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 .
Election/Restrictions
Applicant’s election without traverse of claims 8-25 in the reply filed on 03 August 2026 is acknowledged.
Status of the Claims
Claims 1-25 are pending.
Claims 1-7 are withdrawn without traverse following the election dated 03 August 2026.
Claims 8-25 are examined herein.
No claims are canceled.
Priority
As detailed on the 28 November 2022 filing receipt, the application claims priority as early as 11 November 2021. At this point in examination, all claims have been interpreted as being accorded this priority date as the effective filing date.
Information Disclosure Statement
An information disclosure statement (IDS) was filed on 2022 February 02. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the references are being considered by the examiner.
Claim Objections
Claim 8 is objected to because of the following informalities: “at least one criteria” should read “at least one criterion.” Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 20-21 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.
Claims 20-21 recite the limitations "the environment and behavior context data” and “the adjustment model.” There is insufficient antecedent basis for this limitation in the claim. Claims 20-21 are dependent on claims 8-9 and 18, none of which recite “environment and behavior context data” or an “adjustment model.” Therefore, the terms are rendered unclear.
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 8-25 are rejected under 35 USC § 101 because the claimed inventions are directed to an abstract idea without significantly more. "Claims directed to nothing more than abstract ideas (such as a mathematical formula or equation), natural phenomena, and laws of nature are not eligible for patent protection" (MPEP 2106.04 § I). Abstract ideas include mathematical concepts, and procedures for evaluating, analyzing or organizing information, which are a type of mental process (MPEP 2106.04(a)(2)). The claims as a whole, considering all claim elements individually and in combination, are directed to a judicial exception at Step 2A, Prong 2, and the additional elements of the claims, considered individually and in combination, do not provide significantly more at Step 2B than the abstract idea of classifying fitness.
MPEP 2106 organizes JE analysis into Steps 1, 2A (Prong One & Prong Two), and 2B as analyzed below.
Step 1: Are the claims directed to a process, machine, manufacture, or composition of matter (MPEP 2106.03)?
Step 2A, Prong One: Do the claims recite a judicially recognized exception, i.e., a law of
nature, a natural phenomenon, or an abstract idea (MPEP 2106.04(a-c))?
Step 2A, Prong Two: If the claims recite a judicial exception under Prong One, then is the judicial exception integrated into a practical application by an additional element (MPEP 2106.04(d))?
Step 2B: Do the claims recite a non-conventional arrangement of elements in addition to any identified judicial exception(s) (MPEP 2106.05)?
Step 1: Are the claims directed to a 101 process, machine, manufacture, or composition of matter (MPEP 2106.03)?
The claims are directed to a method (claims 8-25), which falls within one of the categories of statutory subject matter. [Step 1: Yes]
Step 2A, Prong One: Do the claims recite a judicially recognized exception, i.e., a law of nature, a natural phenomenon, or an abstract idea (MPEP 2106.04(a-c))?
With respect to Step 2A, Prong One, the claims recite judicial exceptions in the form of abstract ideas. MPEP § 2106.04(a)(2) further explains that abstract ideas are defined as:
• mathematical concepts (mathematical formulas or equations, mathematical relationships
and mathematical calculations) (MPEP 2106.04(a)(2)(I));
• certain methods of organizing human activity (fundamental economic principles or practices, managing personal behavior or relationships or interactions between people) (MPEP 2106.04(a)(2)(II)); and/or
• mental processes (concepts practically performed in the human mind, including observations, evaluations, judgments, and opinions) (MPEP 2106.04(a)(2)(III)).
Claim 8 recites determining confidence-weighted historical sensor observations and confidence-weighted maximal oxygen consumption estimates based on heart rate data, mechanical work rate data, input sensor quality, validity of a work rate model for generating the mechanical work rate data and a measure of observation consistency, where determining estimates based on numerical data is a verbal description of a mathematical concept.
Claim 8 recites determining a first joint confidence based on the confidence-weighted historical sensor observations, where determining confidence is a verbal description of a mathematical concept.
Claim 8 recites determining a second joint confidence based on the confidence-weighted maximal oxygen consumption estimates, historical maximal oxygen consumption estimates and context data, where determining confidence is a verbal description of a mathematical concept.
Claim 8 recites determining a cardiorespiratory fitness of the user by evaluating the first and second joint confidences using at least one criteria, where determining a fitness value based on confidence values is a verbal description of a mathematical concept. Classifying the fitness level may also be a qualitative data evaluation step and thus performable by the human mind.
Claims 9-17 recite a first joint confidence determined by a confidence model including a physiologic consistency model, a historical consistency model and an observation sufficiency model, and further aspects of those models. The specification discloses the models determine agreement between data and are based on distance metrics (paragraphs [14-21]), and thus are interpreted as descriptions of mathematical concepts.
Claims 18-25 recite a second joint confidence determined by a confidence model including a personalized confidence interval model, an estimate sufficiency model, a personalized threshold model and an interpretability model, and further aspects of those models. The models are disclosed as including weighted averages, standard deviations, and linear or non-linear modeling (paragraphs [22-29]), and thus are interpreted as descriptions of mathematical concepts.
Claim 25 also recites notifying the user of persistently low cardiorespiratory fitness. Relaying this information may be interpreted as a mental step of evaluating information or organizing human activity if a person is relaying the information regarding the fitness status.
Hence, the claims explicitly recite numerous elements that, individually and in combination,
constitute abstract ideas. The claims must therefore be examined further to determine whether they
integrate that abstract idea into a practical application (MPEP 2106.04(d)). [Step 2A Prong One: Yes]
Step 2A, Prong Two: If the claims recite a judicial exception under Prong One, then is the judicial exception integrated into a practical application by an additional element (MPEP 2106.04(d))?
Because the claims recite judicial exceptions, direction under Step 2A Prong Two provides that the claims must be examined further to determine whether they recite elements in addition to the abstract ideas which integrate the judicial exceptions into a practical application (MPEP 2106.04(d)). A claim can be said to integrate a judicial exception into a practical application when it applies, relies on, or uses the judicial exception in a manner that imposes a meaningful limit on the judicial exception. This is performed by analyzing the additional elements of the claim to determine if the judicial exceptions are integrated into a practical application (MPEP 2106.04(d)(I); MPEP 2106.05(a-h)). If the claim contains no additional elements beyond the judicial exceptions, the claim is said to fail to integrate the judicial exceptions into a practical application (MPEP 2106.04(d)(III)).
Claim 8 recites at least one processor.
The processor is considered to be a general purpose computer. The claims do not describe any specific computational steps by which the computer performs or carries out the abstract idea, nor do they provide any details of how specific structures of the computer are used to implement these functions. The claims state nothing more than that a generic computer performs the functions that constitute the abstract idea. Hence, these are mere instructions to apply the abstract idea using a computer, and therefore the claim does not integrate that abstract idea into a practical application (see MPEP 2106.04(d) § I; and MPEP 2106.05(f)).
None of the dependent claims recite any additional non-abstract elements; they are all directed
to further aspects of the information being analyzed, the manner in which that analysis is performed, or
the mathematical operations performed on the information. [Step 2A Prong Two: No]
Step 2B: Do the claims recite a non-conventional arrangement of elements in addition to any identified judicial exception(s) (MPEP 2106.05)?
Claims found to be directed to a judicial exception are then further evaluated to determine if the claims recite an inventive concept that provides significantly more than the judicial exception itself. Step 2B of 101 analysis determines whether the claims contain additional elements that amount to an inventive concept, and an inventive concept cannot be furnished by an abstract idea itself (MPEP 2106.05).
Claim 8 recites at least one processor.
The claims recite a computer, interpreted as instructions to apply the abstract idea using a computer, where the computer does not impose meaningful limitations on the judicial exceptions, which can be performed without the use of a computer (MPEP 2106.04(d) § I; and MPEP 2106.05(f)).
Therefore, the recited additional element does not appear to provide an inventive concept. [Step 2B: No]
Conclusion: Claims are Directed to Non-statutory Subject Matter
For these reasons, the claims, when the limitations are considered individually and as a whole,
are directed to an abstract idea and lack an inventive concept. Hence, the claimed invention does not
constitute significantly more than the abstract idea, so the claims are rejected under 35 USC § 101 as
being directed to non-statutory subject matter.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 8-9, 11-13, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Alvarado (US 9,918,646 B2; previously cited on the 02 February 2024 IDS form) in view of Andon (US 10,657,156 B2; newly cited) and King (US 2017/0036065 A1; newly cited).
Claim 8 recites determining, with at least one processor, confidence-weighted historical sensor
observations and confidence-weighted maximal oxygen consumption estimates based on (1) heart rate data, (2) mechanical work rate data, (3) input sensor quality, (4) validity of a work rate model for generating the mechanical work rate data and (5) a measure of observation consistency.
Alvarado teaches calculation of joint likelihoods for caloric calculation (abstract), including previous readings (paragraph [76]), where historical observations reads on previous readings. Alvarado teaches heart rate and work rate models (paragraph [129]), quality of input (paragraph [129]), and collection at regular intervals (paragraph [108]), where regular intervals is interpreted as consistency.
Andon teaches received data having a confidence weighting (col. 2, lines 29-34), which may be stored and thus based on previously collected data (col. 38, first paragraph).
Claim 8 recites determining, with the at least one processor, a first joint confidence based on the
confidence-weighted historical sensor observations and determining, with the at least one processor, a second joint confidence based on the confidence-weighted maximal oxygen consumption estimates, historical maximal oxygen consumption estimates and context data.
Alvarado teaches adjusting confidence depending on measured conditions (paragraph [138]) and weighting (abstract) with a first and second confidence (abstract), as well as heart rate and work rate modeling (abstract).
Claim 8 recites determining, with the at least one processor, a cardiorespiratory fitness of the user by evaluating the first and second joint confidences using at least one criteria.
King teaches assessing cardiovascular fitness of a subject (abstract) based on maximal oxygen uptake (paragraph [6]) when compared to a predetermined threshold value (paragraphs [13-14]).
Claim 9 recites the first joint confidence is generated by a first joint confidence model that includes a physiologic consistency model, a historical consistency model and an observation sufficiency model.
Alvarado teaches adjusting confidence depending on measured conditions (paragraph [138]) and weighting (abstract) with a first and second confidence (abstract), as well as heart rate and work rate modeling (abstract). The physiologic consistency is interpreted as reading on a time-stamped heart rate (abstract), the historical consistency as previously sensed measurements (pg. 5, col. 2, paragraph [76], and the observation sufficiency as calculating only when there is sufficient time to allow for modeling the physiological dynamics (pg. 9, col. 2, paragraph [131]).
Claim 11 recites agreement is determined by an aggregate distance metric computed on the confidence-weighted historical sensor observations.
Alvarado teaches a deviation from maximal oxygen intake which is revised based on time stamped values (paragraph [143]), interpreted a distance from historical observations.
Claim 12 recites the physiologic model is a classifier with an input feature vector that includes observation confidence weight, exertion level of the user and frequency of the observation.
Alvarado teaches a confidence in the likelihood of accuracy (paragraph [42]) and make determinations based on heart rate check frequency (pg. 3, col. 2, paragraph [44]), interpreted as sampling frequency.
Andon further teaches confidence in received sensor data associated with energy expenditure (col. 36, lines 49-53).
Claim 13 recites the historical consistency model is configured to determine whether there is agreement between a normalized heart rate data and a normalized mechanical work rate data.
Alvarado teaches a joint likelihood of the heart rate and work rate (paragraph [13]).
Claim 15 recites the observation sufficiency model is configured to determine whether there is a sufficient number of high confidence observations output by observation confidence model to determine the confidence weights.
Alvarado teaches determining reads over a sufficient time interval to determine enough reads to allow for calculations (pg. 9, col. 2, paragraph [131]).
Claim 16 recites the observation sufficiency model is applied after passing physiologic and historical consistency thresholds.
King teaches processing physiological data after surpassing a predetermined threshold value to generate a fitness level (pg. 6, col. 1, claim 6).
Combining Alvarado, Andon, and King
An invention would have been obvious to one of ordinary skill in the art if some motivation in the prior art would have led that person to modify prior art reference teachings to arrive at the claimed invention prior to the effective filing date of the invention. One would have been motivated to combine the work of Alvarado, which is directed to calculating joint probability of load of exercise and aerobic capacity (abstract) with that of Andon because Andon teaches confidence weights in a wearable, which may be based on stored metrics (col. 2, line 32) and be valuable in calculations because they would specific to a user, exercise, or environment (col. 38, first paragraph) and thus provide a more accurate assessment. Both Alvarado and Andon are directed to the shared field of endeavor of wearable physiology detectors and their combination would be prima facie obvious. Further combination with King, which teaches displaying a fitness level to the subject, would be obvious because it would allow the user to know their fitness level and the devices of Alvarado and Andon also teach a display. King, Alvarado, and Andon are all directed to the shared field of endeavor of wearable physiology detectors and their combination would be expected to succeed and be prima facie obvious.
Claims 10 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Alvarado in view of Andon and King as applied to claims 8-9, 11-13, and 15-16 above and further in view of Raghuram (US 20160058372 A1; newly cited).
Claim 10 recites the physiologic consistency model is configured to determine agreement between the confidence-weighted historical sensor observations and a physiologic model of how the normalized heart rate data responds to the mechanical work rate data.
Raghuram teaches confidence based on the normalized heart rate and work rate (paragraphs [156-158]), estimating them together (paragraph [129]), and calibration between the values (paragraphs [120, 145]).
Claim 17 recites the observation sufficiency model is configured to determine whether there is a minimum exertion range of coverage or a requirement of a minimum number of observations across a minimum number of unique exercise periods or days.
Raghuram teaches an activity must be sufficiently long to collect sufficient data to model energy expenditure.
Combining Alvarado, Andon, King, and Raghuram
An invention would have been obvious to one of ordinary skill in the art if some motivation in the prior art would have led that person to modify prior art reference teachings to arrive at the claimed invention prior to the effective filing date of the invention. One would have been motivated to normalize and estimate or calibrate the heart rate and work rate together as taught by Raghuram in combination with the previously combined works because the consistency between them is required to be able to interpret the maximal oxygen consumption (paragraph [135]). Raghuram and the previously combined art are directed to the shared field of endeavor of fitness tracking and physiological signal interpretation and their combination would be prima facie obvious.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Alvarado in view of Andon and King as applied to claims 8-9, 11-13, and 15-16 above and further in view of Prabhu (WO 2021145824 A1; newly cited).
Claim 14 recites agreement is determined by an aggregate distance metric and a required consistency within a given exertion range.
Alvarado teaches a distribution with a normalized variance (paragraph [137]) where variance can be interpreted as a distance metric.
Prabhu teaches parameters including exertion of the user as a parameter (pg. 4, lines 12-13) and deviation from a predefined range (pg. 4, line 10), where the deviation is interpreted as a distance.
Combining Alvarado, Andon, King, and Prabhu
An invention would have been obvious to one of ordinary skill in the art if some motivation in the prior art would have led that person to modify prior art reference teachings to arrive at the claimed invention prior to the effective filing date of the invention. One would have been motivated to use comparison to predefined thresholds as taught by Prabhu because Prabhu teaches such a comparison may allow to determination of abrupt changes such as due to level of fatigue (pg. 9, first and second paragraphs). Prabhu teaches a relationship between exertion and heart rate (pg. 12, lines 5-10), where heart rate is a commonly predicted metric in wearable fitness trackers. Because Prabhu and the previously combined art are drawn to the shared field of endeavor of physiological tracking devices and related data interpretation, their combination would be prima facie obvious.
Claims Free of the Prior Art
Claims 18 and its dependents recite details of the second joint confidence model, including: a personalized confidence interval model, an estimate sufficiency model, a personalized threshold model, and an interpretability model (claim 18); an exponentially time and confidence-weighted average of the maximal oxygen consumption estimates, and a standard deviation of longitudinally-smoothed maximal oxygen estimates (claim 19); an adjustment model, which maps behavior or environment features of a given activity period to an adjusted maximal oxygen consumption estimate (claim 20); a linear or non-linear model of the relationship between increased altitude, external or internal temperature, humidity, or other environmental data and a reduction in maximal oxygen consumption (claim 21); if the maximal oxygen consumption estimates have converged and that there are sufficient number of estimates (claim 22); a confidence interval around the maximal oxygen consumption estimate based upon a population error model of maximal oxygen consumption estimates, and whether the confidence interval is below a set threshold (claim 23); a final classification result is reasonable and interpretable to the user by determining if a minimum number of recent maximal oxygen consumption estimates are below the set threshold (claim 24); and a criteria evaluator is used to determine if the confidence-weighted maximal oxygen consumption estimates meet specified criteria, and if so, notifying the user that they have persistently low cardiorespiratory fitness (claim 25).
While art teaches some aspects of claim 18 and its dependents separately, such as sufficiency as calculating only when there is sufficient time to allow for modeling the physiological dynamics (Alvarado: pg. 9, col. 2, paragraph [131]), incorporation of environmental conditions (Raghuram: paragraph [14]), and comparison to a threshold value and displays a report related cardiovascular fitness (King: pg. 2, col. 1, paragraph [12]), and specifically whether the objectives were satisfied with respect to the threshold (King: Fig. 2, Ref. 210), the required combination in the second joint confidence model is not considered taught or fairly suggested.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Robert J Kallal whose telephone number is (571)272-6252. The examiner can normally be reached Monday through Friday 8 AM - 4 PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Olivia M. Wise can be reached at (571) 272-2249. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Robert J. Kallal/Examiner, Art Unit 1685
Prosecution Insights