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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 31 December 2025 has been entered.
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.
Claim 1, 3, 5-11, 17, 20-25, 27, 29, and 31 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the particular data" in lines 7, 11, and 15. There is insufficient antecedent basis for this limitation in the claim. The same issue is present in claims 6, 10, and 20
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 1 recites the broad recitation “greater than or equal to a threshold” , and the claim also recites “greater than” the threshold which is the narrower statement of the range/limitation. Claim 1 also recites the broad recitation “less than or equal to a threshold” , and the claim also recites “less than” the threshold which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. The same issues are present in claims 6, 10, and 20
Claim 1 contains the phrase “being greater than or greater than or equal to the threshold or less than or less than or equal to the threshold depending on the particular data and the threshold the time-varying index is being compared to”. It is unclear as to what “the particular data is”. Furthermore, there is only one threshold mentioned and a value would inherently be either “greater than or greater than or equal to a threshold” or “less than or less than or equal to the threshold”, and in that case a notification will always be caused. For purposes of examination the claim is being interpreted as “greater than or equal to a first threshold or less than or equal to a second threshold “. The same issue is present in claims 6, 10, and 20.
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, 5-11, 17, and 20-31 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 10 follows.
Regarding claim 10, the claim recites a series of steps or acts, including determining that the time-varying index value satisfies the threshold or a machine learning classification. Thus, the claim is directed to a process, 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 step of determining that the time-varying index value satisfies the threshold or a machine learning classification sets for 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 claim recites causing, based on the time-varying index value satisfying the threshold or the machine learning classification, a notification to occur, which is merely adding insignificant extra post solution activity to the judicial exception (MPEP 2106.05(g)). The notification 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 notification, nor does the method use 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 10 recites determining, based on the time-varying index value satisfying a threshold, an oxygen toxicity in the user, which is an abstract idea in the form of a mental process. Claim 10 also recites step of receiving, by a computing device from a sensor, electrodermal activity data of a user. Receiving data is a well-understood, routine and conventional activity for those in the field of medical diagnostics. Claim 10 also recites a step of determining, based on the electrodermal activity data, a time-varying index value. This step describes a mathematical concept which is an abstract idea. Claim 10 recites a step of determining, via a machine learning module and based on historical data of the user, a threshold. This step describes a concept performed in the human mind, which is another abstract idea. Further, the receiving and determining steps are recited at a high level of generality such that it amounts to insignificant pre-solution activity, e.g., mere data gathering steps 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.
The same rationale applies to claim 1
Regarding claim 20, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The one or more processor and memory are 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 data gathering, model training, and notification displaying. The dependent claims regarding determining steps are also drawn to abstract ideas in the form of mental processes. The determining steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Response to Arguments
Applicant’s arguments, see remarks, filed 11/26/2025, with respect to the rejection(s) of claim(s) 7 and 23 under 35 U.S.C. 112(a) have been fully considered and are persuasive. The rejection(s) of claim(s) 7 and 23 under 35 U.S.C. 112(a) have been withdrawn.
Applicant’s arguments, see remarks, filed 11/26/2025, with respect to the rejection(s) of claim(s) 1, 3, 5-11, 17, and 20-31 under 35 U.S.C. 112(b) 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 for claims 1, 3, 5-11, 17, 20-25, 27, 29, and 31.
Applicant's arguments filed 11/26/2025, with respect to the rejection(s) of claim(s) 1, 3, 5-11, 17, and 20-31 under 35 U.S.C. 101 have been fully considered but they are not persuasive. According to the specification the device merely notifies the user of the oxygen toxicity level and the user may choose to discontinue breathing elevated oxygen levels based on the oxygen toxicity level. The oxygen toxicity level is merely a display of the data, not an alarm that displays that the user must discontinue breathing elevated oxygen levels. Therefore, the alarm is merely insignificant extra post solution activity.
Examiner’s Note
Claims 1, 3, 5-11, 17, 20-25, 27, 29, and 31 contain no prior art rejections, however they are not in condition for allowance due to their rejections under 35 U.S.C. 112(b), and 35 U.S.C.101.
In regards to claims 1 and 10 none of the prior art teaches or suggests, either alone or in combination, a method comprising instructions that, when executed by the one or more processors, cause the apparatus to determine, based on a time-varying index value based on electrodermal activity data being greater than or equal to a first threshold or less than or equal to a second threshold, an oxygen toxicity in the user, in combination with the other claimed steps.
In regards to claim 20 none of the prior art teaches or suggests, either alone or in combination, a device comprising determining, based on a time-varying index value based on electrodermal activity data being greater than or equal to a first threshold or less than or equal to a second threshold, an oxygen toxicity in the user, in combination with the other claimed elements.
Conclusion
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