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 .
Claim Objections
Claim 17 is objected to because of the following informalities:
Claim 17, line 10: –the– should be inserted before “sound”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 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.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
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 of carrying out his invention.
Claims 1-12 and 17-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites “a body comprising a sound source and a source of electromagnetic signal” in line 2, which is new matter. The specification does not provide any support for the body comprising a source of electromagnetic signal. At most, the specification indicates that the electromagnetic signal 115 reflected from the surface 111 (of the body) may be emitted by another device or the device 101 (¶ [0068] of the published application). However, the another device and the device 101 are understood to be different from the body. Therefore, there is no indication that the body also comprises the source of electromagnetic signal.
Claim 1 recites “at least one memory storing instructions that, when executed with the at least one processor, cause the apparatus to: produce a sound with the sound source; transmit the sound produced with the sound source at the body to the device” in lines 6-10, which is new matter. At most, the specification indicates that the apparatus comprising the memory and processor are configured to perform processing steps (¶¶ [0042]-[0044]). However there is no indication that the memory and the processor are configured to implement the production and transmission of a sound. Fig. 1 may depict an apparatus comprising a body 107 and a device 111, there is no indication that a processor and memory are configured to cause the body to produce and transmit a sound.
Claims 2-12 are rejected by virtue of their dependence from claim 1.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “the sound” in lines 9, 10, and 13. Claim 1 recites “a sound” in lines 3 and 8. It is unclear whether the recitations in lines 9, 10, and 13 refer to “a sound” in line 3 or 8. For the purposes of examination, the recitation of “a sound” in line 8 will be interpreted to be “the sound”. Claims 2, 4, 8, and 9 recite instances of “the sound” which are unclear for similar reasons, so claims 2, 4, 8, and 9 are rejected on similar grounds.
Claim 1 recites “a body comprising a sound source and a source of electromagnetic signal” in line 2, “an electromagnetic signal from the body” in line 3, and “transmit an electromagnetic signal from the device to the body” in line 12. Claim 1 further recites “the electromagnetic signal reflected from a surface of the body” in lines 14-15. First, it is unclear if these recitations of electromagnetic signals are the same as, related to, or different from each other. If they are related to or different from each other, the relationship should be made clear (e.g., when multiple elements have similar or the same labels, clear distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements). If they are the same, consistent terminology should be used. Additionally, the recitation of the body comprising a source of electromagnetic signal conflicts with the specification, which creates confusion regarding whether the body or the device comprises the source of the electromagnetic signal. The specification indicates that the electromagnetic signal 115 reflected from the surface 111 (of the body) may be emitted by another device or the device 101 (¶ [0068] of the published application), which indicates that the body is separate from the source of the electromagnetic signal. However, the claim indicates that the body comprises the source. Therefore, it is unclear whether it is the device or the body that comprises the electromagnetic signal. For the purposes of examination, (A) the body will not comprise a source of electromagnetic signal, (B) the device is configured to receive an electromagnetic signal reflected from the a surface of the body; (C) the apparatus is configured to transmit an electromagnetic signal from the device to the body in order to generate the reflected electromagnetic signal, (C) the time difference is between arrival at the device of the sound produced with the sound source and the reflected electromagnetic signal.
Claim 1 recites “cause the apparatus to: produce a sound with the sound source; transmit the sound produced with the sound source at the body to the device, the sound being transmitted through a fluid expelled from the body in a direction of the device” in lines 7-11, which is unclear in light of the specification. ¶¶ [0093]-[0095] indicates that the body corresponds to a body part of a subject which vibrates when a sound is produced. It is unclear how the apparatus causes production of a sound with a subject’s vocal tract and transmission of the sound through a fluid expelled from the body. Although a subject may be instructed or guided to produce a sound as indicated in ¶ [0106], instructing and guiding a user to produce a sound might not result in the production of a sound. Such actions are different from an apparatus causing a production of a sound at a vocal tract. The specification does not provide clarification. Therefore, it is unclear how apparatus causes production of a sound the sound source in light of the specification. Claim 17 recites a similar limitation, so it is rejected on similar grounds.
Claims 2-12 are rejected by virtue of their dependence from claim 1.
Claims 18-20 are rejected by virtue of their dependence from claim 17.
Claim 9 recites “the sound is a sound produced using a subject’s vocal tract. Claim 1 recites “cause the apparatus to: produce a sound with the sound source” in lines 7-8. It is unclear how the apparatus causes production of a sound with a subject’s vocal tract. Although a subject may be instructed or guided to produce a sound as indicated in ¶ [0106], instructing and guiding a user to produce a sound might not result in the production of a sound. Such actions are different from an apparatus causing a production of a sound at a vocal tract. The specification does not provide clarification. Therefore, it is unclear how apparatus causes production of a sound with the subject’s vocal tract.
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.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-12 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Claim 1 recites “an apparatus, comprising: a body comprising a sound source”. The specification indicates that the body may correspond to a body part which vibrates when the sound is produced using the subject’s vocal tract (see at least ¶ [0094]). Therefore, the claim covers an embodiment which includes a human body. As a result, claim 1 encompasses a human organism, which is excluded from the scope of patentable subject matter under 35 U.S.C. 101.
Claims 2-12 are rejected by virtue of their dependence from claim 1.
Claim 9 recites the sound is a sound produced using a subject’s vocal tract. Claim 1 recites “an apparatus, comprising: a body comprising a sound source”, which indicates that the sound source is a part of the claimed invention. Claim 9 therefore encompasses a vocal tract of a human organism, which is excluded from the scope of patentable subject matter under 35 U.S.C. 101.
Claims 10-12 are rejected by virtue of their dependence from claim 9.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Claims 1-20 do not include additional elements that integrate the exception into a practical application of the exception or that are sufficient to amount to significantly more than the judicial exception for the reasons provided below which are in line with the 2014 Interim Guidance on Patent Subject Matter Eligibility (Federal Register, Vol. 79, No. 241, p 74618, December 16, 2014), the July 2015 Update on Subject Matter Eligibility (Federal Register, Vol. 80, No. 146, p. 45429, July 30, 2015), the May 2016 Subject Matter Eligibility Update (Federal Register, Vol. 81, No. 88, p. 27381, May 6, 2016), and the 2019 Revised Patent Subject Matter Eligibility Guidance (Federal Register, Vol. 84, No. 4, page 50, January 7, 2019).
The analysis of claim 13 is as follows:
Step 1: Claim 13 is drawn to a process, which is a statutory category.
Step 2A - Prong 1: Claim 13 is directed to an abstract idea in the form of a mental process but for the recitation of generic computer components and/or certain methods of organizing human activity.
In particular, claim 13 recites the following limitations:
[A1]: producing a sound with a sound source at a body;
[B1]: expelling a fluid from the body in a direction of a device;
[C1]: transmitting the sound produced with the sound source at the body to the device;
[D1]:determining a time difference between arrival at the device of the sound produced with the sound source and the electromagnetic signal reflected from a surface of the body comprising the sound source, wherein the surface vibrates when the sound is produced;
[E1]: obtaining a distance between the body and the device;
[F1]: providing the time difference and the distance to enable determination of a fluid temperature based on a speed of sound through the fluid between the body and the device
Elements [A1]-[C1] are drawn to an abstract idea because they, under their broadest reasonable interpretation, manage personal behavior in the form of following rules or instructions. See MPEP 2106.04(a)(2)(II)(C). Specifically, the claim includes instructions for causing a person to produce and transmit a sound using their vocal tract and expel a fluid from their mouth towards a device. See at least ¶¶ [0097]-[0098] of the published application with regards to the use of the subject’s vocal tract and egressive airstream.
Elements [D1]-[F1] of claim 13 are drawn to an abstract idea because they are processes that, under their broadest reasonable interpretation, are mere steps that are capable of being mentally performed with the aid of pen and paper. For example, a skilled artisan is capable of reading a time difference measurement, reading a distance measurement, and calculating a temperature based on the time difference and the distance based on a speed of sound. There are no indications within the specification or claims that any of the above limitations are not capable of being mentally performed. For example, the steps [D1]-[F1] do not recite the use of any additional structural elements like an antenna or image sensor.
Step 2A - Prong Two: Claim 13 does not recite additional elements that integrate the judicial exception into a practical application. Claim 13 recites the following additional elements:
[A2]: transmitting an electromagnetic signal from the device to the body.
The element [A2] does not integrate the exception into a practical application of the exception because the element amounts to merely adding insignificant extra-solution activity to the judicial exception, e.g., mere data gathering at a higher level of generality in conjunction with the abstract idea that uses conventional, routine, and well known elements - see MPEP 2106.04(d); MPEP 2106.05(g).
Accordingly, each of the additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limitations on practicing the abstract idea.
Step 2B: Claim 13 does not recite additional elements that amount to significantly more than the judicial exception itself. Claim 13 recites the following additional elements:
[A2]: transmitting an electromagnetic signal from the device to the body.
The element [A2] does not amount to significantly more than the judicial exception itself.
Simply reciting the element [A2] does not qualify as significantly more because the elements amount to merely adding insignificant extra-solution activity to the judicial exception, e.g., mere data gathering at a higher level of generality in conjunction with the abstract idea that uses conventional, routine, and well known elements - see MPEP 2106.05(g). Additionally, the element is well-understood, routine, and conventional. US 2008/0009811 A1 (Cantor) (previously cited) discloses the element [A2] is well-understood routine, and conventional (¶ [0024] discloses that a conventional distance sensor has a transmitter that emits a signal, such as a light wave or sound wave, and a receiver that receives a reflection of the emitted signal from a target surface).
In view of the above, the additional elements individually do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
Claims 14-16 depend from claim 13, and they recite the same abstract idea as claim 13. Furthermore, these claims only contain recitations that further limit the abstract idea (that is, the claims only recite limitations that further limit the mental process or mathematical algorithm) and/or append abstract ideas (that is, the claims only recite limitations that add further mental processes or mathematical algorithms)
The analysis of claim 1 is as follows:
Step 1: Claim 1 is drawn to a machine, which is a statutory category.
Step 2A - Prong 1: Claim 1 is drawn to abstract ideas in the form of a mental process.
In particular, claim 1 recites the following limitations:
[A1]: determine a time difference between arrival at the device of the sound produced with the sound source and the electromagnetic signal reflected from a surface of the body comprising the sound source, wherein the surface vibrates when the sound is produced;
[B1]: obtain a distance between the body and the device;
[C1]: provide a time difference and the distance to enable determination of a fluid temperature based on a speed of sound through the fluid between the body and the device
These elements [A1]-[C1] of claim 1 are drawn to an abstract idea because they are processes that, under their broadest reasonable interpretation, are mere steps that are capable of being mentally performed with the aid of pen and paper. For example, a skilled artisan is capable of reading a time difference measurement, reading a distance measurement, and calculating a temperature based on the time difference and the distance based on a speed of sound. There are no indications within the specification or claims that any of the above limitations are not capable of being mentally performed. For example, the steps [D1]-[F1] do not recite the use of any additional structural elements like an antenna or image sensor.
Step 2A - Prong Two: Claim 1 does not recite additional elements that integrate the judicial exception into a practical application. Claim 1 recites the following additional elements:
[A2]: a body comprising a sound source and a source of electromagnetic signal;
[B2]: a device configured to receive a sound and an electromagnetic signal from the body;
[C2]: at least one processor;
[D2]: the at least one memory storing instructions that, when executed with the at least one processor, cause the apparatus to implement steps;
[E2]: produce a sound with the sound source;
[F2]: transmit a sound produced with the sound source at the body to the device, the sound being transmitted through a fluid expelled from the body in a direction of the device;
[G2]: transmit an electromagnetic signal from the device to the body.
The elements [A2]-[B2] and [E2]-[G2] do not integrate the exception into a practical application of the exception because the elements amount to merely adding insignificant extra-solution activity to the judicial exception, e.g., mere data gathering at a higher level of generality in conjunction with the abstract idea that uses conventional, routine, and well known elements - see MPEP 2106.04(d); MPEP 2106.05(g). Specifically, the elements [A2]-[B2] are recited at a high level of generality and amount to generic elements for generating sound and electromagnetic signal information. The elements [E2]-[G2] amount to necessary data gathering using the generic elements [A2]-[B2].
The elements [C2]-[D2] do not integrate the exception into a practical application of the exception because the elements amount to mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - See MPEP 2106.04(d) and MPEP 2106.05(f).
Accordingly, each of the additional elements do not integrate the abstract into a practical application because they do not impose any meaningful limitations on practicing the abstract idea.
Step 2B: Claim 1 does not recite additional elements that amount to significantly more than the judicial exception itself. Claim 1 recites the following additional elements:
[A2]: a body comprising a sound source and a source of electromagnetic signal;
[B2]: a device configured to receive a sound and an electromagnetic signal from the body;
[C2]: at least one processor;
[D2]: the at least one memory storing instructions that, when executed with the at least one processor, cause the apparatus to implement steps;
[E2]: produce a sound with the sound source;
[F2]: transmit a sound produced with the sound source at the body to the device, the sound being transmitted through a fluid expelled from the body in a direction of the device;
[G2]: transmit an electromagnetic signal from the device to the body.
The elements [A2]-[G2] do not amount to significantly more than the judicial exception itself.
The elements [A2]-[B2] and [E2]-[G2] do not qualify as significantly more because the elements amount to merely adding insignificant extra-solution activity to the judicial exception, e.g., mere data gathering at a higher level of generality in conjunction with the abstract idea that uses conventional, routine, and well known elements - see MPEP 2106.05(g). Specifically, the elements [A2]-[B2] are recited at a high level of generality and amount to generic elements for generating sound and electromagnetic signal information. The elements [E2]-[G2] amount to necessary data gathering using the generic elements [A2]-[B2].
Additionally, the elements are well-understood, routine, and conventional.
With regards to elements [B2] and [G2], US 2016/0140076 A1 (Doe) teaches that standard smart devices, such as the popular iPhone and Android series, typically comprise at least one video camera, at least one light source (which may be a high intensity LED light designed for flash photography, or which may be a backlit video display screen), at least one microphone and at least one sound output device (¶ [0068]), which demonstrates the conventional nature of a device configured to receive a sound and an electromagnetic signal (e.g., using a microphone and camera) and transmit an electromagnetic signal (e.g., using a light source).
With regards to elements [A2] and [E2]-[F2] , US 2007/0064898 A1 (Amano) teaches a conventional videoconference phone requires use of a microphone, a video camera for transmitting an image of the person speaking (¶ [0003]), which demonstrates the conventional nature of a body comprising a sound source and a source of electromagnetic signal (e.g., a person who speaks and emits heat), producing a sound using a sound source (e.g., a person who speaks), and transmit a sound produced with the sound source at the body to the device, the sound being transmitted through a fluid expelled from the body in a direction of the device (e.g., a person who speaks and breathes out while facing a microphone and video camera).
The combination of the elements [A2]-[B2] and [E2]-[G2] does not amount to a non-conventional and non-generic arrangement of components because using a camera, microphone, and a light source to record a speaking person is well-understood, routine and conventional.
Simply reciting the elements [C2]-[E2] do not qualify as significantly more because these elements are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (See MPEP 2106.05(d)(II); Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (See MPEP 2106.05(d)(II); Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93).
In view of the above, the additional elements individually do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
Independent claim 17 recites mirrored non-transitory storage medium limitations and are not patent eligible for substantially similar reasons.
Claims 2-12 depend from claim 1, and they recite the same abstract idea as claim 1. Claims 18-20 depend from claim 17, and they recite the same abstract idea as claim 17. Furthermore, these claims only contain recitations that further limit the abstract idea (that is, the claims only recite limitations that further limit the mental process or mathematical algorithm) and/or append abstract ideas (that is, the claims only recite limitations that add further mental processes or mathematical algorithms) except for the following limitations.
Claim 6 recites “provide guidance to a user of the device which indicates a target relative position between the body and the device”. However the above element does not integrate the exception into a practical application of the exception or qualify as significantly more because the element amount to merely adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.04(d); MPEP 2106.05(g). In this case, the element is performed in order to obtain data for the mental analysis steps and amounts to a necessary precursor for the mere data gathering. Additionally, the element is well-understood, routine, and conventional, as evidenced by US 2013/0202009 A1 (Murugan) (previously cited) in ¶ [0003] which indicates that a conventional solution for properly measuring temperature of an object is to notify the user of the predetermined distance for a field of view.
Claim 7 recites “cause the device to emit an electromagnetic signal which is reflected from the surface and to detect the electromagnetic signal reflected from the surface”. However the above element does not integrate the exception into a practical application of the exception or qualify as significantly more because the element amount to merely adding insignificant extra-solution activity to the judicial exception, e.g., mere data gathering at a higher level of generality in conjunction with the abstract idea that uses conventional, routine, and well known elements - see MPEP 2106.04(d); MPEP 2106.05(g). Additionally, the element is well-understood, routine, and conventional as evidenced by US 2008/0009811 A1 (Cantor) (previously cited) in ¶ [0024] which discloses that a conventional distance sensor has a transmitter that emits a signal, such as a light wave or sound wave, and a receiver that receives a reflection of the emitted signal from a target surface.
Claim 8 recites “transduce the sound into an electrical signal representing the sound”. However the above element does not integrate the exception into a practical application of the exception or qualify as significantly more because the element amount to merely adding insignificant extra-solution activity to the judicial exception, e.g., mere data gathering at a higher level of generality in conjunction with the abstract idea that uses conventional, routine, and well known elements - see MPEP 2106.04(d); MPEP 2106.05(g). Additionally, the element is well-understood, routine, and conventional as evidenced by US 3,396,241 A (Anderson) (previously cited) in Col. 2, lines 15-19 which discloses that a full range audio input is detected by a conventional acoustical-electrical transducer or microphone.
Claim 11 recites “provide an alert to the subject”. Claim 8 recites “transduce the sound into an electrical signal representing the sound”. However the above element does not integrate the exception into a practical application of the exception or qualify as significantly more because the element amount to merely adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.04(d); MPEP 2106.05(g). Additionally, the element is well-understood, routine, and conventional as evidenced by US 2005/0228242 A1 (Kawamura) (previously cited) in ¶ [0005] which discloses that a feature of a conventional health care system is to notify the subject of abnormal vital data.
Claim 12 recites “provide guidance to the subject which indicates a target sound to be produced”. However the above element does not integrate the exception into a practical application of the exception or qualify as significantly more because the element amount to merely adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.04(d); MPEP 2106.05(g). Additionally, the element is well-understood, routine, and conventional. For example, US 9,795,325 B1 (Merzenich) (previously cited) discloses the element in Col. 10, lines 34-39; US 2003/0078515 A1 (Menzel) (previously cited) discloses the element in ¶ [0165]; US 7,762,264 B1 (Ramig) (previously cited) discloses the element in Col. 5, lines 29-59. The plurality of disclosures indicates the well-understood, routine, and conventional nature of the element.
In view of the above, the additional elements do not integrate the abstract idea into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
Response to Arguments
Claim Objections
In view of the amendments to the claims filed 07/07/2025, the claim objections were withdrawn.
Claim Rejections under 35 U.S.C. §112(a)
Applicant's arguments filed 07/07/2025 regarding the new matter rejections have been fully considered but they are not persuasive.
Applicant asserts (A) Fig. 1 clearly shows a body 107 having a sound source 109 that provides a sound 113 to a device 101 and (B) ¶ [0003] recites an apparatus including a sound source and the body provides support for an apparatus transmitting a sound produced with a sound source at a body to a device.
This argument is not persuasive.
The Examiner maintains that “at least one memory storing instructions that, when executed with the at least one processor, cause the apparatus to: produce a sound with the sound source; transmit the sound produced with the sound source at the body to the device” in lines 6-10 of claim 1 is new matter.
At most, the specification indicates that the apparatus comprising the memory and processor are configured to perform processing steps (¶¶ [0042]-[0044]). However there is no indication that the memory and the processor are configured to implement the production and transmission of a sound. Fig. 1 may depict an apparatus comprising a body 107 and a device 111, there is no indication that a processor and memory are configured to cause the body to produce and transmit a sound. The examiner further notes that ¶ [0003] does not indicate that the apparatus comprises the body and the device.
Applicant’s arguments filed 07/07/2025 with respect to the rejection under 35 U.S.C. §112(a) regarding the recitation of “provide a time difference and the distance to enable determination of a fluid temperature based on a speed of sound through the fluid between the body and the device” have been fully considered and are persuasive. The rejection has been withdrawn.
There are new grounds of rejections necessitated by the claim amendments filed 07/07/2025.
Claim Rejections under 35 U.S.C. §112(b)
There are new grounds of rejections necessitated by the claim amendments filed 07/07/2025.
Applicant's arguments filed 07/07/2025 regarding claim 9 have been fully considered but they are not persuasive. In this case, claim 9 recites the sound is a sound produced using a subject’s vocal tract. Claim 1 recites “an apparatus, comprising: a body comprising a sound source”, which indicates that the sound source is a part of the claimed invention. Claim 9 therefore encompasses a vocal tract of a human organism, which is excluded from the scope of patentable subject matter under 35 U.S.C. 101.
Claim Rejections under 35 U.S.C. §101
Applicant's arguments filed 07/07/2025 have been fully considered but they are not persuasive.
On page 12 of the remarks filed 07/07/2025, the Applicant asserts:
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This argument is not persuasive. The expelling of a fluid from a body and transmitting of a sound produced with a sound source amounts to managing personal behavior or relationships of interactions between people. See at least ¶¶ [0097]-[0098] of the published application with regards to the use of the subject’s vocal tract and egressive airstream and corresponds to the expelling of the fluid and the transmitting of the sound. Causing a person to produce and transmit a sound using their vocal tract and expel a fluid from their mouth towards a device amounts to managing personal behavior. Just because the MPEP does not specifically list the expelling of a fluid and transmitting of a sound as examples of managing personal behavior does not preclude it from being abstract idea.
On page 13 of the remarks filed 07/07/2025, the Applicant asserts:
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This argument is not persuasive. The claim limitations do not indicate that the determination of the time difference require the use of the alleged equipment. The broadest reasonable interpretation of the claim limitation includes a skilled artisan reading a time difference measurement from a printout, reading a distance measurement from a printout, and calculating a temperature based on the time difference and the distance based on a speed of sound.
On pages 13-14 of the remarks filed 07/07/2025, the Applicant asserts:
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This argument is not persuasive for the reasons listed in the above rejection. Specifically, ¶¶ [0097]-[0098] of the published application indicates that producing a sound with a sound source at a body amounts to the use of the subject’s vocal tract and egressive airstream. However, instructions for causing a person to produce and transmit a sound using their vocal tract amounts to a method of organizing human behavior, which is an abstract idea.
On page 14 of the remarks filed 07/07/2025, the Applicant asserts:
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The Applicant provides similar arguments on page 16.
The Office action considers whether the claims are directed to an abstract idea in Step 2A, Prong 1 in accordance with MPEP 2106.04(a) which states that "Examiners should determine whether a claim recites an abstract idea by (1) identifying the specific limitation(s) in the claim under examination that the examiner believes recites an abstract idea, and (2) determining whether the identified limitations(s) fall within at least one of the groupings of abstract ideas listed above". There is no indication that each and every limitation of the claim must be considered in the determination of whether the claim is directed to an abstract idea in Step 2A, Prong 1. The Examiner identifies the specific limitations in the claim that the examiner believes are abstract ideas. The analysis proceeds to Step 2A, Prong 2.
Step 2A, Prong 2 analysis considers whether the claim, as a whole, integrates the judicial exception into a practical application. MPEP 2106.04(d)(III). The Office action considers the claim as a whole in relation to the additional elements, wherein the additional elements include the transmissions of a sound and an electronic signal. However, the additional elements, as an ordered combination, add nothing that is not present when the additional elements are considered separately. Additionally, the claims and specification do not set forth any inventive concept found in a non-conventional and non-generic arrangement of the additional elements. For example, using a camera, microphone, and a light source to record a speaking person is well-understood, routine and conventional.
On page 15 of the remarks filed 07/07/2025, the Applicant asserts:
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This argument is not persuasive. It is not evident to one of ordinary skill how this phenomena results in an improvement in technology or technological field. Without sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement, the alleged improvement amounts to a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art. Therefore, the argument is not persuasive. See MPEP 2106.04(d)(1).
On pages 15-16 of the remarks filed 07/07/2025, the Applicant asserts:
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This argument is not persuasive.
First, MPEP 2106.04(d)(2) indicates that Examiners should keep in mind that in order to qualify as a "treatment" or "prophylaxis" limitation for purposes of this consideration, the claim limitation in question must affirmatively recite an action that effects a particular treatment or prophylaxis for a disease or medical condition. An example of such a limitation is a step of "administering amazonic acid to a patient" or a step of "administering a course of plasmapheresis to a patient." If the limitation does not actually provide a treatment or prophylaxis, e.g., it is merely an intended use of the claimed invention or a field of use limitation, then it cannot integrate a judicial exception under the "treatment or prophylaxis" consideration.”
Although a breath temperature may be used for medical intervention, the claim does not provide include any limitations that amount to effecting a particular treatment or prophylaxis. Without any limitations for effecting the treatment or prophylaxis, there is no additional element that integrates the exception into a practical application.
Second, the Examiner maintains that the transmitting steps amount to necessary data gathering using the generic elements for the reasons listed in the above rejection. However, mere data gathering at a higher level of generality in conjunction with the abstract idea that uses conventional, routine, and well known elements is merely adding insignificant extra-solution activity to the judicial exception and does not amount to a practical application or significantly more than the judicial exception itself.
Applicant’s arguments on pages 17-19 regarding claim 1 are substantially similar to the arguments regarding claim 13. These arguments are not persuasive because the arguments regarding claim 13 are not persuasive for the reasons listed above.
On page 20 of the remarks filed 07/07/2025, the Applicant asserts:
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This argument is not persuasive. Specifically, the transmitting steps amount to necessary data gathering using the generic elements. Like the administration of vaccines to arrive at information about vaccine schedules of MPEP 2106.04(d)(2), the transmitting steps are performed in order to gather data for the mental analysis step and is a necessary precursor for the mental process. However, such a transmitting step is merely extra-solution activity or a field of use. And the elements are well-understood, routine, and conventional for the reasons listed above.
On page 20 of the remarks filed 07/07/2025, the Applicant asserts:
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The Applicant provides similar arguments on pages 21-22.
These arguments are not persuasive. The examiner maintains that the combination of elements, including the processor and memory, do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
On page 22 of the remarks filed 07/07/2025, the Applicant asserts:
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This argument is not persuasive. The Examiner maintains that the transmitting steps amount to necessary data gathering using the generic elements for the reasons listed in the above rejection. However, mere data gathering at a higher level of generality in conjunction with the abstract idea that uses conventional, routine, and well known elements is merely adding insignificant extra-solution activity to the judicial exception and does not amount to a practical application or significantly more than the judicial exception itself. Additionally, like the administration of vaccines to arrive at information about vaccine schedules of MPEP 2106.04(d)(2), the transmitting steps are performed in order to gather data for the mental analysis step and is a necessary precursor for the mental process. However, such a transmitting step is merely extra-solution activity or a field of use. And the elements are well-understood, routine, and conventional for the reasons listed above.
Applicant’s arguments regarding the dependent claims and claim 17 are not persuasive because the Applicant’s arguments regarding claims 1 and 13 are not persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/S.C.K./Examiner, Art Unit 3791
/JACQUELINE CHENG/Supervisory Patent Examiner, Art Unit 3791