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 .
Claim Rejections - 35 USC § 101
Claims 1-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a mental process without significantly more.
Step 1: All of claims 1-16 are directed either to a method/process or to a system/device.
Step 2A, Prong One: The claims recite a mental process including steps such as analyzing a breathing parameter signal to determine breathing parameter values, setting values as a baseline for a user, and creating a breath training routine (see independent claims 1 and 9 which recite these steps), all of which could be performed by the human mind and/or by a human with a physical aid such as pen and paper.
Step 2A, Prong Two: This judicial exception is not integrated into a practical application because the claims merely implement the mental process using generic processing technology and add insignificant extra-solution activity. Specifically: the step of “a sensor configured to detect …” is considered insignificant pre-solution activity of mere data gathering, since it merely collects the data necessary to carry out the mental process; the step of “output [a routine]” is considered insignificant post-solution activity since it merely outputs the result of the mental process using a generic output modality. Furthermore, merely carrying out mental steps using generic computing technology such as “an electronic computing unit” and “a processor” and “a portable smart device” is well established to not amount to an integration into a practical application under the § 101 analysis. See, e.g., MPEP §§ 2106.04(a)(2)(III)(C) and 2106.04(d)(I) and 2106.05(f).
Step 2B: The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the only additional elements recited in the claims are generic processing/computing components and generic data collection and output components. Specifically, independent claims 1 and 9 each recite “a portable smart device” which comprises “a sensor” and “an electronic computing unit” with “a processor.” The Examiner takes official notice that these are basic, generic components which are well-understood, routine and conventional in the medical diagnostic arts, and the claims here merely use them for their well-understood, routine and conventional functions. Additionally/alternatively, examples of these generic components can be seen in both US 2014/0178844 A1 to Warren et al. and US 2018/0318643 A1 to Klee et al., (both of which are cited in the prior art rejections below). As such, those additional elements cannot be considered “significantly more” than the judicial exception in Step 2B of the § 101 analysis.
Dependent claims 2-8 and 10-16 follow the same analysis above because they all merely add additional mental steps. They otherwise only recite the same insignificant extra-solution activity and generic processing/computing components found in the independent claims.
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.
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 1-2, 4-10, and 12-16 are rejected under 35 U.S.C. 102(a)(1) as anticipated by US 2014/0178844 A1 to Warren et al. (hereinafter “Warren”) or, in the alternative, under 35 U.S.C. 103 as obvious over Warren in view of US 2018/0318643 A1 to Klee et al. (hereinafter “Klee”).
Regarding Claims 1 and 9, Warren teaches a portable smart device (generally elements 100-106 in FIG. 1, and/or device 30 in FIG. 3) designed to be held by a user or worn by the user (see e.g. device 30 in FIG. 3 which is wearable), the portable smart device for determining a breathing quality of a user during a breath training session (see e.g. the abstract, Paras. 21-22), the portable smart device comprising:
a sensor (102) configured to detect a breathing parameter of the user and output a breathing parameter signal, the breathing parameter including at least one of heart rate, heart rate variability, breathing rate, breathing rate variability, vagal tone, breath holding capability, variations in breath holding capability, blood oxygen saturation level and blood oxygen saturation level variability (see e.g. Para. 22); and
an electronic computing unit (e.g. 104 described in Para. 23) coupled to the sensor, the electronic computing unit comprising a processor (again see element 104 in e.g. Para. 23) configured to:
analyze the breathing parameter signal of the user during the breath training session to determine breathing parameter values (see e.g. Paras. 23, 31-36 describing various aspects of the analysis),
and
output a semi-personalized breath training routine to the user (see e.g. Para. 37: “an updated breath training regimen”).
Concerning the limitations “set the determined breathing parameter values as a baseline for the user” and to output the routine “based on baseline,” as an initial matter, Warren teaches this in at least Para. 34 which discusses how physiological data may be analyzed to identify a particular user (e.g. Para. 34: “Patterns of breathing may be used as data to determine the identity of the trainee”; note that a pattern which identifies a specific user may be considered that user’s “baseline”), and which is then used to help set the correct routine (e.g. Para. 34: “the determined identity of the trainee is used to ensure the appropriate feedback corresponding to the trainee is provided in block 214”; note that such feedback includes an updated breath training regimen, as explained in e.g. Para. 37). As such, Warren anticipates claims 1 and 9.
However, as further evidence concerning the obviousness of these limitations, attention is directed to Klee which teaches an analogous breath training invention in which breathing parameter values can be set as a user’s baseline (“normal” or “base parameters”) to help set the correct breath training routine specific to that patient (see e.g. Paras. 126 and 133-134 of Klee). It would have been obvious to one of ordinary skill in the art as of Applicant's effective filing date to modify Warren to set a user-specific baseline of breather parameter values for use in determining that user’s breath training routine, as seen in Klee, because doing so would advantageously help tailor the routine to a particular user’s physiological needs.
Regarding Claims 2 and 10, see e.g. Paras. 34-36 of Warren; any of these three analyses can be considered a classification of the user, and any of them can be used to output the personalized breath training routine to the user as explained in e.g. Para. 37.
Regarding Claims 4 and 12, see e.g. Warren at Para. 25 (“to comparatively analyze the physiological data from the plurality of trainees with the received physiological data from the data processor 104 to provide feedback to a trainee”) and Para. 36 (“comparatively analyzes the data to determine efficacy of a breath training regimen”) as well as Paras. 51-52.
Regarding Claims 5 and 13, see e.g. Paras. 37 and 45 of Warren.
Regarding Claims 6, 7, 14 and 15, see e.g. Paras. 37, 47, 49 and 51-52 of Warren.
Regarding Claims 8 and 16, see e.g. Para. 45 of Warren (“In this example, a trainee has been instructed to transition between normal relaxed breathing 900, to breath holding 902 and back to normal breathing 904”).
Claims 3 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Warren in view of Klee.
Regarding Claims 3 and 11, Warren teaches various forms of user classification as discussed above, but fails to specifically teach one of the personal information types listed in these claims. Another reference, Klee, teaches an analogous breath training invention in which a user is classified based on their activity level which helps “put the respiratory parameters also in the user’s lifestyle context” (see e.g. Paras. 58-62 and 173). It would have been obvious to one of ordinary skill in the art as of Applicant's effective filing date to modify Warren to further classify a user based at least on their daily activity level because it would advantageously help deliver a more personalized breath training routine based on that specific user’s activity level, which would be known to impact their respiratory parameters.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Persidsky ‘575: see the title and abstract.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN R DOWNEY whose telephone number is (571)270-7247. The examiner can normally be reached Monday-Friday 8:30am-5:00pm ET.
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, NIKETA PATEL can be reached at (571)-272-4156. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JOHN R DOWNEY/Primary Examiner, Art Unit 3792