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 .
Response to Amendment
The amendment filed on March 03, 2026 was considered by the examiner. Claims 1-20 are currently pending in the application.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation is: flexing element in claims 1 and 17.
Prong 1: “element” is a generic placeholder. See MPEP 2181 §I, subsection A, ¶1.
Prong 2: the transition words “arranged such that” and “resulting” is used, followed by functional language.
“a flexing element…, and arranged such that, when said belt loop is worn around said user's trunk, force from said user's respiration is applied to said single retracting belt, and said force is transmitted onto said flexing element, causing a measurable strain on said flexing element”; and
“said force is transmitted to a flexing element supported by at least one of said single case housing and said belt fastener, resulting in measurable strain on said flexing element”.
Prong 3: there is not sufficient structure to modify the generic placeholder “element”.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The examiner interprets the flexing element structures (see specification pg. 111 ¶4 – pg. 115 ¶4; Figs. 181A-198C) to cover the corresponding structure, materials, or acts described in the specification and equivalents thereof for the flexing element.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Objections
Claim 2 is objected to because of the following informalities:
in claim 2, line 3: “said” should be deleted.
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.
Claim 5 is 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 5 recites “said retracting mechanism further comprises at least one of a rotary encoder and a magnetic rotary encoder configured to produce encoder output” in lines 1-3; however, claim 1 recites “a flex sensor” in line 35. The specification indicates that different sensors may be utilized, including rotary encoders (see pg. 36 ¶3-4); however, the specification does not disclose the use of a flex sensor alongside a rotary encoder, or a rotary encoder alongside a flexing element. Furthermore, different types of flex sensors are listed (see specification pg. 112 ¶2-4); however, a flex sensor is not a rotary encoder. See also Applicant’s arguments filed March 03, 2026, pg. 12. Therefore, the subject matter of claim 5, which depends from claim 1, which includes both a flex sensor and rotary encoder is new matter. As such, one of ordinary skill in the art would not have recognized Applicant was in possession of the claimed invention at the time the application was effectively filed.
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.
Claim 5 is 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 5 recites “said retracting mechanism further comprises at least one of a rotary encoder and a magnetic rotary encoder configured to produce encoder output” in lines 1-3; however, claim 1 recites “a flex sensor” in line 35. A claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. See MPEP § 2173.03. In this case, the specification indicates that different sensors may be utilized, including rotary encoders (see pg. 36 ¶3-4); however, the specification does not disclose the use of a flex sensor alongside a rotary encoder, or a rotary encoder alongside a flexing element. Furthermore, different types of flex sensors are listed (see specification pg. 112 ¶2-4); however, a flex sensor is not a rotary encoder. See also Applicant’s arguments filed March 03, 2026, pg. 12. The inconsistency between what is claimed (the sensing utilizing both a flex sensor and rotary encoder) and what appears to be required for the respiration monitoring (i.e., no rotary encoder as claim 1 recites a flex sensor) renders claim 5 indefinite. Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
The succeeding art rejections to the claims under 35 U.S.C. § 103 below are made with the claims as best understood and interpreted in light of the preceding rejections under 35 U.S.C. § 112 above.
Claims 1-11, 13, 15, and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Ben-Oved et al. (US Patent Application Publication 2008/0108903 – cited in prior action), hereinafter Ben-Oved, in view of Ophaug et al. (US Patent Application Publication 2012/0011649 – cited in prior action), hereinafter Ophaug, and in view of Laugstøl (US Patent Application Publication 2018/0078208), hereinafter Laugstøl.
Regarding Claim 1, Ben-Oved teaches a respiration feedback monitoring and feedback system utilizing a respiration monitor configured to be worn by the user (see abstract and Fig. 1). Ben-Oved teaches a device for tracking respiration from a location on a human user (see abstract and Fig. 1), said device comprising:
(a) a single case housing (¶[0041]-[0042] the housing 200; Figs. 1-1A) comprising
a computer processor (¶[0044] the processing circuit 320, which would inherently include memory and firmware, ¶[0058] the digital data is input into a memory component; Fig. 1) and
a housing fastener (¶[0041]-[0042] the belt buckle 203; Fig. 1A);
(b) a spring-driven retracting mechanism (¶[0013]-[0019] and ¶[0041]-[0043] the spiral springs 220/221, the spiral spring housings 232/233, and the rolling rods 204/205; Figs. 2-7) disposed within said single case housing (see Fig. 1A, the housing completely encloses the inner workings of the device, specifically the side view, in which the housing extends beyond where the belt extends out of the housing),
said retracting mechanism further comprising a spring-tensioned spool (¶[0013]-[0019] and ¶[0041]-[0043] the belt 201 coiled about the rolling rods 204/205, which are tensioned by the spiral springs 220/221; Figs. 1A-7);
(c) a retracting belt (¶[0041]-[0042] the belt 201; Fig. 1A) comprising
a first belt end coupled to said spring-tensioned spool (¶[0041]-[0043] the end of the belt 201 that is anchored within the housing, ¶[0013]-[0019] and ¶[0041]-[0043] the belt 201 coiled about the rolling rods 204/205, which are tensioned by the spiral springs 220/221; Figs. 1A-7), and
a second belt end (¶[0041]-[0042] the end of the belt 201 with the belt buckle 202; Fig. 1A) comprising a belt fastener (¶[0041]-[0042] the belt buckle 202; Fig. 1A);
said retracting belt exiting said single case housing through a belt opening (see Figs. 1A-7, the opening on the side of the housing 200 for the belt 201),
wherein said housing fastener and said belt fastener are configured to removable secure said single retracting belt (¶[0041]-[0042] the belt buckles 202/203 are configured to reversibly attach (fasten) the belt to the user; Figs. 1-1A) as a belt loop worn around said user’s trunk (see ¶[0041] and Fig. 1);
(e) a sensor configured to measure force on said retracting belt (¶[0043]-¶[0044], ¶[0053], ¶[0058]-[0060], and ¶[0068] the signal generators 235/236 for generating the signal based on the force applied to the belt caused by the user breathing, as the device is configured to measure breathing of the user; Figs. 2-7 and 9) and
configured to output an electronic breathing sensor signal representative of said measurable force (¶[0043]-¶[0044], ¶[0053], ¶[0058]-[0060], and ¶[0068] the signal generators 235/236 for generating the signal based on the force applied to the belt caused by the user breathing; Figs. 2-7 and 9);
(f) wherein said computer processor is configured to process said electronic breathing sensor signal to produce breathing sensor data reporting on said user's respiration (¶[0053] and ¶[0056]-[0060] the output provided by the device, including that the processing circuit 320 receives the signals generated by the signal generators 235/236 and creates a set of angular data with the corresponding internal clock times, the breathing rate of the user may be determined; Fig. 8).
Ben-Oved teaches two spring-tensioned spools, but not specifically a single spring tensioned spool or a single belt.
Ophaug teaches a transfer belt to help in moving patients (see abstract and Figs. 1-2 and 5). Ophaug teaches a single spring spool 32 used to retract the single belt 12 back to the spool 30 through the opening 34 (see ¶[0035] and Figs. 1-4).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the single spring spool and single belt of Ophaug as the retracting mechanism and belt of Ben-Oved because (1) it is the simple substitution of one known element for another to yield predictable results and/or (2) a single spool and single belt would reduce the complexity and cost of the device.
The modified Ben-Oved does not specifically teach (d) a flexing element supported by at least one of said single case housing and said belt fastener, and arranged such that, when said belt loop is worn around said user’s trunk, force from said user’s respiration is applied to said single retracting belt, and said force is transmitted onto said flexing element, causing a measurable strain on said flexing element, or that the sensor is a flex sensor configured to measure strain coupled to said flexing element.
Laugstøl teaches a ventilation measurement device includes a fastening mechanism capable of permanently or detachably fastening the ventilation measurement device to a belt which can be worn around a person's chest (see abstract and Fig. 1),
in which a flexing element (¶[0036]-[0037] the substrate 4; Fig. 3) is supported by at least one of said single case housing (¶[0036]-[0039] the substrate 4 is attached at each end to parts of the sensor unit 1 which engage with the belt 2, ¶[0041] the back part 10 includes protrusions 12 and protective plates 6 that support the substrate to prevent sideways motion of the substrate 4, so that only transversal tension is transferred to the substrate 4 and thus to the strain gauge 3; Fig. 3)
and said belt fastener (¶[0043]-[0045] the substrate 4’ receives support and force from the belt 2 through the button 8 and the screw 5, in which the button 8 and the screw 5 serve to provide attachment to the belt 2; Figs. 4a-4c),
a strain gauge is configured to measure strain coupled to said flexing element (¶[0036]-[0037] the strain gauge 3 attached to the substrate 4; Fig. 3),
arranged such that, when said belt loop is worn around said user’s trunk, force from said user’s respiration is applied to said single retracting belt, and said force is transmitted onto said flexing element, causing a measurable strain on said flexing element to be measured by said strain gauge (¶[0036]-[0037] the strain gauge 3 measures the strain transferred from the belt 2 to the substrate 4 as a function of the wearer's breathing, ¶[0041] the back part 10 includes protrusions 12 and protective plates 6 that support the substrate to prevent sideways motion of the substrate 4, so that only transversal tension is transferred to the substrate 4 and thus to the strain gauge 3; Figs. 3 and 6).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the strain gauge and substrate (i.e., flexing element) measurement modality of Laugstøl with the modified Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) the modified Ben-Oved requires a sensor to measure the respiration of the user, and Laugstøl teaches one such sensor capable of monitoring the user’s respiration; and/or (3) the strain gauge positioned on the substrate locked by the protrusions and the protective plates allows only transversal tension to be transferred to the substrate and thus to the strain gauge, providing accurate measurement (see Laugstøl ¶[0034], ¶[0037], and ¶[0041]).
Regarding Claim 2, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. The modified Ben-Oved further teaches said flex sensor comprises any of a strain gauge, semiconductor strain gauge, foil strain gauge, force sensitive resistor, piezo-electric sensor, piezo film sensor, variable capacitor, or variable inductance sensor (see Laugstøl ¶[0036]-[0037] the strain gauge 3; Fig. 3).
Regarding Claim 3, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. The modified Ben-Oved further teaches said force on said single retracting belt comprises a pulling type force (see Ben-Oved ¶[0043]-¶[0044], ¶[0053], ¶[0058]-[0060], and ¶[0068] the signal generators 235/236 for generating the signal based on the force applied to the belt caused by the user breathing, Figs. 2-7 and 9; see Laugstøl ¶[0036]-[0037] the strain gauge 3 measures the strain transferred from the belt 2 to the substrate 4 as a function of the wearer's breathing, ¶[0041] the back part 10 includes protrusions 12 and protective plates 6 that support the substrate to prevent sideways motion of the substrate 4, so that only transversal tension is transferred to the substrate 4 and thus to the strain gauge 3, Figs. 3 and 6). As the device is configured to measure breathing of the user, the breathing of the user would include the user breathing out, which would result in a pulling force on the retracting belt.
Regarding Claim 4, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. The modified Ben-Oved is silent regarding said device further comprises a wireless transceiver, and wherein said device is further configured to use said computer processor and said wireless transceiver to transmit at least some of said electronic breathing sensor signals or said breathing sensor data to an external computing platform.
Laugstøl further teaches that the sensor unit 801 includes a wireless unit 830 for communicating with a corresponding wireless unit 852 in external computing unit 850 (see ¶[0072]-[0074]; Fig. 8) so that the data is transmitted to the external receiver (see abstract, ¶[0013]-[0014], ¶[0040], and ¶[0068]; Figs. 7-8).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the wireless transmission of data to an external computing platform of Laugstøl with the modified device of Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) transmitting the data to an external computing platform would allow easier output of the user’s respiration data to the user and/or medical professionals; and/or (3) some processing steps may be performed in external receiver unit (i.e., computer) so as to conserve sensor power (see Laugstøl ¶[0068]; Fig. 7).
Regarding Claim 5, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. Ben-Oved further teaches said device further comprises at least one of a rotary encoder and a magnetic rotary encoder (¶[0044] the signal generators 235/236 are rotary encoders) configured to produce encoder output (¶[0056]-[0060] the processing circuit 320 that is capable of processing the respiratory signals generated by signal generators 235 and 236, as the signal generators are rotary encoders, the output would be considered encoder output; Fig. 8);
wherein said processor is further configured to use said encode output to measure a displacement of said single retracting belt, and to use said displacement to compute any of a dimension or change in dimension of a user body part or muscle (¶[0043]-¶[0044], ¶[0053], ¶[0056]-[0060], and ¶[0068] the signal generators 235/236 (rotary encoders) for generating the signal based on the user breathing, the user’s movement causes displacement in the belt which is reflected in the measured rotational angle by the sensor, thus the displacement is measured, the processing circuit 320 that is capable of processing the respiratory signals generated by signal generators 235 and 236 so as to calculate a respiration rate and/or respiration depth; Fig. 8).
Regarding Claim 6, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. Ben-Oved further teaches said device is further configured for said single case housing to be worn on said user's back (¶[0041] the device is worn around the torso of the user; Fig. 1). Ben-Oved does not specify that the device must be worn on the front or back of the user. Furthermore, as the device measures the force/displacement of the belt as the user breaths, there is no functional limitation as to where the device is worn. Thus, the device is stable of this intended use.
Regarding Claim 7, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. The modified Ben-Oved is silent regarding said housing fastener further comprises a clip channel in said single case housing, and said belt fastener is configured to reversibly attach to said clip channel.
Ophaug further teaches a clip channel (¶[0039] the slide lock 66; Fig. 10) in said single case housing (¶[0035] the casing 20; Fig. 10), and said belt fastener is configured to reversibly attach to said clip channel (¶[0036] the t-bar connector 50 is configured to reversibly attach to the slide lock 66; Fig. 10).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the belt attachment of Ophaug as the belt attachment of the modified Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) the belt of the modified Ben-Oved requires a belt attachment mechanism, and Ophaug teaches one such belt attachment; the belt fastener directly on the single case housing would reduce the overall size (footprint) of the device.
Regarding Claim 8, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 7 as stated above. The modified Ben-Oved further teaches said flexing element is attached to said clip channel (see Ophaug ¶[0036] and ¶[0039] the t-bar connector 50 is configured to reversibly attach to the slide lock 66, Fig. 10; see Laugstøl ¶[0043]-[0045] the substrate 4’ receives support and force from the belt 2 through the button 8 and the screw 5, in which the button 8 and the screw 5 serve to provide attachment to the belt 2, Figs. 4a-4c).
Regarding Claim 9, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. Ben-Oved further teaches said computer processor is further configured to use a displacement of said single retracting belt (¶[0043]-¶[0044], ¶[0053], ¶[0058]-[0060], and ¶[0068] the signal generators 235/236 (rotary encoders) for generating the signal based on the user breathing, the user’s movement causes displacement in the belt which is reflected in the measured rotational angle by the sensor, thus the displacement is measured) to compute any of a dimension or change in the dimension of a user body part or muscle (¶[0020] and ¶[0058]-[0063] the user’s breathing depth is monitored, which is a dimension of a user body part).
Regarding Claim 10, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 9 as stated above. The modified Ben-Oved is silent regarding said single case housing further comprises a push-lock configured to lock said single retracting belt into a fixed position during body measurements.
Ophaug further teaches that the casing 20 may comprise one of a variety of push-locks, in which the push-locks are configured to prevent the belt 12 from further extension or retraction (see ¶[0040]; Figs. 12A-15B).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize a push-lock of Ophaug with the modified Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results and/or (2) the push-locks would allow the user and/or a medical professional to set the belt to an appropriate length during the respiration monitoring as needed.
Regarding Claim 11, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. The modified Ben-Oved further teaches is silent regarding said device further comprises a clip receptacle, said single retracting belt further comprises a clip head, and wherein a distance between said belt opening and said clip receptacle is less than one inch in order to produce more accurate body dimension measurements.
Ophaug further teaches a clip channel (¶[0039] the slide lock 66; Fig. 10) in said single case housing (¶[0035] the casing 20; Fig. 10), and said belt fastener is configured to reversibly attach to said clip channel (¶[0036] the t-bar connector 50 is configured to reversibly attach to the slide lock 66; Fig. 10).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the belt attachment of Ophaug as the belt attachment of the modified Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) the belt of the modified Ben-Oved requires a belt attachment mechanism, and Ophaug teaches one such belt attachment; the belt fastener directly on the single case housing would reduce the overall size (footprint) of the device.
The modified Ben-Oved teaches that the distance from the opening to the location of the housing fastener (now located on the housing opposite the opening) is two inches or less (see Ben-Oved ¶[0042] the width is two inches or smaller; Fig. 1A) It would have been obvious to one of ordinary skill in the art before the effective filing date of. the claimed invention to select a width (distance from the opening to the housing fastener), as suggested by Ben-Oved since a distance is required and Ben-Oved teaches such a distance.
Regarding Claim 13, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. Ben-Oved further teaches said single case housing further comprises a notifier comprising any of a built-in vibrational device, audio output device, or display device (¶[0054]-[0056] the output to the user comprising vibrations, audio, or visual feedback; Fig. 8), and
said computer processor is further configured to evaluate at least said electronic breathing sensor signal as to breathing evaluation states, and activate said notifier in response to at least one breathing evaluation state of said breathing evaluation states (¶[0054]-[0068] the user’s respiration is monitored and controls whether feedback is given to the user or not).
Regarding Claim 15, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. The modified Ben-Oved is silent regarding a slider stop configurable in any of an engaged or disengaged position, said slider stop configured to prevent said single retracting belt from either winding or unwinding from said single spring tensioned spool when said slider stop is engaged.
Ophaug further teaches that the casing 20 may comprise one of a variety of slider stops, in which the slider stops are configured to prevent the belt 12 from further extension or retraction (see ¶[0040]; Figs. 12A-15B).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize a slider stop of Ophaug with the modified Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results and/or (2) the slider stop would allow the user and/or a medical professional to set the belt to an appropriate length during the respiration monitoring as needed.
Regarding Claim 17, Ben-Oved teaches a respiration feedback monitoring and feedback system utilizing a respiration monitor configured to be worn by the user (see abstract and Fig. 1). Ben-Oved teaches a method for tracking respiration from a location on a human user (see abstract and Fig. 1), said method comprising:
providing a single case housing (¶[0041]-[0042] the housing 200; Figs. 1-1A) comprising
a first computer processor (¶[0044] the processing circuit 320, which would inherently include memory and firmware, ¶[0058] the digital data is input into a memory component; Fig. 1) and
a housing fastener (¶[0041]-[0042] the belt buckle 203; Fig. 1A);
a spring-driven retracting mechanism (¶[0013]-[0019] and ¶[0041]-[0043] the spiral springs 220/221, the spiral spring housings 232/233, and the rolling rods 204/205; Figs. 2-7) disposed within said single case housing (see Fig. 1A, the housing completely encloses the inner workings of the device, specifically the side view, in which the housing extends beyond where the belt extends out of the housing),
said retracting mechanism further comprising a spring-tensioned spool (¶[0013]-[0019] and ¶[0041]-[0043] the belt 201 coiled about the rolling rods 204/205, which are tensioned by the spiral springs 220/221; Figs. 1A-7) and
a retracting belt (¶[0041]-[0042] the belt 201; Fig. 1A) having
a first belt end coupled to said spring-tensioned spool (¶[0041]-[0043] the end of the belt 201 that is anchored within the housing, ¶[0013]-[0019] and ¶[0041]-[0043] the belt 201 coiled about the rolling rods 204/205, which are tensioned by the spiral springs 220/221; Figs. 1A-7), and
a second belt end (¶[0041]-[0042] the end of the belt 201 with the belt buckle 202; Fig. 1A) comprising a belt fastener (¶[0041]-[0042] the belt buckle 202; Fig. 1A);
removably securing said retracting belt as a belt loop worn around any of said human user's chest or abdomen (see ¶[0041] and Fig. 1) using said belt fastener and said housing fastener (¶[0041]-[0042] the belt buckles 202/203 are configured to reversibly attach (fasten) the belt to the user; Figs. 1-1A);
said retracting belt experiences force in response to user respiration, and a sensor producing an electronic breathing sensor signal reporting on said respiration from said force (¶[0043]-¶[0044], ¶[0053], ¶[0058]-[0060], and ¶[0068] the signal generators 235/236 for generating the signal based on the force applied to the belt caused by the user breathing; Figs. 2-7 and 9);
and using any of said first computer processor or a second computer processor to process said electronic breathing sensor signal to produce a produced output from said electronic breathing sensor signal comprising breathing sensor data reporting on said user's respiration (¶[0053] and ¶[0056]-[0060] the output provided by the device, the breathing rate of the user may be determined; Fig. 8).
Ben-Oved teaches two spring-tensioned spools, but not specifically a single spring tensioned spool or a single belt.
Ophaug teaches a transfer belt to help in moving patients (see abstract and Figs. 1-2 and 5). Ophaug teaches a single spring spool 32 used to retract the single belt 12 back to the spool 30 through the opening 34 (see ¶[0035] and Figs. 1-4).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the single spring spool and single belt of Ophaug as the retracting mechanism and belt of Ben-Oved because (1) it is the simple substitution of one known element for another to yield predictable results and/or (2) a single spool and single belt would reduce the complexity and cost of the device.
The modified Ben-Oved does not specifically teach a flexing element supported by at least one of said single case housing and said belt fastener, and arranged such that, when said belt loop is worn around said user’s trunk, force from said user’s respiration is applied to said single retracting belt, and said force is transmitted onto said flexing element, causing a measurable strain on said flexing element, or that the sensor is a flex sensor configured to measure strain coupled to said flexing element.
Laugstøl teaches a ventilation measurement device includes a fastening mechanism capable of permanently or detachably fastening the ventilation measurement device to a belt which can be worn around a person's chest (see abstract and Fig. 1),
in which a flexing element (¶[0036]-[0037] the substrate 4; Fig. 3) is supported by at least one of said single case housing (¶[0036]-[0039] the substrate 4 is attached at each end to parts of the sensor unit 1 which engage with the belt 2, ¶[0041] the back part 10 includes protrusions 12 and protective plates 6 that support the substrate to prevent sideways motion of the substrate 4, so that only transversal tension is transferred to the substrate 4 and thus to the strain gauge 3; Fig. 3)
and said belt fastener (¶[0043]-[0045] the substrate 4’ receives support and force from the belt 2 through the button 8 and the screw 5, in which the button 8 and the screw 5 serve to provide attachment to the belt 2; Figs. 4a-4c),
a strain gauge is configured to measure strain coupled to said flexing element (¶[0036]-[0037] the strain gauge 3 attached to the substrate 4; Fig. 3),
arranged such that, when said belt loop is worn around said user’s trunk, force from said user’s respiration is applied to said single retracting belt, and said force is transmitted onto said flexing element, causing a measurable strain on said flexing element to be measured by said strain gauge (¶[0036]-[0037] the strain gauge 3 measures the strain transferred from the belt 2 to the substrate 4 as a function of the wearer's breathing, ¶[0041] the back part 10 includes protrusions 12 and protective plates 6 that support the substrate to prevent sideways motion of the substrate 4, so that only transversal tension is transferred to the substrate 4 and thus to the strain gauge 3; Figs. 3 and 6).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the strain gauge and substrate (i.e., flexing element) measurement modality of Laugstøl with the modified Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) the modified Ben-Oved requires a sensor to measure the respiration of the user, and Laugstøl teaches one such sensor capable of monitoring the user’s respiration; and/or (3) the strain gauge positioned on the substrate locked by the protrusions and the protective plates allows only transversal tension to be transferred to the substrate and thus to the strain gauge, providing accurate measurement (see Laugstøl ¶[0034], ¶[0037], and ¶[0041]).
Regarding Claim 18, Ben-Oved in view of Ophaug and Laugstøl teaches the method of claim 17 as stated above. The modified Ben-Oved is silent regarding said single case housing further comprises a wireless transceiver, further using said first computer processor and said wireless transceiver to transmit at least some of said electronic breathing sensor signals or said breathing sensor data to an external computing platform.
Laugstøl further teaches that the sensor unit 801 includes a wireless unit 830 for communicating with a corresponding wireless unit 852 in external computing unit 850 (see ¶[0072]-[0074]; Fig. 8) so that the data is transmitted to the external receiver (see abstract, ¶[0013]-[0014], ¶[0040], and ¶[0068]; Figs. 7-8).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the wireless transmission of data to an external computing platform of Laugstøl with the modified device of Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) transmitting the data to an external computing platform would allow easier output of the user’s respiration data to the user and/or medical professionals; and/or (3) some processing steps may be performed in external receiver unit (i.e., computer) so as to conserve sensor power (see Laugstøl ¶[0068]; Fig. 7).
Regarding Claim 19, Ben-Oved in view of Ophaug and Laugstøl teaches the method of claim 17 as stated above. Ben-Oved further teaches placing said single case housing on said user's back (¶[0041] the device is worn around the torso of the user; Fig. 1). Ben-Oved does not specify that the device must be worn on the front or back of the user. Furthermore, as the device measures the force/displacement of the belt as the user breaths, there is no functional limitation as to where the device is worn. Thus, the device is stable of this intended use.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Ben-Oved in view of Ophaug and Laugstøl as applied to claim 1 above, and in view of Gavish (US Patent 6,090,037 – cited in prior action), hereinafter Gavish.
Regarding Claim 12, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. The modified Ben-Oved is silent regarding said single case housing is further configured to twist an angle of said single retracting belt at 90 degrees from its orientation on said spring-driven retraction mechanism before said single retracting belt exits a belt opening on said single case housing.
Gavish teaches a monitor for analyzing biorhythmic activity of a user (see abstract and Fig. 15) in which the device is worn on the user (see col. 15 ln. 12-47 and Fig. 15). Gavish teaches that the belt 604 may be guided out of the housing via guides 630 so as to prevent the belt 604 from getting trapping in the housing (see col. 16 ln. 20-36 and Fig. 16A-16B). Here, the angle change of the belt before leaving the housing is about 90 degrees (see Figs. 16A-16B), and would be considered a twist based on the definition of twist (see “Twist Definition & Meaning”, The Britannica Dictionary, accessed on 09/02/2025, accessed at https://www.britannica.com/dictionary/twist).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the guides of Gavish within the housing of the modified device of Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results and/or (2) the guides will help to prevent the belt from getting trapped within the housing during the user’s respiratory movements (see Gavish col. 16 ln. 20-36).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Ben-Oved in view of Ophaug and Laugstøl as applied to claim 1 above, and in view of Rutty (US Patent 3,908,277 – cited in prior action), hereinafter Rutty.
Regarding Claim 14, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. Ben-Oved further teaches said belt fastener further comprises a clip (¶[0041]-[0042] the belt buckle 202; Fig. 1A).
The modified Ben-Oved is silent regarding said single case housing further comprises a pocket configured to hold said clip in an accessible resting position when not in use.
Rutty teaches a crank operated long tape measure (see abstract and Fig. 1), in which the forwardmost end of the tape blade 20 (belt) comprises a hook unit 76 (clip) that may rest conveniently and neatly within casing recess 78 (pocket) when not in use (see col. 4 ln. 6-11 and Fig. 1).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the recess (pocket) of Rutty with for the clip of the modified device of Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results and/or (2) the recess provides a convenient and neat access point for the hook unit when the tape/belt is not in use (see Rutty col. 4 ln. 6-11).
Claims 16 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Ben-Oved in view of Ophaug and Laugstøl as applied to claims 1 and 17, respectively, as shown above, and in view of Murray et al. (WIPO Publication WO 2014/128090 A1 – cited in prior action), hereinafter Murray.
Regarding Claim 16, Ben-Oved in view of Ophaug and Laugstøl teaches the device of claim 1 as stated above. The modified Ben-Oved is silent regarding a posture sensor, and wherein said computer processor is further configured to use input from said posture sensor to compute said human user’s relative diaphragm position, and to use said relative diaphragm position to adjust said breathing sensor data for at least some effects of said user's posture.
Murray teaches a respiration monitoring system including a portion arranged to adhere to a patient’s torso, including transducers (see abstract and Fig. 1), in which the second transducer comprises data representative of the user’s diaphragm respiration (see abstract, pg. 3 ln. 9-17, pg. 10 ln. 4-17, and pg. 11 ln. 16-32), and data from a gyroscope and/or accelerometer may be utilized for determining the patient’s posture, so that the breathing data may take the posture data into account (see pg. 3 ln. 24-26, pg. 9 ln. 18 – pg. 10 ln. 23, and pg. 11 ln. 16-32).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the modulated breathing data by the diaphragm and posture data of Murray with the modified device of Ben-Oved because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results and/or (2) incorporating the diaphragm and posture data would yield more representative data via the full spectrum of coverage of the system (see Murray pg. 11 ln. 16-32).
Regarding Claim 20, Ben-Oved in view of Ophaug and Laugstøl teaches the method of claim 17 as stated above. The modified Ben-Oved is silent regarding said single case housing further comprises a posture sensor, further using any of said first computer processor and said second computer processor, and said posture sensor to compute said human user’s relative diaphragm position, and to use said relative diaphragm position to correct said breathing sensor data for at least some effects of said user's posture.
Murray teaches a respiration monitoring system including a portion arranged to adhere to a patient’s torso, including transducers (see abstract and Fig. 1), in which the second transducer comprises data representative of the user’s diaphragm respiration (see abstract, pg. 3 ln. 9-17, pg. 10 ln. 4-17, and pg. 11 ln. 16-32), and data from a gyroscope and/or accelerometer may be utilized for determining the patient’s posture, so that the breathing data may take the posture data into account (see pg. 3 ln. 24-26, pg. 9 ln. 18 – pg. 10 ln. 23, and pg. 11 ln. 16-32).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the modulated breathing data by the diaphragm and posture data of Murray with the modified device of Ben-Oved because (1) it is the application of a known technique to a known method ready for improvement to yield predictable results and/or (2) incorporating the diaphragm and posture data would yield more representative data via the full spectrum of coverage of the system (see Murray pg. 11 ln. 16-32).
Response to Arguments
Applicant’s arguments, objections to the drawings
Applicant’s arguments, see pg. 8, filed March 03, 2026, with respect to the objections of Figs. 213A-213B have been fully considered and are persuasive. Therefore, the objections have been withdrawn.
Applicant’s arguments, 35 U.S.C. § 103
Applicant’s arguments, see pg. 8-15, filed March 03, 2026, with respect to the rejections of claims 1-20 under 35 U.S.C. § 103 with regard to the flexing element have been fully considered and are persuasive. Therefore, the rejections have been withdrawn. However, upon further consideration, a new grounds of rejection are made in view of Laugstøl (US Patent Application Publication 2018/0078208).
Applicant’s arguments, see pg. 15, filed March 03, 2026, with respect to the rejections of claims 4, 8, and 18 under 35 U.S.C. § 103 have been fully considered and are moot given the new grounds of rejection as presented above.
Applicant’s arguments, see pg. 15-16, filed March 03, 2026, with respect to the rejection of claim 12 under 35 U.S.C. § 103 have been fully considered and are NOT persuasive. Applicant argues that Gavish does not teach the element of “twist” as required by the claim, but rather, redirection/bending. The examiner respectfully disagrees. The specification of the present application does not specifically define “twist”; however, the shown Fig. 179 is described as depicting a twist. The examiner does not disagree that Fig. 179 discloses a twist, or that Fig. 16A and 16B of Gavish show no such twist; however, the claim does not require that specific twist of Fig. 179 as presently written. While the claim mentions a “twist”, the definition of twist is not limited to that as shown in Fig. 179. The definition of twist may include “to bend or turn (something) into a shape or position that is not normal or natural” and “to wrap or wind (something) around something” (see “Twist Definition & Meaning”, The Britannica Dictionary, accessed on 09/02/2025, accessed at https://www.britannica.com/dictionary/twist). In that way, the bending of the belt 604 about the guides 630 would be included in the definition of twist. Claim 12, as presently written, does not require the twist of Fig. 179 specifically, and as Gavish teaches a twist, the modified Ben-Oved teaches all elements of claim 12. Therefore, Applicant’s arguments are not persuasive.
Applicant’s arguments, see pg. 16-17, filed March 03, 2026, with respect to the rejection of claim 14 under 35 U.S.C. § 103 have been fully considered and are moot given the new grounds of rejection as presented above.
Applicant’s arguments, see pg. 17-18, filed March 03, 2026, with respect to the rejections of claims 16 and 20 under 35 U.S.C. § 103 have been fully considered and are moot given the new grounds of rejection as presented above.
In response to applicant's argument that Murray is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Murray is reasonably pertinent to the particular problem with which the inventor was concerned, i.e., posture measurements to correct respiration measurements. Therefore, Applicant’s argument is 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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/J.D.M./ Examiner, Art Unit 3791
/JENNIFER ROBERTSON/ Supervisory Patent Examiner, Art Unit 3791
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