DETAILED ACTION
The Examiner acknowledges the amendments received 14 September 2026. Claims 12-13 are cancelled; claims 14-16 are withdrawn; claims 1-11 are pending.
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 .
Response to Arguments
Applicant’s arguments, see “Remarks”, filed 14 September 2026, with respect to the rejection(s) of claim(s) 1-2, 4-9 and 11 under 35 USC 102 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of 35 USC 103.
Claim Rejections - 35 USC § 112
In view of the amendments received 14 September 2026, the Examiner withdraws the rejection of claims 4-5 under 35 USC 112, second paragraph/35 USC 112(b).
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.
Claims 1-2, 4-9 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Connor (U.S. 2018/0307314). Connor discloses (Figures 2-4) a wearable system configured to be worn by a user (par. 0063-0064, “wearable arcuate band”), the system comprising: a plurality of reversibly detachable (par. 0170, “the second portion further comprises one or more electromyographic sensors and wherein the location of the second portion can be moved with respect to the first portion…the second portion can be reversibly-attached to the first portion. In an example, the location at which the second portion is reversibly attached to the first portion can be moved so as to optimally collect data concerning muscle activity by a specific person or muscle activity during a specific type of physical activity.”) textile patches (par. 0206, “a system of modular electromyographic clothing can include a removably-attachable electromyographic patch, wherein this electromyographic patch includes one or more electromyographic sensors.”); a plurality of bioelectrical sensors integrated into each reversible detachable textile patch (see previous citation); a reversibly detachable computing unit (204 in Figure 2, described in par. 0064 as part of “an arcuate band” which is described throughout Connor as reversibly inserted or attached; see, e.g., par. 0189); a power source in electrical communication with the plurality of bioelectrical sensors (par. 0196, “a control unit can further comprise a power source”); and a plurality of conductive threads in electrical communication with the reversibly detachable computing unit and the plurality of bioelectrical sensors (par. 0092-0094, “electroconductive threads”), wherein a first bioelectrical sensor of the plurality of bioelectrical sensors is a bioelectrical impedance analysis sensor (par. 0106, “electromagnetic impedance sensor”), wherein the wearable system is configured to apply an oscillatory electrical signal through a skin surface of the user and across one or more muscles of the user, and to determine a physiological state of the one or more muscles based, at least in part, on a response of the oscillatory electrical signal (par. 0215), and wherein the wearable system is configured to collect a plurality of determinable signals from the plurality of bioelectrical sensors, wherein the plurality of determinable signals are correlated with a physiological health metric of the user (see previous citation, a variety of sensors that correspond to health metric collection, e.g., EMG sensors).
Connor discloses the claimed invention except for an oscillatory electrical signal having a frequency of greater than or equal to 10 kHz and less than or equal to 200 kHz. The Specification discloses the appropriate ranges that apply to the claimed invention on pages 11 as “less than or equal to 10 kHz, less than or equal to 20 kHz, less than or equal to 30 kHz, less than or equal to 40 kHz, less than or equal to 50 kHz, less than or equal to 60 kHz, less than or equal to 70 kHz, less than or equal to 80 kHz, less than or equal to 90 kHz, less than or equal to 100 kHz, less than or equal to 110 kHz, less than or equal to 120 kHz, less than or equal to 130 kHz, less than or equal to 140 kHz, less than or equal to 150 kHz, less than or equal to 160 kHz, less than or equal to 170 kHz, less than or equal to 180 kHz, less than or equal to 190 kHz, or less than or equal to 200 kHz. In some embodiments, the AC signal may have a frequency of greater than or equal to 10 kHz, greater than or equal to 20 kHz, greater than or equal to 30 kHz, greater than or equal to 40 kHz, greater than or equal to 50 kHz, greater than or equal to 60 kHz, greater than or equal to 70 kHz, greater than or equal to 80 kHz, greater than or equal to 90 kHz, greater than or equal to 100 kHz, greater than or equal to 110 kHz, greater than or equal to 120 kHz, greater than or equal to 130 kHz, greater than or equal to 140 kHz, greater than or equal to 150 kHz, greater than or equal to 160 kHz, greater than or equal to 170 kHz, greater than or equal to 180 kHz, greater than or equal to 190 kHz, or greater than or equal to 200 kHz. Any combination of the above-referenced frequencies may also be possible (e.g. less than or equal to 100 kHz and greater than or equal to 10 kHz). Other ranges are possible as the disclosure is not so limited.”. However, the Specification does not disclose that the specifically claimed range(s) of “greater than or equal to 10 kHz and less than or equal to 200 kHz” is for any particular purpose or to solve any state problem that distinguishes it from the other ranges disclosed. The Specification therefore lacks disclosure of the criticality required by the Courts in providing patentability to the claimed range(s).
In addition to a lack of disclosed criticality in the Specification, an obviousness rejection based upon optimization must rely on prior art that discloses the optimized parameter is a result-effective variable. See MPEP 2144.05.
Since Connor teaches that a myostimulator may be used for diagnosis and treatment, the prior art therefore provides teaching that the stimulation signal is a variable that achieves a recognized result, and satisfies the above requirement of a result-effective variable in order to set forth an obviousness rejection based on optimization.
Because Applicant fails to disclose that the claimed range of “greater than or equal to 10 kHz and less than or equal to 200 kHz” provides a criticality to the invention that separates it from the other ranges in the Specification, and the prior art discloses that stimulation of the muscle is used for diagnosis or treatment absent unexpected results, it would therefore have been obvious to one of ordinary skill in the art to discover the optimum workable range(s) of the signal by normal optimization procedures known in the bioelectrical sensor arts.
Regarding claim 2, Connor discloses (par. 0123) the plurality of bioelectrical signals further comprises a second bioelectrical sensor comprising at least a temperature sensor.
Regarding claim 4, Connor discloses (par. 0205-0206, “a system of modular electromyographic clothing can include a removably-attachable electromyographic patch, wherein this electromyographic patch includes one or more electromyographic sensors.”) the plurality of textile patches are configured to detach from the garment.
Regarding claim 5, Connor discloses (par. 0081) the bioelectrical sensors are permanently integrated in the garment.
Regarding claim 6, Connor discloses (Figure 3) the system further comprises a portable energy source (308 in Figure 3 and par. 0066).
Regarding claim 7, Connor discloses (par. 0213) the system comprises a portable energy source configured to be recharged wirelessly (“energy-harvesting power source”; see also references to “energy receiving sensors” in par. 0064 and 0066).
Regarding claim 8, Connor discloses (par. 0057) the conductive threads are at least partially covered by an electrically insulating material (“dielectric layer of low-conductivity material”).
Regarding claim 9, Connor discloses (par. 0196) the computing unit comprises a control module (“control unit”).
Regarding claim 11, Connor discloses (par. 0124) the system has at least a wireless interface (“wireless data receiver, and wireless data transmitter”).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Connor (U.S. 2018/0307314) in view of Longinotti-Buitoni et al (U.S. 2021/0195732). Connor discloses the claimed invention except for the system further comprises a storage device that is detachable from the control module. Longinotti-Buitoni, however, discloses (par. 0035) a wearable sensor garment including removable elements, including a removable memory (12) or “other content storage capacity” (par. 0269-0270). Connor and Longinotti-Buitoni both disclose wearable systems for collecting physiological data. Therefore, it would have been obvious to one or ordinary skill in the art before the effective filing data of the claimed invention to modify Connor’s reversibly detachable elements with Longinotti-Buitoni’s removable memory in order to switch out memory media as needed without affecting the other elements of the system.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 DEBORAH L MALAMUD whose telephone number is (571)272-2106. The examiner can normally be reached Mon - Fri 1:00-9:30 Eastern.
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/DEBORAH L MALAMUD/Primary Examiner, Art Unit 3792
