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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 August 18, 2026, has been entered.
Response to Amendment
This office action is responsive to the amendment filed on August 18, 2026. As directed by the amendment: claim(s) and 1, 3, 6, 11, 13, 15, 23-24, and 28-29 have been amended, no claim(s) have been cancelled, and no claim(s) have been added. Thus, claims 1-32 are currently pending in the application.
Response to Arguments
Applicant's arguments filed August 18, 2026, have been fully considered but they are not persuasive. The applicant principally argues that the amended Independent claims are patent eligible. The examiner respectfully disagrees. First, the applicant argues that the active steps of amended independent claim 1 represent a computational necessity that cannot practically be performed in the human mind. Specifically that a human cannot mentally monitor continuous multi-channel photoplethysmography waveforms, exact instantaneous pulse and respiration curves, quantify steady physical workload inflection points, and calculate delayed multi-variable physiological metrics in real time. A mental process does not have to be purely done in the mind and can be performed with the use of physical aids such as computers and sensors especially when these additional elements are generic and used for data gathering adding insignificant extra-solution activity to the judicial exception which do not improve the functioning of a computer, or any other technology or technical field according to MPEP 2106.04(d)(1) and 2106.05(a).
Furthermore, the claims as written do not have a limitation of the active steps occurring in “real-time” and even if this limitation was included it is broad as even computers have a slight delay in order to process data that requires “subtraction” or “removal” of motion-noise information. The claim limitations have not detailed a time frame in which the processing must occur, and the examiner believes that a person of ordinary skill in that art would be able to take the data captured from the sensors and be able to subtract the motion noise information and utilize the generic general processor to convert the signal into physiological data. Additionally, the active steps listed in the claims can be calculated by hand and it is the office’s position that it can be calculated without restraint of a time period (as not required by the claims) by a person of ordinary skill in the art, unless the applicant proves or submits an affidavit or declaration from an expert in the field that it is not possible.
Second, the applicant argues that the newly added limitation of “determining a musical tempo based on at least one of the heart rate information or the breathing rate information” cannot be performed by a human being. The examiner again respectfully disagrees. The examiner believes that it is both practical and well-known especially by medical professionals to be able to create/determine a musical tempo based on at least one of the heart rate information or the breathing rate information and output that to the user by their vocals.
Lastly, the applicant argues that every step of the amended independent claims is integrated to address the real-world technical problem of generating synchronized machine response to biological events, providing a unified architecture for automated activity feedback. The examiner respectfully disagrees. Specifically, as the claims have not required synchronization or automated activity feedback, and in the case that they did present it is still not sufficient. The instant invention fails to disclose a specific improvement, as it just details how the data is processed but there are not additional elements which provide a technological improvement. “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea]” (quoting Mayo, 566 U.S. at 77). It is important to note that the judicial exception alone cannot provide the improvement. As written, it appears that the applicant’s calculations and data analysis, i.e. the mental process alone, provide the improvement. Please refer to MPEP 2106.05a. The examiner is not convinced; therefore, the 35 U.S.C. 101 rejection is maintained with the newly added limitations addressed below.
Claim Rejections - 35 USC § 101
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-32 are rejected under 35 U.S.C. 101 because the claimed invention details a system and process (Step 1) directed to a judicial exception (i.e. a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
In accordance with MPEP 2106.04, each of Claims 1-32 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1 per MPEP 2106.04(a)
Each of Claims 1-32 recites at least one step or instruction for determining ventilatory threshold for a subject, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) or a certain method of organizing human activity in MPEP 2106.04(a)(2)(II) or mathematical concept in MPEP 2106.04(a)(2)(I). Accordingly, each of Claims 1-32 recites an abstract idea.
Specifically, Claim 1 recites
A method of determining a ventilatory threshold for a subject engaged in an activity, the method comprising:
sensing, using a motion sensor, motion information for the subject engaged in the activity; (additional element)
in response to determining that a motion sensor signal, received from the motion sensor, satisfies a motion criteria, (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III)) initiating by a processor (additional element), a ventilatory sensing process, the ventilatory sensing process comprising:
sensing heart rate information, and breathing rate information, from the subject via a monitoring device worn by the subject; (additional element)
analyzing, by the processor, the heart rate information to identify one or more points in time where heart rate increased at a steady subject workload; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
and identifying, by the processor, the ventilatory threshold for the subject as occurring at a point in time where an increase in breathing rate satisfies a metric after the identified one or more points in time where the heart rate increased (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
in response to determining, by the processor, that the subject is below the ventilatory threshold, determining a musical tempo based on at least one of the heart rate information or the breathing rate information; and (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
outputting a music audio that corresponds to the musical tempo. (additional element)
Similarly, Claim 11 recites
A system for determining a ventilatory threshold for a subject engaged in an activity, the system comprising:
a monitoring device configured to be worn by the subject, the monitoring device comprising at least one physiological sensor configured to sense heart rate information and breathing rate information, and at least one motion sensor configured to sense motion information; (additional element)
and at least one processor configured to: (additional element)
analyze the motion information for the subject engaged in the activity; and (additional element)
in response to determining that a motion sensor signal, received from the at least one motion sensor, satisfies a motion criteria, initiate a ventilatory sensing process, (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III)) the ventilatory sensing process comprising:
analyzing the heart rate information to identify one or more points in time where heart rate increased at a steady subject workload; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III))
and identifying the ventilatory threshold for the subject as occurring at a point in time where an increase in breathing rate satisfies a metric after the identified one or more points in time where the heart rate increased; and (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
in response to determining that the subject is below the ventilatory threshold: determining a natural body frequency value based on at least one of the heart rate information or the breathing rate information; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
determining a musical tempo based on a harmonic of the natural body frequency value; and (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III))
output a music audio that corresponds to the musical tempo. (additional element)
Similarly, Claim 23 recites
A method of modifying when a ventilatory threshold for a subject engaged in an activity occurs in time, comprising:
sensing, during one or more first time periods corresponding to a first increased workload, first rate information from the subject via a monitoring device worn by the subject; (additional element)
processing the first heart rate information from the one or more first time periods to identify one or more points in time where heart rate increased at a steady subject workload and identifying the ventilatory threshold for the subject using the first heart rate information; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
and determining, using the first heart rate information, a musical audio having a tempo correlated to a decreased heart rate of the subject at the steady subject workload; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III))
sensing, during a second time period corresponding to a second increased workload, second heart rate information from the subject via the monitoring device; (additional element)
determining, using the second heart rate information, that the subject is below the ventilatory threshold; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III))
and in response to determining that the subject is below the ventilatory threshold: determining a musical tempo based on at least one metric of a waveform associated with the second heart rate information; and (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
outputting updated musical audio that corresponds to the musical tempo to the subject during the second increased workload. (additional element)
Similarly, Claim 28 recites
A method of modifying when a ventilatory threshold for a subject engaged in an activity occurs in time, comprising:
sensing, during one or more first time periods corresponding to a first increased workload, first breathing rate information from the subject via a monitoring device worn by the subject; (additional element)
processing the first breathing rate information from the one or more first time periods to identify one or more points in time where breathing rate increased at a steady subject workload and identifying the ventilatory threshold for the subject using the first heart rate information; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
determining, using the first breathing rate information, a musical audio having a tempo correlated to a decreased breathing rate of the subject at the steady subject workload; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III))
sensing, during a second time period corresponding to a second increased workload, second breathing rate information from the subject via the monitoring device; (additional element)
determining, using the second breathing rate information, that the subject is below the ventilatory threshold; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III))
and in response to determining that the subject is below the ventilatory threshold, outputting the musical audio to the subject during the second increased workload; (additional element)
determining a target tempo metric based on a difference between the second breathing rate information and sensed third breathing rate information; (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
modifying the tempo based on the determined target tempo metric, wherein modified tempo corresponds to a sub-threshold ventilatory state; and (observation, judgment or evaluation, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP 2106.04(a)(2)(I))
outputting updated musical audio having the modified tempo. (additional element)
Step 2A, Prong 2 per MPEP 2106.04(d)
The above-identified abstract idea in each of independent Claims 1, 11, 23 and 28 (and their respective dependent Claims 2-10,12-22, 24-27 and 29-32) is not integrated into a practical application under MPEP 2106.04(d) because the additional elements (identified above in independent Claims 1, 11, 23 and 28), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use according to MPEP 2106.05(h) or represent insignificant extra-solution activity according to MPEP 2106.05(g). More specifically, the additional elements of: processor, physiological sensors (motion sensors and PPG sensors) and output for music audio in the monitoring device are generic and used for data gathering adding insignificant extra-solution activity to the judicial exception in independent Claims 1, 11, 23 and 28 (and their respective dependent claims) which do not improve the functioning of a computer, or any other technology or technical field according to MPEP 2106.04(d)(1) and 2106.05(a). Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine according to MPEP 2106.05(b), effect a transformation according to MPEP 2106.05(c), provide a particular treatment or prophylaxis according to MPEP 2106.04(d)(2) or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception according to MPEP 2106.04(d)(2) and 2106.05(e). Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer in accordance with MPEP 2106.05(f). For at least these reasons, the abstract idea identified above in independent Claims 1, 11, 23 and 28 (and their respective dependent claims) is not integrated into a practical application in accordance with MPEP 2106.04(d).
Moreover, the above-identified abstract idea is not integrated into a practical application in accordance with MPEP 2106.04(d) because the claimed method and system merely implement the above-identified abstract idea (e.g., mental process) using rules (e.g., computer instructions) executed by a computer (e.g., external programming device or computer as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer according to MPEP 2106.05(f). Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims according to MPEP 2106.05(a). That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1, 11, 23 and 28 (and their respective dependent claims) is not integrated into a practical application under MPEP 2106.04(d)(I).
Accordingly, independent Claims 1, 11, 23 and 28 (and their respective dependent claims) are each directed to an abstract idea according to MPEP 2106.04(d).
Step 2B per MPEP 2106.05
None of Claims 1-32 include additional elements that are sufficient to amount to significantly more than the abstract idea in accordance with MPEP 2106.05 for at least the following reasons.
These claims require the additional elements of: sensors, processor and output for music audio. The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, MPEP 2106.05(d)(II) along with Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Per Applicant’s specification, pg. 19 lines 8-25 and pg. 26 lines 1-2 details the use of sensors (monitoring device and motion sensors) that can be optical sensors or an accelerometer (or a variety of other sensors) such that they are generic and commercially available. Paragraph pg. 12 lines 25-34 and pg. 13 lines 1-9 details the use of a processor which can be “the cloud”, a remote processor, or other generic processors that are described with such generality that they are generic and commercially available. Lastly, the instant specification details on pg. 13 lines 20-23, that the music or musical audio can be played or “output” to the user via speaker, earbuds and etc. which are generic and commercially available.
Accordingly, in light of Applicant’s specification, the claimed term computer is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available technology, with their already available basic functions, to use as tools in executing the claimed process. See MPEP 2106.05(f).
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for computers. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see MPEP 2106.05(d)(I)(2) and 2106.07(a)(III)). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications along with MPEP 2106.05(d)(I)).
The recitation of the above-identified additional limitations in Claims 1, 11, 23 and 28 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See MPEP 2106.05(f) along with Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. See MPEP 2106.05(a) along with McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, per MPEP 2106.05(a), the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the method and system of Claims 1-32 are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself or providing a technical solution to a problem in a technical field according to MPEP 2106.05(a), or (ii) providing meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e).
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1, 11, 23 and 28 (and their dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment according to MPEP 2106.05(h). When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment according to MPEP 2106.05(h). When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e). Moreover, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity according to MPEP 2106.05(g). As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application as required by MPEP 2106.05.
Therefore, for at least the above reasons, none of the Claims 1-32 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1-32 are not patent eligible and rejected under 35 U.S.C. 101.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSANDRA F HOUGH whose telephone number is (571)270-7902. The examiner can normally be reached Monday-Thursday 7 am - 4 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Hamaoui can be reached at (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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Jessandra Hough September 4, 2026
/J.F.H./Examiner, Art Unit 3796
/William J Levicky/Primary Examiner, Art Unit 3796
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