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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/02/2025 has been entered.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 16-28, 30-32, and 34-37 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea.
Regarding claim 16, the claim recites a system configured to perform a series of steps or acts, including determining whether the visual behavior monitor is worn by the user. Thus, the claim is directed to a machine, which is one of the statutory categories of invention.
The claim is then analyzed to determine whether it is directed to any judicial exception. The step of determining whether the visual behavior monitor is worn by the user sets forth a judicial exception. This step describes a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to a Mental Process, which is an Abstract Idea. While the steps are performed by a computer system, according to section 2106.05(f) of the MPEP, merely using a computer as tool to perform an Abstract Idea does not integrate the Abstract Idea into a practical application.
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Determining whether the visual behavior monitor is worn by the user does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the worn state determination, nor does the method use a particular machine to perform the Abstract Idea.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the Abstract Idea, the claim recites additional steps of acquiring sensor data and processing the data to retrospectively and currently determine if the user is correctly or improperly wearing the monitoring device via statistical analysis. Acquiring sensor data and determining correct or improper positioning of a device via statistical analysis is well-understood, routine and conventional activity for those in the field of medical diagnostics. Further, the acquiring and determining step is recited at a high level of generality such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the obtaining and determining step does not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
The same rationale applies to claims 30 and 36.
The dependent claims also fail to add something more to the abstract independent claims as they generally recite method steps pertaining to data gathering and processing. The acquiring and processing steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Claim Rejections - 35 USC § 103
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 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.
Claims 16-18, 19-20, 23, 25, 28, 30, and 34-36 are rejected under 35 U.S.C. 103 as being unpatentable over Zacharov et al. (EP 3228237- Previously cited), referred to as Zacharov hereinafter, further in view of Arnold et al. (US 20160007934), hereinafter Arnold, and Heikenfeld (US 20170100072- Previously cited).
Regarding claim 16, 30 and 36, Zacharov teaches a visual behavior monitor wearing status detection system for detecting whether a visual behavior monitor, usable to monitor visual behavior of a user, is worn by the user ((see ABSTRACT and ¶[0027,0037,0054] and fig. 1, visual behavior monitor (10) for monitoring a visual behavior of a user, and the visual behavior monitor wearing status detection system are integral (1)), wherein the visual behavior monitor wearing status detection system comprises: one or more sensors configured to obtain sensor data, and wherein the visual behavior monitor wearing status detection system is configured to process the sensor data to determine whether the visual behavior monitor is worn by the user (¶[0037,0052] and fig. 1, the system comprises one or more sensors 15,20, etc. and determines if the monitor device is being worn), but fails to teach this step is performed retrospectively.
Arnold teaches a wearable device, i.e. glasses, that are configured to determine when they are being worn or not (¶[0042] and abstract). The determination is made retrospectively, that is, after continuous measurements for a span of time the not-worn state is detected (¶[0255], “Note the span of time has to be long enough (over a threshold value of consecutive time periods) for a span of time of not-worn to be detected. If a set of consecutive time periods recorded as not-worn is interrupted prior to reaching the threshold, the span of time is derived as a worn state”). Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Zacharov, such that the visual behavior monitor wearing status detection system is configured to process the sensor data to retrospectively determine whether the visual behavior monitor is worn by the user, as taught by Arnold, to adjust power consumption and improve battery span (¶[0041,0139], “operate to adjust the power consumption of a sensor based on the state of the user” and “deriving of user statuses (e.g., active/inactive/not-worn status) ”).
Zacharov fails to teach wherein the visual behavior monitor wearing status detection system is configured to combine the sensor data obtained from the first and second sensors to statistically determine whether the user is correctly wearing the visual behavior monitor and/or is wearing the visual behavior monitor in a manner previously determined to be improper, wherein the statistical determination comprises obtaining, from the sensor data obtained from the first and second sensors, a probability that the user is correctly wearing the visual behavior monitor and/or is wearing the visual behavior monitor in a manner previously determined to be improper from each sensor individually.
Heikenfeld teaches a wearable monitoring device that is configured to determine when the user is correctly wearing the monitoring device based on a plurality of sensor data and probabilities (see abstract and ¶[0005,0010], “monitoring whether a sweat sensing device is in adequate contact with a wearer's skin to allow proper operation of the sweat sensing device; at least one component capable of monitoring whether a sweat sensing device is operating on the wearer's skin; at least one means of determining whether a device is being worn by a target individual within a probability range; at least one component capable of generating and communicating alert messages to the sweat device user(s) related to: wearer safety, wearer physiological condition, compliance with a requirement to wear a device, device operation; compliance with a behavior requirement, or other purposes that may be derived from the use of sweat sensor data; and the ability to utilize aggregated sweat sensor data that may be correlated with information external to the sweat sensing device to enhance the predictive and alert capabilities of the sweat sensing device”; The examiner interprets determining “adequate contact with a wearer's skin to allow proper operation”, “whether a sweat sensing device is operating on the wearer's skin”, and “whether a device is being worn by a target individual” all teach methods of determining whether the correct user is correctly wearing the medical; It is noted, if a device is not being worn by a target individual then it is equivalent to the device not being correctly worn by the correct target). The device is configured to determine identification metrics for different sensors that indicate within a certain probability that the individual is wearing the device, calculate two or more identification metrics, calculate the identification probability estimate for each metric, combine the probabilities, and compare the probability to an acceptable/desired threshold (¶[0024-26,0056,0076], additionally, each probability estimate can be compared to a threshold value ).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Zacharov-Arnold, such that determining the user is correctly wearing the monitoring device is based on determining a probability from the sensor data obtained, as taught by Heikenfeld, to aid in enhancing predictive and alerting capabilities of the monitoring device related to correctly wearing the device (¶[0010] of Heikenfeld). Additionally, this is merely applying a known technique (determining a probability whether a user is correctly wearing and/or improperly wearing a monitoring device based on sensor data from multiple sources) to improve similar devices (monitoring devices) in the same way.
Regarding claim 17, Zacharov teaches determining, by the visual behavior monitor wearing status detection system, whether the visual behavior monitor is worn by the user comprises automatically determining whether a predefined condition, derived by the visual behavior monitor wearing status detection system from the sensor data, is fulfilled (¶[0027], once the monitoring device has been placed on the body(predefined condition), the criterion for starting measurement is fulfilled).
Regarding claim 18, Zachrov fails to explicitly teach wherein the determination whether the visual behavior monitor is worn by the user comprises calculating, by the visual behavior monitor wearing status detection system, a likelihood for the user to wear the visual behavior monitor and determining whether the likelihood exceeds or falls below a threshold.
Arnold teaches that the determination of a degree of tilt or the like can be representative of the device not being worn; and the determination is based on the degree being compared to a threshold (¶[0220-221], “When placed in this orientation, the back-front axis (the Z-axis) runs substantially parallel to the force of gravity, and the acceleration is along the back-front axis due to gravity will consistently meet a condition relative to a threshold acceleration expected along that axis when the wearable electronic device is in this orientation,” “determination whether the acceleration data is greater than a gravitational threshold,” and “the threshold acceleration in FIGS. 10A-B is based on the force on a stationary object needed to counteract gravity and an acceptable degree of tilt”).
Therefore it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Zacharov-Arnold-Heikenfeld, such that the determination whether the visual behavior monitor is worn by the user comprises calculating, by the visual behavior monitor wearing status detection system, a likelihood for the user to wear the visual behavior monitor and determining whether the likelihood exceeds or falls below a threshold, as taught by Arnold, to aid in managing the devices power consumption and/or the user’s state (¶[0166]).
Regarding claim 19, Zacharov teaches further comprising a controller for controlling, based on the determination whether the visual behavior monitor is worn by the user, one or more of (i) starting of the visual behavior monitoring of the user via the visual behavior monitor, and (ii) activating components of the visual behavior monitor (¶[0027], once the monitoring device has been placed on the body(worn state determination), the steps of starting measurement and activating sensors is performed).
Regarding claim 20, Zacharov teaches wherein the one or more sensors comprise one or more orientation sensors for obtaining orientation data relating to an orientation of the visual behavior monitor wearing status detection system, and wherein the sensor data, processed to determine whether the visual behavior monitor is worn by the user, comprises said orientation data (¶[0027,0037,0054], motion/orientation data from an orientation (accelerometer and a gyroscope) sensor is used to determine when the device is placed on the body).
Regarding claim 23, Zacharov teaches wherein the one or more sensors comprise one or more motion sensors for obtaining motion data relating to a type and/or an amount of motion of the visual behavior monitor wearing status detection system, and wherein the sensor data, processed to determine whether the visual behavior monitor is worn by the user, comprises said motion data (¶[0024,0037], the movement sensor is configured to obtain motion data (type) of the user's head).
Regarding claim 25, Zacharov teaches wherein the one or more orientation sensors comprise a first accelerometer, wherein the one or more motion sensors comprise a gyroscope (¶[0024], the movement sensor is a combination of an accelerometer and a gyroscope).
Regarding claim 28, Zacharov teaches wherein the one or more sensors comprise one or more attachment sensors for obtaining attachment data relating to an attachment of at least one of the visual behavior monitor status detection system and the visual behavior monitor to another fixation (¶[0027], “The proximity sensor can be used to detect if the device including the distance measuring sensor, e.g. the distance measuring device, is worn on the body”),
wherein the sensor data, processed to determine whether the visual behavior monitor is worn by the user, comprises said attachment data, and wherein the visual behavior monitor wearing status detection system is configured to determine that the visual behavior monitor is worn by the user when it is determined that at least one or both of the visual behavior monitor wearing status detection system and the visual behavior monitor, respectively, are attached to the fixation (¶[0027], the sensor data is used to calculate whether the device is worn on the body or not)
Regarding claim 34, Heikenfeld teaches wherein the statistical determination is made based on the probability exceeding or falling below a threshold probability (¶[0043,0056,0077], “ If the sweat sensing device determined that the identification probability estimate were below a certain threshold, it could generate an operation and compliance alert that the target individual is not wearing the device.” and “The device then combines the two probability estimates to calculate a combined identification probability estimate of 85% that the wearer is the target patient, which is above the desired probability threshold. The device then sends an operation and compliance message indicating that the wearer is the target patient.”).
Regarding claim 35, Zacharov teaches wherein the system comprises a wearable device/glasses, wherein at least one of the first and second sensors is configured to be attached to the wearable device (see fig. 1 and 7, the distance measuring system which comprises a plurality of sensors is attached to glasses).
Claims 21, 22, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Zacharov in view of Arnold and Heikenfeld, as applied to claims 20 and 23 above, and further in view of Zhang et al. (US 20190053738 A1- Previously cited), referred to as Zhang hereinafter.
Regarding claim 21, Zacharov-Arnold-Heikenfeld fail to teach wherein the visual behavior monitor wearing status detection system is configured to determine, from the orientation data, one or both of a pitch and a roll of the visual behavior monitor wearing status detection system, and wherein the determination whether the visual behavior monitor is worn by the user is based on the pitch and/or the roll of the visual behavior monitor wearing status detection system satisfying an orientation condition.
Zhang teaches a wearable device located on a user's head that determines head movement based on the pitch and roll of the wearable device (see ABSTRACT and ¶[0033]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Zacharov-Arnold-Heikenfeld, such that pitch and roll movement of the monitoring device is determined, as taught by Zhang, because Zackharov requires using motion/orientation sensor to detect motion/orientation for satisfying an orientation criterion to determine the worn state but fails to provide details and Zhang teaches that orientation sensors can detect motion based on pitch and roll motion of the user's head.
Regarding claim 22, Zacharov teaches wherein the one or more orientation sensors comprise a first accelerometer (¶[0054], movement sensor comprises and accelerometer).
Regarding claim 24, Zachrov-Heikenfeld fail to teach wherein the visual behavior monitor wearing status detection system is configured to stop and/or prevent starting the visual behavior monitoring of the user via the visual behavior monitor and/or activate and/or deactivate components of the visual behavior monitor when a first time period, for which the amount of motion of the visual behavior monitor wearing status detection system falls outside of a predefined range, exceeds a first threshold time period.
Zhang further teaches determining whether the wearable device is mounted on the user's head by monitoring the amount/amplitude of movement exceeding a threshold for a preset/threshold time period (¶[0057]).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Zacharov-Arnold-Heikenfeld, such that the measurement components of the monitoring device are activated when motion data falls outside of a predefined range during a first time period ,as taught by Zhang, because Zacharov requires activating measurement components when the monitoring device is placed on the body, but fails to provide details, and Zhang teaches determining when the monitoring device is placed on the body and begin measurement when motion data meets criterion/thresholds (¶[0048-56]).
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Zacharov in view of Arnold and Heikenfeld, as applied to claim 16 above, and further in view of Khan et al. (US 10610146 A1- Previously cited), referred to as Khan hereinafter.
Regarding claim 26, Zacharov teaches wherein the one or more sensors comprise one or more distance sensors for obtaining distance data relating to a distance between the visual behavior monitor wearing status detection system and an object (¶[0016]).
Zacharov-Arnold-Heikenfeld fail to teach wherein the sensor data, processed to determine whether the visual behavior monitor is worn by the user, comprises said distance data, and wherein the visual behavior monitor wearing status detection system is configured to determine that the visual behavior monitor is not worn by the user when the distance is below a threshold distance for a second time period exceeding a second threshold time period, and/or; wherein the one or more sensors comprise one or more proximity sensors for obtaining proximity data relating to a proximity of the visual behavior monitor wearing status detection system to a body part of the user, wherein the sensor data, processed to determine whether the visual behavior monitor is worn by the user, comprises said proximity data, and wherein the visual behavior monitor wearing status detection system is configured to determine that the visual behavior monitor is worn by the user when the proximity is below a threshold proximity.
Khan teaches a wearable garment and/or glasses that determines when the wearable device has not been left behind and otherwise worn by the user based on proximity sensors determining that the proximity of the wearable device is less than a threshold (see ABSTRACT and column 4 and 7 [lines 21-29; 44-61]).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Zacharov-Arnold-Heikenfeld, such that proximity data is used to determine if the monitoring device is worn based on the proximity being less than a threshold, as taught by Khan, because Zacharov requires using a proximity sensor to determine worn state, but fails to provide details, and Khan teaches that recognition of device can be based on proximity data compared to a proximity threshold.
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Zacharov in view of Arnold and Heikenfeld, as applied to claim 16 above, and further in view of Koji et al. (US 20120150047 A1- Previously cited), referred to as Koji hereinafter.
Regarding claim 27, Zacharov teaches wherein the one or more sensors comprise one or more light sensors for obtaining light intensity data relating to a light intensity of ambient light impinging on the one or more light sensors (¶[0020], “adapted and arranged to detect light reflections from an optical surface of the subject's eye”).
Zacharov-Arnold-Heikenfeld fail to teach wherein the sensor data, processed to determine whether the visual behavior monitor is worn by the user, comprises said light intensity data, and wherein the visual behavior monitor wearing status detection system is configured to determine that the visual behavior monitor is not worn by the user when the light intensity is below a threshold light intensity for longer than a third threshold time period.
Koji teaches a system and device for determining when a monitoring device is correctly worn on the user (see ABSTRACT). The steps of measuring intensity of light for a predetermined time and determining the intensity is below a threshold, indicates that the device is not worn correctly, and stops measurement and deactivated measurement components (¶[0162-0169]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Zacharov-Heikenfeld, such that a determination of a not worn state of the device based on light intensity below a threshold, as taught by Koji, to aid in reducing energy consumption and measurement accuracy of the monitoring device due to incorrect placement and/or not wearing the monitoring device.
Claims 31-32 are rejected under 35 U.S.C. 103 as being unpatentable over Zacharov in view of Arnold and Heikenfeld, as applied to claim 16, further in view of Schnapp et al. (20090054814 A1- Previously cited), hereinafter Schnapp.
Regarding claim 31, Zacharov-Arnold-Heikenfeld fail to teach wherein statistically determining whether the user is correctly wearing the visual behavior monitor and/or is wearing the visual behavior monitor in a manner previously determined to be improper comprises determining if a measured pitch angle occurs more often or for a longer period of time.
Schnapp teaches a monitoring device configured to statistically determine whether the user is correctly wearing the visual behavior monitor comprises determining if a measured pitch angle occurs for a longer period of time (¶[0017,0038,0041-42] and fig. 4, body movement is measured in the X, Y, and Z axes, e.g., roll, pitch, yaw. The device registers that the device is within an angle range, a reference angle is set based on the body movement of the user, once the angle of the device is out of the angle threshold for a predetermined time, the device transitions to sleep mode indicating improperly placed device or not being worn device; “to facilitate power conservation by placing the device in a forced sleep mode when not being worn. If the device 10 senses placement which is less than 20 degrees or more than 120 degrees from horizontal it will enter a wait state of one minute in which it will re-evaluate its angle of placement. If upon that second reading, the angle of placement remains less than 20 degrees or more than 120 degrees from horizontal, the device 10 will assume the user is no longer wearing the device and will enter an extended sleep mode which requires the user to depress the multi-function button 22 to once again establish the reference tilt threshold of the device 10” and “The device monitors a user's position one hundred time a minute after the reference tilt angle 11 is set, the device determine if the user's current angle of posture has deviated no more than three degrees from the set reference tilt angle 11. So long as the deviation remains less than three degrees for a period of one minute or greater, the device 10 simply continues to monitor the user”).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Zachrov-Arnold-Heikenfeld, such that determining whether the user is correctly wearing the visual behavior monitoring device based on the pitch angle and time interval, as taught by Schnapp, to aid in facilitating power conservation by transitioning the device into a sleep mode.
Regarding claim 32, Zacharov-Arnold-Heikenfeld fail to teach wherein the statistical determination comprises a distribution of a deviation from the horizon as a function of an expected pitch angle.
Schnapp teaches a monitoring device (see abstract) that is configured to determine if it is being worn correctly (¶[0041]). The determination is based on monitoring the users movement one hundred times (distribution) a minute, establishing a reference angle/expected angle, and determining if the user’s angle deviates (deviation distribution) more than a threshold, the device stops monitoring be transitioning into a sleep mode, which indicates the device is not being worn (¶[0017,0039,0041-42] and fig. 4).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Zacharov-Arnold- Heikenfeld, such that the statistical determination comprises a distribution of a deviation from the horizon as a function of an expected angle, as taught by Schnapp, to aid in determining when the device is being worn correctly and transitioning the device to sleep mode for battery conservation.
Claim 37 rejected under 35 U.S.C. 103 as being unpatentable over Zacharov in view of Arnold and Heikenfeld, as applied to claim 36, further in view of Lee et al. (20160022220), hereinafter Lee.
Regarding claim 37, Zacharov-Arnold-Heikenfeld fail to teach wherein the processor is further operable to stop further data acquisition and discard data back to a moment when a period without motion of the visual behavior monitor began.
Lee teaches a wearable biometric device comprising a plurality of sensors (abstract). The device is configured to monitor biometric data, e.g. heart rate, and motion data (¶[0092-94]). The data is used discard biometric data due to motion in order to improve measurement data and the measurement is stopped to preserve power(¶[0092-94],“ motion artifact compensated heart rate data by discarding any data point of the heart rate data identified as satisfying the matching criteria” and “to stop continuous heart rate monitoring by requesting entry to a power saving mode”).
As such, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the system of Zacharov-Arnold-Heikenfeld, such that the processor is further operable to stop further data acquisition and discard data back to a moment when a period without motion of the visual behavior monitor began, as taught by Lee, to aid in saving power and improving data accuracy.
Response to Arguments
Applicant's arguments filed 01/06/2026 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to 35 U.S.C. 103 rejection of claim(s) have been considered but are moot because amendments require new grounds of rejection.
Applicant contends that claim 19 includes elements such as a controller, starting and/or stopping monitoring, and activating and/or deactivating components and therefore is a particular machine effecting a particular change, on page 10 of the Remarks. The Examiner disagrees. Starting and/or stopping monitoring, and activating and/or deactivating components is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). Moreover, the only structure of the alleged “particular machine” is a controller and generic sensors (first and second sensors). These elements do not constitute a particular machine, such as one that overcomes the elements in the prior art or devices that do not normally contain such sensors, e.g., stethoscope with embedded temperature sensors. Applicant’s argument with respect to claim 35, on page 11 of the Remarks, is similar to the one above with respect to a generic wearable device comprising generic (first and second) sensors. These elements do not constitute a particular machine for the same reasons as above.
Applicant contends that Claim 37 leads to an improvement to the technological field by discarding data when the monitor is not being worn, on page 11 of the Remarks. The Examiner disagrees. The alleged “improvement” does not overcome similar teachings in Lee that disclose the recited limitation. In Lee, the device is configured to stop data acquisition and discard data with motion artefacts (¶[0092-94]).
Applicant contends that retrospectively determining whether a device is worn by the user constitutes an improvement to the technological field, on pages 11-12 of the Remarks. The Examiner disagrees. The alleged “improvement” does not overcome similar teachings in Arnold that disclose the recited limitation. In Arnold, the device is configured to measure continuously and retrospectively determine a span of time of a not-worn state (¶[0092-94,0255]).
Applicants arguments regarding 35 U.S.C. 101 rejection are therefore unpersuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Sudou et al. teaches a wearable device can omit the recording of the moving image in a period of time irrelevant to the work to be recorded, and does not need to create a redundant moving image. US 20180063397
Hubner teach the control unit may be configured to determine a verified pulse wave signal based on the pulse wave signal and the reliability signal, for example including discarding the pulse wave signal for a respective time period, if the reliability signal indicative of the reliability of the pulse wave signal for the respective time period is not within a predetermined range. US 20210153756
Chung et al. teaches when the electronic device continually fails to measure biometric information due to the motion thereof, the electronic device may omit the measurement operation until the motion is not generated in order to reduce power consumption. US 20170042485
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARTIN NATHAN ORTEGA whose telephone number is (571)270-7801. The examiner can normally be reached M-F 7:10 am - 5:00 pm.
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/MARTIN NATHAN ORTEGA/ Examiner, Art Unit 3791 /TSE W CHEN/Supervisory Patent Examiner, Art Unit 3791