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 .
Response to Arguments
Applicant's arguments have been fully considered but they are moot in part, persuasive in part, and not persuasive in part.
In regards to the rejection under 101, applicant contends that the action of the A/D converter with the noise improvements cannot be performed in the human mind or with a general-purpose computer and further that the conversion of the data with the improvement cannot be performed in the human mind or with a general-purpose computer and is beyond the practical capabilities of the human mind and a general-purpose computer as the task is understood to require specialized technology. The examiner respectfully disagrees and is of the position that the present language requires conversion based on relative values which do not require the specialized technology or complexity through the entire scope. For example, the predetermined frequency could be simply 4 Hz, and the high-speed sampling could be 2 Hz, as there are no bounds set for these frequencies within the claim. In addition, there is no time limitation or requirement that these calculations are being performed in real-time; accordingly, these conversions could be performed by hand using mathematical concepts over a large timespan even if the frequencies were limited to a different range. Accordingly, the rejection is maintained below.
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 1-10 are rejected under 35 U.S.C. 101 because the claimed invention is not directed to patent eligible subject matter. Based upon consideration of all of the relevant factors with respect to the claim as a whole, the claims are determined to be directed to a judicial exception, specifically an abstract idea, without significantly more.
Step 1
The claimed inventions in claims 1-10 are directed to statutory subject matter as the claim(s) recite(s) an apparatus for converting and presenting a physiological signal.
Step 2A, Prong One
Claim 1 recites the following steps or instructions to “convert the physiological signal into high-speed sampling data...”, “convert the high-speed sampling data into sampling data…by setting time windows”, “calculate one representative value for each of the windows…”, and “…display a waveform…” which is grouped as a mental process in MPEP 2106.04(a)(2)(III) or mathematical concept in MPEP 2106.04(a)(2)(I).
For example, the limitations concern data analysis and recording the results of data analysis which could be done mentally or by hand with pen and paper, directed to mental processes of performing concepts in a human mind or by a human using a pen and paper and mathematical concepts. These limitations are nothing more than one of skill in the art performing data conversion, analysis, and creating a waveform of the data points, of a physiological signal. The limitation of performing the specific sampling, conversion, and calculations are directed to mathematical concepts well recognized and known in the art.
Accordingly, each of the above-identified claims recites an abstract idea as in MPEP 2106.04(a).
In addition, Claim 1 recites additional elements of an A/D converter, a computation unit, and a display.
Step 2A, Prong Two
The above-identified abstract idea in independent Claim 1 (and respective dependent claims 2-10) is not integrated into a practical application under MPEP 2106.04(d) because the additional elements (identified above in independent Claim 1), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use according to MPEP 2106.05(h) and appear to be extra solution activity where data to be analyzed by the abstract idea is acquired or obtained.
More specifically, the additional elements of: an A/D converter, a computation unit, and a display, as recited in independent claim 1 and its dependent claims, are generically recited computer elements which do not improve the functioning of a computer, or any other technology or technical field according to MPEP 2106.04(d)(1) and 2106.05(a). Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine according to MPEP 2106.05(b), effect a transformation according to MPEP 2106.05(c), provide a particular treatment or prophylaxis according to MPEP 2106.04(d)(2) or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception according to MPEP 2106.04(d)(2) and 2106.05(e). Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer in accordance with MPEP 2106.05(f). For at least these reasons, the abstract idea identified above in independent Claim 1 (and its respective dependent claims) is not integrated into a practical application in accordance with MPEP 2106.04(d).
Moreover, the above-identified abstract idea is not integrated into a practical application in accordance with MPEP 2106.04(d) because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and using mathematical concepts) using rules (e.g., computer instructions) executed by a computer (e.g., A/D converter and computation unit, as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer according to MPEP 2106.05(f). Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims according to MPEP 2106.05(a). That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent claim 1 (and its respective dependent claims) is not integrated into a practical application under MPEP 2106.04(d)(I).
Accordingly, independent claim 1 (and its respective dependent claims) are each directed to an abstract idea according to MPEP 2106.04(d).
Step 2B
Claim 1 does not include additional elements that are sufficient to amount to significantly more than the abstract idea in accordance with MPEP 2106.05 for at least the following reasons:
These claims require the additional elements of: an A/D converter, a computation unit, and a display.
Per Applicant’s specification: “A/D converter” and “computation unit” are described as known components that integrate into computing systems (published application ¶¶ 33-36). The examiner notes that these devices and their function are considered well-understood routine and conventional in the art, performing pre-solution activities that are merely data gathering steps and post-solution activity for the abstract idea in Claim 1.
Accordingly, the above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, MPEP 2106.05(d)(II) along with Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Additionally, the claimed elements are reasonably construed as a components of a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process. See MPEP 2106.05(f).
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the A/D converter, computation unit, or display. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see MPEP 2106.05(d)(I)(2) and 2106.07(a)(III)). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications along with MPEP 2106.05(d)(I)).
The recitation of the above-identified additional limitations in Claim 1 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See MPEP 2106.05(f) along with Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. See MPEP 2106.05(a) along with McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, per MPEP 2106.05(a), the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the apparatus of claims 1-10 are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself or providing a technical solution to a problem in a technical field according to MPEP 2106.05(a), or (ii) providing meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e).
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent claim 1 (and its dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment according to MPEP 2106.05(h). When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment according to MPEP 2106.05(h). When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e). Moreover, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity according to MPEP 2106.05(g). As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application as required by MPEP 2106.05.
As such, claim 1-10 when analyzed as a whole, do not appear to be patent eligible for the reasons set forth above.
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 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.
In considering patentability of the claims under 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of 35 U.S.C. 103(c) and potential 35 U.S.C. 102(e), (f) or (g) prior art under 35 U.S.C. 103(a).
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 of this title, 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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Gonopolskiy et al. (US 2013/0324818; hereinafter “Gonopolskiy”) in view of Pantelopoulos et al. (USP# 10,973,422; hereinafter “Pantelopoulos”).
Regarding claim 1, Gonopolskiy discloses a physiological signal processing apparatus for converting a physiological signal into sampling data having a predetermined frequency that is set according to the physiological signal (e.g. ¶¶ 29-32; 32 – “sampling frequency f.sub.s of the analog-to-digital converter 125 of the tissue oximeter 100 may be a fixed value”), comprising: an A/D converter configured to convert the physiological signal into high-speed sampling data by sampling the physiological signal at a frequency that is higher than the predetermined frequency (e.g. ¶¶ 26 – “the signals from photodiodes may be over-sampled by the analog-to-digital converter 125”); and a computation unit configured to convert the high-speed sampling data into sampling data (e.g. ¶¶ 29-31) having the predetermined frequency by setting time windows for the high-speed sampling data and calculating one representative value for each of the windows on the basis of high-speed sampling data in the window (e.g. ¶¶ 31-32) after eliminating or replacing with other values extreme value data (e.g. ¶¶ 6-8; Fig 1, #120 – where the examiner notes that extreme value data such as light frequencies are filter out and further where a low pass filter is integrated into the amplifier setup 120).
Gonopolskiy fails to expressly disclose a display configured to display a waveform based on the representative values. In the same field of endeavor, Pantelopoulos discloses a display configured to display a waveform based on representative value (Col 5, ll 5-55), after they have been filtered to remove any extreme values (e.g. Col 3-4, ll 38-3), in order to present the cleanest data for analysis and review. It would have been obvious to one of ordinary skill in the art, prior to the effective filing date of the present invention to apply the known technique of displaying a waveform based on representative values after they have been filtered to remove extreme values, as taught by Pantelopoulos, to the known device of Gonopolskiy, to improve the device in a similar manner and allow the clinician to view the cleanest data for analysis.
Regarding claim 2, Gonopolskiy discloses the extreme value data that are larger than a predetermined upper limit value or smaller than a lower limit threshold value (e.g. ¶¶ 6-8; Fig 1, #120 – where the examiner notes that extreme value data such as light frequencies are filter out and further where a low pass filter is integrated into the amplifier setup 120)
Regarding claim 3, Gonopolskiy discloses the extreme value data whose variation rates are larger than a predetermined variation rate (e.g. ¶¶ 6-8; Fig 1, #120 – where the examiner notes that extreme value data such as light frequencies are filter out and further where a low pass filter is integrated into the amplifier setup 120).
Regarding claim 4, Gonopolskiy discloses the computation unit is configured to sort high-speed sampling data in each of the windows and calculate one representative value on the basis of all or part of the sorted high-speed sampling data (e.g. ¶¶ 29-33).
Regarding claim 5, Gonopolskiy discloses the computation unit is configured to calculate, as the one representative value, a median value or an average value of the high-speed sampling data in the window (e.g. ¶¶ 29-33).
Regarding claim 6, Gonopolskiy discloses the computation unit is configured to calculate one representative value by applying a digital filter to the high-speed sampling data in the window (e.g. ¶¶ 29-33).
Regarding claim 7, Gonopolskiy discloses the computation unit is configured to calculate one representative value by performing weighted averaging on the high-speed sampling data in the window (e.g. ¶¶ 13).
Regarding claim 8, Gonopolskiy discloses the computation unit is configured to calculate, as a representative value, one of the high-speed sampling data in each window (e.g. ¶¶ 29-33).
Regarding claim 9, Gonopolskiy discloses the computation unit is configured to apply a digital filter to the calculated representative value (e.g. ¶¶ 29).
Regarding claim 10, Gonopolskiy discloses the windows have a fixed width corresponding to the predetermined frequency (e.g. ¶¶ 29, 32, etc.).
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael D’Abreu whose telephone number is (571) 270-3816. The examiner can normally be reached on 7AM-4PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Hamaoui can be reached at (571) 270-5625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL J D'ABREU/Primary Examiner, Art Unit 3796