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 .
Election/Restrictions
Applicant's election with traverse of Group 1, drawn to the apparatus of claims 1-16, and Species C, drawn to the embodiment of Figures 2B-2C, in the reply filed on 8/11/25 is acknowledged.
The traversal is on the ground(s) of the following:
“Applicant traverses on the grounds that FIGS. 1E and 2D are not independent and distinct from FIGS. 2B-2C but are, rather, interrelated (e.g., the description of FIG. 2D is related to both FIGS. 1E and 2C). Applicant further notes that FIGS. 2B-2D refer to the "housing portion 112" and "electronics 120," among other components, and, thereby, incorporate the disclosure related thereto.”.
This is not found persuasive because of the following:
the mere fact that the species share features and/or are interrelated does not negate the independent and/or distinctness of the species as non-obvious variants that are substantially dissimilar and structurally divergent means for configuring a wearable apparatus to gather motion data,
the traversal does not appear to address the search and/or examination burden for the Inventions nor Species, and/or
the traversal does not appear to address the independent and/or distinctness of the Inventions.
The requirement is still deemed proper and is therefore made FINAL.
Claims 2, 7-9, and 17-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected inventions/species, there being no allowable generic or linking claim. With respect to claims 2 and 7-9, the Examiner respectfully notes the corresponding disclosure thereof, relating to removable and permanently deformable segment, is explicitly tied to nonelected Species of at least Figures 1C and 1D and conversely the elected Species communications mechanism corresponds the piercing discussing in [0097]. Applicant timely traversed the restriction (election) requirement in the reply filed on 8/11/25.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Information Disclosure Statement
The information disclosure statement (IDS) submission(s) is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which
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 limitation(s) is/are:
“a motion sensing unit” in claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) 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/them 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(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Objections
Claim 3 is objected to because of the following informalities: there appears to be an additional, erroneous positive recitation of “configured” in line 2. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 3-6, and 10-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lee (US 2016/0317057 A1).
For claim 1, Lee discloses a wearable electronic device (Figs 1-4) ([0011-0074]), comprising:
a trigger (312, 333, 406, 342) (Fig 3) ([0031]) for activating the wearable electronic device, the trigger being one of a physical trigger (406, 342) or an optical trigger (333);
a timer (318) that provides time indicators (Fig 3);
a motion sensing unit (342) that senses motion and outputs motion data according thereto (Fig 3); and
a data storage (306) that receives and stores the motion data or other data derived therefrom in association with the time indicators (Fig 3);
wherein upon activating the wearable electronic device with the trigger, the timer begins providing the time indicators and the motion sensing unit begins operating to sense the motion ([0031]); and
wherein the timer continues providing the time indicators until subsequent data transfer between the data storage and a computing device (352) (Figs 3-4) ([020-0050]).
For claim 3, Lee discloses the wearable electronic device according to Claim 1, wherein the trigger is the optical trigger (333) and is configured as a light sensor that activates the wearable electronic device after sensing environmental light (Figs 3-4) ([020-0050]).
For claim 4, Lee discloses the wearable electronic device according to Claim 1, wherein the trigger is the physical trigger (342) and is configured as an electrically insulative member that is removable from between electrical contacts to close a circuit therebetween (Figs 3-4) ([020-0050])
For claim 5, Lee discloses the wearable electronic device according to Claim 1, further comprising a communications interface (308) (Fig 3) by which the motion data or the other data and the time indicators are transferred from the data storage to the computing device (Figs 3-4) ([020-0050]).
For claim 6, Lee discloses the wearable electronic device according to Claim 5, further comprising a housing portion (100) in which the timer, the motion sensing unit, the data storage, and the communications interface are positioned (Figs 1-4) ([011-0050]).
For claim 10, Lee discloses the wearable electronic device according to Claim 1, further comprising a power source (310, 340) (Fig 3), wherein the trigger activates the wearable electronic device by causing the power source to begin providing power to the motion sensing unit ([0020-0050]).
For claim 11, Lee discloses a wearable electronic device (Figs 1-4) ([0011-0074]), comprising:
a trigger (312, 333, 406, 342) (Fig 3) ([0031]) for activating the wearable electronic device;
a timer (318) that provides time indicators (Fig 3);
a motion sensing unit (342) that senses motion and outputs motion data according thereto (Fig 3); and
a data storage (306) that receives and stores the motion data or other data derived therefrom in association with the time indicators (Figs 3-4) ([020-0050]).
For claim 12, Lee discloses the wearable electronic device according to Claim 11, further comprising a power source (310, 340) (Fig 3), wherein the trigger activates the wearable electronic device by causing the power source to begin providing power to the motion sensing unit ([020-0050]); and
further comprising a proximity sensor (312), wherein upon activating the wearable electronic device with the trigger, the proximity sensor begins operating to sense a patient wearing the wearable electronic device (Fig 3) ([0031]);
wherein after sensing the patient wearing the wearable electronic device, the motion sensing unit begins sensing the motion ([020-0050]); and
wherein the data storage stores the other data that is the root mean square of motion data from each of three axes of the motion sensing unit ([020-0050], particularly [0035]).
For claim 13, Lee discloses the wearable electronic device according to Claim 11, wherein upon activating the wearable electronic device with the trigger, the timer continues providing the time indicators until subsequent data transfer between the data storage and a computing device (352) ([020-0050]).
For claim 14, Lee discloses the wearable electronic device according to Claim 11, further comprising a proximity sensor (312), wherein upon activating the wearable electronic device with the trigger, the proximity sensor begins operating to sense a patient wearing the wearable electronic device ([0031]); and wherein after sensing the patient wearing the wearable electronic device, the motion sensing unit begins sensing the motion ([020-0050]).
For claim 15, Lee discloses the wearable electronic device according to Claim 11, further comprising a power source (310, 340) (Fig 3), wherein the trigger activates the wearable electronic device by causing the power source to begin providing power to the motion sensing unit ([020-0050], particularly [0031]).
For claim 16, Lee discloses the wearable electronic device according to Claim 11, wherein the data storage stores the other data that is the root mean square of motion data from each of three axes of the motion sensing unit ([020-0050], particularly [0035]).
Conclusion
The cited prior art made of record on the accompanying PTO-892 and not relied upon is considered pertinent to applicant's disclosure, relating to means for configuring a wearable physiological sensor’s housing, power, and circuitry to obtain, classify and communicate motion data.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jeffrey G. Hoekstra whose telephone number is (571)272-7232. The examiner can normally be reached Monday through Thursday from 5am-3pm EST.
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, Charles A. Marmor II can be reached at (571)272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Jeffrey G. Hoekstra
Primary Examiner
Art Unit 3791
/JEFFREY G. HOEKSTRA/ Primary Examiner, Art Unit 3791
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