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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 03/20/2026 has been entered.
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 1-11, 13-18, and 20-22 are rejected under 35 U.S.C. 101 because 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.
STEP 1
Regarding claim 1, the claim recites a series of steps or acts, including producing a respiration image overtime. Thus, the claim is directed to a process, which is one of the statutory categories of invention.
STEP 2A, PRONG ONE
The claim is then analyzed to determine whether it is directed to any judicial exception. The step of producing a respiration image of the subject overtime 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.
STEP 2A, PRONG TWO
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 respiration image does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the image, nor does the method use a particular machine to perform the Abstract Idea.
STEP 2B
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. Besides the Abstract Idea, the claim recites additional steps of determining depth data, analyzing the image, creating background image, analyzing each ROI for respiration, preparing masks, weighting the masks, combining the masks, and creating a visual respiration image . The above steps are well-understood, routine and conventional activity for those in the field of medical diagnostics. Further, the determining, analyzing, creating, weighting, and extracting 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, analyzing data, and imaging producing 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 producing step does 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.
The same rationale applies to claim 13.
The dependent claims also fail to add something more to the abstract independent claims as they generally recite method steps pertaining to data processing and the display of data. The producing step recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Examiner’s Note
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Suzuki et al. teaches the smoothed bone-image-like image f.sub.S(x,y) of the multi-resolution MTANN was subtracted from the corresponding chest radiograph g(x,y) with the mask image m(x,y) as follows: s(x,y)=g(x,y)-w.sub.S.times.f.sub.S(x,y).times.m(x,y), (7) where w.sub.S is a weighting parameter for determining the contrast of ribs. US 7545965
Rubin et al. combining the first lung tracking data and the second lung tracking data to create stage combination data may further include calculating a robustness weighting value for each frame of the temporally-filtered robustness set of sub-images and the lung surface mask set of sub-images from a robustness stage correlation magnitude and robustness predetermined threshold limits. US 20230165567
Schleyer et al. a phase weighted mask is created for each axial section, to identify voxels that are subject to a respiratory motion. Thus, all the phase weighted masks allow a further analysis to be performed only on the voxels in the volumes that are moving. US 20210106301
Charles et al. teaches creating lung masks from the .sup.1H MRI images, apply the created masks to the registered .sup.19F images, then extract summary parameters from the .sup.19F image data to assess ventilation defects. US 20130006094
Kadbi et al. teaches a medical system comprising a memory for storing machine-executable instructions. Execution of the instructions causes the processor to receive four-dimensional Dixon magnetic resonance image data. The four-dimensional Dixon magnetic resonance image data is T1 weighted. The four-dimensional Dixon magnetic resonance image data is synchronized to a respiratory signal. US 20220299587
Due to the 35 U.S.C. 101 rejection above, allowable subject matter cannot be determined and/or identified at this time.
Response to Arguments
Applicant's arguments filed 02/20/2026 have been fully considered but they are not fully persuasive.
Applicant contends that the particular processing steps and display output show an improvement to the technology or technological field because they provide a practical solution for determining a respiratory rate of a patient using a non-contact monitoring system, on pages 9-10 of the Remarks. Examiner disagrees. First, respiratory rate is not claimed in any limitation. Second, even assuming arguendo, there is no practical application of the respiratory rate. Determining respiratory rate is pre-solution activity to a practical solution, e.g. providing therapy or surgery based on the determined respiratory rate. That is, the claims are required to provide more than just presolution activity to a practical application. This can be achieved by providing therapy or the like based on the presolution activity or using a particular machine to perform the Abstract Idea, e.g. the particulars of a depth camera.
Applicant argues that there is no generic recitation of general computer components, but rather a special purpose medical apparatus that provides a technical solution to a technical problem to produce actionable medical output for treating a patient, on page 11 of the Remarks. Examiner disagrees. Examiner invites Applicant to point out where the particulars for the computer components are recited in the claims or specification. There is no recitation of any computer component in the independent claims. Moreover, the actionable output for treating a patient is not apparent based on the claims. By providing a treatment based on the output in the claims may help in overcoming the 35 U.S.C. 101 rejection.
Applicant argues that the respiratory image produced in claim 1 provides an actionable output for medical caregivers to improve patient care, therefore integrates the judicial exception into a practical application, on page 11-12 of the Remarks. Examiner disagrees. Based on the plain language of the claims, there is no determination of irregular respiration parameters, if anything, the claims are merely directed to determining whether respiration is happening in general. However, this is different from any determination of abnormality that results in medical intervention. That is, there is no determination of any abnormalities or providing an output of such abnormalities to a third party for therapy.
Applicant argues that amended claim 1 as a whole amounts to significantly more than any mental step because of the specific processing, extraction steps, and the display of an image, on page 13 of the Remarks. Examiner disagrees. The claims as written merely provide pre-solution data gathering (obtaining data from depth camera), using a computer to perform the abstract idea (producing the image), and insignificant extra-solution activity to the judicial exception (displaying the produced image). MPEP 2106.05(g); see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Applicant arguments related to 35 U.S.C. 103 and 112(b) rejections and in view of the amendments, overcome the previously stated rejection. As such, the rejections have been withdrawn.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARTIN NATHAN ORTEGA whose telephone number is (571)270-7801. The examiner can normally be reached M-F 7:10 am - 5:00 pm.
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/MARTIN NATHAN ORTEGA/ Examiner, Art Unit 3791 /TSE CHEN/Supervisory Patent Examiner, Art Unit 3791
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