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 . 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 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.
Response to Amendment
This Office Action is responsive to the amendment filed 03/18/2026 (“Amendment”). Claims 1, 2, 5-10, and 13-17 are currently under consideration. The Office acknowledges the amendments to claims 1, 5, 9, 13, and 17, as well as the cancellation of claims 3, 4, 11, and 12
The objection(s) to the drawings, specification, and/or claims, the interpretation(s) under 35 USC 112(f), and/or the rejection(s) under 35 USC 101 and/or 35 USC 112 not reproduced below has/have been withdrawn in view of the corresponding amendments.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
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: “average breathing signal calculation unit” in claims 1 and 2, “sleep breathing pattern information generation unit” in claims 1, 6, and 7, “sleep breathing event detection unit” in claims 1, 5, and 8, and “computing device” in claim 17.
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 17 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. There is no support for using a computing device to generate, transmit, and receive a radar signal. The computer 100 of Fig. 1 is distinct from the radar 110.
Claim 17 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 enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. The disclosure does not contemplate, and it is far from the state of the art, to use a generic computing device like computer 100 of Fig. 1 to generate, transmit, and receive a radar signal. Wang (see below) for example, at Fig. 1, shows that the radar device is distinct from the PC. Applicant has provided no working examples.
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, 2, 5-10, and 13-17 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1 of the subject matter eligibility test (see MPEP 2106.03).
Claims 1, 2, 5-8 and 17 are directed to a “device” and a “computer program stored in a computer-readable storage medium,” which describe one of the four statutory categories of patentable subject matter, i.e., a machine. Claims 9, 10, and 13-16 are directed to a “method,” which describes one of the four statutory categories of patentable subject matter, i.e., a process.
Step 2A of the subject matter eligibility test (see MPEP 2106.04).
Prong One: Claims 1, 9, and 17 recite (“set forth” or “describe”) the abstract ideas of a mental process and a mathematical concept, substantially as follows:
calculating an average breathing signal of the subject based on the radar signal; generating sleep breathing pattern information of the subject by comparing the radar signal with the average breathing signal; and detecting a sleep breathing event based on the sleep breathing pattern information, wherein the sleep breathing pattern information generation unit is further configured to: generate breathing state information about sleep breathing of the subject based on the comparison between the radar signal and the average breathing signal; generate first sleep breathing pattern information based on whether the breathing state information continues; and generate second sleep breathing pattern information based on whether the breathing state information continues and a predetermined threshold value, wherein the sleep breathing pattern information generation unit is adapted to calculate the first sleep breathing pattern information and the second sleep breathing pattern information to have a value that is continued to be increased over time while the radar signal reflected from the subject is smaller than the average breathing signal, wherein the second sleep breathing pattern information is initialized at the predetermined threshold value and then increased again, and wherein the predetermined threshold value is a specific threshold time.
The calculating, generating, and detecting steps can be practically performed in the human mind, with the aid of a pen and paper, but for performance on a generic computer, in a computer environment, or merely using the computer as a tool to perform the steps. If a person were to see a printout of the received radar signal, they would be able to manipulate the data to perform the steps. There is nothing to suggest an undue level of complexity in the steps. Therefore, a person would be able to perform the calculations mentally or with pen and paper.
The steps also involve the mathematical concepts of averaging, comparison, calculation, and event detection. These steps correspond to “[w]ords used in a claim operating on data to solve a problem [that] can serve the same purpose as a formula.” See MPEP 2106.04(a)(2)(I).
Prong Two: Claims 1, 9, and 17 do not include additional elements that integrate the mental process or mathematical concept into a practical application. Therefore, the claims are “directed to” the mental process and mathematical concept. The additional elements merely:
recite the words “apply it” (or an equivalent) with the judicial exception, or include instructions to implement the abstract idea on a computer, or merely use the computer as a tool to perform the abstract idea (e.g. units for performing the steps, a computer-readable storage medium, and a computing device), and
add insignificant extra-solution activity (the pre-solution activity of: generating, transmitting, and receiving a radar signal, using a generic data-gathering component (e.g. a radar device), etc.).
As a whole, the additional elements merely serve to gather and feed information to the abstract idea, while generically implementing it on a computer. There is no practical application because the abstract idea is not applied, relied on, or used in a meaningful way. No improvement to the technology is evident, and the detected event is not outputted in any way such that a diagnostic benefit is realized. Neither is the sleep breathing pattern information. Therefore, the additional elements, alone or in combination, do not integrate the abstract idea into a practical application.
Step 2B of the subject matter eligibility test (see MPEP 2106.05).
Claims 1, 9, and 17 do not include additional elements, alone or in combination, that are sufficient to amount to significantly more than the judicial exception (i.e., an inventive concept) for the same reasons as described above.
Dependent Claims
The dependent claims merely further define the abstract idea and are, therefore, directed to an abstract idea for similar reasons: they merely
further describe the abstract idea (e.g. using a time sensitivity and amplitude sensitivity factor (claims 2 and 10), detecting different cases and making calculations (claims 6 and 14), making more calculations and detecting events (claims 5, 7, 8, 13, 15, and 16), etc.).
Taken alone and in combination, the additional elements do not integrate the judicial exception into a practical application at least because the abstract idea is not applied, relied on, or used in a meaningful way. They also do not add anything significantly more than the abstract idea. Their collective functions merely provide computer/electronic implementation and processing, and no additional elements beyond those of the abstract idea. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements individually. There is no indication that the combination of elements improves the functioning of a computer, output device, improves another technology or technical field, etc. Therefore, the claims are rejected as being directed to non-statutory subject matter.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 9, 10, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by non-patent publication Wang, Qisong, et al. "Frequency‐Modulated Continuous Wave Radar Respiratory Pattern Detection Technology Based on Multifeature." Journal of Healthcare Engineering 2021.1 (2021): 9376662 (“Wang”).
Regarding claim 9, Wang discloses [a] method for analyzing sleep breathing using a radar (Abstract), comprising: generating, by a radar device, a radar signal, and transmitting the radar signal toward a subject (as shown in Fig. 1, e.g. TX and RX antennas); receiving the radar signal reflected from the subject (Fig. 1, TX and RX antennas); calculating an average breathing signal of the subject based on the radar signal (§ 4.1 and equations 3 and 4, thresholds based on averages); generating sleep breathing pattern information of the subject by comparing the radar signal with the average breathing signal (Fig. 8(a), the judgment result shown in the lower panel, based on energy compared to threshold as in the upper panel, and as described in § 4.2); and detecting a sleep breathing event based on the sleep breathing pattern information (Fig. 8(a), apnea from x=90 to x=143 – also see § 4.2), wherein the generating sleep breathing pattern information of the subject comprises: generating breathing state information about sleep breathing of the subject based on the comparison between the radar signal and the average breathing signal (as the lower panel of Fig. 8(a)); generating first sleep breathing pattern information based on whether the breathing state information continues (not limiting because the breathing state information need not continue); and generating second sleep breathing pattern information based on whether the breathing state information continues and a predetermined threshold value (not limiting because the breathing state information need not continue), wherein the generating sleep breathing pattern information of the subject comprises calculating the first sleep breathing pattern information and the second sleep breathing pattern information to have a value that is continued to be increased over time while the radar signal reflected from the subject is smaller than the average breathing signal (not limiting because the radar signal need not be smaller than the average), wherein the second sleep breathing pattern information is initialized at the predetermined threshold value and then increased again, and wherein the predetermined threshold value is a specific threshold time (not limiting based on the above).
Regarding claim 10, Wang discloses all the features with respect to claim 9, as outlined above. Wang further discloses wherein in the calculating the average breathing signal, the average breathing signal of the subject is calculated based on a time sensitivity factor and an amplitude sensitivity factor of the radar signal (equation 4 accounts for time (n being 5, or the numbered segment n more generally) and amplitude (e.g. 50%)).
Regarding claim 14, Wang discloses all the features with respect to claim 9, as outlined above. Wang further discloses wherein the generating sleep breathing pattern information further includes generating motion state information about sleep breathing of the subject by detecting a case where the radar signal is greater than the average breathing signal (§ 4.2, when energy intensity is higher than the threshold).
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.
Claims 13, 15, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over non-patent publication Wang, Qisong, et al. "Frequency‐Modulated Continuous Wave Radar Respiratory Pattern Detection Technology Based on Multifeature." Journal of Healthcare Engineering 2021.1 (2021): 9376662 (“Wang”) in view of US Patent Application Publication 2014/0350355 (“Aisic”).
Regarding claim 13, Wang teaches all the features with respect to claim 9, as outlined above. Wang does not appear to explicitly teach wherein the detecting a sleep breathing event further includes: detecting a first sleep breathing event based on a value corresponding to the threshold value or more in the first sleep breathing pattern information; and detecting a second sleep breathing event based on a value reaching the threshold value in the second sleep breathing pattern information (although this is not limiting based on the above, it has been found for purposes of compact prosecution).
Aisic teaches monitoring chest movement of a patient (the chest movement corresponding to breathing), and determining sleep breathing disorder events based thereon (¶ 0130). If the motion/breathing continues (i.e., is not an artifact, or repeats as in Fig. 8, or e.g. reaches a certain number of position changes or time in a particular position as in Fig. 16), then it is relevant motion/breathing (¶¶s 0130-0132, etc.). If it continues and exceeds a threshold value, then it is considered excessive posture change that may be used to invalidate data (¶¶s 0130-0132, etc.). Aisic teaches detecting a first sleep breathing event based on a value corresponding to a threshold or more as excessive posture change, and a second sleep breathing event based on a value reaching (but e.g. not at) the threshold as not excessive posture change.
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 incorporate generation of sleep breathing pattern information and detection of sleep breathings events into Wang as in Aisic, for the purpose of being able to use motion/breathing data to increase accuracy in identifying suspected sleep disorder candidates (Aisic: ¶¶s 0129, 0131, etc.).
Regarding claims 15 and 16, Wang teaches all the features with respect to claim 14, as outlined above. Wang does not appear to explicitly teach wherein the generating the sleep breathing pattern information further includes: generating first sleep motion pattern information about a sleep motion of the subject based on whether the motion state information continues; and generating second sleep motion pattern information based on whether the motion state information continues and a predetermined threshold value (although this is not limiting because the motion state information need not continue, it has been found for purposes of compact prosecution), wherein the detecting a sleep breathing event further includes: detecting a first sleep motion event based on a value corresponding to the threshold value or more in the first sleep motion pattern information; and detecting a second sleep motion event based on a value reaching the threshold value in the second sleep motion pattern information (although this is not limiting based on the above, it has been found for purposes of compact prosecution).
Aisic teaches monitoring chest movement of a patient, and determining sleep breathing disorder events based thereon (¶ 0130). If the motion continues (i.e., is not an artifact, or repeats as in Fig. 8, or e.g. reaches a certain number of position changes or time in a particular position as in Fig. 16), then it is relevant motion (¶¶s 0130-0132, etc.). If it continues and exceeds a threshold value, then it is considered excessive posture change that may be used to invalidate data (¶¶s 0130-0132, etc.). Aisic teaches detecting a first sleep motion event based on a value corresponding to a threshold or more as excessive posture change, and a second sleep motion event based on a value reaching (but e.g. not at) the threshold as not excessive posture change.
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 incorporate generation of sleep motion pattern information and detection of sleep motion events into Wang as in Aisic, for the purpose of being able to use motion data to increase accuracy in identifying suspected sleep disorder candidates (Aisic: ¶¶s 0129, 0131, etc.).
Claims 15 and 16 are rejected in like manner.
Allowable Subject Matter
Claims 1, 2, 5-8, and 17 are allowable over the prior art. Therefore, they will be allowed if related 35 USC 101 and 112 rejections are overcome.
The following is a statement of reasons for the indication of allowable subject matter: the prior art of record fails to teach or fairly suggest the specific sleep breathing pattern information generation unit and its functions (e.g. calculating the first sleep breathing pattern information and the second sleep breathing pattern information to have a value that is continued to be increased over time while the radar signal reflected from the subject is smaller than the average breathing signal), in combination with all other recited limitations.
Response to Arguments
Applicant’s arguments filed 03/18/2026 have been fully considered.
In response to the arguments and amendments regarding the rejections under 35 USC 101, they are not persuasive. Generating and transmitting a radar signal is not part of the abstract idea. It is part of extra-solution activity, meant only to feed data to the abstract idea. The claims continue to be directed to a mental process and a mathematical concept. Regarding practical application via a particular machine, the Office disagrees that the radar device is a particular machine. It is not recited in any level of detail, is defined only by its function, and is only involved in extra-solution activity. Regarding step 2B, because the Office did not rely on characterizing any elements as well-understood, routine, or conventional, there is no need to support this with evidence. Applicant’s arguments regarding 35 USC 101 are bare allegations, and there is no specific discussion about the elements which the Office characterized as part of the abstract idea.
The amendments and arguments with respect to the rejections under 35 USC 102 and/or 103 are persuasive except with respect to claim 9 and its dependents, since claim 9 includes elements that are not actually limiting (if a condition need not occur in a method claim, the element based thereon is not limiting).
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 ANDREY SHOSTAK whose telephone number is (408) 918-7617. The examiner can normally be reached Monday-Friday, 7am-3pm PT.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Robertson, can be reached at telephone number (571) 272-5001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREY SHOSTAK/Primary Examiner, Art Unit 3791
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