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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 16, 2025 has been entered.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1 – 3 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Altenbaeumer et al. (USPN 10,172,557) in view of Toda et al. (USPGPub 2007/0201738)for the reasons of record. As previously established, Altenbaeumer et al. teach a physiological measurement arrangement (Figures 1 – 3; Summary of the Invention with particular attention to column 10) that includes emitter and detector elements to collect PPG data from a subject for analysis of the patient. Altenbaeumer et al. particularly mention (column 15, line 39 – column 16, line 63) that their preferred arrangement includes one emitter and one detector, where the emitter is configured to emit a plurality of wavelengths and the detector is fashioned to detect wavelength ranges. Figure 6 shows one embodiment of a stacked sensor to achieve the desired single detector for plural wavelengths result. Although the example of Figure 6 is limited to measuring two wavelengths, Altenbaeumer et al. indicate that the sensor may be implemented to measure additional wavelength regions (column 16, lines 27 – 63). Toda et al. teach a structure of a Stacked optical sensor which can detect Red, Green, IR and other wavelengths. One would recognize that the arrangement of Toda et al. would be suitable for implementation as the single position/plural wavelength sensor of Altenbaeumer et al. As such, it would have been within the skill level of the art before the effective filing date of the claimed invention, to have modified Altenbaeumer et al. to use the alternate stacked sensor configuration of Toda et al. as the photodetector, since Altenbaeumer et al. teach that such a modification of their device is suitable.
Claim(s) 16 - 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bocko et al. (USPGPub 2010/0276736) for the reasons of record. As detailed in the Final rejection, Bocko et al. teach a CMOS image sensor relying on stacked silicon sensors mounted on glass substrates (SUMMARY). Bocko et al. recognize the relationship between layer thickness and detected wavelength and particularly detail parameters for blue, green, red detecting (Figure 1C and the description thereof in paragraphs [0024] - [0028]). Additionally, Bocko et al. recognize that the layers can be adjusted for sensitivity to other colors or color combinations (paragraph [0030]). Further, as Applicant recognizes in their disclosure and remarks, as well as indicated in several of the cited references, the relationship between silicon thickness and absorbance of light/wavelength is an inherent property of the material. As such, Bocko et al. teaches all of the features of the claimed invention except for an IR sensitive thickness/layer. However, without a showing of criticality or unexpected results it would have been within the skill level of the art to perform routine experimentation to determine thicknesses for a layer for IR sensitivity, since Bocko et al. indicate such a modification is within the skill of the art and it is recognized that the relationship between thickness and absorbance is inherent to the silicon material itself, which is indicative of a parameter suitable for adjusting/optimizing via routine experimentation.
Claim(s) 1 – 7, 9 – 16, and 18 - 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Altenbaeumer et. al., Lamego et al. (USPGPub 2018/0110450), and Bocko et al. generally for the reasons of record. Altenbaeumer et al. teach a physiological measurement arrangement (Figures 1 - 3; Summary of the Invention with particular attention to column 10) that includes emitter and detector elements to collect PPG data from a subject for analysis of the patient. Altenbaeumer et al. particularly mention (column 15, line 39 - column 16, line 63) that their preferred arrangement includes one emitter and one detector, where the emitter is configured to emit a plurality of wavelengths and the detector is fashioned to detect wavelength ranges. Figure 6 shows one embodiment of a stacked sensor to achieve the desired single detector for plural wavelengths result. Although the example of Figure 6 is limited to measuring two wavelengths, Altenbaeumer et al. indicate that the sensor may be implemented to measure additional wavelength regions (column 16, lines 27 - 63). Altenbaeumer et al. indicate that their arrangement is suitable for being configured as an oximeter for determining the concentration of oxygen in the blood (Background and discussion of column 10). Additionally, Lamego et al. teach oximetry processing relying on green, red, and IR can provide improved results for detecting both heart rate and the red and IR pulses (Figures 34A-C; paragraphs [0089] - [0093]). Further, Bocko et al., as discussed and modified immediately above, teaches a stacked type sensor (as required in Altenbaeumer et al.) implemented with silicon-based detection elements of varying thickness. It would have been within the skill level of the art before the effective filing date of the claimed invention, to have modified Altenbaeumer et al. to use the alternate stacked sensor configuration of modified Bocko et al. as the photodetector, since Altenbaeumer et al. teach that such a modification of their device is suitable. Additionally, in implementing the oximetry processing of modified Altenbaeumer et al., it would have within the skill level of the art to rely on green, red, and IR data for improved processing results, consistent with the disclosure of Lamego et al. regarding the advantages of using the three wavelengths in oximetry sensing.
One would recognize modified Altenbaeumer et al. as providing the structure of claims 16 and 18 – 20.
Response to Arguments
Applicant's arguments filed December 16, 2025 have been fully considered but they are not persuasive. Applicant generally alleges that the claims differ from the art in that A) none of the prior art teaches or suggests collection of optical signals that are “recorded at the same time” and B) there is no teaching or suggestion for determining SpO2 from such tri-band measurements. However contrary to Applicant’s allegation A), the base reference of Altenbaeumer et al. indicates that their stacked arrangement is configured where the different wavelength components “may be measured at the same time” (column 16, line 60). Examiner notes that this portion of the base reference was included in the portions of the specification that were indicated to be of relevance in the Final Office action mailed August 13, 2025. Additionally, the allegation B) that the combination does not encompass measurement and analysis of three wavelengths for determining SpO2 values is not persuasive in that, as detailed in the Final rejection and maintained above, the prior art itself suggests that it was within the skill level of the art to measure and process three wavelengths of light for determining the values. Further, unlike the details set forth in newly added claims 21 – 23, the broader claims do not indicate or impose particular requirements on how the signals corresponding to the three wavelengths must be used as part of the determining, and thus one would recognize that the use of three wavelengths in the analysis of SpO2 values as detailed in the prior art is within the broad bounds of the claim requirements. Therefore, regarding both allegations the Applicant has not provided a showing to overcome what is suggested in the underlying teachings of the art itself.
Regarding the treatment of Claim 16 – 18, Applicant raises issues that the claim is directed to PPG sensing/processing where the applied art has a different purpose. This is not found persuasive, in that the positively claimed structures (sensing layers) are not specific to PPG sensing and merely define a general optical sensor. Examiner notes that only detecting elements are set forth in claim 16. Unlike claims 1 and 9, there are no particular controller/processor type elements in claim 16 claim and thus details related to such intended uses of the sensor for PPG data collection, processing, etc. do not impose limitations on the positively claimed elements. Additionally, contrary to Applicant’s allegation, as highlighted in the statement of the rejection, Bocko et al. indicate the R/G/B wavelengths are merely exemplary and that one could implement the detector with sensitivity to other wavelengths of interest. As such, the arguments are not found persuasive and the rejections are hereby maintained.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter: Applicant’s remarks regarding new claims 21 – 23 are noted.
Claims 21 – 23 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC FRANK WINAKUR whose telephone number is (571)272-4736. The examiner can normally be reached Mon-Fri 9 am - 6 pm.
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/ERIC F WINAKUR/Primary Examiner, Art Unit 3791