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 .
Claim Objections
Claims 21, 38, and 40 are objected to because of the following informalities:
Claim 21 recites “a wearable monitoring device including a plurality of biometric sensors, the plurality of biometric sensors include at least two”; this is grammatically incorrect, and should recite either “wherein the plurality of biometric sensors include” or “the plurality of biometric sensors including”. A similar issue is found in claim 40.
Claim 21 calls for the processor to “identify a disruption event” and then “identify a portion of biometric data of a disrupted biometric data type of the plurality of separate biometric data types taken during the disruption event”. There still does not appear to be a clear link between identifying a “disruption event” and then considering a particular data type to now be “a disrupted data type”. Per the disclosure, the identification of a disruption involves identification of a portion captured data that is indicative of such a disruption (paragraphs [0049]-[0051] as filed), and it does not appear that any other identification of disruption has been disclosed, particularly not labeling a data type as “disrupted”. At best, the disclosure sets forth that at least the portion of data indicative of the disruption should be ignored/weighted, but possibly also the data from other sensors for that portion of time might also be ignored/weighted. It appears the intent is to identify a disruption event in the biometric data from the plurality of sensors, and then to ignore or differentially weight at least that portion of the data. Originally filed claim 32 presented similar steps in a manner clearer than in current claim 21. For the purposes of examination claim 21 will be treated as though calling for the controller to identify a disruption event that occurred during the common sampling timeline, identify a portion of biometric data corresponding in time to the disruption event, and cause the controller to ignore or differentially weigh the portion of biometric data corresponding to the disruption event; the same is true of claims 38 and 40.
Appropriate correction is required.
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.
Claims 38 and 39 are 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 38 calls for using the device of claim 21 to determine a respiration rate, where that device is used to perform “determining a respiration rate from the first set of multiplexed data as modified by the filtering process”. The device of claim 21 is defined as being configured to determine a respiration rate from data which has been modified by both a weighing process and a filtering process. As claim 21 requires that device to be configured to use data modified by both processes, it is unclear if or how the device of claim 21 is required in its entirety to perform the method of claim 38 when claim 38 presents an alternative procedure for determining a respiratory rate.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 21, 23-29, 34-39 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 21 is a claim to a process, machine, manufacture, or composition of matter and therefore meets one of the categorical limitations of 35 U.S.C. 101. However, claim 21 meets the first prong of the step 2A analysis because it is directed to a/an abstract idea, as evidenced by the claim language of “receive the biometric data”, “associate the biometric data…”, “perform a weighing process”, “identify a first biometric data type”, “ignore or differentially weigh the first biometric data type”, “perform a filtering process”, “identify a disruption event”, “identify a portion of biometric data”, “ignore or differentially weigh the portion of biometric data”, “determine the user’s respiration rate”. This claim language, under the broadest, reasonable interpretation, encompasses subject matter that may be performed by a human using mental steps or with pen and paper that can involve basic critical thinking, which are types of activities that have been found by the courts to represents abstract ideas (i.e., the mental comparison in Ambry Genetics, or the diagnosing an abnormal condition by performing clinical tests and thinking about the results in Grams). The claim language also meets prong 2 of the step 2A analysis because the above-recited claim language does not integrate the abstract idea into a practical application because the determination of the respiration rate
does not present any improvement to the functioning of a computer or to any other technology, as it is merely processing of obtained data performed on a non-specific “controller” with “processors” (see MPEP 2106.05(d), Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) ("The computer required by some of Bancorp’s claims is employed only for its most basic function, the performance of repetitive calculations, and as such does not impose meaningful limits on the scope of those claims."), showing that these computer functions are well-understood, routine, and conventional functions)
does not apply or use a judicial exception to effect a particular treatment or as a prophylaxis for a disease or medical condition, as the result of the determination is not used as part of any particular treatment or prophylaxis or even output
does not apply the judicial exception with, or by use of, a particular machine, as the determination is performed only by a non-specific “controller” with “processors” (see MPEP 2106.05(d), Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) ("The computer required by some of Bancorp’s claims is employed only for its most basic function, the performance of repetitive calculations, and as such does not impose meaningful limits on the scope of those claims."), showing that these computer functions are well-understood, routine, and conventional functions)
does not effect a transformation or reduction of a particular article to a different state or thing, as it is merely processing of obtained data that is not even output or used in any manner
does not apply or use the judicial exception in some other meaningful way, as the result of the determination itself is not applied or used in any way the beyond finding of the parameter and is not output in any manner
With regard to the second step, the claim does not appear to recite additional elements that amount to significantly more. The additional elements are a “monitoring device” containing “biometric sensors” used only for the insignificant extrasolution activity of data gathering (See MPEP 2106.05(d), where determining the level of a biomarker by any means, Mayo, 566 U.S. at 79, 101 USPQ2d at 1968; Cleveland Clinic Foundation v. True Health Diagnostics, LLC, 859 F.3d 1352, 1362, 123 USPQ2d 1081, 1088 (Fed. Cir. 2017) is held to be well-understood, routine, and conventional), and a “controller” with “processors” and “memories”, where these elements are not “significantly more” because they are well-known, routine, and/or conventional as evidenced by Alice v. CLS Bank and Bilksi v. Kappos, which held that generic computer structure does not otherwise transform a patent-ineligible claim into a patent-eligible one. As such, considered individually and as a whole, the claim elements do not amount to significantly more than the abstract idea itself.
Additionally, the ordered combination of elements do not add anything significantly more to the claimed subject matter. Specifically, the ordered combination of elements do not have any function that is not already supplied by each element individually. That is, the whole is not greater than the sum of its parts.
The dependent claims also fail to provide anything significantly more, as claims 23-29, 37, 39 are directed to aspects of the data gathering; claims 34-36 are directed to aspects of the abstract idea itself; claim 38 merely provides instructions for use.
Claim 40 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 40 is a claim to a process, machine, manufacture, or composition of matter and therefore meets one of the categorical limitations of 35 U.S.C. 101. However, claim 40 meets the first prong of the step 2A analysis because it is directed to a/an abstract idea, as evidenced by the claim language of “receiving biometric data”, “associating the biometric data…”, “performing a weighing process”, “identifying a first biometric data type”, “ignoring or differentially weighing the first biometric data type”, “performing a filtering process”, “identifying a disruption event”, “identifying a portion of biometric data”, “ignoring or differentially weighing the portion of biometric data”, “determining the user’s respiration rate”. This claim language, under the broadest, reasonable interpretation, encompasses subject matter that may be performed by a human using mental steps or with pen and paper that can involve basic critical thinking, which are types of activities that have been found by the courts to represents abstract ideas (i.e., the mental comparison in Ambry Genetics, or the diagnosing an abnormal condition by performing clinical tests and thinking about the results in Grams). The claim language also meets prong 2 of the step 2A analysis because the above-recited claim language does not integrate the abstract idea into a practical application because the determination of the respiration rate
does not present any improvement to the functioning of a computer or to any other technology, as it is merely processing of obtained data
does not apply or use a judicial exception to effect a particular treatment or as a prophylaxis for a disease or medical condition, as the result of the determination is not used as part of any particular treatment or prophylaxis or even output
does not apply the judicial exception with, or by use of, a particular machine, as the determination is only somehow “computer-implemented” as tangentially recited only in the preamble, with no specific indication of any sort of processing device or which steps might involve some “computer” or how they are “implemented” (see MPEP 2106.05(d), Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) ("The computer required by some of Bancorp’s claims is employed only for its most basic function, the performance of repetitive calculations, and as such does not impose meaningful limits on the scope of those claims."), showing that these computer functions are well-understood, routine, and conventional functions)
does not effect a transformation or reduction of a particular article to a different state or thing, as it is merely processing of obtained data that is not even output or used in any manner
does not apply or use the judicial exception in some other meaningful way, as the result of the determination itself is not applied or used in any way the beyond finding of the parameter and is not output in any manner
With regard to the second step, the claim does not appear to recite additional elements that amount to significantly more, as no element is positively recited as being included in the method as claimed, only tangentially in that data is received in some unspecified manner “from a plurality of biometric sensors” that are not involved in the method itself. As such, considered individually and as a whole, the claim elements do not amount to significantly more than the abstract idea itself.
Additionally, the ordered combination of elements do not add anything significantly more to the claimed subject matter. Specifically, the ordered combination of elements do not have any function that is not already supplied by each element individually. That is, the whole is not greater than the sum of its parts.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claim 39 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). Claim 39 recites “wherein the wearable monitoring device is placed upon a chest wall of the user.” This should recite either wherein the device is configured to be placed on a chest, or actively placing the monitoring device as a method step as part of the method claim.
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.
Claim(s) 21, 23-25, 27-29, 34-40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Banet (US 2011/0066062) in view of Burg (US 2015/0313484).
Regarding claim 21, Banet discloses a monitoring system configured to determine a user's respiration rate, the monitoring system comprising:
a wearable monitoring device including a plurality of biometric sensors (paragraph [0011]), the plurality of biometric sensors including at least two biometric sensors selected from the group consisting of a motion sensor (paragraph [0011]), a sound sensor (paragraph [0145]), and an electrical sensor (paragraph [0011]), the plurality of biometric sensors being configured to generate biometric data including a plurality of separate biometric data types each generated by a different biometric sensor type (paragraph [0018]); and
a controller communicatively coupled to the wearable monitoring device, the controller including one or more processors and one or more hardware memories having stored thereon computer-executable instructions (paragraphs [0019], [0090]) which are executable by the one or more processors to cause the controller to:
receive the biometric data from the plurality of biometric sensors (paragraph [0012]);
associate the biometric data of each of the separate biometric data types with one another according to a common sampling timeline to generate a set of multiplexed biometric data (paragraph [0022], [0026], [0097]-[0102]), wherein the set of multiplexed biometric data comprises an estimated respiration rate for each of the plurality of separate biometric data types (paragraph [0011], [0017]);
perform a weighing process which causes the controller to ignore or differentially weigh a first biometric data type within the set of multiplexed biometric data (paragraph [0145], “RR can also be calculated using a combination of ACC, ECG, PPG, IP, and other signals using algorithms that differ from those described above. For example, these signals can be processed with an averaging algorithm, such as one using a weighted average, to determine a single waveform that can then be processed to determine RR.”);
perform a filtering process which causes the controller to:
identify a disruption event that occurred during the common sampling timeline, identify a portion of biometric data corresponding in time to the disruption event, and cause the controller to ignore or differentially weigh the portion of biometric data corresponding to the disruption event (paragraph [0012], [0026], [0074], [0096]); and
determine the user's respiration rate from the set of multiplexed biometric data as modified by the weighing process and the filtering process (paragraphs [0011], [0096], [0145]).
Banet does not disclose the weighing process being configured to cause the controller to identify the data type for ignoring or differentially weighing by identifying a biometric data type with an estimated respiration rate that is a threshold percentage different from estimated respiration rates of the other biometric data types of the plurality of separate biometric data types.
Burg teaches a monitoring system configured to determine a user's respiration rate, the monitoring system comprising:
a wearable monitoring device including a plurality of biometric sensors, the plurality of biometric sensors including at least two biometric sensors selected from the group consisting of a motion sensor, a sound sensor, and an electrical sensor, the plurality of biometric sensors being configured to generate biometric data including a plurality of separate biometric data types each generated by a different biometric sensor type (paragraphs [0010], [0011]); and
a controller communicatively coupled to the wearable monitoring device, the controller including one or more processors and one or more hardware memories (paragraph [0060]) having stored thereon computer-executable instructions which are executable by the one or more processors to cause the controller to:
receive the biometric data from the plurality of biometric sensors (paragraph [0158]);
associate the biometric data of each of the separate biometric data types with one another according to a common sampling timeline to generate a set of multiplexed biometric data (paragraphs [0014]-[0016]), wherein the set of multiplexed biometric data comprises an estimated respiration rate for each of the plurality of separate biometric data types (paragraph [0158]);
perform a weighing process which causes the controller to identify a first biometric data type with an estimated respiration rate that is a threshold percentage different from estimated respiration rates of the other biometric data types of the plurality of separate biometric data types, and cause the controller to ignore or differentially weigh the first biometric data type within the set of multiplexed biometric data (paragraph [0158]; the examiner notes that, as no specific threshold has been defined, any criteria resulting in identifying a type is inherently some threshold percentage different);
perform a filtering process which causes the controller to identify a disruption event and cause the controller to ignore or differentially weigh a portion of biometric data corresponding in time to the disruption event (paragraph [0161]); and
determine the user's respiration rate from the set of multiplexed biometric data as modified by the weighing process and the filtering process (paragraph [0148], [0153], [0161]).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the system of Banet and configured the processor to use a threshold percentage of difference between data types to identify the data type to be ignored or weighed, as taught by Burg, as Banet does not specify the criteria for weighing the data types and Burg teaches use of differences between data types that meet a particular threshold criteria for weighing different data types in a similar system of respiratory monitoring.
Regarding claim 23, Banet further discloses that the wearable monitoring device is a torso monitoring device configured in size and shape for wearable placement on the user's torso (paragraphs [0023], [0077]-[0078]).
Regarding claim 24, Banet further discloses that the wearable monitoring device has an adhesive-backed interior side enabling attachment to the user's skin (paragraph [0152]).
Regarding claim 25, Banet further discloses that the wearable monitoring device includes one or more rounded exterior surfaces (figures 27A, 29A).
Regarding claim 26, Banet discloses all the elements of the claimed invention, as described above, except for the wearable monitoring device having a height of about 4 mm to about 25 mm, or about 6 mm to about 15 mm. However, it would have been a mere matter of design choice for one of ordinary skill in the art at the time the invention was filed to have the wearable monitoring device have a height of about 4 mm to about 25 mm, or about 6 mm to about 15 mm, since Applicant has not disclosed use of these particular maximum and/or minimum heights as providing a particular advantage, solving a stated problem, or serving a different purpose than that of system of Banet. Moreover, it appears that Banet’s device would perform equally well to allow on-body monitoring. As such, it would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made to have made the system of Banet with the wearable monitoring device having a height of about 4 mm to about 25 mm, or about 6 mm to about 15 mm, because such a modification would have been considered a mere design consideration that fails to patentably distinguish over Banet.
Regarding claim 27, Banet further discloses that the plurality of biometric sensors includes at least one sensor from each of the following biometric sensor types: motion sensor (paragraph [0012]), microphone (paragraph [0145]), and electrical sensor (paragraph [0012]).
Regarding claim 28, Banet further discloses that the electrical sensor is an EKG sensor (paragraph [0012]).
Regarding claim 29, Banet further discloses that the microphone is a contact microphone including a piezo element (see paragraph [0145] which incorporates by reference US 12/171886, corresponding to US 2009/0018409, which in its paragraph [0039] identifies the microphone as being of a type having a piezo element – see datasheet for Freescale MPXM2051GS).
Regarding claim 34, Banet further discloses that the ignoring or weighing in the weighing process comprises ignoring the data, inherently including its respiration rate, of the identified “first biometric data type” (paragraphs [0022], [0094], [0096]).
Regarding claim 35, Banet further discloses that the disruption event includes a sound event within a sound biometric data type (paragraphs [0094], [0096]; see also paragraph [0145] which incorporates by reference US 12/171886, corresponding to US 2009/0018409 which also discloses this in its paragraphs [0037], [0038]).
Regarding claim 36, Banet further discloses that the sound event includes a time segment where it is determined that the user is talking (paragraphs [0094], [0096]; see also paragraph [0145] which incorporates by reference US 12/171886, corresponding to US 2009/0018409 which also discloses this in its paragraphs [0037], [0038]).
Regarding claim 37, the Examiner notes that the identification of one of the biometric data types as being “the first biometric data type” is entirely dependent upon the measured data; Banet discloses the system as including a motion biometric data type and an electrical biometric data type (paragraphs [0012], [0096]) such that if the data warrants such an identification either could be considered “the first biometric data type”.
Regarding claim 38, Banet further discloses a method of determining respiration rate using multiple biometric data sources, the method comprising:
providing a monitoring system as in claim 21 (paragraph [0011]);
placing the wearable monitoring device upon a user in an operational position (paragraph [0077]);
operating the wearable monitoring device to obtain a plurality of biometric data types from the plurality of biometric sensors (paragraphs [0011], [0012]), wherein the wearable monitoring device performs at least the following:
associating the biometric data of each of the plurality of biometric data types with one another according to a common sampling timeline to generate a first set of multiplexed biometric data (paragraphs [0022], [0026], [0097]-[0102]), wherein the first set of multiplexed biometric data comprises a determined estimated respiration rate for each of the separate biometric data types (paragraphs [0011], [0017]);
performing a filtering process comprising identifying a motion disruption event that occurred during the common sampling timeline, identifying a portion of biometric motion data corresponding in time to the disruption event, and causing the controller to ignore or differentially weigh the portion of biometric motion data corresponding to the disruption event (paragraph [0012], [0026], [0074], [0096]); and
determining a respiration rate from the first set of multiplexed data as modified by the filtering process (paragraphs [0011], [0096]).
Regarding claim 39, Banet further discloses that the wearable monitoring device is placed upon the chest wall of the user (paragraph [0077]).
Regarding claim 40, Banet discloses a computer-implemented method of determining respiration rate using multiple biometric data sources (paragraphs [0019], [0090]), the method comprising:
receiving biometric data from a plurality of biometric sensors (paragraph [0011]), the plurality of biometric sensors including at least two biometric sensors selected from the group consisting of a motion sensor (paragraph [0011]), a sound sensor (paragraph [0145]), and an electrical sensor (paragraph [0011]), the plurality of biometric sensors being configured to generate biometric data including a plurality of separate biometric data types each generated by a different biometric sensor type (paragraph [0018]);
associating the biometric data of each of separate biometric data types with one another according to a common sampling timeline to generate a set of multiplexed biometric data (paragraph [0022], [0026], [0097]-[0102]), wherein the set of multiplexed biometric data comprises an estimated respiration rate for each of the plurality of separate biometric data types (paragraph [0011], [0017]);
performing a weighing process comprising ignoring or differentially weighing a first biometric data type within the set of multiplexed biometric data (paragraph [0145], “RR can also be calculated using a combination of ACC, ECG, PPG, IP, and other signals using algorithms that differ from those described above. For example, these signals can be processed with an averaging algorithm, such as one using a weighted average, to determine a single waveform that can then be processed to determine RR.”);
performing a filtering process comprising:
identifying a disruption event that occurred during the common sampling timeline, identifying a portion of biometric data corresponding in time to the disruption event, and ignoring or differentially weighing the portion of biometric data corresponding to the disruption event (paragraph [0012], [0026], [0074], [0096]); and
determining a user's respiration rate from the set of multiplexed biometric data as modified by the weighing process and the filtering process (paragraphs [0011], [0096], [0145]).
Banet does not disclose the weighing process comprising identifying the data type for ignoring or differentially weighing by identifying a biometric data type with an estimated respiration rate that is a threshold percentage different from estimated respiration rates of the other biometric data types of the plurality of separate biometric data types.
Burg teaches a method of determining a user's respiration rate comprising:
receiving biometric data from a plurality of biometric sensors, the plurality of biometric sensors including at least two biometric sensors selected from the group consisting of a motion sensor, a sound sensor, and an electrical sensor, the biometric data including a plurality of separate biometric data types each generated by a different biometric sensor type (paragraphs [0010], [0011], [0158]);
associating the biometric data of each of the separate biometric data types with one another according to a common sampling timeline to generate a set of multiplexed biometric data (paragraphs [0014]-[0016]), wherein the set of multiplexed biometric data comprises an estimated respiration rate for each of the plurality of separate biometric data types (paragraph [0158]);
performing a weighing process comprising identifying a first biometric data type with an estimated respiration rate that is a threshold percentage different from estimated respiration rates of the other biometric data types of the plurality of separate biometric data types, and ignoring or differentially weighing the first biometric data type within the set of multiplexed biometric data (paragraph [0158]; the examiner notes that, as no specific threshold has been defined, any criteria resulting in identifying a type is inherently some threshold percentage different);
performing a filtering process comprising identifying a disruption event and ignoring or differentially weighing a portion of biometric data corresponding in time to the disruption event (paragraph [0161]); and
determining the user's respiration rate from the set of multiplexed biometric data as modified by the weighing process and the filtering process (paragraph [0148], [0153], [0161]).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have followed Banet and used a threshold percentage of difference between data types to identify the data type to be ignored or weighed, as taught by Burg, as Banet does not specify the criteria for weighing the data types and Burg teaches use of differences between data types that meet a particular threshold criteria for weighing different data types in a similar process of respiratory monitoring.
Response to Arguments
Applicant's arguments filed 19 November 2025 have been fully considered but they are not persuasive.
Regarding the rejections under 112a, the Examiner notes that the amendments to specify that “data portions” are associated with the events have technically resolved the issue but it remains problematic that these portions are presented in the claims as being associated with “disrupted data types”, as noted above. The Examiner suggests referring to originally presented claim 32 for a clearer description of what data is being affected.
Regarding claim 38, as noted above, the device of claim 21 is specifically configured to perform processing using data that has undergone both a weighing process and a filtering process, such that it is not readily apparent that it is possible to use that specifically configured device to perform a different process using different data, or if the intent is to only involve some of the device of claim 21 in performance of the method and not the claimed device in its entirety. If Applicant wishes to include claims directed to a method of operating a different embodiment of a device than that found in claim 21 it should be specifically presented as such.
Regarding the rejections under 101, Applicant first argues that the recited steps do not fall under step 2A, prong 1, of 101 analysis, because “the claims focus on gathering various biometric data, filtering and weighing that biometric data, and then determining respiration rate [sic] from that data”, asserting that the filtering and weighing improve the accuracy of the determined respiration rate. It should be noted that improvement of accuracy is not a consideration as part of step 2A, prong 1; as evidenced by Applicant’s summary of the claimed invention, these processing steps are certainly recited at a high level of generality, and do not include any limitations that are beyond being practically performed in a human mind, particularly as no specificity as to how the filtering, weighing, and determining are performed has been recited.
Regarding step 2A, prong 2, Applicant generally asserts that the entire concept of “including filtering and weighting of disrupted or outlier data” as part of finding a respiration rate “represent advancements over traditional systems and are specifically designed to address practical problems”. It should be noted that none of these “practical problems” have been identified, nor is it clear what is being considered “These solutions” beyond the abstract idea itself as a whole, particularly not meeting the requirement that there is some showing in the specification that there is any improvement to technology or identifying any particular technical problem that is being solved, let alone showing a particular way to achieve this “improvement” beyond the general idea of “improving”. Further, as a practical application must be provided by an additional element, this assertion that the abstract idea itself is the improvement is moot (see 2106.04(d)).
Applicant next asserts that the use of a wearable monitoring device including a plurality of biometric sensors and a controller/processor/memory is an integration with a particular machine; initially it should be noted that the “wearable monitoring device” and biometric sensors are part of the extrasolution activity of data gathering, not the abstract idea, such that they are not used to apply the judicial exception. Applicant’s own remarks support that these are used for data gathering, as “none of the sound, motion, or electrical biometric data could be collected without including the wearable device”, such that “all uses of the recited judicial exception require such data gathering” (MPEP 2106.05(g). Further, merely implementing the judicial exception on a generic controller, processor, memory, or other computing device is merely providing a technological environment for execution of the abstract idea itself – see MPEP 2106.05(h), such that this is entirely unpersuasive.
Applicant continues by arguing that the judicial exception is used to “transform” biometric data into a respiration rate; as both of these are data, no “transformation” has occurred. For data, mere "manipulation of basic mathematical constructs [i.e.,] the paradigmatic ‘abstract idea,’" has not been deemed a transformation. CyberSource v. Retail Decisions, 654 F.3d 1366, 1372 n.2, 99 USPQ2d 1690, 1695 n.2 (Fed. Cir. 2011) (quoting In re Warmerdam, 33 F.3d 1354, 1355, 1360, 31 USPQ2d 1754, 1755, 1759 (Fed. Cir. 1994)). See MPEP 2106.05(c).
The Examiner notes that Applicant’s remarks do not address whether any additional elements might amount to significantly more than the judicial exception itself (step 2B); as the answer to this remains no above, the claims remain rejected.
Regarding claim 39, the Examiner notes that Applicant’s remarks do not address this claim’s separate rejection under 101, which is maintained above.
The Examiner notes that Banet was previously applied against an earlier version of the claims in the instant application; Applicant’s remarks addressing Banet filed 6 December 2023 are directed only to whether Banet discloses limitations no longer presented in the claims (that is, removing one portion of data associated with an event and differentially weighing other portions of data also associated with the event), such that these remarks are moot in light of the claims as currently presented.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/KAREN E TOTH/ Examiner, Art Unit 3791