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 .
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.
Specification
A substitute specification excluding the claims the claims is required pursuant to 37 CFR 1.125(a) because the specification is improperly formatted including at least missing paragraph numbers.
A substitute specification must not contain new matter. The substitute specification must be submitted with markings showing all the changes relative to the immediate prior version of the specification of record. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived. An accompanying clean version (without markings) and a statement that the substitute specification contains no new matter must also be supplied. Numbering the paragraphs of the specification of record is not considered a change that must be shown.
The use of the term “Bluetooth”, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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.
Claims 10 and 11 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 10 recites the limitations "one or more of the stored timing offsets" and “the stored timing offsets” in lines 3-4 of the claim. There is insufficient antecedent basis for these limitations in the claim.
Claim 11 recites the limitations "one or more of the stored timing offsets" and “the stored timing offsets” in lines 3-4 of the claim. There is insufficient antecedent basis for these limitations in the claim.
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 1-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more than the judicial exception itself.
Step 1
The claims are directed to a method and a product which fall under at least one of the four statutory categories. (STEP 1: YES).
Step 2A, Prong 1
Independent claim 1 recites:
A system for estimating a level of interoception in a subject, the system comprising:
a heartbeat sensor for sensing the subject's heartbeat as manifested locally to the sensor;
a user interface for receiving input from the subject; and
a processor configured to:
(i) receive information representing a timing of sensed heartbeats,
(ii) form, in dependence on the received information, a periodic output having a same frequency as the sensed heartbeats,
(iii) present the periodic output to the subject,
(iv) receive input of a first type from the user interface, and
(v) in dependence on the input of the first type, adjust a phase with which the periodic output is presented to the subject.
Independent claim 12 recites:
A method for estimating a level of interoception in a subject, the method comprising the steps of:
sensing the timing of the subject's heartbeats as manifested locally to a sensor;
forming, in dependence on the received information, a periodic output having a same frequency as the sensed heartbeats;
presenting the periodic output to the subject;
receiving input of a first type from a user interface; and
in dependence on the input of a first type, adjusting a phase with which the periodic output is to presented to the subject.
All of the foregoing underlined elements identify a process of estimating interoception which, as claimed, merely amounts to the abstract idea grouping of a certain method of organizing human activity by managing personal behavior or interactions between people (including social activities, teaching, and following rules or instructions) because it recites collecting information, analyzing the collected information, and outputting the results of the collection and analysis.
This also amounts to the abstract idea grouping of mental processes because the claims, under their broadest reasonable interpretation, cover performance of the limitations in the mind with the aid of a pen and paper (including observation, evaluation, judgment, opinion) but for recitation of generic computer components. See MPEP 2106.04(a)(2)(III)(C) - A Claim That Requires a Computer May Still Recite a Mental Process.
The dependent claims, except for claims 7 and 8, amount to merely further defining the judicial exception.
Therefore, the claims recite a judicial exception. (STEP 2A, PRONG 1: YES).
Step 2A, Prong 2
This judicial exception is not integrated into a practical application because the independent and dependent claims do not include additional elements that are sufficient to integrate the exception into a practical application under the considerations set forth in MPEP 2106.04(d). The elements of the claims above that are not underlined constitute additional elements.
The following additional elements, both individually and as a whole, merely generally link the judicial exception to a particular technological environment or field of use: a system (claim 1), a heartbeat sensor (claim 1), a user interface (claims 1 and 12), a processor (claim 1), the first user interface element comprises a wheel (claim 7), a second user interface element comprising a button (claim 8), and a sensor (claim 12). This is evidenced by the manner in which these elements are disclosed. See, for example, at least Fig. 1 and 2 which illustrate the components as non-descript black boxes or stock images in a conventional arrangement. Further evidence is provided by the specification. See, for example, at least para. 23-41 and 46 of the published specification. For instance, para. 46 explicitly identifies that the judicial exception is not implemented with, or used in, any particular machine or manufacture. The claims do not recite any limitations that improve the functionality of the computer system because the claimed steps are merely performing the steps of processing data but are not tied to improving any functionality of the computer system. The components, identified above, are merely an attempt to link the abstract idea to a particular technological environment, but do not result in an improvement to the technology or computer functions employed. This is evidenced by the absence of specificity of the components and their organization in the disclosure. Again, see, for example, at least Fig. 1 and 2 and para. 23-41 and 46 of the published specification as identified above. None of the hardware offer a meaningful limitation beyond generally linking the performance of the steps to a particular technological environment, that is, implementation via computers. It should be noted that because the courts have made it clear that the mere physicality or tangibility of an additional element or elements is not a relevant consideration in the eligibility analysis, the physical nature of the computing device and associated hardware does not affect this analysis. See MPEP 2106.05(I) for more information on this point, including explanations from judicial decisions including Alice Corp. Pty Ltd. v. CLS Bank Int’l, 573 US 208, 224-26 (2014). The claims do not recite any specific rules with specific characteristics that improve the functionality of the computer system. In particular, the heartbeat sensor, user interface, and sensor, as recited and organized, merely add insignificant extrasolution activity to the judicial exception (e.g., mere extrasolution data gathering in conjunction with a law of nature or abstract idea). For instance, Fig. 1 illustrates the wearable device as a wristwatch and at least para. 24 and 27 of the published specification recite that the wearable device is wrist worn even though it is widely known that the physiological sensors in wrist worn wearable devices are notorious for providing inaccurate data. Additionally, the claims do not apply or use a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition nor do they apply or use a judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment. For instance, the intended use, as recited in the preamble, is for “estimating a level of interoception” and para. 3 of the published specification recites that “the acuity of a subject's interoception can be helpful in assessing the subject's wellbeing.” Accordingly, based on all of the considered factors, these additional elements do not integrate the abstract idea into a practical application. Therefore, the claims are directed to the judicial exception. (STEP 2A, PRONG 2: NO).
Step 2B
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception under the considerations set forth in MPEP 2106.05. As identified in Step 2A, Prong 2, above, the claimed system and the process it performs does not require the use of a particular machine, nor does it result in the transformation of an article. The claims do not involve an improvement in a computer or other technology. This is at least evidenced by the manner in which this is disclosed 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 USC 112(a) as identified in Step 2A, Prong 2, above. Thus, the judicial exception is not implemented with, or used in, a particular machine or manufacture. Furthermore, this evidences that the components are merely an attempt to link the abstract idea to a particular technological environment, but do not result in an improvement to the technology or computer functions employed, which the courts have held does not amount to significantly more. The lack of improvement to the computer or other technology is evidenced by the lack of incorporation of specific rules which enable the automation of a computer-implemented task that previously could only be performed subjectively by humans. None of the hardware offer a meaningful limitation beyond generally linking the performance of the steps to a particular technological environment, that is, implementation via computers. Again, see, for example, at least Fig. 1 and 2 and para. 23-41 and 46 of the published specification as identified above. Viewed as a whole, these additional claim elements do not provide any 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 of itself (STEP 2B: NO).
Therefore, the claims are rejected under 35 USC 101 as being directed to non-statutory subject matter.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 6, and 8-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Palmer et al.1 (hereinafter referred to as Palmer).
Regarding claim 1, Palmer teaches a system for estimating a level of interoception in a subject (Palmer, Title, Fine-tuning your heart: a novel method for measuring interoceptive accuracy), the system comprising:
a heartbeat sensor for sensing the subject's heartbeat as manifested locally to the sensor (Palmer, pg. 7, Physiological recordings, “A standard 3-lead electrocardiogram (ECG) was attached to teach participants’ chest throughout the experiment in order to record cardiac activity”);
a user interface for receiving input from the subject (Palmer, slider mentioned throughout); and
a processor configured to:
(i) receive information representing a timing of sensed heartbeats (Palmer, pg. 7, Physiological recordings, “record cardiac activity (Powerlab, AD instruments). During both interoceptive tasks, the ECG trace was thresholded in LabChart in order to detect the R-peaks online. This was read into MATLAB 2016 (MathWorks, Inc., Mass., USA), in real-time, in order to count heartbeats during the heartbeat counting task and control the presentation of the visual stimulus during the heartbeat matching task.”),
(ii) form, in dependence on the received information, a periodic output having a same frequency as the sensed heartbeats (Palmer, pg. 8, Heartbeat Matching Task discusses this),
(iii) present the periodic output to the subject (Palmer, pg. 8, Heartbeat Matching Task discusses this),
(iv) receive input of a first type from the user interface (Palmer, pg. 8, Heartbeat Matching Task, “The interval between each beat was controlled by a sliding device (built in-house using an Arduino UNO), which was connected to MATLAB using the Arduino toolbox. Moving the slider to the left increased the IBI, which slowed the rate at which the heart pulsed on the screen. Moving the slider to the right decreased the IBI, which increased the rate at which it pulsed.”), and
(v) in dependence on the input of the first type, adjust a phase with which the periodic output is presented to the subject (Palmer, pg. 8, Heartbeat Matching Task, “The interval between each beat was controlled by a sliding device (built in-house using an Arduino UNO), which was connected to MATLAB using the Arduino toolbox. Moving the slider to the left increased the IBI, which slowed the rate at which the heart pulsed on the screen. Moving the slider to the right decreased the IBI, which increased the rate at which it pulsed.”).
Regarding claim 2, Palmer teaches the system of claim 1, wherein the processor is further configured to:
(vi) receive input of a second type from the user interface (Palmer, pg. 8, Heartbeat Matching Task, “Immediately after giving their response, they were asked to report how confident they were about their answer, on a visual analogue scale (VAS) of 0-100.”), and
(vii) in response to the input of the second type, store a current timing offset between the sensed heartbeats and periodic elements of the periodic output (Palmer, pg. 9, Data Analysis, “reported heart rate (rHR) which was the counted or the matched heart rate in beats per minute; the participant’s actual heart rate (aHR). From these, their interoceptive accuracy (IAcc) was calculated for each trial (t)”).
Regarding claim 6, Palmer teaches the system of claim 1, wherein the user interface provides a first user interface element configured to be adjusted continuously by the subject and the first user interface element forms the input of the first type (Palmer, pg. 8, Heartbeat Matching Task, “The interval between each beat was controlled by a sliding device (built in-house using an Arduino UNO), which was connected to MATLAB using the Arduino toolbox. Moving the slider to the left increased the IBI, which slowed the rate at which the heart pulsed on the screen. Moving the slider to the right decreased the IBI, which increased the rate at which it pulsed.”).
Regarding claim 8, Palmer teaches the system of claim 6, wherein the user interface provides a second user interface element comprising a button (Palmer, pg. 8, “button box”).
Regarding claim 9, Palmer teaches the system of claim 2, wherein the processor is further configured to repeatedly perform steps (i) - (vii) and to form an estimate of a consistency of the stored timing offsets (Palmer, pg. 8, “This was repeated for 6 trials of 25s, 30s, 35s, 40s, 45s and 50s, presented in random order.” Pg. 9, “their interoceptive accuracy (IAcc) was calculated for each trial (t) and then an average was taken over the 6 trials”).
Regarding claim 10, Palmer teaches the system of claim 1, the system being configured to form an estimate of the subject's level of interoception in dependence on one or both of (i) absolute values of one or more of the stored timing offsets and (ii) an estimated consistence of the stored timing offsets (Palmer, pg. 8, “This was repeated for 6 trials of 25s, 30s, 35s, 40s, 45s and 50s, presented in random order.” Pg. 9, “their interoceptive accuracy (IAcc) was calculated for each trial (t) and then an average was taken over the 6 trials”).
Regarding claim 11, Palmer teaches the system of claim 1, the system being configured to assess an identity of the subject in dependence on one or both of (i) absolute values of one or more of the stored timing offsets and (ii) an estimated consistence of the stored timing offsets (Palmer, pg. 8, “This was repeated for 6 trials of 25s, 30s, 35s, 40s, 45s and 50s, presented in random order.” Pg. 9, “their interoceptive accuracy (IAcc) was calculated for each trial (t) and then an average was taken over the 6 trials”).
Regarding claim 12, Palmer teaches a method for estimating a level of interoception in a subject, the method comprising the steps of:
sensing the timing of the subject's heartbeats as manifested locally to a sensor (Palmer, pg. 7, Physiological recordings, “record cardiac activity (Powerlab, AD instruments). During both interoceptive tasks, the ECG trace was thresholded in LabChart in order to detect the R-peaks online. This was read into MATLAB 2016 (MathWorks, Inc., Mass., USA), in real-time, in order to count heartbeats during the heartbeat counting task and control the presentation of the visual stimulus during the heartbeat matching task.”);
forming, in dependence on the received information, a periodic output having a same frequency as the sensed heartbeats (Palmer, pg. 8, Heartbeat Matching Task discusses this);
presenting the periodic output to the subject (Palmer, pg. 8, Heartbeat Matching Task discusses this);
receiving input of a first type from a user interface (Palmer, pg. 8, Heartbeat Matching Task, “The interval between each beat was controlled by a sliding device (built in-house using an Arduino UNO), which was connected to MATLAB using the Arduino toolbox. Moving the slider to the left increased the IBI, which slowed the rate at which the heart pulsed on the screen. Moving the slider to the right decreased the IBI, which increased the rate at which it pulsed.”); and
in dependence on the input of a first type, adjusting a phase with which the periodic output is to presented to the subject (Palmer, pg. 8, Heartbeat Matching Task, “The interval between each beat was controlled by a sliding device (built in-house using an Arduino UNO), which was connected to MATLAB using the Arduino toolbox. Moving the slider to the left increased the IBI, which slowed the rate at which the heart pulsed on the screen. Moving the slider to the right decreased the IBI, which increased the rate at which it pulsed.”).
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.
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 3 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Palmer as applied to claim 1 above.
Regarding claim 3, Palmer teaches the system of claim 1.
Palmer does not explicitly teach wherein the processor is further configured to:
determine, prior to presenting the periodic output to the subject, a random offset from the sensed heartbeats; and
cause the periodic output to be initially presented to the subject at a phase corresponding to an offset between the sensed heartbeats and periodic elements of the periodic output that is equal to the random offset.
However these differences are only found in the nonfunctional descriptive material and are not functionally involved in the steps recited. The method would be performed the same regardless of what the periodic output is initially presented to the subject as particularly since the subject is tasked with adjusting the output to match the subject’s perceived heartbeats. Thus, this descriptive material will not distinguish the claimed invention from the prior art in terms of patentability, see In re Gulack, 703 F.2d 1381, 1385, 217 USPQ 401, 404 (Fed. Cir. 1983); In re Lowry, 32 F.3d 1579, 32 USPQ2d 1031 (Fed. Cir. 1994).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention for Palmer to include determine, prior to presenting the periodic output to the subject, a random offset from the sensed heartbeats; and cause the periodic output to be initially presented to the subject at a phase corresponding to an offset between the sensed heartbeats and periodic elements of the periodic output that is equal to the random offset because determining and presenting an initial periodic output is merely a design choice that does not functionally relate to the steps claimed and has not been disclosed to solve any stated problem or is for any particular purpose which does not patentably distinguish the claimed invention.
Regarding claim 7, Palmer teaches the system of claim 6.
Palmer does not explicitly teach wherein the first user interface element comprises a wheel.
However, a wheel is a circular slider. Thus, these differences are only found in the nonfunctional descriptive material and are not functionally involved in the steps recited. The method would be performed the same regardless of what the shape of the slider is. Thus, this descriptive material will not distinguish the claimed invention from the prior art in terms of patentability, see In re Gulack, 703 F.2d 1381, 1385, 217 USPQ 401, 404 (Fed. Cir. 1983); In re Lowry, 32 F.3d 1579, 32 USPQ2d 1031 (Fed. Cir. 1994).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention for the slider in Palmer to be a wheel because the shape of the slider is merely a design choice that does not functionally relate to the steps claimed and has not been disclosed to solve any stated problem or is for any particular purpose which does not patentably distinguish the claimed invention.
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Palmer as applied to claim 1 above, further in view of Brener Ring2.
Regarding claim 4, Palmer teaches the system of claim 1.
Palmer does not teach wherein the periodic output comprises a sound comprising periodic elements.
However, in an analogous art, Brener Ring teaches wherein the periodic output comprises a sound comprising periodic elements (Brener Ring, pg. 5, “Tones served as comparison stimuli”).
It would have been obvious to person having ordinary skill in the art before the effective filing date of the claimed invention because “temporal judgements are more accurate in the auditory modality than visual modality”. See Brener Ring at pg. 5.
Regarding claim 5, Palmer in view of Brener Ring teaches the system of claim 4, wherein the periodic elements comprise tones (Brener Ring, pg. 5, “Tones served as comparison stimuli”).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Plans et al. and Ponzo et al. (see P are both public disclosures by named inventors that are closely related to the claimed invention. It is noted that the current effective filing date of the claimed invention disqualifies both of these references as prior art. Nonetheless, Applicant should remain cognizant of these public disclosures in case the effective filing date changes, especially the Plans et al. reference which has the earlier publication date.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL LANE whose telephone number is (303)297-4311. The examiner can normally be reached Monday - Friday 8:00 - 4:30 MT.
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, Xuan Thai can be reached at (571) 272-7147. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL LANE/ Examiner, Art Unit 3715
1 Palmer et al.. (July 11, 2019). Fine Tuning Your Heart: A Novel Method for Measuring Interoceptive Accuracy. https://doi.org/10.31234/osf.io/qz7r9
2 Brener, J., & Ring, C. (November 19, 2016). Towards a psychophysics of interoceptive processes: The measurement of Heartbeat detection. Philosophical Transactions of the Royal Society B: Biological Sciences, 371(1708), 20160015. https://doi.org/10.1098/rstb.2016.0015