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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/6/26 has been entered.
Claim Objections
Claims 1 and associated dependent claims are objected to because of the following informalities: “second model equation” can be amended to be “model equation” so the claims can be numerically consistent without question of whether there is a missing “first model equation”. Appropriate correction is required.
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(s) is/are: “positioning device” in claims 1 and 11, which is disclosed as GPS in 0034.
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.
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 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 7 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.
The limitation “determining the current real-time heart rate of the user according to a difference between the current initial heart rate and a heart rate of the user measured at a previous moment” appears to be supported by 0034 and 0036 which describes a preset change index for GPS [positioning device] drift. However, the written description does not adequately describe how the preset change index is determined – the example of “3” given in 0036 does not have any units [is it 3 bpm or 3%?] or any description of how this is set for the preset change index that determines a current real-time user pace when the difference between the current initial heart rate and a heart rate of the user at a previous moment is too large. Additionally, 0036 does not seem to support a heart rate of the user “measured” at a previous moment – it appears 0036 states “tracked” instead. Clarification is requested as to what “measured” encompasses and how it differs from “tracked”.
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 1, 11 and associated dependent claims 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.
Claim limitation “positioning device” has been evaluated under the three-prong test set forth in MPEP § 2181, subsection I, as discussed above. However, it is unclear whether this limitation should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because Applicant in Remarks dated 2/6/26 states that the term “when read in light of the specification connote sufficient structure…” without indicating what that “sufficient structure” is, or how the term is supposed to be interpreted in light of how GPS drift corrections are disclosed in the specification. Consequently, the boundaries of this claim limitation are ambiguous; therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
In response to this rejection, applicant must clarify whether this limitation should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. Mere assertion regarding applicant’s intent to invoke or not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph is insufficient. Applicant may:
(a) Amend the claim to clearly invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by reciting “means” or a generic placeholder for means, or by reciting “step.” The “means,” generic placeholder, or “step” must be modified by functional language, and must not be modified by sufficient structure, material, or acts for performing the claimed function;
(b) Present a sufficient showing that 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, should apply because the claim limitation recites a function to be performed and does not recite sufficient structure, material, or acts to perform that function;
(c) Amend the claim to clearly avoid invoking 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by deleting the function or by reciting sufficient structure, material or acts to perform the recited function; or
(d) Present a sufficient showing that 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, does not apply because the limitation does not recite a function or does recite a function along with sufficient structure, material or acts to perform that function.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1, 9-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over “Rong”, CN 107595273, in view of “Chen”, CN 107376304.
Regarding claims 1 and 11 [NOTE: claim 11 is rejected under the alternative of “or” as related to the second model equation in parallel with claim 1], Rong discloses a tracking method of an exercise heart rate, applied in a photoelectric heart rate device [“measuring motion intensity through photoelectric sensor measuring heart rate”; “suitable for the heart sensor signal quality is not reliable for estimation of the heart rate, the method performed by a smart wearable device”], comprising:
invoking a pre-established target model equation reflecting a relationship between a user heart rate and a user pace [speed] after the user heart rate currently detected by the photoelectric heart rate device does not meet a preset heart rate standard [S14: “real-time speed and the final stable heart rate relation model, calculating the real-time speed“; “signal quality judging sensor is reliable, if so, according to sensor obtains the motion data calculating the real heart, otherwise, executing step s14”; step S13: “establishing the speed, the heart rate and the actual image relation model of the oxygen content”; invoking a pre-established mathematical relation model reflecting a relationship between user heart rate and user speed (pace) after determining that the heart rate signal from the photoelectric sensor does not meet a reliability standard]; and
inputting a current real-time pace of a user into the pre-established target model equation to obtain a current real-time heart rate of the user [S14: “when needing to estimate the heart rate, the real-time speed of the known current time, can be substituted into the relation model to calculate the stability of the final heart rate under the real-time speed”], wherein the current real-time pace of the user is detected by a positioning device [“obtained for nine sensor data such as speed”];
wherein the pre-established target model equation comprises a second model equation determined according to a relationship between a user heart rate reserve ratio and the user heart rate [S121: “The resting heart rate HRrest, maximum heart rate HRmax and the heart rate HR calculating heart rate reserve percentage”; “heart rate reserve heart rate percentage HRR% = reserve (HRR − heart rate resting heart rate HRrest)/maximum heart rate HRRmax”] and a relationship between the oxygen uptake and the user pace [S122: oxygen amount = 0.23 × speed (m/min) − 9.7985; relating speed to oxygen consumption which determines motion/exercise intensity percentage];
the second model equation is established using the following steps:
obtaining a first formula for calculating the user heart rate reserve ratio by using a real-time heart rate of the user, a resting heart rate of the user and a maximum heart rate of the user [S121: “heart rate reserve heart rate percentage HRR% = reserve (HRR − heart rate resting heart rate HRrest)/maximum heart rate HRRmax” with “maximum heart rate HRRmax = HRmax - maximum heart rate resting heart rate HRrest”] and
a second formula for calculating the oxygen uptake by using a real-time pace of the user [S122: oxygen amount = 0.23×speed (m/min)−9.7985].
Rong did not disclose explicitly that oxygen uptake correlates with the heart rate reserve ratio (HRR%), nor does it explicitly formulate a “second formula” that determines HRR% from real-time pace and maximum oxygen uptake pace.
Chen teaches a similar exercise monitoring device [Background] with the explicit teaching that heart rate reserve percentage [HRR%] correlates with maximum oxygen uptake percentage [step 106; “reserve rate percentage and maximum of the oxygen content percentage is equal in value (i.e. storage rate percentage = maximum oxygen uptake quantity percentage)”].
Since Chen teaches that HRR% = maximum oxygen uptake percentage = VO2/VO2max [“maximum oxygen uptake quantity percentage equal to the target oxygen amount/maximum oxygen uptake quantity”] and Rong discloses that VO2 [oxygen uptake] is a function of real-time pace [speed], then the correlation yields the second formula of: HRR% = f(pace)/ f(VO2max pace)].
Accordingly, the combined teachings would yield the second model equation based on the first formula and the second formula: with first formula HRR% = (HRR - HRrest)/(HRRmax) and second formula = f(pace)/ f(VO2max pace); solving by equating the formulas based on HRR% = f(pace)/ f(VO2max pace) as discussed above would yield heart rate HRR = HRrest + ((HRRmax) * (f(pace)/ f(VO2max pace))).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the explicit teaching of HRR% and oxygen-uptake relationship from Chen with Rong’s disclosure relating oxygen uptake to speed, resulting in the formulas and model equation as discussed. An ordinary artisan would have been motivated to enhance the base device of Rong with the well-known and applicable teachings of Chen to derive a unified model equation that directly equates the heart rate-based HRR% formula to a pace-based oxygen uptake formula suitable for heart rate estimation when the photoelectric sensor is unreliable.
Regarding claim 9, Rong further discloses an electronic apparatus [e.g., Embodiment A] comprising one of more processors [e.g., processing unit 33] and a storage apparatus configured to store one or more programs [Embodiment A, software] executed by the processor(s) perform the tracking method according to claim 1.
Regarding claim 10, Rong further discloses a non-transitory computer-readable storage medium for storing a computer program to perform the tracking method according to claim 1 [Embodiment A which comprises hardware and software implicitly includes some memory in order to hold the software].
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Rong and Chen in view of "Run Testing - Calculating Your VDOT Pace and Lactate Threshold Heart Rate", 2013, Tri Training Harder (hereinafter Tri Training Harder).
Regarding Claim 5, Rong and Chen do not disclose the method further comprising: determining a corresponding lactate threshold pace by using a standard pace of the user in a standard competition course; and determining a maximum oxygen uptake pace of the user based on the corresponding lactate threshold pace.
Tri Training Harder teaches determining a corresponding lactate threshold pace by using a standard pace of the user in a standard competition course (VDOT Table 1 depicts threshold pace values associated with a race result; Examiner notes race result pace as standard pace, race result distance as standard competition course, and threshold pace as lactate threshold pace that is determined by following the line item associated with a race result pace in the table); and
determining a maximum oxygen uptake pace of the user based on the corresponding lactate threshold pace (VDOT Table 1 depicts VDOT values, corresponding mile pace values and threshold pace values associated with a race result; Page 1, Paragraph [0004], line 1, VDOT is the over-arching name for VO2 Max values (maximum oxygen uptake capacity); Examiner notes mile pace associated with VDOT as maximum oxygen uptake pace which is determined by following the line item associated with the corresponding lactate threshold pace in the table .
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Rong and Chen to include a step to determine the lactate threshold from a standard pace of the user in a standard competition course and to determine a maximum oxygen uptake pace of the user based on the lactate threshold pace. Doing so would allow for the determination of training paces for an individual, as recognized by Tri Training Harder (Page 2, Paragraph [0001], line 2, By determining lactate threshold through conducting a VDOT test, it is possible to deduce the accurate intensities (paces) at which individuals should train at).
Allowable Subject Matter
Claim 6 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant’s arguments filed 2/6/26 have been considered but are moot in view of the new grounds of rejections as necessitated by amendments.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
“Korhonen”, US Publication 20200129130, teaches collecting beat-to-beat heart rate data and, for each time period, calculating an artifact percentage and a heart-rate value, then qualifying only those periods where the user is verified to be awake and immobile and where the artifact percentage is under a predetermined value. It further indicates that if speed with altitude (via GPS) is measured, VO2max can be determined.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Tse Chen whose telephone number is (571)272-3672. The examiner can normally be reached M-F 7-3 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jonathan Moffat can be reached at 571-272-4390. 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.
/TSE CHEN/Supervisory Patent Examiner, Art Unit 3791
Prosecution Insights