DETAILED ACTION
Notice to Applicant
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This communication is in response to the amendment filed on 2/2/25. Claims 1-9, and 11 are pending.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/2/25 has been entered.
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 1-9, and 11 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.
35 USC 101 enumerates four categories of subject matter that Congress deemed to be appropriate subject matter for a patent: processes, machines, manufactures and compositions of matter. As explained by the courts, these “four categories together describe the exclusive reach of patentable subject matter. If a claim covers material not found in any of the four statutory categories, that claim falls outside the plainly expressed scope of Section 101 even if the subject matter is otherwise new and useful.” In re Nuijten, 500 F.3d 1346, 1354, 84 USPQ2d 1495, 1500 (Fed. Cir. 2007). Step 1 of the eligibility analysis asks: Is the claim to a process, machine, manufacture or composition of matter? Applicant’s claims fall within at least one of the four categories of patent eligible subject matter because claims 1-8 are drawn to a system, and claim 9 recites a method; claim 11 is drawn to an article of manufacture (CRM storing instructions to perform a method).
Determining that a claim falls within one of the four enumerated categories of patentable subject matter recited in 35 USC 101 (i.e., process, machine, manufacture, or composition of matter) in Step 1 does not complete the eligibility analysis. Claims drawn only to an abstract idea, a natural phenomenon, and laws of nature are not eligible for patent protection. As described in MPEP 2106, subsection III, Step 2A of the Office’s eligibility analysis is the first part of the Alice/Mayo test, i.e., the Supreme Court’s “framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int'l,134 S. Ct. 2347, 2355, 110 USPQ2d 1976, 1981 (2014) (citing Mayo, 566 U.S. at 77-78, 101 USPQ2d at 1967-68).
In 2019, the United States Patent and Trademark Office (USPTO) prepared revised guidance (2019 Revised Patent Subject Matter Eligibility Guidance) for use by USPTO personnel in evaluating subject matter eligibility. The framework for this revised guidance, which sets forth the procedures for determining whether a patent claim or patent application claim is directed to a judicial exception (laws of nature, natural phenomena, and abstract ideas), is described in MPEP sections 2106.03 and 2106.04.
As explained in MPEP 2106.04(a)(2), the 2019 Revised Patent Subject Matter Eligibility Guidance explains that abstract ideas can be grouped as, e.g., mathematical concepts, certain methods of organizing human activity, and mental processes. Moreover, this guidance explains that a patent claim or patent application claim that recites a judicial exception is not ‘‘directed to’’ the judicial exception if the judicial exception is integrated into a practical application of the judicial exception. A claim that recites a judicial exception, but is not integrated into a practical application, is directed to the judicial exception under Step 2A and must then be evaluated under Step 2B (inventive concept) to determine the subject matter eligibility of the claim.
Step 2A asks: Does the claim recite a law of nature, a natural phenomenon (product of nature) or an abstract idea? (Prong One) If so, is the judicial exception integrated into a practical application of the judicial exception? (Prong Two) A claim recites a judicial exception when a law of nature, a natural phenomenon, or an abstract idea is 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, while 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.” A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.
In the instant case, claims 1-9 and 11 recite(s) a method/ product and system for certain methods of organizing human activities, which is subject matter that falls within the enumerated groupings of abstract ideas described in MPEP 2106.04 (2019 Revised Patent Subject Matter Eligibility Guidance) Certain methods of organizing human activities includes fundamental economic practices, like insurance; commercial interactions (i.e. legal obligations, marketing or sales activities or behaviors, and business relations). Organizing human activity also encompasses managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions.) The recited method and system are determining a risk of a cardiovascular event or heatstroke based on exercise intensity and heart rate trend data. (i.e. managing personal behavior or relationships)
In particular, claims 1, 9 and 11 recite a system, method and product for:
obtaining an activity intensity from level signal and binarizing the activity intensity in a direction of an intensity level, and dividing an exercise period into a high activity intensity period and a low activity intensity period;
performing first monitoring that obtains the heart rate of the exerciser from a measurement result of the heart rate meter in every low activity intensity period and monitors presence or absence of a declining trend in the heart rate, based on a comparison with a predetermined reference;
performing second monitoring that monitors whether or not the activity intensity detected in the high activity intensity period immediately after a case in which the declining trend in the heart rate is determined to be absent by the first monitoring is low as compared with activity intensities detected in high activity intensity periods up to a previous time; and
in a case in which a result by the second monitoring is determined to be low, notifying that a risk of onset of at least one of a cardiac disease or heat stroke is high.
This judicial exception is not integrated into a practical application because the claim language does not recite any improvements to the functioning of a computer, or to any other technology or technical field (See MPEP 2106.04(d)(1); see also MPEP 2106.05(a)(I-II)). Moreover, the claims do not integrate the judicial exception into a practical application because the claimed invention does not: apply the judicial exception with, or by use of, a particular machine (see MPEP 2106.05(b)); effect a transformation or reduction of a particular article to a different state or thing (see MPEP 2106.05(c)); or apply or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment see MPEP 2106.05(e). (Considerations for integration into a practical application in Step 2A, prong two and for recitation of significantly more than the judicial exception in Step 2B)
While abstract ideas, natural phenomena, and laws of nature are not eligible for patenting by themselves, claims that integrate these exceptions into an inventive concept are thereby transformed into patent-eligible inventions. Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347, 2354, 110 USPQ2d 1976, 1981 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71-72, 101 USPQ2d 1961, 1966 (2012)). Thus, the second part of the Alice/Mayo test is often referred to as a search for an inventive concept. Id. An “inventive concept” is furnished by an element or combination of elements that is recited in the claim in addition to (beyond) the judicial exception, and is sufficient to ensure that the claim as a whole amounts to significantly more than the judicial exception itself. Alice Corp., 134 S. Ct. at 2355, 110 USPQ2d at 1981 (citing Mayo, 566 U.S. at 72-73, 101 USPQ2d at 1966). Although the courts often evaluate considerations such as the conventionality of an additional element in the eligibility analysis, the search for an inventive concept should not be confused with a novelty or non-obviousness determination. See Mayo, 566 U.S. at 91, 101 USPQ2d at 1973 (rejecting “the Government’s invitation to substitute Sections 102, 103, and 112 inquiries for the better established inquiry under Section 101”). As made clear by the courts, the “‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the Section 101 categories of possibly patentable subject matter.” Intellectual Ventures I v. Symantec Corp.,838 F.3d 1307, 1315, 120 USPQ2d 1353, 1358 (Fed. Cir. 2016) (quoting Diamond v. Diehr, 450 U.S. at 188–89, 209 USPQ at 9).
As described in MPEP 2106.05, Step 2B of the Office’s eligibility analysis is the second part of the Alice/Mayo test, i.e., the Supreme Court’s “framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. _, 134 S. Ct. 2347, 2355, 110 USPQ2d 1976, 1981 (2014) (citing Mayo, 566 U.S. 66, 101 USPQ2d 1961 (2012)). Step 2B asks: Does the claim recite additional elements that amount to significantly more than the judicial exception? The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claims 1, 9, and 10 recite additional limitations including: continuously detecting a signal of a level according to a movement of an exerciser accompanied by intermittent exercise, by an exercise sensor; and continuously measuring a heart rate of the exerciser by a heart rate meter;
The additional steps amount to insignificant extra-solution activity to the judicial exception (see MPEP 2106.05(g)). Examples of insignificant extra-solution activity include mere data gathering, selecting a particular data source or type of data to be manipulated, and insignificant application. In the instant case the additional steps amount to necessary data gathering and outputting, (i.e., all uses of the recited judicial exception require such data gathering or data output). See Mayo, 566 U.S. at 79, 101 USPQ2d at 1968; OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1092-93 (Fed. Cir. 2015) (presenting offers and gathering statistics amounted to mere data gathering)
Claims 1 recites additional limitation(s), including: an exercise sensor; a heart rate meter; and a processor; and a memory. Claim 9 recites an exercise sensor; a heart rate meter. Claim 10 recites: an exercise sensor; a heart rate meter; and computer; and a computer readable storage medium. These additional elements are generic components performing conventional activities that amount to no more than implementing the abstract idea with a computerized system. It is noted that he claims include an exercise sensor and a heart rate meter. However, as recited, the additional elements serve as input devices to gather the data that is analyzed (i.e. conventional activity)
The generic nature of the computer system used to carryout steps of the recited method is underscored by the system description in the instant application, which discloses: “The exercise sensor 31 can apply to an accelerometer or a GPS (Global Positioning System) receiver that is attached to a part of body or a proper place of clothes. In addition, as the exercise sensor 31, an installed type video camera (an imaging device) that captures an exercise region of an exerciser may be used, and a biological activity (a movement) of a target exerciser may be detected from a video image of the video camera.” (par. 21)
The application explains: “The heart rate meter 32 may be a wearable sensor such as a biological body attached type including a wristwatch type, or a wear type, and monitors a heart rate during exercise or sporting activity” (see par. 22) and “for example, the exercise sensor 31, the heart rate meter 32, and the thermometer 33 are attached to the exerciser, and, on the other hand, various aspects are employable for the placement configuration of the information processing unit 10 (including the storage unit 101), the display unit 21, and the operation unit 22.” (par. 24) The system description underscores that the applicant's perceived invention/ novelty focuses on the computerized implementation of the abstract idea, not the underlying structure of generic system components.
Furthermore, the courts have recognized certain computer functions as well‐understood, routine, and conventional functions when they are 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)). Among these are the following features, which are recited in claims 1-9 and 11:
- Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (emphasis added));
- Performing repetitive calculations, Flook, 437 U.S. at 594, 198 USPQ2d at 199 (recomputing or readjusting alarm limit values); Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) ("The computer required by some of Bancorp’s claims is employed only for its most basic function, the performance of repetitive calculations, and as such does not impose meaningful limits on the scope of those claims.");
- Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93;
Claims 2-8 are dependent from Claim 1 and include(s) all the limitations of claim(s) 1. However, the additional limitations of the claims 2-8 fail to recite significantly more than the abstract idea. More specifically, the additional limitations further define the abstract idea with additional steps or details regarding data types, or the additional steps amount to insignificant extra solution activities. Therefore, claim(s) 2-8 are also rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Because Applicant’s claimed invention recites a judicial exception that is not integrated into a practical application and does not include additional elements that are sufficient to amount to significantly more than the judicial exception itself, the claimed invention is not patent eligible.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-9 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 1 has been amended to recite “obtains the heart rate of the exerciser from a measurement result of the heart rate sensor .“ There is insufficient antecedent basis for this limitation in the claim. Claim1 previously recites “an exercise sensor” and “a heart rate meter,” but does not previously reference a heart sensor.
Claims 1, 9, and 11 recite “also binarizes the activity intensity in a direction of an intensity level.” It is unclear what information is obtained and what assessment(s) is (are) being made with the claim language. As understood by the examiner, the term “binarize” is means that the activity intensity is categorized into one of two categories: high intensity activity and low intensity activity.
However, the addition of the phrase “in a direction of an intensity level” suggests that some additional categorization or trending data is also provided (e.g. high activity intensity, decreasing intensity; high activity intensity, increasing intensity; low activity intensity, increasing intensity; high activity intensity, decreasing intensity).
In other words, it is unclear whether the “binarize” term in the claim refers to dividing the activity intensity periods into (A) high or (B) low activity intensity periods; or whether the binarize step refers to classifying the trend/direction data: (1) increasing or (2) decreasing.
Additionally, it is unclear it is not clear from the claim how a determination is made that an “risk of disease outbreak” is possible. Also for the purpose of examination, the Examiner is interpreting the “outbreak of disease” to mean the onset of a cardiac event (e.g. a heart attack, heart arrhythmia; bradycardia). However, clarification is requested.
Claims 2-8 inherit the deficiencies of claim 1 through dependency and are therefore also rejected.
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 (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 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) 1-9 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over by Wisløff et al (US 20210153759 A1) in view of Ternes (US 20090177100 A1), and in further view of Chen et al ( Chen ST, Lin SS, Lan CW, Hsu HY. Design and Development of a Wearable Device for Heat Stroke Detection. Sensors (Basel). 2017 Dec 22;18(1):17. doi: 10.3390/s18010017. PMID: 29271893; PMCID: PMC5796472.).
Claims 1, 9 and 11 Wisloff teaches a disease outbreak forecasting apparatus and system, including:
an exercise sensor that continuously detects a signal of a level according to a movement of an exerciser accompanied by intermittent exercise; (par. 21- obtaining data indicating movement of the user over the monitoring period; par. 71- If user motion data is obtained for some or all of the monitoring period, for example if sensor device 210 or an additional sensor device comprises a motion sensor such as a tri-axis accelerometer, this can be taken into account in determination of the health risk indicator.)
a heart rate meter that continuously measures a heart rate of the exerciser; (Fig. 2; par. 45-46: The user's resting and maximum heart rates are also obtained. Resting heart rate can be obtained by determining the lowest heart rate value measured by sensor device 210 over the monitoring period.)
a processor with a memory (par. 26; par. 47-system including processor(s) and memory(-ies) and non-transitory computer readable storage medium storing a program that causes a computer to forecast an outbreak of disease, (par. 25-26; par. 47) comprising configured to perform tasks including:
obtaining an activity intensity from the movement of the exerciser detects, from the movement of the exerciser that is detected by the exercise sensor (par. 42, par. 45-Heart rate data could be collected by, for example, a photoplethysmography (PPG) sensor. Other kinds of sensors could also be provided, for example an accelerometer (motion sensor), blood pressure sensor, glucose sensor, blood gas sensor, pressure sensor or any other sensors which could be used to measure user activity; par. 54-57-correlating heart rate and intensity scores)
in a case in which a monitoring result by the second monitoring unit is determined to be low, forecasts that a risk of disease outbreak is high. (fig. 4: 431, 432, 440; par. 64-66-determination of higher or lower risk based on activity and heart rate relative to previous monitoring period: A health risk indicator could be a binary indication of whether or not the user has been physically active enough over the monitoring period to improve their activity score compared to a previous monitoring period. Alternatively, it could be a binary indication of whether or not the user has been active enough over the monitoring period to reduce their general risk of developing lifestyle-related diseases compared to a previous monitoring period. If a greater level of detail is desired, one or more binary health risk indicators could be provided to indicate whether or not the user has been active enough over the monitoring period to reduce their risk of developing a corresponding one or more specific lifestyle-related diseases/conditions compared to a previous monitoring period..)
Wistloff discloses a system and method for receiving activity and heart rate information, and for providing a health risk assessment based on activity and heart rate data relative to a previous monitoring period.
Wistloff does not expressly disclose, but Ternes teaches
binarizing the activity intensity in a direction of an intensity level and divides an exercise period into a high activity intensity period, and a low activity intensity period; (Fig. 4(404, 406); low intensity threshold (pre/post heartrate levels); high intensity- during exercise-par. 28- FIG. 4, the at least one predetermined criteria includes at least one patient heart rate (HR) to define the beginning and/or the end of the exercise episode… The processor 210 uses the time intervals between such heart depolarizations to compute the subject's beat-to-beat heart rate. At 402, the heart rate is compared to a programmable exercise onset rate threshold R1. In this example, when the HR climbs above the exercise onset rate threshold R1, then an exercise episode is declared at 404… after the beginning of an exercise episode has been declared at 404, the implantable device 102 collects, at 406, exercise data at (associated with a rising and/or elevated heart rate) and post-exercise recovery data (associated with a heart rate declining back toward a resting value). In one example, to declare an end of the exercise episode, at 408 the heart rate is compared to a programmable exercise ending rate threshold, R2, which may be programmed to the same value as the exercise onset threshold R1, or to a different value). When the heart rate falls below the exercise ending rate threshold R2, then the end of the exercise episode is declared and the implantable device 102 stops collecting data associated with the exercise episode (although it may continue collecting data for other purposes)
a first monitoring that obtains the heart rate of the exerciser, in the low activity intensity period each time, and monitors presence or absence of the declining trend that has been detected recently, compared with a predetermined reference (Ternes: evaluating trend of heart rate: par. 26- patient's heart rate increases or subsequently remains elevated; post-exercise recovery data (associated with a heart rate declining back toward a resting value); par. 28-gathering heart rate throughout exercise episode )
a second monitoring that, monitors whether or not the activity intensity detected in the high activity intensity period immediately after a case in which the declining trend in the heart rate is determined to be absent by the first monitoring unit is low as compared with activity intensities detected in high activity intensity periods up to a previous time; and (Ternes: evaluating trend of heart rate and comparing to reference points: par. 26- patient's heart rate increases or subsequently remains elevated; par. 28- post-exercise recovery data (associated with a heart rate declining back toward a resting value))
At the time of filing, it would have been obvious to one of ordinary skill in the art to modify the system/method of Wistloff with the teaching of Ternes to establish high and low intensity levels of activity based on heart rated data, and to forecast health/disease based on the patient heart rate and activity levels. As suggested by Ternes, one would have been motivated to include these features to better assess the effects of exercise on a cardiac patient, which provides useful diagnostic and prognostic information about the cardiac patient. (par. 4)
Claims 1, 9, and 11 further recite: in a case in which a monitoring result by the second monitoring unit is determined to be low, forecasts notifying that a risk of disease outbreak onset of at least one of a cardiac disease or heat stroke is high.
Wisloff and Ternes in combination do not expressly disclose, but Chen teaches providing notification of risk for heat stroke, based on exercise heart rate and exercise intensity input (Abstract; pg. 12-13, (4.2 experimental results); pg. 13-14, Discussion sections 5-5.2)
At the time of filing, it would have been obvious to one of ordinary skill in the art to further modify the system and method of Wisloff and Ternes in combination with the teaching of Chen to provide warning of elevated risk for heat stroke based on physiological sensor input and exercise intensity/transition data. One would have been motivated to include this feature to prevent injury and potential death to individuals who may not realize their elevated health risk presented by a combination of conditions.
claim 2. Wisloff and Ternes teaches the disease outbreak forecasting apparatus according to claim 1. Ternes discloses wherein the first monitoring unit detects the heart rate as the declining trend of the heart rate every time point when a predetermined time elapses in the low activity intensity period each time, and monitors whether or not a recently detected heart rate is higher than a value obtained by adding a predetermined value to heart rates up to the previous time, the value being the predetermined reference. (par. 28: At 402, the heart rate is compared to a programmable exercise onset rate threshold R1. In this example, when the HR climbs above the exercise onset rate threshold R1, then an exercise episode is declared at 404) At the time of filing, it would have been obvious to one of ordinary skill in the art to modify the system/method of Wistloff with the teaching of Ternes to establish high and low intensity levels of activity based on heart rated data, and to forecast health/disease based on the patient heart rate and activity levels. As suggested by Ternes, one would have been motivated to include these features to better assess the effects of exercise on a cardiac patient, which provides useful diagnostic and prognostic information about the cardiac patient. (par. 4)
claim 3 Ternes teaches the disease outbreak forecasting apparatus, wherein the heart rates up to the previous time include at least one heart rate in the low activity intensity period up to the previous time. (par. 28)
claim 4. Ternes teaches the disease outbreak forecasting apparatus according to claim 3, wherein the heart rates up to the previous time are heart rates in the low activity intensity period at a first time. (par. 28)
claim 5. Wisloff teaches the disease outbreak forecasting apparatus according to claim 1, wherein the first monitoring unit detects a first heart rate at a start time point in the low activity intensity period each time,(par. 56-57-heart rate normalization) and a second heart rate at a time point when a predetermined time elapses in the low activity intensity period that follows immediately, and monitors whether or not a current difference being a difference between the first heart rate of this time and the second heart rate of this time as the declining trend of the heart rate is smaller than a value obtained by subtracting a predetermined value from a previous difference being a difference between first heart rates and second heart rates up to the previous time, the value being the predetermined reference. (Fig. 4; par. 53- if heart rate is determined to have risen above a first predetermined threshold value (indicating that physical activity is being undertaken), for example 60% of the user's maximum heart rate relative to their resting heart rate, the sampling rate could be increased, for example to once every 15 seconds. The sampling rate could be returned to its standard value when the user's heart rate is determined to have fallen below the first threshold, or to have stayed below the first threshold for a predetermined period, for example 5 minutes. Similarly, if the user's heart rate is determined to have fallen below a second predetermined threshold value, for example 5% of the user's maximum heart rate relative to their resting heart rate, or to have stayed below such a threshold for a predetermined period, for example 10 minutes (indicating that the user is sleeping), the sampling rate could be decreased, for example to once every 10 minutes)
claim 6. Wisloff teaches the disease outbreak forecasting apparatus according to claim 5, wherein the first heart rates and the second heart rates up to the previous time include at least one heart rate in the low activity intensity period up to the previous time. (par. 53-56)
claim 7 Wisloff and Ternes teach the disease outbreak forecasting apparatus according to claim 1, as explained. Ternes teaches wherein the second monitoring unit monitors whether or not the activity intensity to be detected in the high activity intensity period immediately after a case in which the first monitoring unit determines that the declining trend has not been detected is lower by a predetermined difference or more than the activity intensity detected in the high activity intensity periods up to the previous time. (par. 28)
claim 8 Wisloff teaches the disease outbreak forecasting apparatus according to claim 1, further comprising a thermometer that detects a temperature of an exercise environment, wherein the first monitoring unit changes the predetermined reference according to a detected temperature. (par. 54)
Response to Arguments
Applicant's arguments filed 2/2/25 have been fully considered but they are not persuasive.
(A) Applicant argues the claim rejections under 35 USC 112 (b).
Applicant’s arguments and the claim amendments are noted. However, issues of indefiniteness remain, as explained in the updated claim rejections.
Additionally, the claim interpretation under 35 USC 112(f) has been withdrawn in light of the claim amendments.
(B) Applicant argues that the claimed invention is directed to two types of information being “applied to mutually different time periods” and the exercise ‘accompanied by intermittent exercise’ in which the high activity intensity period and the low activity intensity period appear alternately.” and obtains an operation effect such as ensuring measurement accuracy by limiting the detection (obtaining) of the "heart rate" in the low activity intensity period.”
In response, the features argued by applicant are not clear from the current claim language. More specifically, applicant argues that “the heart is applied in the low activity intensity level” and the “exercise level is applied in the high activity intensity period.” It is not clear from the current claim language that either metric is “applied” to anything.
Moreover, the applicant argues that in the Wisloff reference “the activity sensor is merely a device that solely maintains accuracy with the consideration of activity factors while obtaining the heart rate.” However, it is unclear how this applicant’s claimed invention distinguishes over the features cited as being taught by the Wisloff in the current rejection (i.e. a processor, exercise activity detection, and the notification feature.) The claim language recites “an exercise sensor that continuously detects a signal of a level according to a movement of an exerciser accompanied by intermittent exercise.” Wisloff and Termes both disclose exercise activity detection components, as cited.
(C) Applicant argues that the prior art does not disclose the amended claim limitations.
In response, new grounds of rejection and additional citations have been provided to address the claims as amended.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Lin SS, Lan CW, Hsu HY, Chen ST. “Data Analytics of a Wearable Device for Heat Stroke Detection.” Sensors (Basel). 2018 Dec 9; 18(12):4347. doi: 10.3390/s18124347. PMID: 30544887; PMCID: PMC6308959.
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/Rachel L. Porter/ Primary Examiner, Art Unit 3684
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