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.
Notice of Amendment
In response to the amendment(s) filed on 12/2/25, amended claim(s) 10, 12, and 18-21, canceled claim(s) 1-9, and new claim(s) 22-29 is/are acknowledged. The following new and/or reiterated ground(s) of rejection is/are set forth:
Election/Restrictions
Newly submitted claim(s) 27-29 is/are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
The invention of claims 10-26 and the invention of claims 27-29 are directed to related methods. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed can have a materially different design, mode of operation, function, or effect as evidenced by “a sensor tip at a distal end of the oximeter device,” “coupling an accelerometer integrated circuit to the printed circuit board,” and “wherein the printed circuit board with the accelerometer integrated circuit are positioned within the housing so that the accelerometer integrated circuit is closer to the proximal end of the oximeter device than to the distal end of the housing,” as recited in claim 10 and “coupling a sensor tip at the distal end of the housing to the processor,” “coupling an accelerometer integrated circuit to the processor within the housing,” and “wherein the accelerometer integrated circuit is positioned within the housing closer to the proximal end of the housing than to the distal end of the housing,” as recited in claim 27. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim(s) 27-29 is/are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Objections
Claim 26 is objected to because of the following informalities: “the accelerometer” (line 1) appears that it should be “the accelerometer integrated circuit.”
Appropriate correction is required.
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.
Claim(s) 10-26 is/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.
For claim 10, the claim term “the distal end of the housing” (line 8) lacks antecedent basis. The claim is examined as meaning “the distal end of the oximeter.”
For claim 12, the claim term “a memory” (line 2) is ambiguous. Claim 10, from which claim 12 depends, already recites “a memory.” Therefore, it is unclear whether the same or a different memory is being referred to. The claim is examined under the former interpretation.
For claim 18, the claim language “wherein a detected orientation change in at least the first direction or second direction comprises a value, at first output of the accelerometer integrated circuit, changing from a positive value to a negative value” is ambiguous. The claim language is grammatically unclear, which makes it difficult to ascertain what limitation relates to what subject matter of the claim. The claim will be examined as meaning “wherein a detected orientation change in at least the first direction or second direction comprises a value changing from a positive value to a negative value.”
For claim 19, the claim language “wherein a detected orientation change in at least the first direction or second direction comprises a value, at first output of the accelerometer integrated circuit, changing sign” is ambiguous. The claim language is grammatically unclear, which makes it difficult to ascertain what limitation relates to what subject matter of the claim. The claim will be examined as meaning “wherein a detected orientation change in at least the first direction or second direction comprises a value changing sign.”
For claim 20, the claim language “wherein a detected orientation change in at least the first direction or second direction comprises a value changing sign, at first output of the accelerometer integrated circuit, when an axes passes through the housing and the sensor tip changes at least 160 degrees from an initial orientation” is ambiguous. The claim language is grammatically unclear, which makes it difficult to ascertain what limitation relates to what subject matter of the claim. The claim will be examined as meaning “wherein a detected orientation change in at least the first direction or second direction comprises a value changing sign when an axis that passes through the housing and the sensor tip changes at least 160 degrees from an initial orientation.”
For claim 21, the claim language “wherein a detected orientation change in at least the first direction or second direction comprises a value, at first output of the accelerometer integrated circuit, indicates a change of at least 160 degrees relative to an initial value at the first output” is ambiguous. The claim language is grammatically unclear, which makes it difficult to ascertain what limitation relates to what subject matter of the claim. The claim will be examined as meaning “wherein a detected orientation change in at least the first direction or second direction comprises a value indicates a change of at least 160 degrees relative to an initial value.”
For claim 26, the claim term “the direction” (line 2) lacks antecedent basis. The claim is examined as this being a newly introduced claim term.
Dependent claim(s) 11-26 fail to cure the ambiguity of independent claim 10, thus claim(s) 10-26 is/are rejected under 35 U.S.C. 112(b).
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.
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.
Claim(s) and 10-11, 13-17, and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2021/0212612 to Hohl et al. (hereinafter “Hohl”) in view of U.S. Patent Application Publication No. 2014/0067305 to Oliver et al. (hereinafter “Oliver”) and U.S. Patent Application Publication No. 2017/0347899 to Bhushan et al. (hereinafter “Bhushan”).
For claim 10, Hohl discloses a method (Abstract) comprising:
providing an oximeter device (“oximeter,” para [0010]) comprising a housing (103) (Fig. 1) (para [0043]) and printed circuit board (“printed circuit board (PCB),” para [0053]) (also see para [0055], [0085]-[0086], and [0088]) enclosed within the housing (see “connector 336” in Fig. 3 and para [0088]), a sensor tip (338) (Fig. 7) (para [0054]) at a distal end of the oximeter device (as can be seen in Fig. 7), and the oximeter device comprises a proximal end (proximal end of “oximeter”) that is opposite to the distal end (distal end of “oximeter”);
coupling an accelerometer (“one or more accelerometers,” para [0064]) (as can be seen in Fig. 3, the accelerometer being part of element 319) to the printed circuit board (as can be seen in Figs. 1 and 3) (also see para [0053] and [0085]-[0086]), a first directional orientation of the accelerometer integrated circuit is in a first direction and a second directional orientation of the accelerometer is in a second direction (para [0065]), and the second direction is transverse to the first orientation (para [0065]).
Hohl does not expressly disclose that the accelerometer is an accelerometer integrated circuit.
However, Oliver teaches an accelerometer integrated circuit (para [0027]).
It would have been obvious to a skilled artisan to modify Hohl such that the accelerometer is an accelerometer integrated circuit, in view of the teachings of Oliver, because an accelerometer integrated circuit is a suitable type of accelerometer that would lead to the predictable result of sensing movement.
Hohl does not expressly disclose upon detecting an orientation change in at least the first direction or second direction, storing a value in a memory location of a memory of the oximeter device.
However, Oliver teaches upon detecting an orientation change in at least the first direction or second direction, storing a value in a memory location of a memory of the oximeter device (para [0047] and [0062]).
It would have been obvious to a skilled artisan to modify Hohl to include upon detecting an orientation change in at least the first direction or second direction, storing a value in a memory location of a memory of the oximeter device, in view of the teachings of Oliver, for the obvious advantage of creating a log of orientations of the device over time so that movement of an individual can be tracked.
Hohl does not expressly disclose wherein the printed circuit board with the accelerometer integrated circuit are positioned within the housing such that the accelerometer integrated circuit is closer to the proximal end of the oximeter device than to the distal end of the housing.
However, Bhushan teaches wherein a printed circuit board (“printed circuit board,” para [0025]) with an accelerometer integrated circuit (either of 102) (Fig. 2) (para [0096]) are positioned within a housing (“casing,” para [0027] or [0030]) such that the the accelerometer integrated circuit is closer to the proximal end of the oximeter device than to the distal end of the housing (as can be seen in Fig. 2).
It would have been obvious to a skilled artisan to modify Hohl wherein the printed circuit board with the accelerometer integrated circuit are positioned within the housing such that the accelerometer integrated circuit is closer to the proximal end of the oximeter device than to the distal end of the housing, in view of the teachings of Bhushan, because such an arrangement of parts is a suitable arrangement of the different components that would lead to the predictable result of being able to sense the acceleration of the PCB.
For claim 11, Hohl further discloses wherein the first direction and second direction are parallel to a plane of the printed circuit board upon which the accelerometer integrated circuit is coupled (para [0064]-[0067] and [0069]).
For claim 13, Hohl further discloses wherein the first direction is parallel to an axis that passes through the sensor tip of the oximeter device (para [0064]-[0067] and [0069]).
For claim 14, Hohl further discloses wherein the first direction is transverse to an axis that passes through the sensor tip of the oximeter device (para [0064]-[0067] and [0069]).
For claim 15, Hohl further discloses wherein at least the first direction or second direction is parallel to an axis that passes through the sensor tip of the oximeter device (para [0064]-[0067] and [0069]).
For claim 16, Hohl further discloses wherein at least the first direction or second direction is transverse to an axis that passes through the sensor tip of the oximeter device (para [0064]-[0067] and [0069]).
For claim 17, Hohl further discloses wherein a third directional orientation of the accelerometer is in a third direction (para [0065]), which is transverse to the first and second directions (para [0064]-[0067] and [0069]).
For claim 22, Hohl, as modified, further discloses wherein the accelerometer is not located at the center of the printed circuit board (as can be seen in Fig. 2 of Bhushan).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hohl in view of Oliver Bhushan, and further in view of U.S. Patent Application Publication No. 2007/0043271 to Mannheimer et al. (hereinafter “Mannheimer”).
For claim 12, Hohl, Oliver, and Bhushan do not expressly disclose wherein the storing of a value in the memory location of the memory of the oximeter device comprises resetting a counter to an initial value and initializing the memory that stores a sum of a plurality of oxygen saturation measurements made by the oximeter device.
However, Mannheimer teaches wherein the storing of a value in the memory location of the memory of the oximeter device comprises resetting a counter to an initial value and initializing the memory that stores a sum of a plurality of oxygen saturation measurements made by the oximeter device (para [0031]).
It would have been obvious to a skilled artisan to modify Hohl wherein the storing of a value in the memory location of the memory of the oximeter device comprises resetting a counter to an initial value and initializing the memory that stores a sum of a plurality of oxygen saturation measurements made by the oximeter device, in view of the teachings of Mannheimer, for the obvious advantage of time stamping the data as it is being recorded.
Claim(s) 18-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hohl in view of Oliver and Bhushan, and further in view of U.S. Patent Application Publication No. 2021/0338153 to Barrera et al. (hereinafter “Barrera”).
For claim 18, Hohl, Oliver, and Bhushan do not expressly disclose wherein a detected orientation change in at least the first direction or second direction comprises a value changing from a positive value to a negative value.
However, Barrera teaches wherein a detected orientation change in at least the first direction or second direction comprises a value changing from a positive value to a negative value (para [0083]).
It would have been obvious to a skilled artisan to modify Hohl wherein a detected orientation change in at least the first direction or second direction comprises a value changing from a positive value to a negative value, in view of the teachings of Barrera, for the obvious advantage of performing posture detection based on the indicated orientation derived from the value of the signal (para [0083]).
For claim 19, Hohl and Oliver do not expressly disclose wherein a detected orientation change in at least the first direction or second direction comprises a value changing sign.
However, Barrera teaches wherein a detected orientation change in at least the first direction or second direction comprises a value changing sign (para [0083]).
It would have been obvious to a skilled artisan to modify Hohl wherein a detected orientation change in at least the first direction or second direction comprises a value changing sign, in view of the teachings of Barrera, for the obvious advantage of performing posture detection based on the indicated orientation derived from the value of the signal (para [0083]).
For claim 20, Hohl and Oliver do not expressly disclose wherein a detected orientation change in at least the first direction or second direction comprises a value changing sign when an axis that passes through the housing and the sensor tip changes at least 160 degrees from an initial orientation.
Hohl does disclose an initial orientation of an axis that passes through the housing and the sensor tip (para [0064]-[0067] and [0069]).
Additionally, Barrera teaches wherein a detected orientation change in at least the first direction or second direction comprises a value changing sign when an axis changes at least 160 degrees from an initial orientation (para [0083]).
It would have been obvious to a skilled artisan to modify Hohl wherein a detected orientation change in at least the first direction or second direction comprises a value changing sign when an axis that passes through the housing and the sensor tip changes at least 160 degrees from an initial orientation, in view of the teachings of Hohl and Barrera, for the obvious advantage of performing posture detection based on the indicated orientation derived from the value of the signal (para [0083]).
For claim 21, Hohl and Oliver do not expressly disclose wherein a detected orientation change in at least the first direction or second direction comprises a value indicates a change of at least 160 degrees relative to an initial value.
However, Barrera teaches wherein a detected orientation change in at least the first direction or second direction comprises a value indicates a change of at least 160 degrees relative to an initial value (para [0083]).
It would have been obvious to a skilled artisan to modify Hohl wherein a detected orientation change in at least the first direction or second direction comprises a value indicates a change of at least 160 degrees relative to an initial value, in view of the teachings of Barrera, for the obvious advantage of performing posture detection based on the indicated orientation derived from the value of the signal (para [0083]).
Claim(s) 23-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hohl in view of Oliver and Bhushan, and further in view of U.S. Patent No. 6,216,537 to Henschel et al. (hereinafter “Henschel”).
For claim 23, Hohl, Oliver, and Bhushan do not expressly disclose wherein the first directional orientation of the accelerometer integrated circuit comprises a first detection axis that is perpendicular to the surface of the printed circuit board and the surface is in a planar surface of the printed circuit board.
However, Henschel teaches wherein the first directional orientation of the accelerometer integrated circuit comprises a first detection axis that is perpendicular to the surface of the printed circuit board (Abstract) and the surface is in a planar surface of the printed circuit board (as can be seen in Fig. 3) (also see Abstract).
It would have been obvious to a skilled artisan to modify Hohl wherein the first directional orientation of the accelerometer integrated circuit comprises a first detection axis that is perpendicular to the surface of the printed circuit board and the surface is in a planar surface of the printed circuit board, in view of the teachings of Henschel, for the obvious advantage of fixing the accelerometer and the PCB together so that movement of the accelerometer can be calibrated to movement of the PCB, so that no transforms need to be performed to get accurate determination of movements/gestures by the user, which is what Hohl wants to do (see para [0065]-[0067] of Hohl).
For claim 24, Hohl, as modified, further discloses wherein the oximeter device comprises a first side positioned between the proximal (unlabeled, but as can be seen in Figs. 7-10) and distal ends and a second side positioned between the proximal and distal ends (unlabeled, but as can be seen in Figs. 7-10), the first and second sides are opposite sides of the oximeter device (Figs. 7-10), and the accelerometer integrated circuit is located nearer to the first side than the second side (see Fig. 2 of Bhushan, which shows element 102 mounted on a first, top side and is opposite of a second, bottom side).
For claim 25, Hohl further discloses providing the printed circuit board extends in a direction that is from the proximal end to the distal end of the device (as can be seen in Fig. 10).
For claim 26, Hohl, as modified, further discloses allowing for the accelerometer to detect (Examiner’s Note: functional language/intended use, i.e., capable of) rotation of the proximal and distal ends of the device with respect to the direction of an acceleration-of-gravity vector when the first detection axis is at a non-zero angle with respect to the direction based on the first detection axis being perpendicular to the planar surface of the printed circuit board (para [0064]-[0067] and [0069]).
Response to Arguments
Applicant’s arguments have been considered but are moot because the arguments do not address the new grounds of rejection necessitated by Applicant’s amendments presented in the response filed 12/2/25.
Conclusion
THIS ACTION IS MADE FINAL. 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 DANIEL LEE CERIONI whose telephone number is (313) 446-4818. The examiner can normally be reached M - F 8:00 AM - 5:00 PM PT.
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/DANIEL L CERIONI/Primary Examiner, Art Unit 3791