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 filed 8/11/2025 have been fully considered but they are not persuasive.
On p. 7 of the Remarks dated 8/11/2025, Applicant states that “positioning a sensor device below an ear of a horse” is not an abstract idea, and does not correspond to a mental step that could be performed with the aid of pencil and paper.
However, it is the Examiner’s position, that placing a sensor at an anatomical location is abstract because it relies upon the judgment or decision making of a human user, which is a mental process. The sensor device itself has been identified in the rejection below as an additional element considered under step 2A Prong Two, and step 2B. The Examiner does not take the position that a sensor device or that a horse is a nebulous abstract concept, but that the judgment of where to place such a device is performed mentally by a person.
On p. 7, Applicant elaborates that as the algorithmic steps are claimed as performed by a processor, not an individual, they are not abstract including “determining, with the processor of the sensor device, horse data of the horse based on the sensor data”.
This is not found persuasive, because this appears to explicitly be a general purpose computer, added post-hoc to an abstract idea, solely for implementing the abstract idea. The determination of horse data of the horse based on the sensor data is a step that relies on a concept that can be performed in the human mind, including observation, evaluation, judgment, and/or opinion (See MPEP § 2106.04(a)(2), subsection III). Therefore, performing this step using a generic processor merely adds a general purpose computer. From MPEP § 2106 (emphasis added by the Examiner): “(f)or instance, examiners should review the specification to determine if the claimed invention is described as a concept that is performed in the human mind and applicant is merely claiming that concept performed 1) on a generic computer, or 2) in a computer environment, or 3) is merely using a computer as a tool to perform the concept. In these situations, the claim is considered to recite a mental process.”
On p. 9, Applicant alleges that the disclosures in Saigh of possible sensor locations on any tack, including head tack, does not correspond to “positioning a sensor device below an ear of and substantially at an artery of (a) horse.”
On p. 9-10, Applicant states that the disclosure of Saigh does not teach any particular site that is below an ear of and substantially at an artery of the horse, and describes the disclosure of Saigh as listing “merely…an extensive range of possible sites on a horse for ‘positioning a sensor device’”.
From ¶[0010] of Saigh:
A smartbit definition could include one or more bio-sensors, accelerometers, gyroscopes, wireless communication protocols (wifi, etc.) located on or embedded any tack. Tack is defined as a piece of equipment or accessory equipped on horses in the course of their use as domesticated animals. Saddles, stirrups, bridles, halters, reins, bits, harnesses, martingales, and breastplates etc. are all forms of horse tack. Equipping a horse is often referred to as tacking up.
From the definitions of tack in ¶¶[0027-0068], multiple specific arrangements of tack are described that are explicitly below an ear of a horse and substantially at an artery, including the crownpiece, cheekpieces, throatlatch, browband, noseband, bit, etc.
Applying BRI to applicant’s claim limitation, no particular artery is recited, nor is any particular proximity. A horse’s head comprises a plurality of arteries, and any of the above recited head tack is substantially at at least one artery of a horse’s head. Further, there is no definition given for “below” an ear, therefore any tack that may be located inferior to an ear of a horse is considered “below” the ear. It is the Examiner’s position that Saigh teaches any of these listed locations for the position of the sensor device, as contemplated embodiments, and that there is no evidence that the teachings of Saigh are not applicable to all of the disclosed tack locations of Saigh.
It is clear to the Examiner that locating a sensor device at any portion of the tack, as disclosed by Saigh, and then equipping the horse with said tack, “tacking up” therefore positions the sensor device in any of the disclosed tack locations.
On p. 11, Applicant states that a list of an extensive range of locations for a sensor device on any tack does not amount to a teaching that the sensor device is located at one specific location on a horse.
As noted above, the Examiner disagrees both on what Saigh teaches, and on what the claims require under BRI. Furthermore, even if Applicant is correct, and Saigh does not give any guidance that would correspond to the single claimed location, the argument would nevertheless be unpersuasive because Saigh would teach sensors “embedded in any tack” corresponding to the location Applicant is claiming in addition to all of the other contemplated locations. This possibility would also nevertheless meet the requirement as Applicant’s claim uses comprising, and 100% instrumented tack with sensor devices in every contemplated location would still meet the claimed limitation of positioning the one sensor device claimed.
On pp. 11-12, Applicant goes on to argue that Saigh’s single embodiment of biosensors embedded in a mouth-bit, bit-guard, bit-gag, lip-strap, or other dental device teaches away from positioning sensors “below an ear of and substantially at an artery of the horse,” as claimed.
This is not found persuasive firstly because as noted in the rejection below, the Examiner takes official notice that horse mouth-tack or dental device is substantially at more than one artery of a horse, as a horse’s mouth is proximal to multiple arteries (these can also be seen in Applicant’s disclosed drawings, Fig. 2 filed 1/23/23). Secondly, as can be seen by Applicant’s citation to Saigh Fig. 16, the mouth is below the ear of the horse. Therefore, even this one specific embodiment of Saigh meets the requirements of the claimed limitation.
Secondly, this disclosure does not criticize, discredit, or otherwise discourage a sensor device located in any other location on a horse’s tack. Instead, Saigh specifically teaches that any location on a horse’s tack is suitable.
From MPEP §2141: “the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed….” In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).
On pp. 12-13, Applicant states that the teaching of Saigh that a dental device sensor for sensing cardiovascular data substantially near the carotid artery of a human does not show that the sensor device of Saigh is positioned below an ear and substantially at an artery of a horse.
However, this citation shows that Saigh teaches obtaining cardiovascular parameters from a location substantially near the carotid artery of the instrumented target. Horses also have carotid arteries, and these arteries are proximal to at least some of the disclosed tack elements of Saigh. Furthermore, as noted above, this disclosure cannot be said to “teach away” from any particular location placement of a sensor device as it does not criticize, discredit, or otherwise discourage the claimed placement.
On p. 14, Applicant states that Saigh does not teach the claimed optical sensor and a combination in view of Aceti necessitates an optical sensor inserted in the ear of a horse which is unsupported by Saigh.
However, the sensors of Aceti do not require insertion to function, they are optical emitters and receivers, and can be incorporated into the sensor device of Saigh without requiring insertion into an auditory canal. Aceti further discloses that its sensor device is not required to be fully inserted within the auditory canal and this is explicitly what provides an improvement over other devices: ¶[0035] The monitoring device 100 provides, by way of non-limiting example, enhanced comfort for some animals over devices positioned entirely within the auditory canal, better fit for a larger percentage of animals, easy configuration for extreme auditory canal sizes or shapes. Further, due to its larger size (as compared to a monitoring device that is designed to fit entirely within the auditory canal), the monitoring device 100 provides greater flexibility in battery selection (and, thus, battery life span), easier handling, and improved component selection. For example, the larger size allows more “off-the-shelf” components to be utilized, thereby reducing potential component and development cost.
Even if the modification in view of Aceti required that some of the sensors be inserted into the auditory canal of the horse in combination, this argument would still not be persuasive as the claims do not require that the sensor device be positioned wholly outside of the horse’s ear. The modification of Saigh, which teaches a location for a biosensor outside of the horse’s ear, with the device of Aceti, which specifically teaches the bulk of the device outside of the auditory canal, would nevertheless teach positioning a sensor device outside of and below the horse’s ear, substantially at an artery.
Therefore, the arguments are unpersuasive and the rejection is made final.
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 and 5-18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more.
This analysis in view of 35 U.S.C. § 101 is based on MPEP § 2106, please see
this section of the MPEP for additional information.
First, the broadest reasonable interpretation of the claim as a whole is
established:
Claim 1, and similarly in claims 14 and 17-18, is directed to a method/device comprising an optical sensor device placed on a horse, sensing optical data using a processor, and determining physiological parameter of the horse based on the sensed data using a processor, finally transmitting the physiological parameter data to a monitoring device using a processor.
Claims 2, and 7-8 add an additional sensor, specifying it as a motion sensor.
Claims 3, 5-7, and 9 specifies the wavelengths of light for the optical sensor, specifies the sensor as a PPG sensor.
Claim 4 adds additional description for the intended location for the sensor device.
Claims 10, 13, and 16 add additional specificity to the
Step 1 of the analysis is the question: “Is the claim to a process, machine,
manufacture, or composition of matter?” and the answer is determined to be yes, as the
claims as a whole are directed to a machine/process.
For Step 2, the preliminary question is whether the eligibility of the claim is self-
evident. The answer is determined to be no, as the claim is not immediately self-evident
as statutory.
Step 2A Prong One: Is the claim directed to a law of nature, a natural phenomenon (product of nature) or an abstract idea?
A claim is directed to a judicial exception when a law of nature, a natural
phenomenon, or an abstract idea is recited (i.e., set forth or described) in the claim.
While the terms “set forth” and “describe” are thus both equated with “recite”, their
different language is intended to indicate that there are different ways in which an
exception can be recited in a claim. For instance, the claims in Diehr set forth a
mathematical equation in the repetitively calculating step, the claims in Mayo set forth
laws of nature in the wherein clause, meaning that the claims in those cases contained
discrete claim language that was identifiable as a judicial exception. The claims in Alice
Corp., however, described the concept of intermediated settlement without ever explicitly using the words “intermediated” or “settlement.”
Claim 1, and similarly in claims 14 and 17-18, recites the following limitations:
positioning a sensor device below an ear and substantially at an artery of (a) horse
determining, with the processor of the sensor device, horse data of the horse based on the sensor data
Each of the claim elements above comprises an explicit claim recitation of an abstract idea. Therefore, rather than merely involve a judicial exception, the claims are directed to the identified judicial exception.
This claim language is identified as an abstract idea, because in MPEP §
2106.04(a)(2) III B. this language is similar to concepts relating to organizing or
analyzing information in a way that can be performed mentally or are analogous to
human mental work. For example, Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 120 USPQ2d 1473 (Fed. Cir. 2016). In Synopsys, the patentee claimed methods
of logic circuit design, comprising converting a functional description of a level sensitive
latch into a hardware component description of the latch. 839 F.3d at 1140; 120 USPQ2d at 1475. Although the patentee argued that the claims were intended to be
used in conjunction with computer-based design tools, the claims did not include any
limitations requiring computer implementation of the methods and thus do not involve
the use of a computer in any way. 839 F.3d at 1145; 120 USPQ2d at 1478-79. The
court therefore concluded that the claims “read on an individual performing the claimed
steps mentally or with pencil and paper,” and were directed to a mental process of
“translating a functional description of a logic circuit into a hardware component
description of the logic circuit.” 839 F.3d at 1149-50; 120 USPQ2d at 1482-83.
In the instant case, the identified abstract idea is similar to Synopsys because the
language reads on an individual performing horse data determination mentally. They do not require any computer implementation beyond the recitation of a general purpose computer, or using the computer as a tool to perform the function and therefore are directed to a mental process of determining horse data
Yes. The claim is directed to an abstract idea.
Step 2A Prong Two: Does the claim recite additional elements that integrate the judicial exception into a practical application?
First, the additional elements are identified (Noted, if a claim is not listed here, it is determined to not contain any additional elements beside specifying the abstract idea as already identified, above):
Claim 1/14/17-18: obtaining sensor data, optical sensor, transmitting horse data, monitor device
Claim 2, 7-8: second sensor
Claims 3, 5-6, 9: optical sensor/PPG sensor
Claim 11-13, 16: data transmission
Claim 14: memory, housing, processor
In the case of the transmission, monitor device, housing, memory, and processor these elements appear to describe a general purpose computer, added post-hoc to an abstract idea rather than an improvement to computer functionality, do not qualify as a particular machine, and serve only to generically tie the abstract idea to technical field.
The acquisition of sensor data, a PPG and motion sensor, appear to be insignificant extra-solution activity to the judicial exception, e.g., mere data gathering in conjunction with a law of nature or abstract idea such as a step of obtaining information about credit card transactions so that the information can be analyzed by an abstract mental process, as discussed in CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011) (see MPEP § 2106.05(g)). The sensors appears to only nominally tie the abstract idea to a technical field.
Step 2B: Does the claim recite additional elements that amount to significantly
more than the judicial exception?
In the case of the transmission, monitor device, housing, memory, and processor these elements appear to describe a general purpose computer, added post-hoc to an abstract idea rather than an improvement to computer functionality, do not qualify as a particular machine, and serve only to generically tie the abstract idea to technical field.
The acquisition of sensor data, a PPG and motion sensor, appear to be insignificant extra-solution activity to the judicial exception, e.g., mere data gathering in conjunction with a law of nature or abstract idea such as a step of obtaining information about credit card transactions so that the information can be analyzed by an abstract mental process, as discussed in CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011) (see MPEP § 2106.05(g)). The sensors appears to only nominally tie the abstract idea to a technical field.
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) 1-2, 5-9, and 11-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Saigh (U.S. Patent Application Publication No. 2019/0192053) hereinafter referred to as Saigh; in view of Aceti (U.S. Patent Application Publication No. 2005/0059870) hereinafter referred to as Aceti.
Regarding claim 1, Saigh teaches a method for monitoring a horse (¶[0009-0011]), the method comprising:
positioning a sensor device below an ear of and substantially at an artery of the horse (¶[0010] located on any tack of the horse, which includes the listed equipment, further defined in ¶¶[0026-0062] and in ¶[0183], and any of the listed tack at the head of the horse is “substantially at an artery” as no particular artery or proximity is claimed, further noted that applicant discloses that the head tack for the sensor placement is the bridle, harness, or head collar, and these pieces of tack are all listed in Saigh; further in case Applicant is not convinced that the disclosure of Saigh includes other head tack, the Examiner takes official notice that a horse has arteries substantially near its mouth, therefore corresponding to the bit sensor location disclosed in Fig. 16 and ¶[0183] called the inferior/superior labial artery, and the inferior alveolar artery, etc. and further ¶[0173] carotid artery positioning), the sensor device comprising a processor (¶[0069]);
obtaining with the processor of the sensing device sensor data from the sensor unit (¶[0183]);
determining, with the processor of the sensor device, horse data of the horse based on the sensor data (¶[0183]); and
transmitting, with the processor of the sensor device the horse data to a monitor device (¶[0070], ¶[0105]).
Saigh does not explicitly teach an optical sensor, instead limiting the description to a result of a common optical sensor, SpO2 is typically derived from a pulse oximeter (¶[0099]).
Attention is drawn to the Aceti reference which teaches a sensor unit for horse data (¶[0019]), including an optical sensor for SpO2 (¶[0018], ¶[0027]).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the sensor unit of Saigh to use optical sensors, as taught by Aceti, because Aceti teaches that its sensors don’t require miniaturization (Aceti, ¶[0003]) and therefore have improved battery life and a better fit on a variety of animals (Aceti, ¶[0035]).
Regarding claim 2, Saigh as modified teaches the method according to claim 1.
Saigh further teaches wherein the sensor unit comprises a second sensor and wherein the sensor data comprises second sensor data from the second sensor (¶[0183]).
Regarding claim 5, Saigh as modified teaches the method according to claim 1.
Aceti further teaches wherein the first optical sensor comprises a photoplethysmogram sensor (¶[0027] pulse oximetry circuit).
Regarding claim 6, Saigh as modified teaches the method according to claim 1.
Aceti further teaches wherein obtaining the sensor data comprises obtaining first heart rate data from the first optical sensor (¶[0018] pulse oximetry techniques to determine pulse rate and blood oxygen content).
Regarding claim 7, Saigh as modified teaches the method according to claim 2.
Saigh further teaches wherein the second sensor comprises a motion sensor (¶[0183]).
Regarding claim 8, Saigh as modified teaches the method according to claim 7.
Saigh further teaches wherein the sensor data comprises second motion data from the motion sensor (¶[0183] accelerometer, gyroscope, inertia).
Regarding claim 9, Saigh as modified teaches the method according to claim 1.
Aceti further teaches wherein determining the horse data comprises determining a photoplethysmogram, PPG, based on the sensor data (¶[0018-0019] pulse oximetry, horse monitoring).
Regarding claim 11, Saigh as modified teaches the method according to claim 1.
Saigh further teaches wherein transmitting the horse data to the monitor device comprises transmitting the horse data according to a first transmission scheme (¶[0105] customized to animal, and task).
Regarding claim 12, Saigh as modified teaches the method according to claim 11.
Saigh further teaches wherein transmitting the horse data to the monitor device comprises transmitting the horse data in transmission events, wherein a time between consecutive transmission events is defined by the first transmission scheme (¶[0190], Fig. 22, split time transmission events).
Regarding claim 13, teaches the method according to claim 1.
Saigh further teaches the method comprising determining an activity level of the horse based on the sensor data (¶[0183]).
Regarding claims 14-15 and 17-18, the claims are directed to a sensor device comprising substantially the same subject matter as claims 1-2 and are rejected under substantially the same sections of Saigh and Aceti.
Regarding claim 16, Saigh as modified teaches the method according to claim 13.
Saigh further teaches wherein the transmission of the horse data to the monitor device is based on the activity level (¶[0183], ¶[0190], Fig. 22, split time transmission events).
Claim(s) 3 and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Saigh and Aceti as applied to claim 1 above, and further in view of Hanks et al. (U.S. Patent Application Publication No. 2018/0333244) hereinafter referred to as Hanks.
Regarding claim 3, Saigh as modified teaches the method according to claim 1.
Saigh as modified does not teach the wavelength that the optical sensor emits.
Attention is drawn to the Hanks reference, which teaches a first optical sensor is configured to emit infra-red electromagnetic radiation in the range from 700 nm to 1000 nm (¶[0060] from ultraviolet to infrared, which encompasses the claimed range).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the optical sensor of Saigh as modified to include emitted light in the range of 700nm to 1000nm, as taught by Hanks, because Hanks teaches that the selection of wavelengths of light can improve the sensor results to compensate for hair colors, hair types, skin pigments, skin conditions, and skin types (Hanks ¶[0383]).
Regarding claim 10, Saigh as modified teaches the method according to claim 8.
Saigh as modified does not teach wherein determining the horse data comprises motion compensating the sensor data based on the second motion data.
Attention is drawn to the Hanks reference, which teaches wherein determining the horse data comprises motion compensating the sensor data based on the second motion data (¶[0076] compensation includes discarding motion-compromised optical data, and in ¶[0241] filtering out motion artifacts).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the data processing of Saigh as modified to include removing motion influence on the optical sensor data, as taught by Hanks, because it improves overall optical sensor accuracy by removing sources of noise (Hanks ¶[0076] and ¶[0241]).
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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMANDA L STEINBERG whose telephone number is (303)297-4783. The examiner can normally be reached Mon-Fri 8-4.
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/AMANDA L STEINBERG/ Examiner, Art Unit 3792