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 Arguments
Applicant’s arguments, see remarks and claims, filed 12/17/2024, with respect to the rejection(s) of claim(s) under 35 USC 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of the following:
Claim(s) 1-2, 5-7, 12-14, 19-20, 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over KR200295325Y1 to Young-Jong in view of US20180049668A1 to Defant et al (previously presented).
Claim(s) 8-11, 24, 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Young as modified by Defant as applied to claims 1-2, 5-7, 12-14, 19-20, 23 above, and further in view of US Pat Pub No. 20170055573 granted to Utley et al. (previously presented).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Young as modified by Defant as applied to claims 1-2, 5-7, 12-14, 19-20, 23 above, and further in view of US Pat No. 10653324 to Mbata (previously presented).
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over KR200295325Y1 to Young-Jong in view of US Pat No. 10653324 to Mbata (previously presented)
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Young as modified by Defant as applied to claims 21 above, and further in view of US Pat Pub No. 20170055573 granted to Utley et al. (hereinafter “Utley” – previously presented).
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.
Claim 2 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 2 recites “wherein the induction tube extends outward from the band when inserted into the sample intake port.”. however, claim 1 recites the sample intake port to be on a surface of the housing. It is unclear how the induction band extends outward from the band when inserted into the sample intake port placed on the front surface of the housing as provided in claim 1.
Claim 3 depends on claim 2 and inherits the same rejection.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-2, 5-7, 12-14, 19-20, 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over KR200295325Y1 to Young-Jong (hereinafter “Young”) in view of US20180049668A1 to Defant et al (previously presented).
Regarding claim 1. (Previously Presented) Young discloses a wearable device (para 0032 “golf watch”, para 0033 “a hanging part”, figs 1-5) for measuring intoxication of a user (para 0028, 0036, 0046 “a breathalyzer for measuring the user's alcohol intake”), the wearable device comprising: a housing (para 0036 “main body 210”) comprising: a sample intake port on a surface of the housing (para 0036 “breathalyzer (261)”), wherein the sample intake port is in a position and configured for the user to provide a sample by blowing or exhaling directly into the sample intake port (para 0046 “the user blows into the breathalyzer measuring port (261)”), and wherein the sample intake port is flush with the front surface of the housing (figs 1, 3-4); and one or more processors or other circuitry configured to analyze the sample from the user and to determine a level of intoxication of the user based on an analysis of the sample (para 0046 “the user's alcohol consumption can be measured in the breathalyzer of the measuring device (250), and the measured amount of alcohol consumed by the user is displayed in the display part (256), so that the user's alcohol consumption can be known.”); a band connected to the housing (para 0010, 0023, “hanging part”); and an indicator configured to visually display the level of intoxication of the user (para 0046 “display part (256)”); wherein the sample is inducted into the sample intake port through the surface of the housing (para 0046); and wherein the intoxication of the user is determined based on presence and/or concentrations of at least alcohol in the sample (para 0046, 0050).
It is initially noted that the claim as recited does not provide any details regarding “the front surface of the housing”. Under its broadest reasonable interpretation, either side could be considered to be the front side of the housing. However, in order to advance prosecution, Young is considered to have failed to disclose the sample intake port to be on the front surface of the housing (i.e., main body). The court has held that rearrangement of parts and/or shifting of the components would not have modified the operation of the device and is considered to be an obvious matter of design choice. See In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950). It is also noted that the court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Such rearrangement is known in the art as evident in Defant’s reference.
Defant, from a similar field of endeavor, teaches that it is known for the alcohol detection module, including air intake, to be placed on the front surface of the housing (fig. 1, fig. 18). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the disclosure of Young with the known teachings of Defant, to provide the predictable result of providing the input on the face of the housing as desired.
Regarding claim 2. (Previously Presented) Young as modified by Defant renders obvious the wearable device of claim 1, comprising a detachable induction tube configured for insertion into the sample intake port, wherein the induction tube extends outward from the band when inserted into the sample intake port (Defant, para 0035, “reflective tube”).
Regarding claim 5. (Previously Presented) Young as modified by Defant renders obvious the wearable device of claim 1, wherein the band is configured to be worn on a wrist, hand, one or more fingers, or around a neck of the user (para 0023, the device is capable to attach to any part of clothing/belt; also see Defant at para 0006 “wrist worn alcohol detection device”).
Regarding claim 6. (Original) Young as modified by Defant renders obvious the wearable device of claim 1, wherein the indicator comprises one or more light emitting diodes (LEDs) on an exterior surface of the band (para 0038 “a high-brightness LED (light-emitting diode: 242)”). The court has held that rearrangement of parts and/or shifting of the components would not have modified the operation of the device and is considered to be an obvious matter of design choice. See In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950). It is also noted that the court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Regarding claim 7. (Original) Young as modified by Defant renders obvious the wearable device of claim 6, wherein the indication of the level of intoxication of the user is based on user input settings (para 0040).
Regarding claim 12. (Previously Presented) Young as modified by Defant renders obvious the wearable device of claim 1, wherein the wearable device is configured for detecting intoxication by two or more of presence and/or concentrations of alcohol, tetrahydrocannabinol (THC), Rohypnol, Benzodiazepine, Ketamine, and/or opioids in the sample (Defant, para 0018, 0026, 0030; it is understood that a device that is capable of detecting intoxication based on carbon monoxide, and/or alcohol, would be able to be modified to detect the presence of other elements. see KSR “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success; Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;”. Here, modifying the wearable device that includes a carbon monoxide detector with the alcohol detection module and other modules to detect other levels, would provide an obvious benefit in detecting detoxication based on alcohol level.”).
Regarding claim 13. (Original) Young as modified by Defant renders obvious the wearable device of claim 1, wherein the indicator comprises a display screen (para 0040 “display unit (256)”, Defant para 0018 “display”).
Regarding claim 14. (Original) Young as modified by Defant renders obvious the wearable device of claim 13, wherein the display screen is a touchscreen (Defant para 0018 “display 108 through soft or touch interaction”).
Regarding claim 19. (Original) Young as modified by Defant renders obvious a system for determining a level of intoxication of a user, the system comprising: the wearable device according to claim 1; and a computing device operating a software application; wherein the wearable device is in communication with the computing device and the software application and is configured for determining the level of intoxication of the user (Defant, para 0026, 0033, etc.).
Regarding claim 20. (Original) The system of claim 19, wherein the computing device is a mobile device and the software application is a mobile software application (Defant, para 0020, 0031, 0044, etc.).
Regarding claim 23. (Previously Presented) Young discloses a wearable device (para 0032 “golf watch”, para 0033 “a hanging part”, figs 1-5) for measuring intoxication of a user (para 0028, 0036, 0046 “a breathalyzer for measuring the user's alcohol intake”), the wearable device comprising: a housing comprising one or more processors or other circuitry configured to analyze a sample from the user and to determine a level of intoxication of the user based on an analysis of the sample (para 0046 “the user's alcohol consumption can be measured in the breathalyzer of the measuring device (250), and the measured amount of alcohol consumed by the user is displayed in the display part (256), so that the user's alcohol consumption can be known.”); a band that is configured for being worn on a wrist of the user (para 0010, 0023, “hanging part”, capable to attach to a watch on a wrist), comprises a sample intake port (para 0036 “breathalyzer (261)”);, and is connected to the housing (para 0036 “main body 210”); and an indicator configured to visually display the level of intoxication of the user (para 0046); wherein the sample is inducted into the sample intake port (fig. 1-5); and wherein the intoxication of the user is determined based on presence and/or concentrations of at least alcohol in the sample (para 0046, 0050), but fails to explicitly disclose the input port to be on the band.
It is noted that the claim as recited does not provide any details regarding the band and the housing. Under its broadest reasonable interpretation, any portion of the device could be considered to be part of the band. The court has held that rearrangement of parts and/or shifting of the components would not have modified the operation of the device and is considered to be an obvious matter of design choice. See In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950). It is also noted that the court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Defant, from a similar field of endeavor, teaches that it is known for the alcohol detection module, including air intake, to be on a watch having bands (fig. 1,). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the disclosure of Young with the known teachings of Defant, to provide the predictable result of providing the input on the face of the housing as desired.
Claim(s) 8-11, 24, 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Young as modified by Defant as applied to claims 1-2, 5-7, 12-14, 19-20, 23 above, and further in view of US Pat Pub No. 20170055573 granted to Utley et al. (hereinafter “Utley” – previously presented).
Regarding claim 8. (Original) Young as modified by Defant renders obvious the wearable device of claim 6, but fails to disclose wherein the one or more LEDs comprises a plurality of LEDs, each of which is a different color to indicate various levels of intoxication.
Utley, from a similar field of endeavor, teaches the feedback to be in the form of a visual element (an illumination source of one or more colors). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to modify the disclosure of Young as modified by Defant with the teachings of Utley to provide the predictable result of providing feedback to the user.
Regarding claim 9. (Original) Young as modified by Defant and Utley renders obvious the wearable device of claim 8, wherein: the level of intoxication represented by each of the plurality of LEDs can be set by the user using a software application in communication with the wearable device via Bluetooth, WiFi, and/or a mobile communications data network; and the wearable device is configured to transmit results of analysis of the sample to the software application for determining the level of intoxication of the user based on the analysis (Utley, para 0072, 0075-0076, 0080, etc.).
Regarding claim 10. (Previously Presented) Young as modified by Defant and Utley renders obvious the wearable device of claim 9, wherein the software application is stored in a memory of, and executed by one or more processors of, a mobile phone, tablet, personal digital assistant, or laptop (Utley, para 0072, 0075-0076, 0080, etc.).
Regarding claim 11. (Previously Presented) Young as modified by Defant and Utley renders obvious the wearable device of claim 9, wherein the software application comprises a signature feature such that sexual consent can be indicated via the signature feature only when the level of intoxication of the user is below a predetermined threshold (See rejection of claim 1; it is noted that the claim does not require any details regarding the “signature feature” that can “indicate sexual consent”. The specification further does not shed light on what this feature is intended to be. Therefore, under its broadest reasonable interpretation, it is understood that the claim only requires displaying data which the user can understand to be an indication of intoxication, and capability of giving sexual consent.; Utley, para 0159).
Regarding claim 24. (Previously Presented) Young as modified by Defant renders obvious the wearable device of claim 23, but fails to disclose wherein the indicator is configured to emit, based on a desired limit of alcohol intoxication specified by the user, different colors of light, including: a green light; a yellow light to indicate that a level of intoxication of the user is nearing the limit of alcohol intoxication specified by the user; and a red light to indicate that the level of intoxication of the user exceeds the limit of alcohol intoxication specified by the user. Utley, from a similar field of endeavor, teaches the feedback to be in the form of a visual element (an illumination source of one or more colors). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to modify the disclosure of Young as modified by Defant with the teachings of Utley to provide the predictable result of providing feedback to the user.
Regarding claim 26. (Previously Presented) Young as modified by Defant renders obvious the wearable device of claim 1, but fails to disclose wherein the indicator is configured to emit, based on a desired limit of alcohol intoxication specified by the user, different colors of light, including: a green light; a yellow light to indicate that a level of intoxication of the user is nearing the limit of alcohol intoxication specified by the user; and a red light to indicate that the level of intoxication of the user exceeds the limit of alcohol intoxication specified by the user. Utley, from a similar field of endeavor, teaches the feedback to be in the form of a visual element (an illumination source of one or more colors). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to modify the disclosure of Young as modified by Defant with the teachings of Utley to provide the predictable result of providing feedback to the user.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Young as modified by Defant as applied to claims 1-2, 5-7, 12-14, 19-20, 23 above, and further in view of US Pat No. 10653324 to Mbata (previously presented).
Regarding claim 3. (Original) Young as modified by Defant renders obvious the wearable device of claim 2, but fails to disclose wherein the band further comprises an integrated holster configured for securely holding the detachable induction tube in a position such at least a portion of the detachable induction tube is hidden within the band.
Mbata, from a similar field of endeavor teaches providing a band includes a housing which includes an opening (i.e., integrated holster) to receive the tube 14, tube is inserted into housing, therefore, a portion of the tube will be hidden within the housing which is understood to be part of the band (figs 1A-B, 4A-B).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to modify the disclosure of Young as modified by Defant with the teachings of Mbata, to provide the predictable result of storing the tube.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over KR200295325Y1 to Young-Jong (hereinafter “Young”) in view of US Pat No. 10653324 to Mbata (previously presented).
Regarding claim 21. (Previously Presented) Young discloses a wearable device (para 0032 “golf watch”, para 0033 “a hanging part”, figs 1-5) for measuring intoxication of a user (para 0028, 0036, 0046 “a breathalyzer for measuring the user's alcohol intake”), the wearable device comprising: a band configured for being worn on a wrist of the user (para 0010, 0023, “hanging part”, capable to attach to a watch on a wrist) and comprising a sample intake port (para 0036 “breathalyzer (261)”); a housing formed on the band (para 0036 “main body 210”) and comprising one or more processors or other circuitry configured to analyze a sample from the user (para 0046), the sample being inducted into the sample intake port (para 0046), and to determine a level of intoxication of the user based on an analysis of the sample (para 0046); and an indicator configured to visually display the level of intoxication of the user (para 0046 “the user's alcohol consumption can be measured in the breathalyzer of the measuring device (250), and the measured amount of alcohol consumed by the user is displayed in the display part (256), so that the user's alcohol consumption can be known.”); wherein the band is configured for attachment to a smartwatch (para 0010, 0023, “hanging part”, capable to attach to a watch on a wrist); and wherein the intoxication of the user is determined based on presence and/or concentrations of at least alcohol in the sample (para 0046, 0050), but fails to disclose the display to be of the smartwatch.
Mbata, from a similar field of endeavor teaches the wearable device to be a smart watch (Col 1, ln 15-16). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to modify the disclosure of Young with the teachings of Mbata, to provide the predictable result of providing the benefits and capabilities of the smartwatch.
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Young as modified by Defant as applied to claims 21 above, and further in view of US Pat Pub No. 20170055573 granted to Utley et al. (hereinafter “Utley” – previously presented).
Regarding claim 25. (Previously Presented) Young as modified by Mbata renders obvious the wearable device of claim 21, but fails to disclose wherein the indicator is configured to emit, based on a desired limit of alcohol intoxication specified by the user, different colors of light, including:a green light;a yellow light to indicate that a level of intoxication of the user is nearing the limit of alcohol intoxication specified by the user; and a red light to indicate that the level of intoxication of the user exceeds the limit of alcohol intoxication specified by the user.
Utley, from a similar field of endeavor, teaches the feedback to be in the form of a visual element (an illumination source of one or more colors). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to modify the disclosure of Young as modified by Mbata with the teachings of Utley to provide the predictable result of providing feedback to the user.
Conclusion
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/SANA SAHAND/Examiner, Art Unit 3796