DETAILED ACTION
Remarks
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claims 6 and 14 are objected to because of the following informalities: Claim 6 and 14 recite the limitation “the a simulated normal breathing pattern or rhythm” which should be amended to read “the simulated normal breathing pattern or rhythm”. Appropriate correction is required.
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.
Claims 4-5 and 12-13 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 4 recites the limitation “during the adverse breathing event, modify the normal breathing recording or the normal breathing simulated normal breathing pattern or rhythm to improve how rapidly the user normal breathing pattern or rhythm is reestablished.” Likewise, claim 12 recites the limitation “during the adverse breathing event, modifying the normal breathing recording or the normal breathing simulated normal breathing pattern or rhythm to improve how rapidly the user normal breathing pattern or rhythm is reestablished.” However, the phrase “modify the normal breathing recording or the normal breathing simulated normal breathing pattern or rhythm” (and equivalent language in claim 12) renders the claims indefinite as the neither the claims, nor the specification, define what constitutes the metes and bounds of such modification, which could have several meanings. The claim recites this function in a result-based manner without any details how the result is achieved, and likewise the specification only refers to the same result-based language, without defining the meaning of such modification with any particular detail. Therefore, these limitations render claim 4 and 12 indefinite.
Claim 5 recites the limitation “wherein the breathing output is selected to best assist the user in reestablishing a normal breathing pattern or rhythm based on the nature of the adverse breathing event the user is experiencing.” Likewise, claim 13 recites the limitation “wherein, in the outputting step, the breathing output is selected to best assist the user in reestablishing a normal breathing pattern or rhythm based on the nature of the adverse breathing event the user is experiencing.” However, these limitations render the claims indefinite as the neither the claims, nor the specification, define what constitutes the metes and bounds of such selection process, which could have several meanings. It is unclear how the breathing output is selected to achieve the stated goal of assisting the user, nor how the breathing output would change to meet this goal. The claim recites this function in a result-based manner without any details how the result is achieved, and likewise the specification only refers to the same result-based language, without defining the meaning of such selection with any particular detail. Therefore, these limitations render claim 5 and 13 indefinite.
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.
Claims 4-5 and 12-13 are 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.
Claim 4 recites the limitation “during the adverse breathing event, modify the normal breathing recording or the normal breathing simulated normal breathing pattern or rhythm to improve how rapidly the user normal breathing pattern or rhythm is reestablished.” Likewise, claim 12 recites the limitation “during the adverse breathing event, modifying the normal breathing recording or the normal breathing simulated normal breathing pattern or rhythm to improve how rapidly the user normal breathing pattern or rhythm is reestablished.” These limitations define a result to be achieved (i.e., to modify a recording or pattern or rhythm) and the written description fails to define how that is achieved. At best, the specification merely refers to the same result-based language as claimed (e.g., par. 0145, 0153, 0161, 169) with pointing out how the modification is performed. Therefore, the written description requirement is not met.
Claim 5 recites the limitation “wherein the breathing output is selected to best assist the user in reestablishing a normal breathing pattern or rhythm based on the nature of the adverse breathing event the user is experiencing.” Likewise, claim 13 recites the limitation “wherein, in the outputting step, the breathing output is selected to best assist the user in reestablishing a normal breathing pattern or rhythm based on the nature of the adverse breathing event the user is experiencing.” These limitations define a result to be achieved (i.e., making a selection to best assist the user in reestablishing a normal breathing pattern or rhythm based on the nature of the adverse breathing event the user is experiencing) and the written description fails to define how that is achieved. At best, the specification merely refers to the same result-based language as claimed (e.g., par. 0006, 0007, 0089, 0090, 0146, 0154, 0162, and 0170) with pointing out how the selection is performed. Therefore, the written description requirement is not met.
Claim Rejections - 35 USC § 103 (AIA )
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 of this title, 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 factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-3, 6-11, and 14-16 are rejected under 35 U.S.C. 103 as being obvious over US 2007/0167855 A1 to SHIN, or alternatively over SHIN in view of US 6,162,183 to HOOVER.
Regarding claim 1, SHIN teaches a breathing apparatus (Abstract: A system, medium, and method conducing a user's breathing; par. 0008: provide a system, medium, and method for conducing a user to modify their breathing) comprising: one or more processing units, each of the processing units including an operating system, a memory, communications hardware and software, one or more mass storage devices, one or more input devices and one or more output devices(FIG. 1; par. 0040: system may include a memory 110, a respiratory waveform-measuring unit 120, a respiratory information generator 130, a breathing-conducing unit 140, a central processing unit (CPU) 150, a microphone 160, a display 170, an audio output 180 and a temperature sensor 190, for example. In embodiments of the present invention, the system may be a portable system, and in addition, may include only the microphone 160, only the temperature sensor 190, a combination of the two, or such sampling aspects may be accomplished through alternative elements; par. 0062: the central processing unit (CPU) 150 may typically include a processor to process the data of the inventive device/system… In addition, in alternative embodiments the illustrated system of FIG. 1 may be embodied in different devices, or a mixture of the same), the apparatus configured to: acquire, capture, or receive normal breathing data of a user, the normal breathing data comprising normal breathing audio, visual, audiovisual, and/or haptic data; generate: (a) one or more user normal breathing recordings from the normal breathing audio, visual, audiovisual, and/or haptic data, the one or more recordings comprising the audio, visual, audiovisual, and/or haptic data; or (b) one or more simulated normal breathing patterns or rhythms from the normal breathing audio, visual, audiovisual, and/or haptic data, the one or more simulated normal breathing patterns or rhythms comprising the audio, visual, audiovisual, and/or haptic data (FIG. 6, ref. 611; par. 0012: the normal respiratory cycle and/or normal respiratory rate representing a breathing state of the user that does not indicate stress; par. 0013: the normal respiratory cycle and normal respiratory rate may be previously generated by the respiratory information generator; par. 0022: the normal respiratory cycle and normal respiratory rate may be previously generated by the generating of the current respiratory information when the user's breathing was the breathing state of the user that does not indicate stress; par. 0066: the system may maintain a user's predetermined respiratory information of a normal state, e.g., in a memory, or may obtain the same from an alternate source, in operation 611… the normal respiratory information may include the user's normal respiratory cycle or normal respiratory rate); while the user undergoes an adverse breathing event, acquire, capture, or receive adverse breathing data, the adverse breathing data comprising adverse breathing audio, visual, audiovisual, and/or haptic data (FIG. 6, ref. 612; par. 0008: user's current respiratory information is determined based on his or her exhale sound and/or a sensed ambient temperature change occurring during his or her exhale; par. 0067-68: A sound, for example, generated during the user's exhale may be monitored, in operation 612, and a first current respiratory waveform of the user may be measured, in operation 613. The system may also, or in the alternative, sense an ambient temperature change occurring during the user's exhale, in operation 614, and measure a second current respiratory waveform of the user, in operation 615… The system may generate the user's current respiratory information, based on the measured first current respiratory waveform and/or the measured second current respiratory waveform, in operation 616; par. 0011: a breathing monitoring device to detect a user's breathing, a respiratory information generator to generate current respiratory information of the user based on the user's breathing, with the current respiratory information including a current respiratory cycle and/or current respiratory rate of the user, and a breathing-conducing unit to compare the current respiratory information with predefined respiratory information of the user; par. 0070: if it is determined, in operation 617, that the current respiratory information and the normal respiratory information are different, the process may proceed to operation 618); and output: (a) a normal breathing recording; or (b) a simulated normal breathing pattern or rhythm (FIG. 6, ref. 618; par. 0008: When the current respiratory information is different from normal respiratory information of the user, at a normal state, the normal breathing respiratory information may be provided to the user so that the user can simply and easily measure and correct their own respiratory state anytime and anywhere, e.g., through a portable system which he or she can always carry around; par. 0009: a user's normal respiratory information is displayed or represented to him or her through a predetermined display or audio output; par. 0071: The system may, thus, then conduce the breathing of the user based on the normal respiratory information with the display and/or representation of the normal respiratory information, in operation 619).
Regarding claim 9, SHIN teaches a method (claim 9 recites the same subject matter of claim 1, and therefore, the same citation applies and is incorporated by reference herein), implemented on an apparatus, system, or interface comprising (a) one or more processing units, each of the processing units including an operating system, a memory, communications hardware and software, one or more mass storage devices, one or more input devices and one or more output devices (claim 9 recites the same subject matter of claim 1, and therefore, the same citation applies and is incorporated by reference herein), the method comprising: acquiring, capturing, or receiving normal breathing data of a user, the normal breathing data comprising normal breathing audio, visual, audiovisual, and/or haptic data; generating: (a) one or more user normal breathing recordings from the normal breathing audio, visual, audiovisual, and/or haptic data, the one or more recordings comprising the audio, visual, audiovisual, and/or haptic data; or (b) one or more simulated normal breathing patterns or rhythms from the normal breathing audio, visual, audiovisual, and/or haptic data, the one or more simulated normal breathing patterns or rhythms comprising the audio, visual, audiovisual, and/or haptic data (claim 9 recites the same subject matter of claim 1, and therefore, the same citation applies and is incorporated by reference herein); while the user undergoes an adverse breathing event, acquiring, capturing, or receiving adverse breathing data, the adverse breathing data comprising adverse breathing audio, visual, audiovisual, and/or haptic data (claim 9 recites the same subject matter of claim 1, and therefore, the same citation applies and is incorporated by reference herein); and outputting: (a) a normal breathing recording; or (b) a simulated normal breathing pattern or rhythm (claim 9 recites the same subject matter of claim 1, and therefore, the same citation applies and is incorporated by reference herein).
To the extent SHIN does not expressly disclose a power supply coupled to or associated with the apparatus, as recited in claims 1 and 9, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a power supply either coupled to or associated with the disclosed computer system of SHIN, in order to provide electrical energy for the computer to operate, thereby performing the disclosed functionality. Alternatively, HOOVER also teaches a system to monitor respiration activity of a user and provide appropriate feedback to the user (Abstract) that includes a respiration feedback monitor comprising a power source that supplies power to the respiration feedback monitor (par. 7, lines 54-56). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a power supply as taught by HOOVER, either coupled to or associated with the disclosed computer system of SHIN, in order to provide electrical energy for the computer to operate, thereby performing the disclosed functionality.
Regarding claim 2, SHIN further teaches wherein the apparatus is further configured to:
prior to the acquire, capture, or receive adverse breathing data, continually monitor breathing data of the user (FIG. 6, ref. 612; par. 0008: user's current respiratory information is determined based on his or her exhale sound and/or a sensed ambient temperature change occurring during his or her exhale; par. 0067-68: A sound, for example, generated during the user's exhale may be monitored, in operation 612, and a first current respiratory waveform of the user may be measured, in operation 613. The system may also, or in the alternative, sense an ambient temperature change occurring during the user's exhale, in operation 614, and measure a second current respiratory waveform of the user, in operation 615… The system may generate the user's current respiratory information, based on the measured first current respiratory waveform and/or the measured second current respiratory waveform, in operation 616; par. 0011: a breathing monitoring device to detect a user's breathing, a respiratory information generator to generate current respiratory information of the user based on the user's breathing, with the current respiratory information including a current respiratory cycle and/or current respiratory rate of the user, and a breathing-conducing unit to compare the current respiratory information with predefined respiratory information of the user);
acquire and/or receive initial breathing data from the user undergoing the adverse breathing event (par. 0011: compare the current respiratory information with predefined respiratory information of the user; par. 0020: current respiratory information and/or the predefined respiratory information are different; par. 0055: current respiratory information and the normal respiratory information are different from each other as a result of the comparison);
select a breathing output from the one or more normal breathing recordings or the one or more simulated normal breathing patterns or rhythms based on: input from the user; or an automatic selection (par. 0020: predefined respiratory information is displayed and/or represented to the user through the display and/or audio output);
continue the output of the normal breathing recording or the simulated normal breathing pattern or rhythm, until a normal breathing pattern or rhythm is reestablished (par. 0020: when the current respiratory information and the predefined respiratory information are different, the generating of the current respiratory information continues).
Regarding claim 10, SHIN further teaches prior to the acquiring, capturing, or receiving adverse breathing data, continue monitoring breathing data of the user; acquiring, capturing, or receiving initial breathing data from the user undergoing the adverse breathing event; selecting a breathing output from the one or more normal breathing recordings or the one or more simulated normal breathing patterns or rhythms based on: receiving input from the user; or an automatic selecting the breathing output; continuing the outputting of the normal breathing recording or the simulated normal breathing pattern or rhythm, until a normal breathing pattern or rhythm is reestablished (claim 10 recites the same subject matter of claim 2, and therefore, the same citation applies and is incorporated by reference herein).
Regarding claim 3, SHIN teaches the elements above, including that conducing psychological stability reduces stress (par. 0006), and that the monitoring and conducing of the breathing of the user can be accomplished anywhere and anytime (par. 0074). However, to the extent that SHIN does not expressly disclose wherein the apparatus is further configured to: after the normal breathing pattern or rhythm is reestablished, monitor the user breathing data, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to continue the process disclosed by SHIN, including monitoring the user's current respiratory information, so that if the user’s current respiratory information becomes different from the normal respiratory information of the user, the system may repeat the process of conducing the breathing of the user to a normal breathing, thereby reducing stress.
Regarding claim 11, SHIN further teaches after the normal breathing pattern or rhythm is reestablished, continue monitoring the user breathing data (claim 11 recites the same subject matter of claim 3, and therefore, the same citation applies and is incorporated by reference herein).
Regarding claim 6, SHIN further teaches wherein the apparatus is further configured to: while the user undergoes the adverse breathing event, determine differences between the normal user breathing pattern or rhythm and the adverse user breathing pattern or rhythm; and output the differences along with the normal breathing recording or the a simulated normal breathing pattern or rhythm (FIG. 5A and 5B; par. 0059-60: as the breathing is provided to the user, when he or she inhales air, a illustrated gauge can be displayed on the bar graph alongside the illustrated normal inhalation information).
Regarding claim 14, SHIN further teaches while the user undergoes the adverse breathing event, determining differences between the normal user breathing pattern or rhythm and the adverse user breathing pattern or rhythm; and outputting the differences along with the normal breathing recording or the a simulated normal breathing pattern or rhythm (claim 14 recites the same subject matter of claim 6, and therefore, the same citation applies and is incorporated by reference herein).
Regarding claim 7, SHIN further teaches wherein the apparatus is further configured to: while the user undergoes the adverse breathing event, highlight the differences between the normal user breathing pattern or rhythm and the adverse user breathing pattern or rhythm (FIG. 5A and 5B; par. 0059-60: as the breathing is provided to the user, when he or she inhales air, a illustrated gauge can be displayed on the bar graph alongside the illustrated normal inhalation information).
Regarding claim 15, SHIN further teaches while the user undergoes the adverse breathing event, highlighting the differences between the normal user breathing pattern or rhythm and the adverse user breathing pattern or rhythm (claim 15 recites the same subject matter of claim 7, and therefore, the same citation applies and is incorporated by reference herein).
Regarding claim 8, SHIN further teaches wherein the apparatus is further configured to: while the user undergoes the adverse breathing event, change highlight as the differences lessen (FIG. 5A and 5B; par. 0059-60: as the breathing is provided to the user, when he or she inhales air, a illustrated gauge can be displayed on the bar graph alongside the illustrated normal inhalation information).
Regarding claim 16, SHIN further teaches while the user undergoes the adverse breathing event, changing the highlighting as the differences lessen (claim 16 recites the same subject matter of claim 8, and therefore, the same citation applies and is incorporated by reference herein).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James Hull whose telephone number is 571-272-0996. The examiner can normally be reached on Monday-Friday from 8:00am to 5:00pm MST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Xuan Thai, can be reached at telephone number 571-272-7147. 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.
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) Form at https://www.uspto.gov/patents/uspto-automated- interview-request-air-form.
/JAMES B HULL/Primary Examiner, Art Unit 3715