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 Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(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 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.
Claims 1, 3-13, and 15-19 are rejected under 35 U.S.C. 112(a) 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.
In regards to claim 1 the specification does not clearly define how the breath frequency is calculated. The specification states that “The first time differences are used to calculate a present breath frequency” on page 9, but fails to adequately describe how the time differences are used to calculate the present breath frequency. The specification also fails to provide any description as to how the breath frequency is calculated from a first, second, or third time difference, or any combination thereof.
Claim 1 also states that the first slow-moving average signal is “smoother” than the first fast-moving average signal. There is no support within the specification for the first slow-moving average signal being “smoother” than the first fast-moving average signal. The same issue is present in claim 11.
Claims not explicitly rejected above are rejected because they depend from claims rejected above as failing to comply with the written description requirement.
Claims 1, 3-13, and 15-19 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1 contains the phrase “determining a plurality of cross points between the difference signal and a reference signal, wherein a time difference between every two adjacent cross points; and transmitting the time differences through the first communication module”. It is unclear what is meant by “wherein a time difference between every two adjacent cross points”. For purposes of examination the claim is being interpreted as “wherein a time difference between every two adjacent cross points is determined”. The same issue is present in claim 11.
Claims not explicitly rejected above are rejected because they depend from claims rejected above as indefinite.
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, 3-13, and 15-19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
Regarding claim 1, the claim recites a concrete thing, consisting of parts, signal processing circuit. Thus, the claim is directed to a machine, which is one of the statutory categories of invention.
The claim is then analyzed to determine whether it is directed to any judicial exception. The signal processing circuit contains a step of obtaining the time differences and calculate a present breath frequency according to the time differences. which sets forth a judicial exception. This step describes a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to a Mental Process, which is an Abstract Idea.
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. The determination of the cross points does not provide an improvement to the technological field, the method carried out by the signal processing circuit does not effect a particular treatment or effect a particular change based on the determined cross points, nor is the method carried out using a particular machine to perform the Abstract Idea.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Claim 11 also states that the signal processing circuit carries out the steps of processing the sensing signal by
Besides the Abstract Idea, the claim recites additional elements in the form of a vibration sensor that that outputs a sensing signal that is then obtained by the signal processing circuit, as well as using the signal processing circuit to transmit the time differences through the first communication module. Obtaining data and transiting data is well-understood, routine and conventional activity for those in the field of medical diagnostics. Further, the outputting, obtaining, and transmitting steps are each recited at a high level of generality such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering and comparing activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the obtaining and comparing steps do not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
Furthermore, the device recited in claim 1 is a generic device comprising generic components configured to perform the abstract ideas stated in the claim. The recited vibration sensor is a generic sensor configured to perform pre-solutional data gathering activity, and the signal processing circuit is configured to perform the Abstract Idea. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application.
The dependent claims also fail to add something more to the abstract independent claims as they generally recite method steps pertaining to abstract ideas in the form of mental processes or mathematical processes. The steps relating to elements of the device recited in the independent claims also fail to integrate the Abstract Ideas into a practical application.
The same rationale applies to claim 11.
Response to Arguments
Applicant’s arguments, see page3, filed 6/16/2025, with respect to the rejection(s) of claim(s) 1-19 under U.S.C 112(a) in regards to the “moving average language” have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground of rejection is made in response to the amendment.
Applicant's arguments filed 6/16/2025, with respect to the rejection(s) of claim(s) 1-19 under U.S.C 112(a) in regards to the calculation of a breath frequency have been fully considered but they are not persuasive. The specification fails to explain how a breath frequency is calculated. Furthermore, there is no adequate description within the specification as to how Fig. 5C shows a breath frequency calculation.
Applicant’s arguments, see page 3, filed 6/16/2025, with respect to the rejection(s) of claim(s) 1-19 under U.S.C 112(b) have been fully considered and are persuasive. However, upon further consideration, a new ground of rejection is made in response to the amendment.
Examiner’s Note
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Young (US 20200107753 A1) teaches determining a user’s respiration using vibration sensors in a mattress (Fig. 10A [0079]).
Nakatani (US 7306564 B2) teaches a mat with sensors to determine a user’s breath signal while the user is laying on a bed (Nakatani Abstract).
Ariav (US 20100234750 A1) teaches a vibration sensor in a hollow casing configured to detect breathing disorders (Fig. 1 [0026-0027]).
Ricci (US 11701028 B2) teaches a method of processing signals relating to respiratory rate (Ricci Abstract).
Im (US 20100145167 A1) teaches a pillow that uses vibration sensors to detect breathing ([0009-0010]).
Fornell (US 20210361172 – previously cited) teaches a breath detecting mat comprising: a hollow board (Paragraph 0178, Lines 3-6); at least one vibration sensor mounted in the hollow board to sense vibrations of the hollow board and output a sensing signal (Paragraph 0178, Lines 3-6); and a signal processing circuit mounted in the hollow board and electrically connected to the at least one vibration sensor and a first communication module to obtain the sensing signal (Paragraph 0181, Lines 1-7) that determines the breath frequency based on the signal (Paragraph 00100).
Childs (WO 0112064 A1 – previously cited) teaches a breath detecting mat comprising piezoelectric movement sensors that determine breathing frequencies (Page 3, Paragraph 2,lines 1-3; FIG.3).
In regards to claims 1 and 11, none of the prior art teaches or suggests, either alone or in combination, a device comprising a signal processing circuit programmed to: process a sensing signal by a moving average to generate a first fast-moving average signal and a first slow-moving average signal; generate a difference signal by subtracting the first slow-moving average signal from the first fast-moving average signal; and determine a plurality of cross points between the difference signal and a reference signal, in combination with the other claimed elements.
Claims 1, 3-13, and 15-19 contain no prior art rejections, however they are not in condition for allowance due to their rejections under 35 U.S.C. 112(a), 35 U.S.C. 112(b), and 35 U.S.C. 101.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUCY EPPERT whose telephone number is (571)270-0818. The examiner can normally be reached M-F 7:30-5:00 EST.
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/LUCY EPPERT/Examiner, Art Unit 3791
/ETSUB D BERHANU/Primary Examiner, Art Unit 3791