DETAILED ACTION
This application is being examined under AIA first-to-file provisions.
Status of claims
Canceled:
none
Pending:
1-21
Withdrawn:
3, 8, 11 and 13
Examined:
1-2, 4-7, 9-10, 12 and 14-21
Independent:
1, 10 and 21
Allowable:
none
Rejections applied
Abbreviations
x
112/b Indefiniteness
PHOSITA
"a Person Having Ordinary Skill In The Art before the effective filing date of the claimed invention"
112/b "Means for"
BRI
Broadest Reasonable Interpretation
112/a Enablement,
Written description
CRM
"Computer-Readable Media" and equivalent language
112 Other
IDS
Information Disclosure Statement
x
102, 103
JE
Judicial Exception
x
101 JE(s)
112/a
35 USC 112(a) and similarly for 112/b, etc.
x
101 Other
N:N
page:line
Double Patenting
MM/DD/YYYY
date format
Priority
As detailed on the 7/21/2021 filing receipt, this application claims priority to as early as 1/10/2019. At this point in examination, all claims have been interpreted as being accorded this priority date.
Restriction/election
Applicant’s 7/17/2025 election is acknowledged. Because no errors in the restriction requirement were alleged distinctly and specifically, the election has been treated as an election constructively without traverse (MPEP § 818.01(a)). As listed above, claims are withdrawn as drawn to nonelected inventions pursuant to 37 CFR 1.142(b), and the remaining claims have been examined as listed above. The restriction requirement is made final.
Objection to the specification: title
The title should be amended to more specifically reflect the claims, particularly referencing steps/elements: setting the context of the invention, particular to all claims, and distinguishing the instant application from any related applications, for example: frequency characteristic, biological activity, activity sensor array. The title should be "descriptive" and "as... specific as possible" (MPEP 606, 1st para. and 37 CFR 1.72; also MPEP 606.01 pertains).
Claim objections
Claims 1, 9, 12 and 21 are objected to because of the following informalities. Appropriate correction is required. In each objection the claims are definite with respect to the issues cited here because interpretation would have been sufficiently clear to PHOSITA, but nonetheless the claims are objected to for consistency among the claims or as otherwise indicated. With regard to any suggested amendment below to overcome an objection, in the subsequent examination it is assumed that each amendment is made. However, equivalent amendments also would be acceptable. Any amendments in response to the following objections should be applied throughout the claims, as appropriate.
The following issues are objected to:
Claim
Recitation
Comment
1, 21
...wherein:
...
with respect to the frequency characteristic...
calculate..., and
calculate...; and
Each element or step of the claim should be separated by a line indentation (608.01(m) Form of Claims). Sub-steps should be indented from their parent step. This rule should be amended throughout the claims as needed.
Here, the two "calculate" steps should be indented on new lines.
1
wherein:
with respect... the frequency characteristic indicating the relation...
For better readability, rather than repeating "indicating the relation...," it would help to include "synthetic frequency characteristic" which then would implicitly include the already-recited "indicating..." which then could be omitted. In any event, "synthetic" should be included in order to better distinguish the various instances of "frequency characteristic" singular and plural.
9, 12
gyro
Informal; possibly "gyroscopic."
Claim rejections - 112/b
The following is a quotation of 35 USC 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.
Claims 1-21 are rejected under 112/b, as indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. Claims depending from rejected claims are rejected similarly, unless otherwise noted, and any amendments in response to the following rejections should be applied throughout the claims, as appropriate. With regard to any suggested amendment below, for claim interpretation during the present examination it is assumed that each amendment suggested here is made. However equivalent amendments also would be acceptable.
The following issues cause the respective claims to be rejected under 112/b as indefinite:
Claim
Recitation
Comment (suggestions in bold)
1, 10
A biological information detection device comprising:
a characteristic acquisition unit configured to acquire...
It is not clear what is the structure associated with the recited "unit configured to acquire..." and similar elements. The recited "unit" is not interpreted as requiring structure clearly linking the "device" to the recited elements and steps in a structural sense. This rejection might be overcome by, for example, reciting a data storage device, comprised by the "device," and instructions stored therein and configured according to the recited elements and steps, as supported at 22:32 - 23:14. MPEP 2173.05(p).II pertains regarding a claim directed to both product and process.
1, 10, 21
frequency characteristic...
...
synthetic frequency characteristic...
The relationships are unclear among the various instances throughout the claims. Every instance of "frequency characteristic" should be preceded by a distinguishing adjective, e.g. "synthetic" or a different adjective or enumeration as appropriate.
1-2, 4
...each of frequencies...
The relationship is unclear between this instance of "frequencies" and those previously recited. Possibly this instance should read "the frequencies." In any event, a grammatical article appears to be needed.
Claims: 1, two instances; 2, two instances; 4, one instance
2
...is smaller as an absolute value of...
Not interpretable at least for lack of a grammatical article
2
the weight specific to one of frequencies is smaller as an absolute value of the time-course change amount specific to the one of frequencies is larger
Not interpretable
1, 4-7, 10, 14-17 and 21
synthesizing... with each other...
Claim 4 is not interpretable at least because the relationship is unclear between "with each other" and the rest of the claim. Possibly it should be clarified what is the result or output of the synthesizing. Generally, throughout the claims, every instance of "synthesize" or "synthesizing" should explicitly recite a result, taking care to clearly distinguish inputs and outputs of "synthesizing." Similar issues render claims 1, 4-7, 10, 14-17 and 21 indefinite (two instances in each independent claim).
5, 15, 17, 21
acquire the frequency
characteristic... by converting...
Claim 5 is unclear, and possibly "converting" should be followed by an explicit grammatical object, e.g. converting into what result? If what is intended is "the frequency characteristic," then this may be made explicit. Similar issues render claims 15, 17 and 21 indefinite. Generally, throughout the claims, every instance of "converting" should explicitly recite a result, taking care to clearly distinguish inputs and outputs of "converting."
19-21
the processor
The relationship is unclear between this instance and the previously recited "one or more than one processor."
19-21
...the processor being configured to...
Claim 19 is to a 101 machine or manufacture, i.e. a "device" in this instance, limited according to its claimed physical structure, but it is not clear what is the structure associated with the recited "configured to implement the characteristic acquisition unit..." and similar steps / sub-steps. The recited "device" and "processor" are not interpreted as requiring structure clearly linking the "device" and "processor" to the recited steps in a structural sense appropriate to a claim to a machine or manufacture. This rejection might be overcome by, for example, reciting a data storage device, comprised by the "device" or "processor," and instructions stored therein and configured according to the recited elements, steps and implied sub-steps, as supported in the specification at 22:32-23:14. Claims 20-21 are rejected similarly.
Claim interpretations
The following claim interpretations apply to all instances of the following terms throughout all claims:
Claim
Recitation
Comment
1, 10, 21
sensors
In a BRI, the claims read on embodiments in which the recited "sensors" are not comprised by the recited "device." The sensors may communicate information for input to the device without being structurally part of the device. If a claim is interpreted as a 101 machine or manufacture, then its claim scope is interpreted strictly according to its required physical structure.
1, 10
a characteristic acquisition unit
Definite under 112/b after properly invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "characteristic acquisition") without reciting steps or structure to prevent invoking. However, clearly linked portion of the specification do disclose sufficient structure, material, or acts and not just desired results, as exemplified at 11:25-26 and 6:24-7:10. MPEP 2181.III-IV pertain.
1, 10
a synthesis unit
Definite under 112/b after properly invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "synthesis") without reciting steps or structure to prevent invoking. However, clearly linked portion of the specification do disclose sufficient structure, material, or acts and not just desired results, as exemplified at 11:25-26 and 18:12-16. MPEP 2181.III-IV pertain.
1, 10
a calculation unit
Definite under 112/b after properly invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "calculation") without reciting steps or structure to prevent invoking. However, clearly linked portion of the specification do disclose sufficient structure, material, or acts and not just desired results, as exemplified at 11:25-26 and 9:2-5. MPEP 2181.III-IV pertain.
1, 17
a change weight calculation unit
Definite under 112/b after properly invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "change weight calculation") without reciting steps or structure to prevent invoking. However, clearly linked portion of the specification do disclose sufficient structure, material, or acts and not just desired results, as exemplified at 15:21 and 13:8-14. MPEP 2181.III-IV pertain.
6, 16
a selection unit
Definite under 112/b after properly invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "selection") without reciting steps or structure to prevent invoking. However, clearly linked portion of the specification do disclose sufficient structure, material, or acts and not just desired results, as exemplified at 22:30, 21:21-31 and 33:2-11. MPEP 2181.III-IV pertain.
7, 10
a behavior weight calculation unit
Definite under 112/b after properly invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "behavior weight calculation") without reciting steps or structure to prevent invoking. However, clearly linked portion of the specification do disclose sufficient structure, material, or acts and not just desired results, as exemplified at 21:10 and 19:27-20:4. MPEP 2181.III-IV pertain.
7, 10
...sensors are mounted on a vehicle...
As the "sensors" are not comprised by the "device," then recitations regarding the sensors are limiting only to the extent that they necessarily limit the data recited as received from the sensors. This is akin to a product-by-process interpretation. A recited process or step not itself claimed then is limiting only to the extent that the structure of an actually claimed element is clearly required to be limited. Regarding product-by-process limitations within a claim, MPEP 2113 pertains, as well as, for example, Biogen MA, Inc. v. EMD Serono, Inc. (Fed. Cir. 9-28-2020, precedential).
7, 10
the plurality of biological activity sensors are mounted on a vehicle that is
provided with a vehicle behavior sensor
It is unclear whether the "biological activity sensors" comprise the "vehicle behavior sensor."
Claim rejections - 112/a
The following is a quotation of 112/a:
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Regarding issues of written description support stemming even from the original claims and original disclosure, MPEP 2161.01.I (e.g. 6th para.), 2163.I and 2163.I.A pertain: "[O]riginal claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed" (MPEP 2161.01.I,6th para.).
Written description
Claims 1-2, 4-7, 9-10, 12 and 14-21 are rejected under 112/a as failing to comply with the written description requirement. The claims read on subject matter which is not described in the specification in such a way as to reasonably convey to PHOSITA that the inventors, at the time the application was filed, had possession of the claimed invention. Claims depending from rejected claims are rejected similarly, unless otherwise noted. With regard to any suggested amendment(s) below to overcome a rejection, equivalent amendments also would be acceptable.
Claim 1 recites "...a plurality of biological signals input respectively from a plurality of biological activity sensors... to detect a biological activity of a person..." The specification discloses heart rate, respiratory rate, pulse rate and generally "biological information regarding biological activities that are active in a substantially stable cycle," (specification: 27:1-8), e.g. periodic signals, but the specification does not disclose analysis of any possible "biological signal." The written description provided is not clearly commensurate with the recited automated any "biological signal" not limited to periodic signals. Thus, claim 1 lacks written description support for portions of its claim scope.
MPEP 2161.01.I "Determining Whether There Is Adequate Written Description For A Computer-Implemented Functional Claim Limitation" also pertains.
Claim 2, 4-7, 9-10, 12 and 14-21 similarly lack support for portions of their claim scope.
As appropriate, these rejections may be overcome, for example, (i) by narrowing to clearly supported embodiments, e.g. limited to periodic biological signals, and/or (ii) by clarifying on the record where support can be found and how that support relates to the recitations.
In general, it is requested that any claim amendment in this regard be accompanied by citations to support in the original disclosure.
MPEP 2163 generally pertains.
No prior art has been applied to the following claims
No prior art is applied to claims 1-21. Close art, for example Mizuno (as cited on the attached "Notice of References Cited" form 892), does not teach the instant combination of particularly recited signal processing steps including the recited time-course change analysis, and it is not clear that any combinable art of record would have rendered the claims obvious.
Claim rejections - 101
35 USC 101 reads:
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.
For each rejection below, dependent claims are rejected similarly as not remedying the rejection, unless otherwise noted.
Matter belonging to no statutory category -- claims 1-2, 4-7, 9-10, 12 and 14-18
Claims 1-2, 4-7, 9-10, 12 and 14-18 are rejected under 35 USC 101 because the claimed invention is directed to non-statutory subject matter.
Claim 1 is to "a... device," which is not, in all embodiments within a BRI, interpreted as belonging to any category listed in 101. In a BRI, the claim reads on data and/or software comprising no structure other than data and/or software. The claim is not recited as a process, and the claim is not limited to any particular structure as a 101 machine or manufacture. The claim reads on transitory propagating signals which are not proper patentable subject matter because it does not fit within any of the four statutory categories of invention (In re Nuijten, Federal. Circuit, 2006).
In a BRI, each recited instance of a "unit" reads on data or software in at least some embodiments. Furthermore, the recited "sensors" are not clearly recited as comprised by the "device."
Claim 10 is analyzed similarly.
None of the dependent claims remedy this rejection, except for claims 19-20 not rejected here.
As appropriate, these rejections might be overcome by, for example, amending to recite structure such as non-transitory computer-readable storage medium comprising computer instructions stored and structurally configured to store the recited data and to accomplish the recited steps.
Judicial exceptions (JE) to 101 patentability
Claims 1-2, 4-7, 9-10, 12 and 14-21 are rejected under 35 USC 101 because the claimed inventions are not directed to patent eligible subject matter. After consideration of relevant factors with respect to each claim as a whole, each claim is directed to one or more JEs (i.e. an abstract idea, a natural phenomenon, a law of nature and/or a product of nature), as identified below. Any elements or combination of elements beyond the JE(s) (i.e. "additional elements") are conventional and do not constitute significantly more than the JE(s). Thus, no claim includes additional elements amounting to significantly more than the JE(s), as explained below.
In Alice, citing Mayo and Bilski, two Mayo/Alice questions determine eligibility under 101: First, is a claim directed to a JE? And second, if so, does the claim recite significantly more than the JE?
MPEP 2106 organizes JE analysis into Steps 1, 2A (1st & 2nd prongs) and 2B as follows below.
MPEP 2106 and the following USPTO website provide further explanation and case law citations: www.uspto.gov/patent/laws-and-regulations/examination-policy/examination-guidance-and-training-materials.
Step 1: Are the claims directed to a process, machine, manufacture, or composition of matter? -- MPEP 2106.I and 2106.03
Claims 1 and 10 are not clearly directed to proper 101 categories of invention, as described in the above 101 rejections.
Claim 21 is directed to a 101 machine or manufacture, here a "device," with non-transitory elements such as a "processor." The recited "sensors," while "communicably coupled," are not clearly comprised by the "device."
[Step 1: claims: 1-2, 4-7, 9-10, 12 and 14-18: NO; 19-21:YES]
Step 2A, 1st prong: Do the claims recite a judicially recognized exception, i.e. a law of nature, a natural phenomenon, or an abstract idea? -- abstract idea -- MPEP 2106.I and 2106.04
Preliminarily, in a 1st prong of Step 2A, elements of independent claim 21 are interpreted as directed to the abstract idea of calculating a synthetic frequency characteristic and biological information including the JE elements of ..."acquire... frequency characteristics...," "obtain a synthetic frequency characteristic..." and "calculate biological information...," each of which, including all recitation within each listed element, in at least some embodiments within a BRI, involves only manipulation of data. While manipulation of data is not per se directed to an abstract idea, in this instance the above-identified elements are directed to the abstract ideas identified below.
BRIs of the claims are analogous to an abstract idea in the form of at least a mental process, at least equivalent to a computer-implemented process, including obtaining and comparing intangible data (e.g. Cybersource, Synopsys and Electric Power Group). In a BRI, it is not clear that the claim embodiments are limited so as to require complexity precluding analogy to a mental process.
BRIs of the claims also are analogous to an abstract idea in the form of a mathematical concept, including mathematical relationships and calculations, as found in the following case law, as cited and discussed above: collecting information, analyzing it, and displaying certain results of the collection and analysis (Electric Power Group) and/or obtaining and comparing intangible data (e.g. Cybersource, Ambry and Myriad CAFC) and/or execution of an algorithm to implement mathematical relationships and/or formulas, including image processing (e.g. TLI, Digitech, Benson, Flook, Diehr, FuzzySharp, In re Grams and In re Abele all as cited in MPEP 2106).
Instant examples of math concepts include the synthetic frequency characteristic indicating a relation between frequency and intensity, as well as relationships inherent in recitations as the only supported embodiments.
The preceding case law examples are cited for the basic form of their identified abstract ideas, and analogy to these example abstract ideas need not be within the same technology field, 101 analysis generally being assumed to be neutral with respect to technology field.
Regarding inherency of abstract ideas, MPEP 2106.04.II.A.1 includes: "the claims in Alice Corp. v. CLS Bank, 'described' the concept of intermediated settlement without ever explicitly using the words 'intermediated' or 'settlement'" (emphasis added, p. 1). Similarly, inherency can effectively be recitation, as in, for example, "By claiming simply 'crystalline paroxetine hydrochloride hemihydrate' with no reference to how it was produced, SKB effectively claimed 'crystalline paroxetine hydrochloride hemihydrate whether non-naturally occurring or arising through natural conversion.' Claim 1, as issued, therefore combines patentable and unpatentable subject matter, and is invalid under Section 101." (capitalization added, SmithKline Beecham Corp. v. Apotex Corp., 365 F.3d 1306, 1321-33, Fed. Cir. 2004).
In the instant type of data processing claims, the specification is not merely adding background explanation as to how a claimed process works, e.g. a physical process based on, involving or further explained by abstract ideas and natural laws. Rather, the specification is detailing the only disclosed way that a programmer may proceed from the recited inputs to the recited outputs, e.g. through actual performance of the disclosed judicial exceptions (JEs).
Regarding the "Meaning of 'Recites,'" MPEP 2106.04.II.A.1 states:
In Prong One examiners evaluate whether the claim recites a judicial exception, i.e. whether a law of nature, natural phenomenon, or abstract idea is set forth or described in the claim. While the terms "set forth" and "described" are thus both equated with "recite", their different language is intended to indicate that there are two ways in which an exception can be recited in a claim. For instance, the claims in Diehr, 450 U.S. at 178 n. 2, 179 n.5, 191-92, 209 USPQ at 4-5 (1981), clearly stated a mathematical equation in the repetitively calculating step, and the claims in Mayo, 566 U.S. 66, 75-77, 101 USPQ2d 1961, 1967-68 (2012), clearly stated laws of nature in the wherein clause, such that the claims "set forth" an identifiable judicial exception. Alternatively, the claims in Alice Corp., 573 U.S. at 218, 110 USPQ2d at 1982, described the concept of intermediated settlement without ever explicitly using the words "intermediated" or "settlement."
While the "set forth" language approximates explicit recitation, it also is fundamental that all recitation must be interpreted and that to be patent eligible a claim must satisfy 101 according to its properly interpreted scope, e.g. for all embodiments on which the claim reads, e.g. according to any inherency pertinent to a given claim and disclosure accompanying that claim, i.e. consistent with the "described" meaning of "recites" as in the MPEP. Thus, within a BRI, the identified abstract idea elements read on one or more embodiments which only involve manipulation of data. It is not clear than any improvement argument clearly on the record causes a claim not to be directed to a JE for all embodiments within the scope of the claim.
As in Alice (at 306, as cited in the MPEP above) and Bilski (as cited in Alice, id), an abstract idea may comprise multiple abstract elements or steps (i.e. from Alice: "a series of steps" at 306) and need not be a single equation, relationship or principle.
It is not clear that the identified elements must represent other than an abstract idea according to any relevant analysis or case law.
[Step 2A, 1st prong, abstract idea: claim 21: YES]
Step 2A, 2nd prong: If the claims recite a judicial exception under the 1st prong, then is the judicial exception integrated into a practical application? -- MPEP 2106.I and 2106.04(d)
MPEP 2106.04(d).I lists the following example considerations for evaluating whether a judicial exception is integrated into a practical application:
An improvement in the functioning of a computer or an improvement to other technology or another technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception, as discussed in MPEP § 2106.05(e).
In Step 2A, 1st prong above, claim steps and/or elements were identified as part of one or more judicial exceptions (JEs).
In Step 2B below, any remaining steps and/or elements are therefore in addition to the identified JE(s). Any such additional steps and additional elements are further discussed in Step 2B.
Here in Step 2A, 2nd prong, no additional step or element clearly demonstrates integration of the JE(s) into a practical application.
At this point in examination it is not yet the case that any of the Step 2A, 2nd prong considerations enumerated above clearly demonstrates integration of the identified JE(s) into a practical application. Referring to the considerations above, none of 1. an improvement, 2. treatment, 3. a particular machine or 4. a transformation is clear in the record.
For example, regarding the first consideration at MPEP 2106.04(d)(1), the record, including for example the specification, does not yet clearly disclose an explanation of improvement over the previous state of the technology field. The claims do not yet clearly result in such an improvement (e.g. specification: 10:19-21, 22:25-26).
[Step 2A, 2nd prong: claim 21: NO]
Step 2B: Do the claims recite a non-conventional arrangement of additional elements in addition to the identified JEs? -- MPEP 2106.I and 2106.05
Addressing the second Mayo/Alice question, all elements of claim 21 are part of one or more identified JEs (as described above), except for elements identified here as conventional elements in addition to the above judicial exceptions:
The recited "processor" is a conventional element of a laboratory and/or computing environment and/or conventional data gathering/input elements, as exemplified in MPEP 2106.05(d).II and 2106.05(f-g).
It is emphasized that, outside of an improvement argument, analysis of what is conventional generally pertains to the above-identified additional elements and not to elements identified as part of a JE.
[Step 2B: claim 21: NO]
Summary and conclusion regarding claim 21
Summing up the above analysis of claim 21, viewed as a whole and considering all elements individually and in combination, no claim recites limitations that transform the claim, finally interpreted as directed to the identified JE(s), into patent eligible subject matter, and it is not clear that any claim is sufficiently analogous to controlling case law identifying an example of an eligible claim.
Conclusion
No claim is allowed.
A shortened statutory period for reply is set to expire THREE MONTHS from the mailing date of this communication.
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/G. STEVEN VANNI/Primary patents examiner, Art Unit 1686