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 .
Response to Arguments
This office action is responsive to the Request for Reconsideration filed on 05/21/2026. As directed by the amendment: claims 21 – 47 are pending, claims 21 – 23, 25, 29 and 33 – 35 have been amended, claims 24, 27 – 28, 36 – 37 & 40 are cancelled, claims 42 – 47 have been added.
Applicant’s arguments, see Page 9, filed 05/21/2026, with respect to 35 U.S.C. 103 have been fully considered and are persuasive. The rejection of claim 25 has been withdrawn.
Applicant's arguments filed 05/21/2026 have been fully considered but they are not persuasive. The applicant remarks the added limitations to claim 1 & 33 bring the claims to allowance as none of the applied references individually or in combination are seen to disclose or suggest the amendments. However, the reference el Kaliouby et al. (US 20170105668 A1) that was used in the previous office action to reject the now cancelled claim 24 discloses the limitation added to claims 1 & 33 and would be properly used to reject the claim. Based on the fact that the applicant has not disclosed any remark against the reference used, the examiner continues to use the reference to reject the claims.
Applicant's arguments filed 05/21/2026 have been fully considered but they are not persuasive. The applicant remarks the dependent claims of 1 & 33 are allowable based on the amended limitations of the independent claims, however, based on the rejection of the independent claims the dependent claims remain rejected.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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) 21 – 22, 25 – 26, 29, 30, 32 – 34, 38 & 42 – 45 are rejected under 35 U.S.C. 103 as being unpatentable over Banner et al. (US 2005/0098178 A1) in view of Kurtz et al. (US 2014/0348403 A1), Wu et al. (CN 108630314 A) & el Kaliouby et al. (US 20170105668 A1).
Regarding claim 21, A system (Figure 1), comprising:
a ventilator 20 (Paragraph 0031)
one or more processors 40 (Paragraph 0036) configured to:
receive sensor data from one or more sensors 52 associated with the patient (Paragraph 0038);
identify an operational mode of the ventilator 20 (Claim 1 discloses determining the appropriateness of ventilation for the patient);
the operational mode of the ventilator (Claim 1); and
adjust, based on the assessment classification, one or more operating parameters of the ventilator, wherein adjusting the one or more operating parameters influences the operational mode of the ventilator (Claim 1).
Banner does not disclose an image capture device configured to capture an image of a patient; one or more processors configured to:
receive accelerometer data, the one or more sensors comprising at least one accelerometer;
receive, from the image capture device, image data associated with the patient;
determine, based on the image data and the accelerometer data, a physical state of the patient;
determine an assessment classification indicating whether the patient is in a state of pain, sepsis, or a delirium based on the determined physical state of the patient, and the operational mode of the ventilator.
Kurtz discloses an image capture device configured to capture an image of a patient (Claim 1);
receive, from the image capture device, image data associated with the patient (Claim 9);
determine, based on the image data, a physical state of the patient (Claim 9).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Banner to incorporate discloses an image capture device configured to capture an image of a patient and an additional assessment tool to receive, from the image capture device, image data associated with the patient as it would determine trends and triggers in normalized image data to figure out possible causes and interventions of identified health issues. (Claim 1)
Wu discloses determine an assessment classification indicating whether the patient is in a state of delirium based on the determined physiological state of the patient. (Page 6, Paragraph 3)
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing day to further modify Banner to include determine an assessment classification indicating whether the patient is in a state of delirium based on the determined physiological state of the patient as the physiological index is used to determine the change in the patient that can dictates delirium. (Page 6, Paragraph 3)
Kurtz discloses determine an assessment classification indicating the determined physical state of the patient (Paragraph 0048).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modified Banner to include an assessment classification indicating the determined physical state of the patient as it can be considered wellness data that can be measured. (Paragraph 0048)
el Kaliouby discloses receive accelerometer data, the one or more sensors comprising at least one accelerometer (Paragraph 0051 & 0053);
determine, based on the accelerometer data, a physical state of the patient (Paragraph 0053 discloses determining sleep patterns, state of high activity and lethargy etc.).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Banner to receive accelerometer data, the one or more sensors comprising at least one accelerometer and to determine, based on the accelerometer data, a physical state of the patient as it would provide physiological data of the patient and use the information for analysis. (Paragraph 0051) The mental state can also be determined based in the physiological and physical data acquired. (Paragraph 0053)
Regarding claim 22, Modified Banner discloses the system as claimed in claim 21.
Modified Banner discloses the one or more processors 40 (Paragraph 0036) being further configured to:
receiving diagnostic information associated with the patient (Paragraph 0065); and
determine the assessment classification based on the diagnostic information (Paragraph 0065),
Regarding claim 25, Modified Banner discloses the system as claimed in claim 21.
Modified Banner discloses wherein the operating parameters include a positive end respiratory pressure (PEEP). (Paragraph 0033)
Regarding claim 26, Modified Banner discloses the system as claimed in claim 21.
Modified Banner discloses the one or more processors 40 being further configured to:
adjust the one or more operating parameters to initiate a ventilation weaning, wherein the one or more operating parameters include a reduction in positive end respiratory pressure (PEEP) provided by the ventilator (Paragraph 0033).
Regarding claim 29, Modified Banner discloses the system as claimed in claim 21.
Modified Banner discloses wherein the one or more sensors 52 comprises a sensor configured to obtain a vital sign measurement of the patient (Paragraph 0038 – 0039), including one or more of blood pressure (Paragraph 0039), and wherein the one or more processors configured to determine the assessment classification based on the one or more vital sign measurements (Paragraph 0038).
Regarding claim 30, Modified Banner discloses the system as claimed in claim 21.
Modified Banner discloses one or more processors 40. (as claimed in claim 1)
Modified Banner does not disclose wherein the system further comprises:
an audio device positioned to capture audio from the patient,
the one or more processors being further configured to:
receive audio information associated with the patient from the audio device; and
provide the audio information to an audio recognition algorithm configured to recognize an audio pattern and map the recognized audio pattern to an audio state indicative of a physical or mental state of the patient, wherein the assessment classification is further based on the audio state.
Kurtz discloses wherein the system further comprises:
an audio device positioned to capture audio from the patient (Paragraph 0062), the one or more processors 40 being further configured to:
receive audio information associated with the patient from the audio device (Paragraph 0062); and
provide the audio information to an audio recognition algorithm configured to recognize an audio pattern (Paragraph 0053) and map the recognized audio pattern to an audio state indicative of a physical or mental state of the patient , wherein the assessment classification is further based on the audio state (Paragraph 0062 & paragraph 0080).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Banner to include wherein the system further comprises an audio device positioned to capture audio from the patient. The one or more processors being further configured to receive audio information associated with the patient from the audio device and provide the audio information to an audio recognition algorithm configured to recognize an audio pattern and map the recognized audio pattern to an audio state indicative of a physical or mental state of the patient, wherein the assessment classification is further based on the audio state as it would ensure a non-contact device that can enable a broad range of physiological measurements. (Paragraph 0108) Also, it can be used to collect baseline audio data and particular voice data by focusing on voice pitch, pacing, and loudness to be used as wellness parameters. (Paragraph 0062 & 0080)
Regarding claim 32, Modified Banner discloses the system as claimed in claim 21.
Modified Banner discloses the one or more processors being further configured to: send a message pertaining to the assessment classification and the adjusted one or more operating parameters to a user device, remote from the system, for display by a user interface operating on the user device when a user associated with the user device is authenticated to the system via the user interface (Paragraph 0046 discloses the operating clinician is who is alerted meaning they must be authenticated as the operated clinician).
Regarding claim 33, A machine-implemented method, comprising:
receiving sensor data from one or more sensors 52 associated with a patient provided ventilation by a ventilator 20 (Paragraph 0038);
identifying an operational mode of the ventilator (Claim 1); and
adjusting, based on the assessment classification, one or more operating parameters of the ventilator, wherein adjusting the one or more operating parameters influences the operational mode of the ventilator (Claim 1).
Banner does not disclose receiving accelerometer data, the one or more sensors comprising at least one accelerometer;
receiving, from an image capture device, image data associated with the patient; determining, based on the image data and the accelerometer data, a physical state of the patient;
identifying an operational mode of the ventilator; determining an assessment classification indicating whether the patient is in a state of pain, sepsis, or a delirium based on the determined physical state of the patient, and the operational mode of the ventilator.
Kurtz discloses receiving, from an image capture device 100, image data associated with the patient (Claim 9).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Banner to incorporate an additional assessment tool to receiving, from the image capture device, image data associated with the patient as it would determine trends and triggers in normalized image data to figure out possible causes and interventions of identified health issues. (Claim 1)
Wu discloses determining an assessment classification indicating whether the patient is in a state of delirium (Page 6, Paragraph 3)
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing day to further modify Banner to include determine an assessment classification indicating whether the patient is in a state of delirium based on the determined physiological state of the patient as the physiological index is used to determine the change in the patient that can dictates delirium. (Page 6, Paragraph 3)
Kurtz discloses determine an assessment classification indicating the determined physical state of the patient (Paragraph 0048).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modified Banner to include an assessment classification indicating the determined physical state of the patient as it can be considered wellness data that can be measured. (Paragraph 0048)
el Kaliouby discloses receive accelerometer data, the one or more sensors comprising at least one accelerometer (Paragraph 0051 & 0053);
determine, based on the accelerometer data, a physical state of the patient (Paragraph 0053 discloses determining sleep patterns, state of high activity and lethargy etc.).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Banner to receive accelerometer data, the one or more sensors comprising at least one accelerometer and to determine, based on the accelerometer data, a physical state of the patient as it would provide physiological data of the patient and use the information for analysis. (Paragraph 0051) The mental state can also be determined based in the physiological and physical data acquired. (Paragraph 0053)
Regarding claim 34, Modified Banner discloses the machine-implemented method as claimed in claim 33.
Modified Banner discloses further comprising: receiving diagnostic information associated with the patient (Paragraph 0065); and
determining the assessment classification based on the diagnostic information (Paragraph 0065).
Regarding claim 38, Modified Banner discloses the machine-implemented method as claimed in claim 33.
Modified Banner does not disclose further comprising:
receiving audio information associated with the patient from an audio device positioned to capture audio from the patient; and
providing the audio information to an audio recognition algorithm configured to recognize an audio pattern and map the recognized audio pattern to an audio state indicative of a physical or mental state of the patient, wherein the assessment classification is further based on the audio state.
Kurtz discloses wherein the system further comprises:
receiving audio information associated with the patient from the audio device positioned to capture audio from the patient (Paragraph 0062); and
providing the audio information to an audio recognition algorithm configured to recognize an audio pattern (Paragraph 0053) and map the recognized audio pattern to an audio state indicative of a physical or mental state of the patient , wherein the assessment classification is further based on the audio state (Paragraph 0062 & paragraph 0080).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Banner to include receiving audio information associated with the patient from an audio device positioned to capture audio from the patient and providing the audio information to an audio recognition algorithm configured to recognize an audio pattern and map the recognized audio pattern to an audio state indicative of a physical or mental state of the patient, wherein the assessment classification is further based on the audio state as it would ensure a non-contact device that can enable a broad range of physiological measurements. (Paragraph 0108) Also, it can be used to collect baseline audio data and particular voice data by focusing on voice pitch, pacing, and loudness to be used as wellness parameters. (Paragraph 0062 & 0080)
Regarding claim 42, Modified Banner discloses the machine-implemented method as claimed in claim 33.
Modified Banner discloses wherein the operating parameters include, for example, a positive end respiratory pressure (PEEP). (Paragraph 0033)
Regarding claim 43, Modified Banner discloses the machine-implemented method as claimed in claim 33.
Modified Banner discloses further comprising: adjusting the one or more operating parameters to initiate a ventilation weaning, wherein the one or more operating parameters include a reduction in positive end respiratory pressure (PEEP) provided by the ventilator. (Paragraph 0033)
Regarding claim 44, Modified Banner discloses the machine-implemented method as claimed in claim 33.
Modified Banner discloses wherein the one or more sensors 52 are configured to obtain one or more vital sign measurements comprising one or more of blood pressure (Paragraph 0039), and wherein the one or more processors configured to determine the assessment classification based on the one or more vital sign measurements. (Paragraph 0038)
Regarding claim 45, Modified Banner discloses the machine-implemented method as claimed in claim 33.
Modified Banner discloses further comprising: sending a message pertaining to the assessment classification and the adjusted one or more operating parameters to a user device, remote from the system, for display by a user interface operating on the user device when a user associated with the user device is authenticated to the system via the user interface. (Paragraph 0046 discloses the operating clinician is who is alerted meaning they must be authenticated as the operated clinician).
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Banner et al. (US 2005/0098178 A1) in view of Kurtz et al. (US 2014/0348403 A1), Wu et al. (CN 108630314 A) & el Kaliouby et al. (US 20170105668 A1) as claimed in claim 21, in view of Lee et al. (WO 0191691 A1).
Regarding claim 23, Modified Banner discloses the system as claimed in claim 21.
Modified Banner discloses one or more processors 40 (Paragraph 0036).
Modified Banner does not discloses receive medication delivery information associated with a medication being administered to the patient; and
determine the assessment classification based on the medication delivery information.
Lee discloses receiving medication delivery information associated with a medication being administered to the patient (Page 9, lines 4 - 7); and
determine the assessment classification based on the medication delivery information (Page 11, lines 4 – 18).
It would have been prima facie obvious to one ordinary skill in the art prior to the effective filing date to further modify Banner to include receiving medication delivery information associated with a medication being administered to the patient and determine the assessment classification based on the medication delivery information as it would ensure the treatments are able to be changed based on the information received like re-adjust a breath of the machine and the medicine delivery or know of any error operation of an entire system. (Page 2, last paragraph)
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Banner et al. (US 2005/0098178 A1) in view of Kurtz et al. (US 2014/0348403 A1), Wu et al. (CN 108630314 A) & el Kaliouby et al. (US 20170105668 A1) as claimed in claim 21, in view of Oster et al. (US 20090227906 A1).
Regarding claim 31, Modified Banner discloses the system as claimed in claim 21.
Modified Banner discloses wherein the system further comprises a strength assessment device configured to assess a muscle strength of the patient based on a pressure exerted by the patient on the strength assessment device, the one or more processors being further configured to:
receive strength information associated with the patient from the strength assessment device; and
map the strength information to a strength classification indicative of a physical strength of the patient, wherein the assessment classification is further based on the strength classification.
Oster discloses the system further comprises a strength assessment device configured to assess a muscle strength of the patient based on a pressure exerted by the patient on the strength assessment device (Abstract), the one or more processors (Paragraph 0034) being further configured to:
receive strength information associated with the patient from the strength assessment device (Abstract); and
map the strength information to a strength classification indicative of a physical strength of the patient, wherein the assessment classification is further based on the strength classification (Paragraph 0022 & 0058).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Banner to include wherein the system further comprises a strength assessment device configured to assess a muscle strength of the patient based on a pressure exerted by the patient on the strength assessment device, the one or more processors being further configured to receive strength information associated with the patient from the strength assessment device as it has been determined that poor physical condition may cause a weakening to the strength of the muscle and this would allow the determination of the current strength of the muscle. (Paragraph 0083) The classification would provide normative data takes into consideration differences between patients. (Paragraph 0022 & 0058)
Claim 35 is rejected under 35 U.S.C. 103 as being unpatentable over Banner et al. (US 2005/0098178 A1) in view of Kurtz et al. (US 2014/0348403 A1), Wu et al. (CN 108630314 A) & el Kaliouby et al. (US 20170105668 A1) as claimed in claim 33, in view of Lee et al. (WO 0191691 A1).
Regarding claim 35, Modified Banner discloses the machine-implemented method as claimed in claim 33.
Modified Banner does not disclose further comprising: receiving medication delivery information associated with a medication being administered to the patient; and
determining the assessment classification based on the medication delivery information.
Lee discloses receiving medication delivery information associated with a medication being administered to the patient (Page 9, lines 4 - 7); and
determine the assessment classification based on the medication delivery information. (Page 11, lines 4 – 18).
It would have been prima facie obvious to one ordinary skill in the art prior to the effective filing date to further modify Banner to include receiving medication delivery information associated with a medication being administered to the patient and determine the assessment classification based on the medication delivery information as it would provide the information being the state of the patient. This would also ensure the treatments are able to be changed based on the information received like re-adjust a breath of the machine and the medicine delivery or know of any error operation of an entire system. (Page 2, last paragraph)
Claim 39 is rejected under 35 U.S.C. 103 as being unpatentable over Banner et al. (US 2005/0098178 A1) in view of Kurtz et al. (US 2014/0348403 A1), Wu et al. (CN 108630314 A) & el Kaliouby et al. (US 20170105668 A1) as claimed in claim 33, in view of Oster et al. (US 20090227906 A1).
Regarding claim 39, Modified Banner discloses the machine-implemented method as claimed in claim 33.
Modified Banner discloses further comprising:
receive strength information associated with the patient from a strength assessment device configured to assess a muscle strength of the patient based on a pressure exerted by the patient on the strength assessment device; and
map the strength information to a strength classification indicative of a physical strength of the patient, wherein the assessment classification is further based on the strength classification.
Oster discloses the system further comprises a strength assessment device configured to assess a muscle strength of the patient based on a pressure exerted by the patient on the strength assessment device (Abstract), the one or more processors (Paragraph 0034) being further configured to:
receive strength information associated with the patient from the strength assessment device (Abstract) configured to assess a muscle strength of the patient based on a pressure exerted by the patient on the strength assessment device (Abstract); and
map the strength information to a strength classification indicative of a physical strength of the patient, wherein the assessment classification is further based on the strength classification (Paragraph 0022 & 0058).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Banner to include receive strength information associated with the patient from a strength assessment device configured to assess a muscle strength of the patient based on a pressure exerted by the patient on the strength assessment device and map the strength information to a strength classification indicative of a physical strength of the patient, wherein the assessment classification is further based on the strength classification as it has been determined that poor physical condition may cause a weakening to the strength of the muscle and this would allow the determination of the current strength of the muscle. (Paragraph 0083) The classification would provide normative data takes into consideration differences between patients. (Paragraph 0022 & 0058)
Claims 46-47 are rejected under 35 U.S.C. 103 as being unpatentable over Banner et al. (US 2005/0098178 A1) in view of Kurtz et al. (US 2014/0348403 A1), Wu et al. (CN 108630314 A) & el Kaliouby et al. (US 20170105668 A1) as claimed in claim 21 & 33, in further view of de Paula et al. (US 11928891 B2).
Regarding claim 46, Modified Banner discloses the system as claimed in claim 21.
Modified Banner does not disclose the one or more processors being further configured to: determine, based on the image and the accelerometer data, a physical state including one or more of shivering or restlessness.
de Paula discloses a detected state of the facial expression such as being tired, bored, calm, level of pain, etc. to determine the physical state of the user. (Column 2, lines 11 – 38)
de Paula does not expressly disclose the physical state including one of shivering or restlessness and determining, by the recognition algorithm, whether the patient is in the physical state of shivering or restlessness.
However, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Kurtz to include the physical state including one of shivering or restlessness and determining, by the recognition algorithm, whether the patient is in the physical state of shivering or restlessness as it would allow the feedback to include the indication of the detected state of the user and provide a category of the facial expression of the user. (Column 7, lines 15 – 25)
Regarding claim 47, Modified Banner discloses the machine-implemented method as claimed in claim 33.
Modified Banner discloses further comprising: determining, based on the image and the accelerometer data, a physical state including one or more of shivering or restlessness
de Paula discloses a detected state of the facial expression such as being tired, bored, calm, level of pain, etc. to determine the physical state of the user. (Column 2, lines 11 – 38)
de Paula does not expressly disclose the physical state including one of shivering or restlessness and determining, by the recognition algorithm, whether the patient is in the physical state of shivering or restlessness.
However, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to further modify Kurtz to include the physical state including one of shivering or restlessness and determining, by the recognition algorithm, whether the patient is in the physical state of shivering or restlessness as it would allow the feedback to include the indication of the detected state of the user and provide a category of the facial expression of the user. (Column 7, lines 15 – 25)
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 GRACIELA NATALIA LEBRON DE JESUS whose telephone number is (571)270-3892. The examiner can normally be reached Mon - Fri 8:00-5:00 CST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at 571-272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GRACIELA NATALIA LEBRON DE JESUS/Examiner, Art Unit 3785
/KENDRA D CARTER/Supervisory Patent Examiner, Art Unit 3785
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