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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on November 02, 2022; April 06, 2023; and April 03, 2025 were considered by the examiner.
Claim Objections
Claims 2, 5, and 9-11 are objected to because of the following informalities:
in claim 2, line 2: “parameter” should be inserted after “first”;
in claim 2, line 4: “side” should be inserted after “first”;
in claim 5, line 2: “parameter” should be inserted after “first”;
in claim 9, line 2: “measurement” should be “measurements”;
in claim 9, line 2: “the points in time” should be “the plurality of points in time”;
in claim 10, line 3: “the points in time” should be “the plurality of points in time”;
in claim 10, line 5: “the points in time” should be “the plurality of points in time”;
in claim 11, line 3: “the points in time” should be “the plurality of points in time”; and
in claim 11, lines 6-7: “the points in time” should be “the plurality of points in time”.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-17 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 1 recites the limitation "the head" in line 2. There is insufficient antecedent basis for this limitation in the claim. Amending the claim to recite “a head” would overcome this rejection. The claim is being read as such for the purposes of examination. Appropriate correction is required.
Claim 1 recites the limitation "the second side of the head" in lines 8-9. There is insufficient antecedent basis for this limitation in the claim. Amending the recitation in lines 6-9 to read “using a second sensor of the system configured to be disposed on a second side of the head opposite to the first side to carry out a measurement of a second parameter giving information about sweat secreted on the second side of the head” would overcome this rejection. The claim is being read as such for the purposes of examination. Appropriate correction is required.
Claims 2-12 are rejected by virtue of their dependence from claim 1.
Claim 2 recites “carrying out the measurement of each respective first or second parameter as at least one of” in lines 1-2. It is not clear whether only one measurement is carried out as described as indicated by “or”; or if both measurements are carried out as indicated by “each”. The confusion of “each” and “or” renders claim 2 indefinite. Appropriate correction is required.
Claim 4 recites “ascertaining a degree of a fitting strength for at least one of the first hearing instrument or the second hearing instrument” in lines 2-3 and “ascertaining the degree of the fitting strength for each respective hearing instrument based on at least one of” in lines 6-7. The first recitation requires only ascertaining one degree of fitting strength for one of the hearing instruments, while the second recitation appears to require obtaining degrees of fitting for both hearing instruments. This inconsistency renders claim 4 indefinite. This is further problematic, as the “each respective hearing instrument” is then referred to as “the respective hearing instrument” in lines 12 and 14. Amending the second recitation to recite “ascertaining the degree of the fitting strength for a respective hearing instrument of the first hearing instrument and the second hearing instrument based on at least one of” would overcome this rejection. The claim is being read as such for the purposes of examination. Appropriate correction is required.
Claim 4 recites “a same hearing instrument” in lines 13 and 14-15. It is unclear the relationship these recitations have between each other, and their relationship to the “respective hearing instrument”. The claim appears to want all of these recitations to be the same. Amending the each of the two “same hearing instrument” recitations to “the respective hearing instrument” would overcome this rejection. The claim is being read as such for the purposes of examination. Appropriate correction is required.
Claim 5 recites “carrying out the measurement of each of the first or second parameter as at least one of” in lines 1-2. It is not clear whether only one measurement is carried out as described as indicated by “or”; or if both measurements are carried out as indicated by “each”. The confusion of “each” and “or” renders claim 5 indefinite. Appropriate correction is required.
Claim 5 recites the limitation "the respective hearing instrument" in line 4. There is insufficient antecedent basis for this limitation in the claim. Amending the claim to recite “a head” would overcome this rejection. The claim is being read as such for the purposes of examination. Appropriate correction is required.
Claim 6 recites “glasses or data glasses” in line 2. It is not clear how “glasses” would function because the first and second sensors are included on the glasses (see claim 6, lines 4-5). It appears as if only data glasses may be utilized. This inconsistency renders claim 6 indefinite. Furthermore, it is unclear to which recitation “the glasses” in line 5 is referring to. Amending line 2 to recite “providing data glasses” and line 5 to recite “the data glasses” would overcome these rejections. The claim is being read as such for the purposes of examination. Appropriate correction is required.
Claim 9 recites “carrying out the measurement of the first and second parameters at a plurality of points in time” in lines 2-3. It is not clear the relationship the plurality of measurements of claim 9 have with the singular measurement of claim 8. Are the measurements of claim 9 additional measurements? This inconsistency renders claim 9 indefinite. Appropriate correction is required.
Claim 9 recites "the values" in lines 4-5, but it is not clear if this recitation is the same as, related to, or different from the recitation “a value of the first parameter and a value of the second parameter” in claim 8, lines 3-4. The definite article “the” suggests that they are the same. However, the plurality of points in time versus singular measurement as recited in claim 8 suggest that they might be different. Appropriate correction is required.
Claims 10-11 are rejected by virtue of their dependence from claim 9.
Claim 10 recites “a correlation measure” in line 2, but it is not clear if this recitation is the same as, related to, or different from the recitation “a correlation measure” in claim 8, line 2. The indefinite article “a” indicates that they are different, and the context of the claim is unclear whether they are related or not. Appropriate correction is required.
Claim 10 recites the limitation "the relevant values" in line 2. There is insufficient antecedent basis for this limitation in the claim. Amending the claim to recite “relevant values” would overcome this rejection. The claim is being read as such for the purposes of examination. Appropriate correction is required.
The term “relevant” in claim 10 is a relative term which renders the claim indefinite. The term “relevant” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear what makes a value of the plurality of values relevant. The specification indicates that there are relevant values (see specification ¶[0030]) but does not indicate the criteria for relevant values. Appropriate correction is required.
Claim 10 recites “at least some of the points in time” in line 3. It is not clear how many points in time are required to be considered “some”. This renders claim 10 indefinite. For the purposes of examination, the examiner is interpreting that one point of each of the first and second parameters is enough to count as “some”. Appropriate correction is required.
Claim 10 recites “ascertaining the final parameter for the unilateral anhidrosis based on the correlation measure ascertained for the points in time”; however, lines 1-2 indicate that only “some” of the points in time are required. The inconsistency between number of points in time included in the correlation measure determination and the final parameter determination render claim 10 indefinite. Appropriate correction is required.
Claim 11 is rejected by virtue of its dependence from claim 10.
The term “critical” in claim 12 is a relative term which renders the claim indefinite. The term “critical” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear what makes the final parameter critical. The specification indicates that the final parameter may be a critical value (see specification ¶[0032]) but does not indicate the criteria for is for it to be considered a critical value. Appropriate correction is required.
Claim 13 recites the limitation "the head" in line 3. There is insufficient antecedent basis for this limitation in the claim. Amending the claim to recite “a head” would overcome this rejection. The claim is being read as such for the purposes of examination. Appropriate correction is required.
Claim 13 recites “said first sensor and said second sensor each configured to measure a respective first parameter or second parameter giving information about sweat secreted on the first side or the second side of the head” in lines 9-11. However, the usage of “or” throughout this recitation make cause confusion as to which sensor is recording which value. From the context of the claim lines 5-8, it appears as if the first sensor measures a first parameter giving information on the first side of the head, and the second sensor measures a second parameter giving information on the second side of the head. The claim is being interpreted as such for the purposes of examination. Appropriate correction is required.
Claims 14-16 are rejected by virtue of their dependence from claim 13.
Claim 15 recites “said control unit being disposed in said external device” in lines 3; however, claim 13 recites “a system wearable on the head of a wearer, said system including a first sensor, a second sensor, and a control unit” in lines 3-4. The inconsistency between where the control unit is disposed (in the wearable system or in an external device) renders claim 15 indefinite. Appropriate correction is required.
Claim 17 recites the limitation "the head" in line 3. There is insufficient antecedent basis for this limitation in the claim. Amending the claim to recite “a head” would overcome this rejection. The claim is being read as such for the purposes of examination. Appropriate correction is required.
Claim 17 recites "a wearer" in lines 2-3, but it is not clear if this recitation is the same as, related to, or different from the recitation “a wearer” in line 1. The indefinite article “a” suggests that they are different, but the context of the claim suggests that these recitations are the same. If the recitations are the same, the present recitation should be “the wearer”. If the recitations are different, the relationship between these recitations should be made clear and they should be clearly distinguished from each other (e.g., when multiple elements have similar or the same labels, distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements). The examiner is interpreting that the recitations are the same for the purposes of examination. Appropriate correction is required.
Claim 17 recites “said first sensor and said second sensor each configured to measure a respective first parameter or second parameter giving information about sweat secreted on the first side or the second side of the head” in lines 8-10. However, the usage of “or” throughout this recitation make cause confusion as to which sensor is recording which value. From the context of the claim lines 4-7, it appears as if the first sensor measures a first parameter giving information on the first side of the head, and the second sensor measures a second parameter giving information on the second side of the head. The claim is being interpreted as such for the purposes of examination. Appropriate correction is required.
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 1-17 are rejected under 35 U.S.C. 101 because the claimed invention is directed towards abstract ideas without significantly more.
Claim 1 interpretation: Under the broadest reasonable interpretation (BRI), the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111. Based on the specification, the recitation “ascertaining a final parameter for unilateral anhidrosis of the wearer of the system based on the first parameter and the second parameter” (see specification ¶[0016]-[0017] and ¶[0049]-[0058]) is being interpreted as mathematical calculations/evaluations. The recitations are computer-implemented, as indicated in the specification (see specification ¶[0046] and ¶[0048]).
Claim 13 interpretation: Under the broadest reasonable interpretation (BRI), the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111. Based on the specification, the recitation “ascertain a final parameter for unilateral anhidrosis of the wearer of said system based on said first parameter and said second parameter” (see specification ¶[0016]-[0017] and ¶[0049]-[0058]) is being interpreted as mathematical calculations/evaluations. The recitations are computer-implemented, as indicated in the claim lines 12-14, and in the specification (see specification ¶[0046] and ¶[0048]).
Claim 17 interpretation: Under the broadest reasonable interpretation (BRI), the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111. Based on the specification, the recitation “said first parameter and said second parameter providing a basis for ascertaining a final parameter for unilateral anhidrosis of the wearer” (see specification ¶[0016]-[0017] and ¶[0049]-[0058]) is being interpreted as mathematical calculations/evaluations. The recitations are computer-implemented, as indicated in the specification (see specification ¶[0046] and ¶[0048]).
Step 1: This part of eligibility analysis evaluates whether the claim falls within any statutory category. MPEP 2106.03. Claim 1 is directed towards a method for testing a human physical function, which is directed towards a process (a statutory category of invention). Claim 13 is directed towards an arrangement and claim 17 is directed towards a system for testing a human physical function, which are directed towards a machine and/or a manufacture (a statutory category of invention). Step 1: YES.
Step 2A Prong One: This part of the eligibility analysis evaluates whether the claim recites a judicial exception. As explained in MPEP 2106.04(a)(2)(III). The courts consider a mental process (thinking) that “can be performed in the human mind, or by a human using a pen and paper” to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). The “mental processes” abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgements, and opinions. As discussed in the claim interpretation section, the limitations include, under the BRI, mathematical calculations/evaluations (i.e., calculations to determine the final parameter). Accordingly, the limitations as seen in claims 1, 13, and 17 recite judicial exceptions (abstract ideas that fall within the mental process grouping).
Furthermore, as explained in MPEP 2106.04(a)(2)(I). The courts consider mathematical calculations, when the claim is given its BRI in light of the specification, as falling within the “mathematical concept” grouping of abstract ideas. A claim does not have to recite “calculating” in order to be considered a mathematical calculation. For example, a step of “determining” a variable or number using a mathematical method, or “performing” a mathematical operation, may also be considered a mathematical calculation when the BRI of the claim in light of the specification encompasses a mathematical calculation. As discussed in the claim interpretation section, the limitations include, under the BRI, mathematical calculations/evaluations (i.e., calculations to determine the final parameter). Accordingly, the limitations as seen in claims 1, 13, and 17 recite judicial exceptions (abstract ideas that fall within the mathematical calculations grouping of mathematical concepts).
Alternatively or additionally, these steps describe the concept of using implicit mathematical formulas (i.e., calculations to determine the final parameter) to derive a conclusion based on input of data, which corresponds to concepts identified as abstract ideas by the courts (Diamond v. Diehr. 450 U.S. 175, 209 U.S.P.Q. 1 (1981), Parker v. Flook. 437 U.S. 584, 19 U.S.P.Q. 193 (1978), and In re Grams. 888 F.2d 835, 12 U.S.P.Q.2d 1824 (Fed. Cir. 1989)). The concept of the recited limitations identified as mathematical concepts above is not meaningfully different than those mathematical concepts found by the courts to be abstract ideas.
In particular, claim 1 recites the following elements, which are part of the abstract idea (i.e., the algorithm):
a method for testing a human physical function, the method comprising:
ascertaining a final parameter for unilateral anhidrosis of the wearer of the system based on the first parameter and the second parameter.
Furthermore, claim 13 recites the following elements, which are part of the abstract idea (i.e., the algorithm):
during an intended operation of said system;
said first sensor and said second sensor each configured to measure a respective first parameter or second parameter giving information about sweat secreted on the first side or the second side of the head; and
said control unit configured to ascertain a final parameter for unilateral anhidrosis of the wearer of said system based on said first parameter and said second parameter.
In addition, claim 17 recites the following elements, which are part of the abstract idea (i.e., the algorithm):
during an intended operation of the system;
said first sensor and said second sensor each configured to measure a respective first parameter or second parameter giving information about sweat secreted on the first side or the second side of the head; and
said first parameter and said second parameter providing a basis for ascertaining a final parameter for unilateral anhidrosis of the wearer.
Step 2A Prong One: YES.
Step 2A Prong Two: This part of the eligibility analysis evaluates whether the claim as a whole integrates the judicial exceptions into a practical application of the exception. This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exceptions, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exceptions into a practical application. Claim 13 recites an additional element of a control unit (see specification ¶[0046] and ¶[0048]) which is a generic computer. The arrangement is merely instructions to implement an abstract idea on a generic computer or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f).
Claims 1, 13, and 17 further recites an additional element of two generic sensors (i.e., the sensors are claimed generically without specificity). The sensors do not qualify as integration into a practical application because this limitation is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering at a higher level of generality - see MPEP 2106.04(d) and MPEP 2106.05(g) using generic components (i.e., the sensors are generic).
Alternatively and/or additionally, sensors worn on lateral sides of the head are known in the art. For example, Kreuzer (US Patent Application Publication 2022/0157452) teaches a method for providing data by means of at least one electronic apparatus integrated in a hearing aid (see abstract and Fig. 1), in which the sensors integrated into the hearing aid are conventional sensors such as PPG, conductivity, or moisture sensors known in the prior art (see ¶[0011]). Therefore, the sensors cannot be seen as integration into a practical application.
Step 2A Prong Two: NO.
Step 2B: This part of the eligibility analysis evaluates whether the claim as a whole, amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim. MPEP 2106.05. As explained with Step 2A Prong Two, the claim recites additional elements which are directed towards the usage of a generic computer, and are at best the equivalent of merely adding the words “apply it” to the judicial exceptions. Mere instructions to apply an exception cannot provide an inventive concept. These elements/steps can be seen as well-understood, routine, and conventional individually and in combination. Claim 13 recites an additional element of a control unit (see specification ¶[0046] and ¶[0048]) which is a generic computer. Thus, the arrangement does not qualify as significantly more because these limitations are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Claims 1, 13, and 17 further recites an additional element of two generic sensors (i.e., the sensors are claimed generically without specificity). The sensors do not qualify as significantly more because this is simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than routine data gathering that are well-understood, routine and conventional activities previously known to the industry. For example, Kreuzer (US Patent Application Publication 2022/0157452) teaches a method for providing data by means of at least one electronic apparatus integrated in a hearing aid (see abstract and Fig. 1), in which the sensors integrated into the hearing aid are conventional sensors such as PPG, conductivity, or moisture sensors known in the prior art (see ¶[0011]). Therefore, the sensors cannot be seen as significantly more.
Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process. Step 2B: NO.
Claim 1, 13, and 17 are not eligible.
Claims 2 and 8-12 depend from claim 1, and merely further define the abstract ideas of claims 1 with no further element that integrates the abstract ideas into a practical application or that qualifies as being significantly more. Looking at the limitations of each claim as an ordered combination in conjunction with the claims from which they depend (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome.
Claims 3-5 depend from claim 1 and recite additional elements. Claim 3 recites an additional element of a binaural hearing system, claim 4 recites an additional element of sensors including a PPG sensor, and claim 5 recites an additional element of sensors for humidity sensing. These elements can be seen as well-understood, routine, and conventional activities previously known to the industry, specified at a high level of generality. For example, Kreuzer (US Patent Application Publication 2022/0157452) teaches a method for providing data by means of at least one electronic apparatus integrated in a hearing aid (see abstract and Fig. 1), in which the sensors integrated into the hearing aid are conventional sensors such as PPG, conductivity, or moisture sensors known in the prior art (see ¶[0011]). Therefore, these elements cannot be seen as integration into a practical application or as significantly more.
Claim 6 depends from claim 1 and recites an additional element of glasses or data glasses. This element can be seen as well-understood, routine, and conventional activities previously known to the industry, specified at a high level of generality. For example, Ellis (US Patent Application Publication 2018/0271181) teaches a smartphone or other mobile computer device for control of sensor/systems within soles (see abstract), including the usage of known remote sensors within a peripheral device (see ¶[0070]), which may include conventional glasses (see ¶[0043]). Therefore, these elements cannot be seen as integration into a practical application or as significantly more.
Claim 7 depends from claim 1 and recites an additional element of an external device, which is just a generic computer (see specification ¶[0027). Therefore, the method is merely instructions to implement an abstract idea on a generic computer (i.e., the external device) or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f). Further that, the claim recites an additional element which is directed towards the usage of a generic computer (i.e., the external device), and are at best the equivalent of merely adding the words “apply it” to the judicial exceptions. Mere instructions to apply an exception cannot provide an inventive concept. This element/step can be seen as well-understood, routine, and conventional individually and in combination. Thus, the method does not qualify as significantly more because this limitations are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Claims 14 and 16 depend from claim 13 and recite additional elements. Claim 14 recites an additional element of a binaural hearing system, and claim 16 recites an additional element of sensors including a PPG sensor. These elements can be seen as well-understood, routine, and conventional activities previously known to the industry, specified at a high level of generality. For example, Kreuzer (US Patent Application Publication 2022/0157452) teaches a method for providing data by means of at least one electronic apparatus integrated in a hearing aid (see abstract and Fig. 1), in which the sensors integrated into the hearing aid are conventional sensors such as PPG, conductivity, or moisture sensors known in the prior art (see ¶[0011]). Therefore, these elements cannot be seen as integration into a practical application or as significantly more.
Claim 15 depends from claim 13 and recites an additional element of an external device, which is just a generic computer (see specification ¶[0027). Therefore, the method is merely instructions to implement an abstract idea on a generic computer (i.e., the external device) or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f). Further that, the claim recites an additional element which is directed towards the usage of a generic computer (i.e., the external device), and are at best the equivalent of merely adding the words “apply it” to the judicial exceptions. Mere instructions to apply an exception cannot provide an inventive concept. This element/step can be seen as well-understood, routine, and conventional individually and in combination. Thus, the method does not qualify as significantly more because this limitations are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Claim Rejections - 35 USC § 102
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 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.
The succeeding art rejections to the claims under 35 U.S.C. § 102 and 103 below are made with the claims as best understood and interpreted in light of the preceding rejections under 35 U.S.C. § 112 above.
Claims 13 and 15-16 are rejected under 35 U.S.C. 102 (a) as being anticipated by Kobayashi et al. (US Patent Application Publication 2015/0002373 – cited by Applicant), hereinafter Kobayashi.
Examiner’s Note, Intended Use: the functional language (italicized below) in the claims including the recitation: “said first sensor and said second sensor each configured to measure a respective first parameter or second parameter giving information about sweat secreted on the first side or the second side of the head; and said control unit configured to ascertain a final parameter for unilateral anhidrosis of the wearer of said system based on said first parameter and said second parameter” in claim 13, lines 9-14. It is noted that this recitation is not positively recited, but merely provide intended use or conditions of use of the positively recited structural recitations (i.e., the wearable system). Therefore, the examiner interprets the intended use/conditions of the claims in such a manner that if prior art, under 35 U.S.C. § 102 and/or 103, teaches or makes obvious the positively recited structural recitations (i.e., the wearable system) that could be configured to perform the intended use/conditions of the claims, as satisfying the scope of the limitations pertaining to the intended use/conditions, and the prior art thereby teaching the claims as a whole in the application. The intended use indicated by the recitation “during an intended operation of said system” in claim 13, lines 7-8.
Regarding Claim 13, Kobayashi teaches a head-mount type display device (see abstract and Fig. 1). Kobayashi teaches an arrangement for testing a human physical function (see abstract and Fig. 1; see also ¶[0017] and ¶[0058] the physical condition of the user is determined through sensors on the system, such as via the pulse wave sensor 61; Fig. 1),
the arrangement comprising:
a system wearable on the head of a wearer (¶[0094] the display device 100f; Fig. 11), said system including a first sensor (¶[0131]-[0132] the first perspiration meter in place of 64; Fig. 11), a second sensor (¶[0131]-[0132] the second perspiration meter in place of 65; Fig. 11), and a control unit (¶[0053], ¶[0060]-[0061], and ¶[0129]-[0130] the controller 10; Fig. 11);
said first sensor configured to be disposed on a lateral first side of the head of the wearer, and said second sensor configured to be disposed on a lateral second side of the head of the wearer opposite to the first side (see ¶[0131]-[0132] and Fig. 11, the first perspiration meter in place of 64 and the second perspiration meter in place of 65 are on opposite lateral sides of the head),
during an intended operation of said system; said first sensor and said second sensor each configured to measure a respective first parameter or second parameter giving information about sweat secreted on the first side or the second side of the head; and said control unit configured to ascertain a final parameter for unilateral anhidrosis of the wearer of said system based on said first parameter and said second parameter (see above intended use note, as the structure of Kobayashi is capable of performing the intended use functional recitations, Kobayashi teaches the elements as required in claim 13).
Regarding Claim 15, Kobayashi teaches the arrangement of claim 13 as stated above. Kobayashi further teaches an external device configured to be connected by a data link to said system wearable on the head, said control unit being disposed in said external device (¶[0053], ¶[0060]-[0061], and ¶[0129]-[0130] the controller 10 in the external device embodiment when formed as separate constituents, connected to the display device 100f via connection section 40; Figs. 1 and 11).
Regarding Claim 16, Kobayashi teaches the arrangement of claim 13 as stated above. Kobayashi further teaches at least one of said first sensor or said second sensor is at least one of: - a photoplethysmographic sensor, or - a capacitive sensor, or - an electromyography sensor, or - an electrocardiography sensor, or - an electroencephalography sensor, or - a humidity sensor, or - a skin conductivity sensor, or - a reflectometry sensor, or - a cerumen sensor, or - an arrangement having a light source and a photodetector (¶[0131] the humidity type sensor for detecting sweat, ¶[0132} the skin conductivity type sensor for detecting sweat).
Claims 13-14 are rejected under 35 U.S.C. 102 (a) as being anticipated by Klinghult et al. (US Patent Application Publication 2009/0010461 – cited by Applicant), hereinafter Klinghult.
Examiner’s Note, Intended Use: the functional language (italicized below) in the claims including the recitation: “said first sensor and said second sensor each configured to measure a respective first parameter or second parameter giving information about sweat secreted on the first side or the second side of the head; and said control unit configured to ascertain a final parameter for unilateral anhidrosis of the wearer of said system based on said first parameter and said second parameter” in claim 13, lines 9-14. It is noted that this recitation is not positively recited, but merely provide intended use or conditions of use of the positively recited structural recitations (i.e., the wearable system). Therefore, the examiner interprets the intended use/conditions of the claims in such a manner that if prior art, under 35 U.S.C. § 102 and/or 103, teaches or makes obvious the positively recited structural recitations (i.e., the wearable system) that could be configured to perform the intended use/conditions of the claims, as satisfying the scope of the limitations pertaining to the intended use/conditions, and the prior art thereby teaching the claims as a whole in the application. The intended use indicated by the recitation “during an intended operation of said system” in claim 13, lines 7-8.
Regarding Claim 13, Klinghult teaches a headset assembly communicable with a portable device capable of receiving a processing biological sensor data (see abstract and Figs. 1-4). Klinghult teaches an arrangement for testing a human physical function (see abstract and Figs. 1-4; see also ¶[0012]-[0013] the sensors 140 disposed on the outside of the earbud 120; Figs. 1-2 and 4),
the arrangement comprising:
a system wearable on the head of a wearer (¶[0011]-[0012] the earbud headset 100; Figs. 1-2 and 4), said system including a first sensor (¶[0011]-[0012] the sensors 140 disposed on the outside of a first earbud 120; Figs. 1-2 and 4), a second sensor (¶[0011]-[0012] the sensors 140 disposed on the outside of a second earbud 120; Figs. 1-2 and 4), and a control unit (¶[0022] and ¶[0030] the processor 410 on the portable mobile communications device 400; Figs. 4 and 10);
said first sensor configured to be disposed on a lateral first side of the head of the wearer, and said second sensor configured to be disposed on a lateral second side of the head of the wearer opposite to the first side (see ¶[0012] and Fig. 4, the earbuds 120, each comprising sensors 140, configured to be disposed within an ear on either side of a head, such that sensors 140 remain in contact with a portion of the user’s ear when the earbud is inserted and operating in the user’s ear),
during an intended operation of said system; said first sensor and said second sensor each configured to measure a respective first parameter or second parameter giving information about sweat secreted on the first side or the second side of the head; and said control unit configured to ascertain a final parameter for unilateral anhidrosis of the wearer of said system based on said first parameter and said second parameter (see above intended use note, as the structure of Klinghult is capable of performing the intended use functional recitations, Klinghult teaches the elements as required in claim 13).
Regarding Claim 14, Klinghult teaches the arrangement of claim 13 as stated above. Klinghult further teaches said system is a binaural hearing system having a first hearing instrument and a second hearing instrument; and said first sensor is disposed in said first hearing instrument and said second sensor is disposed in said second hearing instrument (see ¶[0012] and Fig. 4, the earbuds 120, each comprising sensors 140, configured to be disposed within an ear on either side of a head, such that sensors 140 remain in contact with a portion of the user’s ear when the earbud is inserted and operating in the user’s ear).
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.
The factual inquiries 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.
The succeeding art rejections to the claims under 35 U.S.C. § 102 and 103 below are made with the claims as best understood and interpreted in light of the preceding rejections under 35 U.S.C. § 112 above.
Claims 1-2, 6-12, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi, and in view of Miller et al. (US Patent Application Publication 2015/0305675), hereinafter Miller, and in view of Phuan et al. (“Unilateral facial and upper truncal anhidrosis and absence of physiological flushing: A case of idiopathic harlequin syndrome”, Indian J Dermatol Venereol Leprol, 2017, 83:740), hereinafter Phuan.
Regarding Claim 1, Kobayashi teaches a head-mount type display device (see abstract and Fig. 1). Kobayashi teaches a method for testing a human physical function (see abstract and Fig. 1; see also ¶[0017] and ¶[0058] the physical condition of the user is determined through sensors on the system, such as via the pulse wave sensor 61; Fig. 1),
the method comprising:
providing a system wearable on the head of a wearer (¶[0094] the display device 100f; Fig. 11),
using a first sensor of the system configured to be disposed on a lateral first side of the head to carry out a measurement of a first parameter giving information about sweat secreted on the first side of the head (¶[0131]-[0132] the first perspiration meter in place of 64, disposed on a first side of the head, for measuring perspiration/sweat at that location; Fig. 11),
using a second sensor of the system configured to be disposed on a side of the head opposite to the first side to carry out a measurement of a second parameter giving information about sweat secreted on the second side of the head (¶[0131]-[0132] the second perspiration meter in place of 65, disposed on a second opposite side of the head, for measuring perspiration/sweat at that location; Fig. 11),
said first sensor configured to be disposed on a lateral first side of the head of the wearer, and said second sensor configured to be disposed on a lateral second side of the head of the wearer opposite to the first side (see ¶[0131]-[0132] and Fig. 11, the first perspiration meter in place of 64 and the second perspiration meter in place of 65 are on opposite lateral sides of the head).
Kobayashi teaches identification and degree of perspiration of a user (see ¶[0131]), but not specifically to ascertaining a final parameter for unilateral anhidrosis of the wearer of the system based on the first parameter and the second parameter.
Miller teaches apparatuses and methods for measuring stress utilizing a wearable device by determining a correlation between first and second physiological data (see abstract), in which the wearable device 110 comprises sensors 130 (see ¶[0033] and Fig. 1) and the system may utilize multiple wearable device with sensors, necessarily at different locations on the body (see ¶[0047] and Fig. 10), and may measure different physiological measures, including sweat rate (see ¶[0087]). Miller teaches that the correlation may come from different measurement or data points, such as from different sensors or devices, so as to predict a condition/outcome (see ¶[0052]-[0053]), and may, based on different threshold values, diagnosis a medical or physiological condition, may include a trend of sensor values in the determination, and report feedback back to the user (see ¶[0065]-[0066] and ¶[0126] and Fig. 12), or probability of such a condition/outcome (see ¶[0067]-[0068]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the correlation determination of Miller between the sweat measurements of the first sensor (i.e., the first perspiration meter in place of 64) and the second sensor (the second perspiration meter in place of 65) of Kobayashi because (1) it is the application of a known technique to a known method ready for improvement to yield predictable results; and/or (2) the determination of a condition/outcome would give the user important information about their physiological condition.
The modified Kobayashi does not specifically state that the correlation is for determining unilateral anhidrosis.
Phuan teaches that unilateral anhidrosis is “unilateral absence of physiological facial heat-induced flushing and sweating” (see ¶1 and Figure 1).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the correlation between the first sensor (i.e., the first perspiration meter in place of 64) and the second sensor (the second perspiration meter in place of 65) of the modified Kobayashi to determine presences of unilateral anhidrosis because (1) it is the application of a known technique to a known method ready for improvement to yield predictable result; and/or (2) the modified Kobayashi teaches to determine a physiological condition and Phuan teaches one such physiological condition that may be determined from such a correlation; and/or (3) determining unilateral anhidrosis from the sensor data can help dermatologists recognize and give the patients appropriate care (see Phuan ¶8-9).
Regarding Claim 2, Kobayashi in view of Miller and Phuan teaches the method of claim 1 as stated above. Kobayashi further teaches carrying out the measurement of each respective first or second parameter as at least one of a measurement of electrodermal activity or a measurement of skin reflectance on the respective first or second side of the head (¶[0132] the sweat may be sensed through resistance sensed through the skin, which is electrodermal activity).
Regarding Claim 6, Kobayashi in view of Miller and Phuan teaches the method of claim 1 as stated above. Kobayashi further teaches providing glasses or data glasses as the system wearable on the head (¶[0094] the display device 100f is data glasses; Figs. 1 and 11); and placing each of the first sensor and the second sensor on a respective one of a left side and a right side of the glasses (see ¶[0131]-[0132] and Fig. 11, the first perspiration meter in place of 64 and the second perspiration meter in place of 65 are on opposite lateral