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 .
Election/Restrictions
Applicant’s election without traverse of claims 1-12 in the reply filed on December 19, 2025 is acknowledged. Claims 13-24 are withdrawn from consideration.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under U.S.C. 120, 121, or 365 is acknowledged. The prior-filed applications (PCT/US2021/070963 filed on July 27, 2021; and PRO 63/057494 filed on July 28, 2020) are acknowledged.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on March 30, 2023 has been considered by the examiner.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.
Such claim limitations are:
“a plurality of inertial measurement units (IMUs)” in claims 1-3, 6, 7, and 8.
Because this claim limitation is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it is being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof:
[0030] … an inertial measurement unit (e.g., containing at least a 3-axis accelerometer and a 3-axis gyroscope)…
If applicant does not intend to have this limitation interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation recites sufficient structure to perform the claimed function so as to avoid it being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 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 wearable respiratory motion sensor system. Thus, the claim is directed to a product/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:
“…compute three-dimensional displacements of a rib cage and an abdomen of the subject based on the generated accelerometer and gyroscope signals.”
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 wearable respiratory motion sensor system, comprising: a plurality of inertial measurement units (IMUs) to be positioned on a subject and generate accelerometer and gyroscope signals; and a processor…”
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, i.e., mere data gathering steps necessary to perform the identified judicial exception do not integrate the 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 pertain to well-understood, routine, and conventional IMUs and a generically recited processor.
Dependent claims 2-12 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 1-12 are not patent eligible under 35 USC 101.
Claim Rejections - 35 USC § 102(A)(1)
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 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.
Claims 1-12 are rejected under 35 U.S.C. 102(A)(1) as being anticipated by Ding et al. (US PG Pub. No. 2016/0038083) (hereinafter “Ding”).
Ding was cited in applicant’s IDS filed on March 30, 2023.
With respect to claim 1, Ding teaches a wearable respiratory motion sensor system (smart garment 10/200 depicted in Figs. 1-6), comprising: a plurality of inertial measurement units (IMUs) to be positioned on a subject and generate accelerometer and gyroscope signals (par.0037 “stretchable garments that includes… accelerometers and/or gyroscopes”; par.0061 “IMU 25a can include accelerometers, gyroscopes, magnetometers, or a combination thereof”); and a processor (microprocessor 22 in Fig. 2) to compute three-dimensional displacements of a rib cage and an abdomen of the subject based on the generated accelerometer and gyroscope signals (par.0142-0143 “sensing component [which par.0061 sets forth that IMU can be accelerometers, gyroscopes, etc.]… used to measure the contraction and expansion of the rib cage and chest cavity during breathing… used to determine breathing patterns”; see also par.0108 “3D displays”)
With respect to claim 2, Ding teaches wherein the IMUs are fixed directly to the rib cage and the abdomen of the subject (Figs. 2 and 6; par.0142-0143, 0146).
With respect to claim 3, Ding teaches wherein the IMUs are fixed to at least one wearable strap (Figs. 2 and 6).
With respect to claim 4, Ding teaches wherein the at least one wearable strap includes a first wearable strap configured to be worn around the rib cage of the subject, and a second wearable strap configured to be worn around the abdomen of the subject (Figs. 2 and 6; par.0142-0143, 0146).
With respect to claim 5, Ding teaches wherein the at least one wearable strap includes a first wearable strap configured to be worn around the upper rib cage of the subject, a second wearable strap configured to be worn around the lower rib cage of the subject, and a third wearable strap configured to be worn around the abdomen of the subject (Figs. 2 and 6; par.0066, 0069, 0139, 0140-0146).
With respect to claim 6, Ding teaches wherein the IMUs are configured to be fixed to the subject via at least one adhesive pad (Figs. 2 and 6; par.0146, 0149).
With respect to claim 7, Ding teaches wherein the at least one adhesive pad includes a first adhesive pad configured to fix a first one of the IMUs on the rib cage of the subject, and a second adhesive pad configured to fix a second one of the IMUs on the abdomen of the subject (Figs. 2 and 6; par.0143, 0146, 0149).
With respect to claim 8. Ding teaches wherein the at least one adhesive pad includes a first adhesive pad configured to fix a first one of the IMUs on the upper rib cage of the subject, a second adhesive pad configured to fix a second one of the IMUs on the lower rib cage of the subject, and a third adhesive pad configured to fix a third one of the IMUs on the abdomen of the subject (Figs. 2 and 6; par.0066, 0069, 0139-0149).
With respect to claim 9, Ding teaches wherein the processor is to use a signal processing method to remove an influence of sensor bias errors and an influence of gravity on the generated accelerometer and gyroscope signals (Figs. 2 and 6; par.0061-62, 0137, 0151).
With respect to claim 10, Ding teaches wherein the signal processing method includes compensation of a varying influence of gravity based on bending motions of the subject (Figs. 2 and 6; par.0061-62, 0146, 0188, 0202).
With respect to claim 11, Ding teaches wherein the processor is to compute tidal volume and respiratory rate associated with respiration based on the computed three-dimensional displacements (Figs. 2 and 6; par.0071, 0108, 0123, 0143).
With respect to claim 12, Ding teaches wherein the processor is to compute tidal volume based on the computed three-dimensional displacements using one of a transfer function, a finite impulse response (FIR) filter, or an infinite impulse response (IIR) filter (par.0070-71, 0108, 0123, 0137, 0143, 0191-0192, 0195, 0199-0201).
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander Valvis can be reached at 5712724233. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PUYA AGAHI/Primary Examiner, Art Unit 3791