DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
The amendment to the claims filed 29 October 2025 has been entered. Claim(s) 18 and 23-24 is/are currently amended. Claim(s) 1-17 and 20-21 has/have been canceled. New claim(s) 25-33 has/have been added. Claim(s) 18-19 and 22-33 is/are pending.
Drawings
Drawings (i.e., a complete set of replacement sheets) were received on 29 October 2025. These drawings are acceptable. The objection(s) to the drawings made of record in the prior Office action (mailed 30 July 2025, "Non-Final Rejection") has/have been withdrawn.
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.
Claim(s) 18-19 and 22-33 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because said claims encompass non-statutory transitory forms of signal transmission (e.g., propagating electrical, electromagnetic or carrier wave). See MPEP 2106.03.
Allowable Subject Matter
Claims 18, 24, 30 and claims dependent thereon would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 101 set forth in this Office action (i.e., by limiting the claims to statutory non-transitory computer-readable storage media).
Independent claim 24 and claims dependent thereon would be allowable for at least the reasons discussed in the Non-Final Rejection (see, e.g., pgs. 13-14).
With respect to independent claims 18 and 30, the prior art of record fails to disclose and/or suggest, in combination with the remaining recited limitations, plotting the determined pre-dominant postural positions on a posture graph comprises displaying the posture graph with its first axis substantially perpendicular to the first axis of the vector graph, and aligning the posture graph with the vector graph such that, for each row of the vector graph, that row is aligned with a portion of the posture graph corresponding to the respective time period of that row as required by claim 18 and/or plotting the respiratory rates on a respiratory rate graph comprises displaying the respiratory rate graph with its first axis substantially perpendicular to the first axis of the vector graph, and aligning the respiratory rate graph with the vector graph such that, for each row of the vector graph, that row is aligned with a portion of the respiratory rate graph corresponding to the respective time period of that row. Applicant contends the above-noted display arrangements are more than a mere matter of design choice, as each display enables a trained physician to "more quickly determine whether breathing patterns or sleep disorders are posture related" (Remarks, pgs. 13-14), and "quickly distinguish between REM-related breathing patterns or sleep disorders and non-REM-related breathing patterns or sleep disorders" (Remarks, pg. 15), respectively.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
With respect to rejections under 35 U.S.C. 101, Applicant contends the claims are directed to statutory subject matter because the specification states "[c]omputer readable media includes, but is not to be confused with, computer readable storage medium, which is intended to cover all physical, non-transitory, or similar embodiments of computer readable media" (Remarks, pg. 12).
The examiner respectfully disagrees. The examiner acknowledges Applicant may act as his/her own lexicographer and/or may disavow claim scope. However, as noted in MPEP 2111.01, "To act as their own lexicographer, the applicant must clearly set forth a special definition of a claim term in the specification that differs from the plain and ordinary meaning it would otherwise possess. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366, 62 USPQ2d 1658, 1662 (Fed. Cir. 2002). The specification may also include an intentional disclaimer, or disavowal, of claim scope." The specification stating that computer readable storage media covers physical, non-transitory media, as noted by Applicant, does not limit the term/phrase to only covering physical, non-transitory media. There is no clear indication in the specification that the scope of the term "computer readable storage media" is limited to non-transitory media. Accordingly, since the plain meaning of "computer readable storage media" reasonably encompasses transitory forms of signal transmission, and Applicant has not rebutted the presumption of plain meaning of the term by clearly disavowing the full scope of the term, the pending claims encompass non-statutory, transitory embodiments, i.e., are directed to non-statutory subject matter. See MPEP 2106.03. In view of the above, the rejection(s) under 35 U.S.C. 101 have been maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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 Meredith Weare whose telephone number is 571-270-3957. The examiner can normally be reached Monday - Friday, 9 AM - 5 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. Applicant is encouraged to use the USPTO Automated Interview Request at http://www.uspto.gov/interviewpractice to schedule an interview.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Tse Chen, can be reached on 571-272-3672. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Meredith Weare/Primary Examiner, Art Unit 3791