DETAILED ACTION
Note: The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicant’s arguments filed in the reply on December 30, 2025 were received and fully considered. Claims 1 and 11 were amended. Claim 22 is new. The current action is non-final1 and the previous office action with mailing date February 25, 2026 is withdrawn/superseded. Please see corresponding rejection headings and response to arguments section below for more detail.
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, 3-11, and 13-22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
Regarding claim 1, the claim recites a device for metabolism monitoring. Thus, the claim is directed to a machine, which is one of the statutory categories of invention.
The claim is then analyzed to determine whether it is directed to any judicial exception. The following limitations set forth a judicial exception:
“read the signal output by the MOS sensor, process the signal as a pulse of the MOS sensor for each inhalation or exhalation based on a temporal response characteristic of the MOS sensor by reconstructing rising and falling edges of the pulse of the signal, calculate an amplitude value between a steady state of the signal of the MOS sensor after the exhalation or before the inhalation and a saturation level of the signal, wherein the amplitude value corresponds to the ratio of carbon dioxide concentration in exhaled air to oxygen concentration in inhaled air, and wherein the reconstructing of the rising and falling edges compensates for a response delay and a signal overlap between successive inhalation and exhalation cycles of the MOS sensor, calculate a Respiratory Exchange Rate (RER) value representing a metabolism parameter based on the amplitude value of the signal output by the MOS sensor…”
These limitations describe a mathematical calculation. Furthermore, the limitations also describe a mental process as the skilled artisan is capable of performing the recited limitations and making a mental assessment thereafter. Examiner also notes that nothing from the claims suggest that the limitations cannot be practically performed by a human, or using simple pen/paper.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, integrates the identified judicial exception into a practical application.
For this part of the 101 analysis, the following additional limitations are considered:
“a metal oxide semiconductor (MOS) sensor positioned in an air flow path though the device for air exhaled or inhaled by a user and configured to output a signal corresponding to a ratio of carbon dioxide concentration in exhaled air to oxygen concentration in inhaled air; and a processor… and output a result of the metabolism monitoring to the user in a text or a numeric form.”
These additional limitations do not integrate the judicial exception into a practical application. Rather, the additional limitations are each recited at a high level of generality such that it amounts to insignificant extra-solution activity, e.g., mere data gathering steps necessary to perform the identified judicial exception and outputting do not integrate claims into a practical application. See MPEP § 2106.05(g).
The additional limitations also do not add significantly more to the identified judicial exception because they relate to widely-understood, routine, and conventional components in respiratory monitoring steps. Examiner notes that it is widely known to utilize MOS gas sensors to obtain exhaled breath metrics. See Prior art cited in previous office action for example teachings. Moreover, a general-purpose processor that merely executes the judicial exception is not a particular machine. See MPEP § 2106.05(b)(I).
Independent claim 11 is also not patent eligible for substantially similar reasons.
Dependent claims 2-10 and 12-20 also fail to add something more to the abstract independent claims as they merely further limit the abstract idea, recite limitations that do not integrate the claims into a practical application for substantially similar reasons as set forth above, and/or do not recite significantly more than the identified abstract idea for substantially similar reasons as set forth above.
Therefore, claims 1-20 are not patent eligible under 35 USC 101.
Response to Arguments
Applicant's arguments filed with respect to the 35 USC 101 rejections raised in the previous office action have been fully considered, but they are not persuasive. Applicant continues to argue that (1) the claims do not recite a mental process as they cannot be practically performed in the human mind; and (2) the claims recite an improvement to the functioning of a computer or improves another technology or technical field by reconstructing rising and falling edges of the pulse of the signal, determine an amplitude value between a steady state of the signal of the MOS sensor after the exhalation or before the inhalation and a saturation level of the signal, wherein the amplitude value corresponds to the ratio of carbon dioxide concentration in exhaled air to oxygen concentration in inhaled air (remarks, pgs. 9-10). Examiner respectfully disagrees. Again, Examiner maintains that there is nothing to suggest, from the claims and/or accompanying specification, that the skilled artisan would not be able to practically perform the identified mathematical steps in one’s mind, or using simple pen/paper (having first obtained data from a conventional MOS sensor). While the claims recite a conventional MOS sensor, this is an additional limitation and is not considered as part of the mental process inquiry. Examiner maintains that the data processing limitations equate to a mental process as nothing from the claims suggest that the skilled artisan would not be able to perform these steps mentally, or using simple pen/paper. While applicant’s “improvement” argument is fully considered, Examiner does not find this persuasive as the purported improvement appears to lie within the judicial exception itself, i.e. alleged better way to perform a calculation is still a calculation nonetheless. See also the discussion of Diamond v. Diehr, 450 U.S. 175, 187 and 191-92, 209 USPQ 1, 10 (1981). “the judicial exception alone cannot provide the improvement.” Examiner also argues that there is no improvement to the generically recited “a processor”, as it is merely being utilized, as a tool, to implement the identified judicial exception2.
For at least these reasons, the 35 USC 101 rejections are maintained. Please see corresponding rejection heading above for more detail.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PUYA AGAHI whose telephone number is (571)270-1906. The examiner can normally be reached M-F 8 AM - 5 PM.
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/PUYA AGAHI/Primary Examiner, Art Unit 3791
1 The current non-final rejection replaces the previous office action (with mailing date 2/25/2026), as the previous office action was incorrectly labelled as a “Final” Rejection.
2 A general-purpose processor that merely executes the judicial exception is not a particular machine. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 706-17 (Fed. Cir. 2014), cited in MPEP § 2106.05(b)(I).