedentary participants had 4.3 mm Hg higher SBP and were almost twice as likely to have elevated BP as the least sedentary participants in fully adjusted models (Sohn p. 1237)].
As such, since Bennett in view of Crane, Curchod, and Zachariah as modified is directed towards prompting the subject to perform vestibular therapy activities or exercises [Crane ¶0044], it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Bennett in view of Crane, Curchod, and Zachariah to employ further comprising: monitoring for sedentary behavior of the subject over a predefined time window, wherein sedentary behavior of the subject is detected when blood pressure data crosses a threshold value; upon detecting sedentary behavior, prompting the subject to perform a first predetermined movement of the series of predetermined movements of the assigned vestibular therapy, as this modification would amount to mere application of a known technique to a known device (method, or product) ready for improvement to yield predictable results [prompt the subject to perform a vestibular therapy at a certain time] [MPEP § 2143(I)(D)].
Response to Arguments
Applicant's arguments, see Applicant’s Remarks p. 10-12, filed 20 July 2026, with respect to the rejection(s) of claims 1, 30, and those dependent therefrom under § 101 have been fully considered but they are not persuasive.
The Applicant asserts that as claim 1 requires “a hearing assistance system comprising a first control circuit, a first microphone in electrical communication with the first control circuit, a first electroacoustic transducer for generating sound in electrical communication with the first control circuit, a first power supply circuit in electrical communication with the first control circuit, and a memory comprising data associated with a selection of vestibular therapies, each of the vestibular therapies comprising a series of predetermined movements”, that claim 1 is directed towards a particular machine. However, the Examiner disagrees with the Applicant’s argument, as the argued elements of the hearing assistance system [control circuit, microphone, electroacoustic transducer, power supply, memory] are considered to define well-understood, routine, and conventional elements of a hearing assistance system/hearing aid [Beck ¶0003], such that the argued system is not considered to be a “particular machine”. Additionally, the additional sensors of an IMU and blood pressure sensor are further considered to be well-understood, routine, and conventional sensors comprising hearing assistance systems/devices [Helwani Col 14:44-48, Pedersen ¶0143, Samuels ¶0045 regarding IMUs; Husung ¶¶0017, 0040, Bennet ¶0039, Frederiksen ¶0139 regarding blood pressure sensors], such that the inclusion of such sensors further fail to render the hearing assistance system as claimed as a “particular machine”.
The Applicant asserts that the configuration of the instant integrated sensors to determine whether the subject is in an appropriate posture to perform a vestibular therapy and to provide feedback to the subject [Applicant’s Specification ¶0058] to allow the subject to assume the appropriate posture without the need for medical intervention defines a method of providing vestibular therapy to a subject using a hearing assistance system. However, the Examiner notes that the independent claims fail to positively recite any step of providing a vestibular therapy [claims 1 and 30 only positively recite prompting a subject to be a first or second predetermined posture for performing a vestibular therapy]. Furthermore, the hearing assistance system as presently recited has been analyzed at Step 2A Prong 2 and Step 2B to be well-understood, routine, and conventional. As such, the claimed method/system to determine whether the subject is in an appropriate posture to perform a vestibular therapy and provide feedback to the subject to assume the appropriate posture without the need for medical intervention is not considered to provide an improvement to technology or technical field, as under MPEP 2106.05(a), "an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology". Specifically, the "improvements" analysis in Step 2A determines whether the claim pertains to an improvement to the functioning of a computer or to another technology without reference to what is well-understood, routine, conventional activity [MPEP § 2106.04(d)(1)]. It is important to note, the judicial exception alone cannot provide the improvement. The improvement can be provided by one or more additional elements. See the discussion of Diamond v. Diehr, 450 U.S. 175, 187 and 191-92, 209 USPQ 1, 10 (1981)) in subsection II. In addition, the improvement can be provided by the additional element(s) in combination with the recited judicial exception [MPEP § 2106.05(a)]. It is important to note that in order for a method claim to improve computer functionality, the broadest reasonable interpretation of the claim must be limited to computer implementation. That is, a claim whose entire scope can be performed mentally, cannot be said to improve computer technology. Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 120 USPQ2d 1473 (Fed. Cir. 2016) (a method of translating a logic circuit into a hardware component description of a logic circuit was found to be ineligible because the method did not employ a computer and a skilled artisan could perform all the steps mentally) [MPEP § 2106.05(a)(I)].
The Applicant asserts that the posture estimation of claim 1 cannot be formed from a mental process because blood pressure estimation cannot be performed in the mind. The Examiner acknowledges the use of a blood pressure sensor is not a mental process at Step 2A Prong 1. However, the Examiner notes that the use of a blood pressure sensor to estimate a blood pressure is considered to be extra-solution activity [pre-solution data gathering] at Step 2A Prong 2 and wherein performing the estimation of posture based on measured blood pressure values is considered to be a mental process at Step 2A Prong 1.
Applicant’s arguments, see Applicant’s Remarks p. 12-16, with respect to the rejection(s) of claim(s) 1, 30, and those dependent therefrom under § 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Bennett (US-20130343584-A1, previously presented) in view of Crane (US-20120218285-A1, previously presented), Curchod (US-5826578-A, previously presented), and Zachariah et al. (“Office blood pressures in supine, sitting, and standing positions: correlation with ambulatory blood pressures”, NPL attached), hereinafter Zachariah.
The Applicant asserts that Eser does not disclose utilizing blood pressure data to estimate posture and instead discloses how not having patient’s assume a consistent posture can corrupt the accuracy of blood pressure measurements [Eser Conclusion]. The Applicant further asserts that as claim 1 has been amended to require “wherein the first predetermined posture comprises a standing position, and wherein the second predetermined posture comprises a sitting or a supine position”, and the results section of Eser states that “The blood pressure tended to drop in the standing position compared with the sitting, supine and supine with crossed legs”, the Applicant notes that Eser directly contradicts the requirements of claim 1. However, the Examiner notes that Applicant’s arguments with respect to claim(s) 1/30 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. Bennett in view of Crane and Curchod is further modified in view of Zachariah, wherein Zachariah discloses that there is a measurable difference in blood pressure between sitting, supine, and standing, wherein a measured value of blood pressure while standing is above a measured value of blood pressure while sitting/in a supine position [Two measurements were made in the supine, sitting, and standing positions on each of 2 consecutive days, and 24-hour ambulatory blood pressure monitoring was performed. The mean supine, sitting, and standing blood pressures were 146 f 15/91 f 7, 144 f 15/% f 8, and 149 f 17/103 f 7 mm Hg, respectively. Diastolic blood pressures were significantly different from each other (P < 0.0901). Supine and sitting systolic blood pressures were not different, but they were different from standing blood pressure (P < 0.0001) (Zachariah p. 353); See also Table 1 on Zachariah p. 355].
Conclusion
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/SEVERO ANTONIO P LOPEZ/Examiner, Art Unit 3791
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