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 .
The amendment filed on November 17, 2025 has been received and considered. By this amendment, claims 1, 12, 19, and 20 are amended, claims 26 and 27 are added, and claims 1-27 are now pending in the application.
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 1-27 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) an abstract idea set forth as a series of steps, or functions done by a processor, of obtaining signals and determining the value of one or more parameters using a model. This judicial exception is not integrated into a practical application because either the abstract idea is not performed on any particular structure, or the generically recited computer elements, such as the sensors and processor of claim 19 do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements merely modify the abstract idea with specific measures (i.e. thoracic respiratory inductive plethysmograph in claim 2) rather that providing additional elements.
The claims are directed to an abstract idea and/or the end result of the system and method, the essence of the whole, is a patent-ineligible concept. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they amount to a general computer receiving data and fitting the data to a model. The claims are directed to an abstract idea, i.e. implementing the idea of receiving and fitting data to a model, such as may be done by a mental process, critical thinking, and/or paper and pencil, with additional generic computer elements recited at a high level of generality that perform generic functions routinely used in the art, and do not add a meaningful limitation to the abstract idea because they would be routine in any computer implementation or in the relevant art. Thus, the recited generic computer components perform no more than their basic computer functions. These additional elements are well-understood, routine and conventional limitations that amount to mere instructions or elements to implement the abstract idea. In addition, the end result of the system, the essence of the whole, is a patent-ineligible concept. See the recent decisions by the U.S. Supreme Court, including Alice Corp., Myriad, and Mayo. In addition, the current claims are similar to other recent court decisions dealing with analyzing, comparing, and/or displaying data, such as Electric Power Group, Digitech, Grams, and Classen.
Based on the plain meaning of the words in the claim, the broadest reasonable interpretation of the claims is a system and method having sensors, at least one processor, and a hardware storage device, wherein the processor is configured to receive data and apply a model. The claims do not impose any limits on how the data is received by the processor, and thus this step covers any and all possible ways in which this can be done, for instance by typing the information into the system, or by the system obtaining the information from another device. The claim also does not impose any limits on how model is fitted, and thus it can be performed in any way known to those of ordinary skill in the art.
The calculations are simple enough to be practically performed in the human mind or through critical thinking. Note that even if most humans would use a physical aid (e.g., pen and paper, a slide rule, or a calculator) to help them complete the recited calculation, the use of such physical aid does not negate the mental nature of this limitation. Nor does the recitation of a processor in the claim negate the mental nature of this limitation because the claim here merely uses the processor as a tool to perform the otherwise mental process.
The sensors, processor, and hardware storage device are recited so generically that they represent no more than mere instructions to apply the judicial exception on a computer. These limitations can also be viewed as nothing more than an attempt to generally link the use of the judicial exception to the technological environment of a computer. It should be noted that because the courts have made it clear that mere physicality or tangibility of an additional element or elements is not a relevant consideration in the eligibility analysis, the physical nature of these computer components does not affect this analysis. See MPEP 2106.05(1) for more information on this point, including explanations from judicial decisions including Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 224-26 (2014).
Although the processor or claim limitations may fall under several exceptions (e.g., a mathematical concept-type abstract idea or a mental process-type abstract idea), there are no bright lines between the types of exceptions. See, e.g., MPEP 2106.04(1). Thus, it is sufficient for the examiner to identify that the limitations align with at least one judicial exception, and to conduct further analysis based on that identification. While this type of automation may improve the life of a practitioner/physician (by minimizing or eliminating the need for mentally computing metrics), there is no change to the computers and other technology that are recited in the claim as automating the abstract ideas, and thus this claim cannot improve computer functionality or other technology. See, e.g., Trading Technologies Int’! v. IBG, Inc., 921 F.3d 1084, 1093 (Fed. Cir. 2019) (using a computer to provide a trader with more information to facilitate market trades improved the business process of market trading, but not the computer) and the cases discussed in MPEP 2106.05(a)(I), particularly FairWarning IP,LLC v. Iatric Sys., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (accelerating a process of analyzing audit log data is not an improvement when the increased speed comes solely from the capabilities of a general-purpose computer) and Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055 (Fed. Cir. 2017) (using a generic computer to automate a process of applying to finance a purchase is not an improvement to the computer’s functionality). Accordingly, the claim as a whole does not integrate the recited judicial exception into a practical application and the claim is directed to the judicial exception.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 12-16 and 25 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 12, and the claims dependent thereon, fails to include all the limitations of the claim upon which it depends because of the “one or more parameters” recited in claim 1, it only includes “intercostal muscle drive force FTm” and “a diaphragm drive force Fam” and does not include all of the one or more parameters previously recited. Further, claim 12 includes 2 additional parameters, “thorax counterfource FTb” and “abdomen counterforce Fab” which are not listed in claim 1. The parameters as recited in claim 12 when chosen could result in a parameter which is not covered by claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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.
Claims 2 and 27 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hoskuldsson et al. in the publication (US 2015/0126879 A1).
Regarding claim 2, Hoskuldsson discloses a computer-implemented method of determining a value of one or more parameters of a respiratory effort of a subject (Abstract recites: the invention is for a method of measuring respiratory effort of a subject, where a thorax effort signal and an abdomen effort signal are obtained), the method comprising:
obtaining a thoracic signal (T), the thoracic signal (T) being an indicator of a thoracic component of the respiratory effort (¶:[0007] recites: thorax effort signal being an indicator of a thoracic component of the respiratory effort);
obtaining an abdomen signal (A), the abdomen signal (A) being an indicator of an abdominal component of the respiratory effort (¶:[0007] further recites: an abdomen effort signal is obtained, the abdomen effort signal is an indicator of an abdominal component of the respiratory effort);
determining, without directly measuring, on one or more processors of a computing system, the value of the one or more parameters of the respiratory effort by using constraints and/or relationships of components of a model of a respiratory system of the subject (¶:[0025-0031] recites equations are derived for calculating the respiratory effort using a relationship of the two components thoracic and abdominal constraints of respiratory effort, those equations represent a model which is used for estimation of respiratory effort as recited), those derived equations are same as the equations used in the current specification in (¶:[0063-0066]) for estimating respiratory effort; and
fitting the components of the model of the respiratory system of the subject with data from the obtained thoracic signal (T) and data from the obtained abdomen signal (A) the model describes respiratory movements based on the thorax effort signal T and the abdomen effort signal A as recited in (¶:[0034]),
wherein the thoracic signal (T) is a thoracic respiratory inductive plethysmograph (RIP) signal; and the abdomen signal (A) being an abdomen respiratory inductive plethysmograph (RIP) signal (Respiratory Inductive Plethysmography (RIP) is a method to measure respiratory related areal changes, the RIP belts contain a conductor which forms a conductive loop when put on a subject, that loop creates an inductance that is directly proportional to the absolute cross sectional area of the body part which it encircles, when such belts are placed around the abdomen and thorax, the cross sectional area is modulated with the respiratory movements and therefore inductance of the belts changes and the measured value of the belt inductance is directly proportional with the respiratory movements, Hoskuldsson also recites a mathematical model for deriving respiratory volume from thoracic and abdominal RIP value, as recited in (¶:[0017] & [0023]). It is respectfully submitted that the use of the model of Hoskuldsson would necessarily result in “wherein each of the determined one or more parameters of the respiratory effort is different than each of the thoracic component of the respiratory effort, the abdominal component of the respiratory effort, a weighted thoracic component of the respiratory effort, a weighted abdominal component of the respiratory effort, a paradox component of the respiratory effort, and a respiratory movement”, as the output of the model will differ from the inputs of the model.
Regarding claim 27, Hoskuldsson discloses a computer-implemented method of determining a value of one or more parameters of a respiratory effort of a subject (Abstract recites: the invention is for a method of measuring respiratory effort of a subject, where a thorax effort signal and an abdomen effort signal are obtained), the method comprising:
obtaining a thoracic signal (T), the thoracic signal (T) being an indicator of a thoracic component of the respiratory effort (¶:[0007] recites: thorax effort signal being an indicator of a thoracic component of the respiratory effort);
obtaining an abdomen signal (A), the abdomen signal (A) being an indicator of an abdominal component of the respiratory effort (¶:[0007] further recites: an abdomen effort signal is obtained, the abdomen effort signal is an indicator of an abdominal component of the respiratory effort);
determining, without directly measuring, on one or more processors of a computing system, the value of the one or more parameters of the respiratory effort by using constraints and/or relationships of components of a model of a respiratory system of the subject (¶:[0025-0031] recites equations are derived for calculating the respiratory effort using a relationship of the two components thoracic and abdominal constraints of respiratory effort, those equations represent a model which is used for estimation of respiratory effort as recited), those derived equations are same as the equations used in the current specification in (¶:[0063-0066]) for estimating respiratory effort; and
fitting the components of the model of the respiratory system of the subject with data from the obtained thoracic signal (T) and data from the obtained abdomen signal (A) (the model describes respiratory movements based on the thorax effort signal T and the abdomen effort signal A as recited in (¶:[0034]),
wherein the thoracic signal (T) is a thoracic respiratory inductive plethysmograph (RIP) signal; and the abdomen signal (A) being an abdomen respiratory inductive plethysmograph (RIP) signal (Respiratory Inductive Plethysmography (RIP) is a method to measure respiratory related areal changes, the RIP belts contain a conductor which forms a conductive loop when put on a subject, that loop creates an inductance that is directly proportional to the absolute cross sectional area of the body part which it encircles, when such belts are placed around the abdomen and thorax, the cross sectional area is modulated with the respiratory movements and therefore inductance of the belts changes and the measured value of the belt inductance is directly proportional with the respiratory movements, Hoskuldsson also recites a mathematical model for deriving respiratory volume from thoracic and abdominal RIP value, as recited in (¶:[0017] & [0023]); and
wherein the one or more parameters include one or a combination of: an airway resistance Rr of the subject (claim 14, “evaluating flow resistance”).
Response to Arguments
Applicant's arguments filed November 17, 2025 have been fully considered but they are not persuasive. Regarding the rejection of the claims under 35 USC 101 as being directed to an abstract idea without adding significantly more, the Applicant argues that the second part of the Alice/Mayo test is referred to as a search for an inventive concept and that the claims are directed to an inventive concept and therefore the claims as a whole amount to significantly more than the judicial exception. Essentially, the Applicant is arguing that because Applicant alleges that the claims are allowable over the prior art, then such claims necessarily are directed to an inventive concept. Step 2B, while it is referred to as a search for an inventive concept, it is also directed to whether the claim as a whole is directed to “significantly more” than the judicial exception. Applicant’s argument is essentially that the judicial exception itself is the inventive concept, not that the claim as a whole is significantly more than the judicial exception. In the instant case, the claims are rejected as being directed to the mental process category of abstract ideas because the claim can be practically performed in the human mind or with pen and paper. Applicant has failed to show how the claim is directed to “significantly more” than this judicial exception because Applicant’s arguments are directed to the abstract idea itself being an inventive concept. For at least the reasons given above, the rejection stands.
Regarding the rejection of claim 2 under 35 USC 102(a)(1) as being unpatentable over Hoskuldsson, the Applicant argues at page 22, lines 18-21, that “Hoskuldsson uses the parameters that can be measured by the RIP belts as an input to calculate the respiratory effort. However, these measured signal have to be calibrated by using weight factors. The weight factors can change due to movement of the belts. (See Hoskuldsson, para. [0003]).” Further, Applicant argues that “claim 2 determines the values of the parameters of the respiratory effort, wherein the parameters are not the parameters that can be measured directly by the RIP belts.” The Examiner has previously indicated that the use of the model of Hoskuldsson would necessarily result in “wherein each of the determined one or more parameters of the respiratory effort is different than each of the thoracic component of the respiratory effort, the abdominal component of the respiratory effort, a weighted thoracic component of the respiratory effort, a weighted abdominal component of the respiratory effort, a paradox component of the respiratory effort, and a respiratory movement”, as the output of the model will differ from the inputs of the model. Applicant’s arguments appear to support this conclusion, as it is known from Hoskuldsson, and asserted by Applicant, that parameters are measured by RIP belts, the measured signal is calibrated using weight factors, and the output of the model is parameter which differ from the input parameters. If Applicant is intending to argue that the output of the model of Hoskuldsson is the same as the input of the model of Hoskuldsson, then Applicant is requested to clearly articulate this argument with explanation and support. Otherwise, at this time, the rejection stands.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TAMMIE K MARLEN whose telephone number is (571)272-1986. The examiner can normally be reached on Monday through Friday from 8 am until 4 pm.
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/TAMMIE K MARLEN/Primary Examiner, Art Unit 3796