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 .
Status of Claims
Claims 1-7, 9-11, 14, 15, 18, and 27-33 were previously pending and subject to a Final Office Action having a notification date of October 29, 2025 (“Final Office Action”). Following the Final Office Action, Applicant filed an amendment on January 15, 2026 (the “Amendment”). Following the Amendment, claims 1-7, 9-11, and 27-32 are pending.
In view of further consideration by the Examiner, the finality of the Final Office Action has been withdrawn and a non-final Office Action is presented herein addressing claims 1-7, 9-11, and 27-32.
Claim Rejections - 35 USC § 112
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 27-32 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.
In claim 27, it is unclear if the "separate device" in line 19 is referring to the same device as the "accessory device" in line 10.
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.
Claims 1-7, 9-11, and 27-32 are rejected under 35 U.S.C. §101 because the claimed invention is directed to an abstract idea without significantly more.
Subject Matter Eligibility Criteria - Step 1:
As claims 1-7, 9-11, and 27-32 are directed to a device/system (i.e., a machine), the claims are all within at least one of the four statutory categories. 35 USC §101.
Subject Matter Eligibility Criteria - Alice/Mayo Test: Step 2A - Prong One:
Regarding Prong One of Step 2A of the Alice/Mayo test (which collectively includes the guidance in the January 7, 2019 Federal Register notice and the October 2019 update issued by the USPTO as now incorporated into the MPEP, as supported by relevant case law), the claim limitations are to be analyzed to determine whether, under their broadest reasonable interpretation, they “recite” a judicial exception or in other words whether a judicial exception is “set forth” or “described” in the claims. MPEP 2106.04(II)(A)(1). An “abstract idea” judicial exception is subject matter that falls within at least one of the following groupings: a) certain methods of organizing human activity, b) mental processes, and/or c) mathematical concepts. MPEP 2106.04(a).
Independent claim 27 includes limitations that recite at least one abstract idea. Specifically, independent claim 27 recites:
An ear-wearable device system comprising:
an ear-wearable device comprising
a control circuit;
a microphone, wherein the microphone is in electrical communication with the control circuit;
a sensor package, wherein the sensor package is in electrical communication with the control circuit; and
a power supply circuit, wherein the power supply circuit is in electrical communication with the control circuit; and
an accessory device
wherein the ear-wearable device is configured to
monitor signals from the microphone;
monitor signals from the sensor package;
identify signs of anxiety in the microphone signals;
analyze signals from the microphone to identify speech of the wearer;
stream the microphone signals and the sensor package signals from the ear- wearable device to the accessory device;
transmit data based on the signals representing the identified speech over a particular time frame to a separate device, wherein the separate device is configured to identify an underlying emotional status or condition of the wearer based on patterns in the data over the particular time frame;
correlate the identified anxiety in the microphone signals to a previously detected change in the signals from the sensor package; and
provide the ear-wearable device wearer with feedback related to identified anxiety.
The Examiner submits that the foregoing underlined limitations constitute: (a) “certain
methods of organizing human activity” because they relate to managing human behavior/interactions between people (e.g., following rules, etc.). For instance, a medical professional monitoring audio signals (e.g., words spoken by a patient) from a microphone (e.g., via listening, reviewing on a screen, etc.) and a sensor package (e.g., via reviewing on a screen), identifying anxiety signs in the signals (e.g., based on pitch/tone of voice), analyzing signals from the microphone to identify speech of the ear-wearable device wearer (e.g., via listening), identifying an underlying emotional status or condition of the ear-wearable device wearer based on patterns in speech signal data over the particular time frame (e.g., fear, agitation, excitement, etc.), correlating the identified anxiety in the microphone signals to a previously detected change in the signals from the sensor package (e.g., via reviewing/analyzing/considering the anxiety in the signals and the previously detected changes in sensor signals), and providing feedback to a wearer of an ear-wearable device regarding the anxiety (e.g., via telling the person that they appear anxious and to suggest remediations, such as taking a walk, listening to particular music, etc.) relates to following rules/instructions and managing personal behavior. These limitations are similar to a mental process that a neurologist should follow when testing a patient for nervous system malfunctions, In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193, 194-96 (CCPA 1982). MPEP 2106.04(a)(2)(II)(C).
Additionally or alternatively, at least some of the foregoing underlined limitations constitute (b) “a mental process” because they are observations/evaluations/judgments/analyses that can, at the currently claimed high level of generality, be practically performed in the human mind (e.g., with pen and paper). For instance, a medical professional can practically in their mind with pen and paper monitor audio signals (e.g., words spoken by a patient) from a microphone e.g., via listening, reviewing on a screen, etc.) and a sensor package (e.g., via reviewing on a screen), identify anxiety signs in the signals (e.g., based on pitch/tone of voice), analyze signals from the microphone to identify speech of the ear-wearable device wearer (e.g., via listening), identify an underlying emotional status or condition of the ear-wearable device wearer based on patterns in speech signal data over the particular time frame (e.g., fear, agitation, excitement, etc.), correlate the identified anxiety in the microphone signals to a previously detected change in the signals from the sensor package (e.g., via reviewing/analyzing/considering the anxiety in the signals and the previously detected changes in sensor signals), and provide feedback (e.g., via writing down on paper) such as via telling the person that they appear anxious and to suggest remediations, such as taking a walk, listening to particular music, etc. These recitations, under their broadest reasonable interpretation, are similar to the concepts of collecting information, analyzing it and displaying certain results of the collection and analysis which were found to be equivalent to mental processes in Electric Power Group, LLC, v. Alstom (830 F.3d 1350, 119 USPQe2d 1739 (Fed. Cir. 2016)).
Accordingly, the claim recites at least one abstract idea.
Furthermore, dependent claims 2-7, 9-11, 28, and 30-32 further define the at least one abstract idea (and thus fail to make the abstract idea any less abstract).
-Claim 2 recites how the feedback includes suggested anxiety interventions which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 3 recites how the anxiety interventions include breathing instructions which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 4 recites how the feedback comprises auditory feedback that indicates that anxiety was identified and provides suggested anxiety interventions which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 5 calls for monitoring signals from the sensor package to identify signs of anxiety which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 6 recites how the signs of anxiety include a change in microphone signals along with a change in signals from at least one sensor in the sensor package which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 7 recites how the signs of anxiety include at least one of tonal change, volume change, and change of vocal cadence which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 9 recites how the signs of anxiety include a change in the speech of the wearer of the ear-wearable device which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 10 calls for determining a baseline value of anxiety for a wearer of the ear-wearable device which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 11 recites how the baseline value accounts for at least one of language and persona of the wearer of the ear-wearable device which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 28 recites how the underlying emotional status or condition comprises any of a circadian type rhythm condition or seasonal affective disorder which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 30 recites how the particular time frame is daily and analyzing how the data changes over the particular time frame to assess for emotional status or conditions having a circadian type rhythm which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 31 calls for correlating the identified anxiety in the microphone signals to the transient change in blood pressure data which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
-Claim 32 recites how the previously detected change in the signals from the sensor package is between about 10 seconds and 600 seconds before the identified anxiety in the microphone signals which just further defines the “certain methods of organizing human activity” and/or “mental processes” discussed above.
Subject Matter Eligibility Criteria - Alice/Mayo Test: Step 2A - Prong Two:
Regarding Prong Two of Step 2A of the Alice/Mayo test, it must be determined whether the claim as a whole integrates the abstract idea into a practical application. As noted at MPEP §2106.04(II)(A)(2), it must be determined whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception. The courts have indicated that additional elements such as merely using a computer to implement an abstract idea, adding insignificant extra solution activity, or generally linking use of a judicial exception to a particular technological environment or field of use do not integrate a judicial exception into a “practical application.” MPEP §2106.05(I)(A).
In the present case, the additional limitations beyond the above-noted at least one abstract idea recited in the claim are as follows (where the bolded portions are the “additional limitations” while the underlined portions continue to represent the at least one “abstract idea”):
An ear-wearable device system comprising:
an ear-wearable device (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f)) comprising
a control circuit (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f));
a microphone, wherein the microphone is in electrical communication with the control circuit (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f));
a sensor package, wherein the sensor package is in electrical communication with the control circuit (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f)); and
a power supply circuit, wherein the power supply circuit is in electrical communication with the control circuit (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f)); and
an accessory device (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f))
wherein the ear-wearable device is configured to (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f))
monitor signals from the microphone;
monitor signals from the sensor package;
identify signs of anxiety in the microphone signals;
analyze signals from the microphone to identify speech of the wearer;
stream the microphone signals and the sensor package signals from the ear- wearable device to the accessory device (extra-solution activity (data gathering) as noted below, see MPEP § 2106.05(g));
transmit data based on the signals representing the identified speech over a particular time frame to a separate device (extra-solution activity (data gathering) as noted below, see MPEP § 2106.05(g)), wherein the separate device is configured to (using computers or machinery as mere tools to perform the abstract idea as noted below, see MPEP § 2106.05(f)) identify an underlying emotional status or condition of the wearer based on patterns in the data over the particular time frame;
correlate the identified anxiety in the microphone signals to a previously detected change in the signals from the sensor package; and
provide the ear-wearable device wearer with feedback related to identified anxiety.
For the following reasons, the Examiner submits that the above-identified additional limitations, when considered as a whole with the limitations reciting the at least one abstract idea, do not integrate the above-noted at least one abstract idea into a practical application.
Regarding the additional limitations of the ear-wearable device including the control circuit, microphone, power supply and sensor package; and the accessory/separate device, the Examiner submits that these limitations amount to merely using a computer and other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
Regarding the additional limitation of streaming the microphone signals and the sensor package signals from the ear-wearable device to the accessory device and transmitting data based on the signals representing the identified speech over a particular time to a separate device, the Examiner submits that these additional limitations merely add insignificant extra-solution activity (data gathering; selecting data to be manipulated) to the at least one abstract idea in a manner that does not meaningfully limit the at least one abstract idea (see MPEP § 2106.05(g)).
Thus, taken alone, the additional elements do not integrate the at least one abstract idea into a practical application. Looking at the additional limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. MPEP §2106.05(I)(A) and §2106.04(II)(A)(2).
For these reasons, independent claim 14 does not recite additional elements that integrate the judicial exception into a practical application. Accordingly, independent claim 14 is directed to at least one abstract idea.
The remaining dependent claim limitations not addressed above fail to integrate the abstract idea into a practical application as set forth below:
-Claim 5 recites how the sensor package includes at least one selected from the group consisting of a motion sensor, a heart rate sensor, a temperature sensor, a respiratory rate sensor, and an SpO2 sensor which does no more than generally link use of the abstract idea to a particular technological environment or field of use without adding an inventive concept to the abstract idea and because it is merely an incidental or token addition to the claim that does not alter or affect how the process steps are performed (see MPEP § 2106.05(h)).
-Claim 29 recites how the separate device is configured to display the data as a function of the particular time frame which amounts to merely using a computer and other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 31 recites how the sensor package includes a blood pressure sensor which does no more than generally link use of the abstract idea to a particular technological environment or field of use without adding an inventive concept to the abstract idea and because it is merely an incidental or token addition to the claim that does not alter or affect how the process steps are performed (see MPEP § 2106.05(h)).
Thus, when the above additional limitations are considered as a whole along with the limitations directed to the at least one abstract idea, the at least one abstract idea is not integrated into a practical application. Therefore, the claims are directed to at least one abstract idea.
Subject Matter Eligibility Criteria - Alice/Mayo Test: Step 2B:
Regarding Step 2B of the Alice/Mayo test, independent claim 14 does not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for reasons the same as those discussed above with respect to determining that the claim does not integrate the abstract idea into a practical application.
Regarding the additional limitations of the locating device; the ear-wearable device including the control circuit, microphone, power supply, and sensor package; the separate device; and the display screen of the separate device; the Examiner submits that these limitations amount to merely using a computer and other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
Regarding the additional limitation directed to streaming the microphone signals and the sensor package signals from the ear- wearable device to the accessory device and transmitting data based on the signals representing the identified speech over a particular time to a separate device which the Examiner submits merely add insignificant extra-solution activity to the abstract idea (see MPEP § 2106.05(g)), the Examiner has reevaluated such limitations and determined such limitations to not be unconventional as they merely consist of receiving/transmitting data over a network. See Intellectual Ventures I v. Symantec Corp., 838 F.3d 1307, 1321, 120 USPQ2d 1353, 1362 (Fed. Cir. 2016); See MPEP 2106.05(d)(II).
The dependent claims also do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for the same reasons to those discussed above with respect to determining that the dependent claims do not integrate the at least one abstract idea into a practical application.
-Claim 5 recites how the sensor package includes at least one selected from the group consisting of a motion sensor, a heart rate sensor, a temperature sensor, a respiratory rate sensor, and an SpO2 sensor which does no more than generally link use of the abstract idea to a particular technological environment or field of use without adding an inventive concept to the abstract idea and because it is merely an incidental or token addition to the claim that does not alter or affect how the process steps are performed (see MPEP § 2106.05(h)).
-Claim 29 recites how the separate device is configured to display the data as a function of the particular time frame which amounts to merely using a computer and other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 31 recites how the sensor package includes a blood pressure sensor which does no more than generally link use of the abstract idea to a particular technological environment or field of use without adding an inventive concept to the abstract idea and because it is merely an incidental or token addition to the claim that does not alter or affect how the process steps are performed (see MPEP § 2106.05(h)).
Therefore, claims 1-7, 9-11 and 27-32 are ineligible under 35 USC §101.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHON A. SZUMNY whose telephone number is (303) 297-4376. The examiner can normally be reached Monday-Friday 7-5.
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/JONATHON A. SZUMNY/Primary Examiner, Art Unit 3686