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 .
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.
Claim(s) 1, 2, 10, 12, and 13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ma et al. (EP 2 077 091 – cited by Applicant). Ma et al. teach an optical sensing arrangement including plural emitter and detector elements on an ear wearable member (Figures 4, 5, 7, 13 and the descriptions thereof with particular attention to paragraphs [0048], [0049], and [0056]). As shown and discussed, the optical sensing elements are distributed around the portion of the member inserted into the user’s ear canal, such that during use the measurements will be collected from different portions of the ear and will differently be affected by motion accordingly. The signals can be analyzed (Figure 17 and the description thereof with particular attention to theoretical basis/equations discussed in paragraph [0078]) and differences in motion can be identified and processed for improving measurement of parameters of interest. Ma et al. recognize that the motion signal portion of the collected optical data varies a lot among the three sensor signals (paragraph [0078]).
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.
Claim(s) 3 – 9, and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ma et al. as applied to claims 1, 2, and 10 above, further in view of Burgett et al. (USPGPub 2015/0010193). Ma et al. teaches all of the features of the claimed invention except that the earbud holding the sensors has an elliptical shape. However, Burgett et al. teaches an earbud/earphone, and indicate that iterations of the structure may include oval or ellipse shaped ear buds (Figures 1 – 3 and the descriptions thereof, with attention to paragraph [0014]). It would have been obvious to implement the ear bud portion of Ma et al. with any of the known shape variations as discussed in Burgett et al., since it has generally been held to be within the skill level of the art to use known alternate equivalents providing a predictable result. Further, in placing the sensing elements on the ellipse/earbud, one would consider the parameters discussed in Ma et al. as desirable aspects of the collected signals and absent a showing of criticality or unexpected results, one could perform routine experimentation to determine appropriate placements for optimizing any of the noted parameters, including the placement of the sensing elements in the claimed positions.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Wong et al. (USPGPub 2016/0249839) teach an ear wearable optical sensor in which plural emitter and detector elements may be positioned around the sensor for collecting signals from plural transmission paths (Summary of the Invention).
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/ERIC F WINAKUR/Primary Examiner, Art Unit 3791