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 .
Election/Restrictions
Applicant’s election without traverse of Group II, claims, 12-19 in the reply filed on 11/01/2023 is acknowledged.
Drawings
The drawings are objected to because, regarding all the figures, the text is not large enough or the weight of lines and letters is not heavy enough to permit adequate reproduction. Examiner suggests enlarging graphs and drawings.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 12-19 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 12 includes the language “preferably wherein both sensors are on the same support”. It is unclear if this limitation is required or is merely optional. The metes and bounds of the claim are unclear. The Examiner suggests either requiring them to be on the same support structure by deleting “preferably” or deleting the entire clause.
Claims 15 and 16 contain the same issue with the use of the term “preferably”.
Claims 13, 14 and 17-19 are rejected as being dependent on indefinite claim 12.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 12-19 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Derchak et al. (US 2011/0054271 A1, hereinafter “Derchak,” cited by Applicant).
Regarding claims 12-13, Derchak discloses a wearable apparatus (Figs. 3-6 (80) and par. [0046]: …(i) a wearable monitoring garment…) for measuring ventilation rate and activity level in a subject, comprising a ventilation rate sensor and an activity sensor, preferably wherein both sensors are on the same support structure (Figs. 3 and 6 (80) and pars. [0070]: …the monitoring systems of the invention include a wearable monitoring garment having… magnetometers embedded in or carried by the wearable garment. …the monitoring systems include additional physiological sensors, [0096]: …the magnetometers, additional sensors, …and other equipment can be arranged in or carried by the garment);
wherein the support structure is a thoracic strap (Figs. 3 and 6 (80) and par. [0040]: …(i) a wearable monitoring garment adapted to cover at least a portion of a subject's torso);
wherein the support structure is a thoracic strap (Figs. 3 and 6 (80) and par. [0040]: …(i) a wearable monitoring garment adapted to cover at least a portion of a subject's torso).
Regarding claims 14-16, Derchak the wearable apparatus of claim 12, further comprising a processor (Fig. 1 (40)) for processing the data from the sensors (par. [0043]: …the monitoring system includes processor means for processing the first, second and third signals…);
wherein the processor and the sensors are in electrical communication, preferably are in electrical communication via wires (pars. [0044]: …the processor means is also embedded in the monitoring garment, [0092]: …sensors, processing and monitoring systems…associated wiring, cabling, and other power and signal transmission apparatus and/or systems are similarly embedded in or carried by the wearable garment);
wherein the output device (Fig. 1 (50)) and the processor (Fig. 1 (40)) are in electrical communication, preferably are in wireless electrical communication (pars. [0045]: …the transmission means includes a wireless communication link and associated protocol, [0082]: Data transmission subsystem 50 is programmed and adapted to monitor and control the communication links and, hence, transmissions by and between data acquisition subsystem 20, control-data processing subsystem 40, and data monitoring subsystem 60).
Regarding claims 17-19, Derchak the wearable apparatus of claims 12, wherein the ventilation sensor comprises a magnet and a magnetometer (Figs. 3, 6 (22a) (22b) (24a) (24b) and par. [0038]: …(i) a wearable monitoring garment that is adapted to cover at least a portion of a subject's torso, and (ii) a magnetometer system, the magnetometer system being embedded in the monitoring garment…A variety of magnetometer types can be used in the magnetometer system, for example, coils or magnets).
wherein the activity sensor is an accelerometer, optionally a tri-axial accelerometer (pars. [0046]: … other sensors can be included in the monitoring system…accelerometers to detect movement and speed of a subject); and
comprising more than one ventilation sensors (Figs. 3, 6 (22a) (22b) (24a) (24b) and par. [0077]: …FIG. 2, the magnetometers include first transmission magnetometer 22a, first receive magnetometer 22b, second transmission magnetometer 24a, and second receive magnetometer 24b).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Medelius (US 2017/0031334 A1) teaches a wearable monitoring chest strap that monitors activity and breathing rate and Madnani et al. (US 2020/0060546 A1) teaches a wearable device worn on the torso that monitors activity and breathing pattern sensed by an accelerometer and magnetometer.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADREANNE A ARNOLD whose telephone number is (571)272-6794. The examiner can normally be reached M-Th 7:30 a.m. - 5:30 p.m..
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID HAMAOUI can be reached on (571) 270-5625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AAA/Examiner, Art Unit 3796
/ALLEN PORTER/Primary Examiner, Art Unit 3796
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