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 Objections
Claims 9 objected to because of the following informalities:
In claim 9, “determine an operating condition of the sensor” should read “determine the operating condition of the sensor.”
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.
Claims 1-20 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.
In Claim 1, 13, and 19, the claim limitation “different” renders the claim indefinite because the limitation is unclear. It is unclear what ‘different’ is relative to; the Examiner raises the following questions: does each light source have a different wavelength? Or, they can each of the light sources have multiple different wavelengths? For purposes of examination, the claim limitation is interpreted as each light source have multiple different wavelengths.
In Claim 1 and 13, the claim limitation “a concentration” and “a component” within “a concentration of an analyte component” renders the claim indefinite because the limitation is unclear. It is unclear whether these terms are the same as “a component” and “a concentration” from the preamble. For purposes of examination, the claim limitation is interpreted to mean the same as the preamble.
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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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, 8-10, 12-14, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Park et al (US 20200029873 A1) in view of Lamminmaki et al (US 10912505 B2) as evidenced by Visible Light Part I. Properties and Cutaneous Effects of Visible Light.
Regarding Claim 1, Park discloses an apparatus for estimating a concentration of a component (Paragraph 0090, The antioxidant sensor 300 of FIG. 3 is an apparatus for obtaining an antioxidant index of an object in a non-invasive manner according to an example embodiment, and may be embedded in an electronic device), the apparatus comprising:
a sensor (antioxidant sensor – element 300) comprising:
a plurality of light sources (plurality of light sources unit – element 311-313) having different central wavelengths (Paragraphs 0104-0105); and
at least one detector (light receiver – element 320) configured to detect light (Paragraph 0094); and
a processor (processor – 330) configured to:
determine a first reflectance of skin using a first light source of the plurality of light sources, drive the plurality of light sources according to the set operating condition (Paragraph 0096-0099), and estimate a concentration of an analyte component based on a plurality of light quantities (Paragraph 0059) detected from skin by the at least one detector (Paragraph 0098).
Park is silent on the sensor setting an operating condition based on the determined first reflectance. However, Lamminmaki teaches set an operating condition of the sensor based on the determined first reflectance (Lamminmaki | Figure 3B; [Examiner’s note, more specifically, element 330 within method 300.]; Column 10 lines 33 – 45). One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the antioxidant sensor of Park to incorporate the teachings of the operating parameters from Lamminmaki because it allows for reducing power consumption and extend the battery life of the pulse oximeter (Column 12 lines 17 – 25, by optimizing the drive voltage in a dynamic manner, pulse oximeter LED drive power consumption may be reduced, thereby extending battery life and enabling the configuration of the pulse oximeter as a remote sensor. The configuration of the pulse oximeter as a remote probe enables continuous patient monitoring with fewer restrictions on patient movement and location. Furthermore, by extending pulse oximeter probe battery life, demands on healthcare staff may be reduced.).
Regarding Claim 2, Park in view of Lamminmaki teaches the apparatus of claim 1, wherein the first light source of the plurality of light sources has a central wavelength in a first range from about 350 nm to about 450 nm or in a second range from about 500 nm to about 600 nm (Park | Paragraph 0092, the first wavelength may be a green wavelength included in a wavelength band, in which a hemoglobin signal is measured, i.e., an absorption band of hemoglobin; the second wavelength may be a red wavelength included in a wavelength band in which a base signal is measured; and the third wavelength may be a blue wavelength included in a wavelength band, in which an antioxidant signal is measured, i.e., an absorption band of an antioxidant; [Examiner’s note, according to “Visible Light Part I. Properties and Cutaneous Effects of Visible Light,” a blue wavelength has a range of 400–500 nm, green wavelength has a range of 500–565 nm, and red wavelength has a range of 625–700 nm. Each light source contains all three wavelength ranges.]).
Regarding Claim 8, Park in view of Lamminmaki teaches the apparatus of claim 1, wherein the processor is further configured to:
obtain a skin spectrum based on the plurality of light quantities (Park | Paragraph 0023),
determine absorbance based on the obtained skin spectrum (Park | Paragraph 0027), and
estimate the concentration of the analyte component based on the determined absorbance (Park | Paragraph 0027).
Regarding Claim 9, Park is silent in teaching the processor determining an operating condition based on a predetermined condition being satisfied; Lamminmaki teaches the apparatus of claim 1, wherein the processor is further configured to, based on a predetermined condition being satisfied, determine an operating condition of the sensor (Lamminmaki | Figure 3A; [Examiner’s note, the steps that are focused on within method 300 are steps 309, 310, and 312.]; Column 8 lines 65-67 to Column 9 lines 1-8). One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the antioxidant sensor of Park to incorporate the teachings from Lamminmaki. Doing so would allow the device to acknowledge that the device is placed on the skin prior to collecting necessary data from the user (Column 8 lines 65-67 to Column 9 lines 1-8).
Regarding Claim 10, Park is silent in teaching the sensor comprising a drive current; Lamminmaki teaches the apparatus of claim 1, wherein the operating condition of the sensor comprises a drive current for driving the plurality of light sources (Lamminmaki | Column 1 lines 36-40, a method for a pulse oximeter probe including a light emitting diode (LED) includes reducing power consumption of an LED drive circuit by adjusting drive voltage of the LED drive circuit based on one or more LED drive circuit characteristics and one or more LED drive circuit operating parameters). One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the antioxidant sensor of Park to incorporate the teachings of the LED drive circuit of Lamminmaki because the LED drive circuit allows for a reduction in power consumption and efficient operation of the pulse oximeter probe (Column 3 lines 36-37, Pulse oximeter probe LED drive power consumption has a key role in a low power pulse oximetry power budget; Column 3 lines 56-63, LED drive voltage may be optimized based on probe manufacturing data written in permanent memory and/or based on dynamically determined operating parameters and measured variables. By optimizing the drive voltage in a dynamic manner, power consumption by the pulse oximeter may be reduced, thereby extending battery life and enabling the configuration of the pulse oximeter as a remote sensor).
Regarding Claim 12, Park in view of Lamminmaki teaches the apparatus of claim 1, wherein the analyte component comprises at least one of skin carotenoid, blood carotenoid (Park | Paragraphs 0005 and 0008).
Regarding Claim 13, Park discloses a method of estimating a concentration of a component, the method comprising:
determining a first reflectance of skin using a first light source of a plurality of light sources (Paragraph 0096-0099), the plurality of light sources (plurality of light sources unit – element 311-313) being included in a sensor (antioxidant sensor – element 300) and having different central wavelengths (Paragraphs 0104-0105);
driving the plurality of light sources based on the set operating condition (Paragraph 0096-0099); and
estimating a concentration of an analyte component based on a plurality of light quantities detected from the skin by at least one detector included in the sensor (Paragraph 0059, 0098).
Park is silent on the sensor setting an operating condition based on the determined first reflectance. However, Lamminmaki teaches setting an operating condition of the sensor based on the determined first reflectance (Lamminmaki | Figure 3B; [Examiner’s note, more specifically, element 330 within method 300.]; Column 10 lines 33 – 45). One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the antioxidant sensor of Park to incorporate the teachings of the operating parameters from Lamminmaki because it allows for reducing power consumption and extend the battery life of the pulse oximeter (Column 12 lines 17 – 25, by optimizing the drive voltage in a dynamic manner, pulse oximeter LED drive power consumption may be reduced, thereby extending battery life and enabling the configuration of the pulse oximeter as a remote sensor. The configuration of the pulse oximeter as a remote probe enables continuous patient monitoring with fewer restrictions on patient movement and location. Furthermore, by extending pulse oximeter probe battery life, demands on healthcare staff may be reduced.).
Regarding Claim 14, Park in view of Lamminmaki teaches the method of claim 13, wherein the first light source has a central wavelength in a first range from about 350 nm to about 450 nm or in a second range from about 500 nm to about 600 nm (Park | Paragraph 0092, the first wavelength may be a green wavelength included in a wavelength band, in which a hemoglobin signal is measured, i.e., an absorption band of hemoglobin; the second wavelength may be a red wavelength included in a wavelength band in which a base signal is measured; and the third wavelength may be a blue wavelength included in a wavelength band, in which an antioxidant signal is measured, i.e., an absorption band of an antioxidant; [Examiner’s note, according to “Visible Light Part I. Properties and Cutaneous Effects of Visible Light,” a blue wavelength has a range of 400–500 nm, green wavelength has a range of 500–565 nm, and red wavelength has a range of 625–700 nm. Each light source contains all three wavelength ranges.]).
Regarding Claim 18, Park in view of Lamminmaki teaches the method of claim 13, wherein the estimating of the concentration of the analyte component comprises: obtaining a skin spectrum based on the plurality of light quantities (Park | Paragraph 0023); determining absorbance using the obtained skin spectrum (Park | Paragraph 0027); and estimating the concentration of the analyte component based on the determined absorbance (Park | Paragraph 0027).
Claims 3-7, and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Park et al (US 20200029873 A1) in view of Lamminmaki et al (US 10912505 B2) as evidenced by Visible Light Part I. Properties and Cutaneous Effects of Visible Light further in view of Kaori (US 20150182758 A1).
Regarding Claim 3, Park in view of Lamminmaki further in view of Kaori teaches the apparatus of claim 1, wherein the processor is further configured to:
set the sensor to a first operating condition, drive the first light source based on the first operating condition, determine the first reflectance based on a first light quantity detected from the skin by the at least one detector (Park | Paragraph 0098).
Park in view of Lamminmaki is silent on teaching the change in operating condition based on the reflectance is less than a threshold value;
Kaori teaches based on the determined first reflectance being less than a first threshold value, change the operating condition to a second operating condition (Paragraph 0093-0096, 0099-0102, 0105-0106; [Examiner’s note, when the predetermined threshold is not exceeded, the wavelength and intensity of light can change in order to provide the necessary rejuvenation of the skin. Additionally, the reflectance is measured through the amount of blood flow based on the wavelength and intensity of light (operating condition set).]). One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the antioxidant sensor of Park in view of Lamminmaki to incorporate the teachings of the phototherapeutic device from Kaori because the change in operating conditions allows for the device to provide the desired facial treatments for the user based on the different ranges of wavelengths emitted (Paragraph 0096, After light emission is started under such conditions, the skin is rejuvenated in accordance with the wavelength and the intensity (irradiance and irradiation time) of light. Changes of the skin conditions as a result of the rejuvenation appear as the changes of the blood flow; Paragraph 0110, The phototherapeutic device 100 according to the embodiment emits not only light of a color effective for rejuvenation of the skin but also light of a blue range that has an effect of sterilizing acne bacteria. Thus, the phototherapeutic device 100 is capable of further satisfying users, particularly the younger generation; Paragraph 0113, The phototherapeutic device 100 according to the embodiment also emits light of the red range. Thus, the phototherapeutic device 100 is also effective in promoting the growth of, such as, eyebrows, eyelashes, hairline at the forehead, or beard. In the case where a sheet that covers other portions of the body besides the face, which will be described below, is used in the phototherapeutic device 100, the phototherapeutic device 100 can promote the growth of, for example, chest hair).
Regarding Claim 4, Park in view of Lamminmaki further in view of Kaori teaches the apparatus of claim 3, wherein the processor is further configured to determine the first reflectance based on an initial light quantity and the first light quantity, and wherein the initial light quantity is detected from a standard reflector using the first light source based on the first operating condition (Park | Paragraphs 0156-0159; [Examiner’s note, the initial light quantity is defined as the base signal, which is measured by the second light source and the first light quantity is defined as hemoglobin signal, which is measured by the first light source.]).
Regarding Claim 5, Park in view of Lamminmaki further in view of Kaori teaches the apparatus of claim 4, wherein the processor is further configured to determine, as the first reflectance, a result obtained by dividing the first light quantity by the initial light quantity (Park | Paragraph 0038-0040).
Regarding Claim 6, Park in view of Lamminmaki further in view of Kaori teaches the apparatus of claim 3, wherein the processor is further configured to, based on the first reflectance being greater than or equal to the first threshold value (Park | Figure 18).
Park in view of Lamminmaki is silent on teaching drive a second light source of the plurality of light sources, and determine a second reflectance based on a second light quantity detected from the skin by the at least one detector, and wherein the processor is further configured to, based on the determined second reflectance being greater than a second threshold value change the operating condition to a third operating condition;
Kaori teaches drive a second light source of the plurality of light sources, and determine a second reflectance based on a second light quantity detected from the skin by the at least one detector (Kaori | Paragraphs 0033-0035; Figure 7; [Examiner’s note, the first block represents the first reflectance, the second block represents the second reflectance, etc.]), and wherein the processor (control unit – element 300; Paragraph 0085) is further configured to, based on the determined second reflectance being greater than a second threshold value change the operating condition to a third operating condition based on the determined second reflectance being greater than a second threshold value, change the operating condition to a third operating condition (Kaori | Figure 7-8; Paragraphs 0090-0106; [Examiner’s note, each block contains a specific threshold. When method 300, operating under block 2, reaches S1400 can have the value be greater than the predetermined threshold. When it is greater, the method moves to S1500 where the operating conditions change in order to stop light emission before the light irradiation becomes excessive on the user’s skin). One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the antioxidant sensor of Park in view of Lamminmaki to incorporate the teachings of the phototherapeutic device from Kaori because the change in operating conditions allows for the device to provide the desired facial treatments for the user based on the different ranges of wavelengths emitted and the prevention of excessive irradiation on the skin (Paragraph 0109-0113).
Regarding Claim 7, Park in view of Lamminmaki further in view of Kaori teaches the apparatus of claim 6, wherein the second light source has a central wavelength ranging from about 450 nm to about 500 nm (Park | Paragraph 0092, the first wavelength may be a green wavelength included in a wavelength band, in which a hemoglobin signal is measured, i.e., an absorption band of hemoglobin; the second wavelength may be a red wavelength included in a wavelength band in which a base signal is measured; and the third wavelength may be a blue wavelength included in a wavelength band, in which an antioxidant signal is measured, i.e., an absorption band of an antioxidant; [Examiner’s note, each light source within the art is comprised of multiple wavelengths. According to “Visible Light Part I. Properties and Cutaneous Effects of Visible Light,” a blue wavelength has a range of 400–500 nm, green wavelength has a range of 500–565 nm, and red wavelength has a range of 625–700 nm. Each light source contains all three wavelength ranges.]).
Regarding Claim 15, Park in view of Lamminmaki further in view of Kaori teaches the method of claim 13, wherein the setting of the operating condition of the sensor comprises:
setting the sensor to a first operating condition (Park | Paragraph 0154);
driving the first light source based on the first operating condition (Park | Paragraph 0024 and 0088);
determining the first reflectance based on a first light quantity detected from the skin by the at least one detector (Park | Paragraphs 0024-0025).
Park in view of Lamminmaki is silent on teaching the change in operating condition based on the reflectance is less than a threshold value;
Kaori teaches based on the determined first reflectance being less than a first threshold value, change the operating condition to a second operating condition (Paragraph 0093-0096, 0099-0102, 0105-0106; [Examiner’s note, when the predetermined threshold is not exceeded, the wavelength and intensity of light can change in order to provide the necessary rejuvenation of the skin. Additionally, the reflectance is measured through the amount of blood flow based on the wavelength and intensity of light (operating condition set).]). One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the antioxidant sensor of Park in view of Lamminmaki to incorporate the teachings of the phototherapeutic device from Kaori because the change in operating conditions allows for the device to provide the desired facial treatments for the user based on the different ranges of wavelengths emitted (Paragraph 0096, After light emission is started under such conditions, the skin is rejuvenated in accordance with the wavelength and the intensity (irradiance and irradiation time) of light. Changes of the skin conditions as a result of the rejuvenation appear as the changes of the blood flow; Paragraph 0110, The phototherapeutic device 100 according to the embodiment emits not only light of a color effective for rejuvenation of the skin but also light of a blue range that has an effect of sterilizing acne bacteria. Thus, the phototherapeutic device 100 is capable of further satisfying users, particularly the younger generation; Paragraph 0113, The phototherapeutic device 100 according to the embodiment also emits light of the red range. Thus, the phototherapeutic device 100 is also effective in promoting the growth of, such as, eyebrows, eyelashes, hairline at the forehead, or beard. In the case where a sheet that covers other portions of the body besides the face, which will be described below, is used in the phototherapeutic device 100, the phototherapeutic device 100 can promote the growth of, for example, chest hair).
Regarding Claim 16, Park in view of Lamminmaki further in view of Kaori teaches the method of claim 15, wherein the determining of the first reflectance comprises: determining the first reflectance based on an initial light quantity and the first light quantity, and wherein the initial light quantity is detected from a standard reflector using the first light source based on the first operating condition (Park | Paragraphs 0156-0159; [Examiner’s note, the initial light quantity is defined as the base signal, which is measured by the second light source and the first light quantity is defined as hemoglobin signal, which is measured by the first light source.]).
Regarding Claim 17, Park in view of Lamminmaki further in view of Kaori teaches the method of claim 15, wherein the setting of the operating condition of the sensor further comprises:
based on the first reflectance being greater than or equal to the first threshold value (Park | Figure 18),
Park in view of Lamminmaki are silent in teaching driving a second light source of the plurality of light sources; determining a second reflectance based on a second light quantity detected from the skin by the at least one detector; and based on the determined second reflectance being greater than a second threshold value, changing the operating condition to a third operating condition;
Kaori teaches driving a second light source of the plurality of light sources; determining a second reflectance based on a second light quantity detected from the skin by the at least one detector (Kaori | Paragraphs 0033-0035; Figure 7; [Examiner’s note, the first block represents the first reflectance, the second block represents the second reflectance, etc.]); and based on the determined second reflectance being greater than a second threshold value, changing the operating condition to a third operating condition (Kaori | Figure 7-8; Paragraphs 0090-0106; [Examiner’s note, each block contains a specific threshold. When method 300, operating under block 2, reaches S1400 can have the value be greater than the predetermined threshold. When it is greater, the method moves to S1500 where the operating conditions change in order to stop light emission before the light irradiation becomes excessive on the user’s skin). One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the antioxidant sensor of Park in view of Lamminmaki to incorporate the teachings of the phototherapeutic device from Kaori because the change in operating conditions allows for the device to provide the desired facial treatments for the user based on the different ranges of wavelengths emitted and the prevention of excessive irradiation on the skin (Paragraph 0109-0113).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Park et al (US 20200029873 A1) in view of Lamminmaki et al (US 10912505 B2) further in view of Mohammadi et al (US 20220273207 A1).
Regarding Claim 11, Park in view of Lamminmaki teaches the apparatus of claim 1, wherein the processor is further configured to:
set the sensor to a first operating condition (Park | Paragraph 0154),
drive the first light source based on the first operating condition (Park | Paragraph 0024 and 0088),
determine a plurality of reflectances based on the plurality of light quantities detected from the skin by the at least one detector (Park | Paragraphs 0024-0025).
Park in view of Lamminmaki is silent in teaching the user to change a position of the sensor; Mohammadi teaches guide a user to change a position of the sensor based on the determined plurality of reflectances (Mohammadi | Paragraph 0065, the filtering of channel measurements can be used to notify a user regarding contact between the device and the user's skin at 635. For example, as described herein, the characteristic of the measurements at the third wavelength can predict a contact condition between the physiological sensor(s) and the user's skin (e.g., “good contact” or “bad contact”). Thus, in some examples, this information can notify the user to improve the contact (e.g., by tightening (or loosening) strap 146)).
One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the apparatus of Park to incorporate the teachings of Mohammadi because the wavelength technology can provide insight to the user to reposition their device to collect accurate readings (Paragraph 0065, the filtering of channel measurements can be used to notify a user regarding contact between the device and the user's skin at 635. For example, as described herein, the characteristic of the measurements at the third wavelength can predict a contact condition between the physiological sensor(s) and the user's skin (e.g., “good contact” or “bad contact”). Thus, in some examples, this information can notify the user to improve the contact (e.g., by tightening (or loosening) strap 146); Paragraph 0031, The absorption and/or reflection of light at different wavelengths can also be used to determine a characteristic of the user (e.g., oxygen saturation, heart rate) and/or about the contact condition between the light emitters 304/light detectors 306 and the user's skin… In some examples, processor 310 and/or physiological sensor controller 312 can store the raw data and/or processed information in memory (e.g., ROM or RAM) for historical tracking or for future diagnostic purposes; Paragraph 0069, The present disclosure recognizes that a user's personal data, including physiological information, such as data generated and used by the present technology, can be used to the benefit of users. For example, a user's heart rate may allow a user to track or otherwise gain insights about their health or fitness levels).
Claims 19 are rejected under 35 U.S.C. 103 as being unpatentable over Park et al (US 20200029873 A1) in view of Kaori et al (US 20150182758 A1).
Regarding Claim 19, Park discloses a wearable device comprising: a main body worn on a body of a user (Park | Paragraph 0090);
a sensor comprising (Park | antioxidant sensor – element 300):
a plurality of light sources (Park | plurality of light sources unit – element 311-313) having different central wavelengths (Paragraphs 0104-0105), and
a detector (Park | light receiver – element 320) configured to detect light from skin of the body of the user (Park | Paragraph 0094); and
a processor (Park | processor – 330) configured to:
drive the plurality of light sources based on an operating condition of the sensor (Park | Paragraph 0096-0099),
estimate a concentration of an antioxidant component based on light detected by the detector (Park | Paragraph 0059, 0098), and
based on a predetermined condition being satisfied: determine whether there is a change in color of the skin (Paragraph 0086-0088; [Examiner’s note, the skin optical density spectrum can measure changes in skin color by analyzing how the light is absorbed and reflected by the skin at different wavelengths.]) using a light source of the plurality of light sources having a predetermined central wavelength (Paragraph 0087, 0146).
Park is silent on a sensor setting an operating condition based on a change in the color of the skin. However, Kaori teaches set an operating condition of the sensor based on the determination of whether there is a change in the color of the skin (Kaori | Paragraphs 0118-0121). One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the antioxidant sensor of Park to incorporate the teachings from Kaori because the detection from the sensor regarding the change in skin color or discoloration allows for the apparatus to rejuvenate the skin based on the user’s skin conditions (Paragraph 0096, After light emission is started under such conditions, the skin is rejuvenated in accordance with the wavelength and the intensity (irradiance and irradiation time) of light. Changes of the skin conditions as a result of the rejuvenation appear as the changes of the blood flow).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Park et al (US 20200029873 A1) in view of Kaori et al (US 20150182758 A1) further in view of Mohammadi et al (US 20220273207 A1).
Regarding Claim 20, Park in view of Kaori is silent on teaching the period of time when the device is worn on the user’s body; Mohammadi teaches the wearable device of claim 19, wherein the predetermined condition is set in advance based on at least one of: a period of time during a day when the main body is not worn on the body of the user, and a season (Mohammadi | Paragraph 0026, the signals from the one or more light emitters and one or more light detectors can be utilized to perform other functions aside from measuring the user's physiological signals and extracting information/characteristics from the physiological signals. For example, one or more light emitters and one or more light detectors can be configured for monitoring whether or not the device remains in contact with a user's skin (e.g., off-wrist detection); Paragraph 0061, the measurements at two (or more) of the wavelengths can be classified or filtered (e.g., by signal classifier/filters 504) based on characteristics of the measurements at the third wavelength (λ3) to reject or deemphasize measurements at the two (or more) of the wavelengths. In some examples, the characteristic of the measurements at the third wavelength can predict a condition that may result in inaccurate measurements of the physiological signal characteristic. For example, the condition may be contact condition between the physiological sensor(s) and the user's skin. As described herein, poor contact between a physiological sensor and the user's skin can result in measurements at the first and second wavelengths that may meet signal quality metrics (and thus may not be filtered out by signal classifier/filters 502), but that produce inaccurate estimates of a physiological characteristic; Paragraph 0065, the filtering of channel measurements can be used to notify a user regarding contact between the device and the user's skin at 635. For example, as described herein, the characteristic of the measurements at the third wavelength can predict a contact condition between the physiological sensor(s) and the user's skin (e.g., “good contact” or “bad contact”). Thus, in some examples, this information can notify the user to improve the contact (e.g., by tightening (or loosening) strap 146); [Examiner’s note, the wavelengths of λ1, λ2, and λ3 are used in conjunction to one another to determine the validity of the signals collected. One can determine λ3 is used to determine when the main body is not worn on the body of the user whether it be during a specific period, during a season, and or before the antioxidant component is estimated]).
One having an ordinary skill in the art the time the invention was filed would have found it obvious to modify the apparatus of Park to incorporate the teachings of Mohammadi because the wavelength technology can determine whether there is good contact between the device and user’s skin, but aids in determining the health characteristics of the user (Paragraph 0031, The absorption and/or reflection of light at different wavelengths can also be used to determine a characteristic of the user (e.g., oxygen saturation, heart rate) and/or about the contact condition between the light emitters 304/light detectors 306 and the user's skin… In some examples, processor 310 and/or physiological sensor controller 312 can store the raw data and/or processed information in memory (e.g., ROM or RAM) for historical tracking or for future diagnostic purposes; Paragraph 0069, The present disclosure recognizes that a user's personal data, including physiological information, such as data generated and used by the present technology, can be used to the benefit of users. For example, a user's heart rate may allow a user to track or otherwise gain insights about their health or fitness levels).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims --1, 12, 13, and 19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 16, 17, and 28, respectively, of U.S. Patent Application No US20220167883A1 (as cited on 02/22/2023 IDS). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the US Patent encompass the subject matter of the claims in the instant Application. Boldfaced claim limitations below represent slight variances not explicitly covered by the US Patent. NSDP-Obviousness Analysis rejections have been provided below the mapped claim.
Claim
Instant Application US20240138721A1
US Patent Application No. US20220167883A1
Claim
1
An apparatus for estimating a concentration of a component, the apparatus comprising:
An apparatus for estimating a component of an analyte, the apparatus comprising:
1
1
a sensor comprising: a plurality of light sources having different central wavelengths; and at least one detector configured to detect light; and
a sensor including a light source configured to emit light to the analyte, and a detector configured to measure a spectrum of light reflected from the analyte; and
1
1
a processor configured to: determine a first reflectance of skin using a first light source of the plurality of light sources, set an operating condition of the sensor based on the determined first reflectance, drive the plurality of light sources according to the set operating condition,
a processor configured to: based on an initial amount of received light being obtained from the analyte by operating the sensor under initial operating conditions, determine optimal operating conditions based on the initial amount of received light and the initial operating conditions;
1
1
and estimate a concentration of an analyte component based on a plurality of light quantities detected from skin by the at least one detector.
and based on a spectrum being measured from the analyte by operating the sensor under the optimal operating conditions, estimate the component of the analyte based on the spectrum.
1
12
wherein the analyte component comprises at least one of skin carotenoid, blood carotenoid, glucose, urea, lactate, triglyceride, total protein, cholesterol, and ethanol.
wherein the component of the analyte comprises at least one of skin carotenoid, blood carotenoid, glucose, urea, lactate, triglyceride, total protein, cholesterol, or ethanol
16
13
A method of estimating a concentration of a component, the method comprising:
A method of estimating a component of an analyte, the method comprising:
17
13
determining a first reflectance of skin using a first light source of a plurality of light sources, the plurality of light sources being included in a sensor and having different central wavelengths, setting an operating condition of the sensor based on the determined first reflectance; driving the plurality of light sources based on the set operating condition;
operating a sensor under preset initial operating conditions; detecting an initial amount of received light from the analyte under the initial operating conditions; determining optimal operating conditions based on the initial amount of received light and the initial operating conditions; measuring a spectrum from the analyte by operating the sensor under the optimal operating conditions;
17
13
and estimating a concentration of an analyte component based on a plurality of light quantities detected from the skin by at least one detector included in the sensor.
and estimating the component of the analyte based on the spectrum.
17
19
A wearable device comprising:
An electronic device comprising:
28
19
a main body worn on a body of a user; a sensor comprising: a plurality of light sources having different central wavelengths, and a detector configured to detect light from skin of the body of the user;
a main body; a memory disposed in the main body;
28
19
and a processor configured to: drive the plurality of light sources based on an operating condition of the sensor, estimate a concentration of an antioxidant component based on light detected by the detector, and based on a predetermined condition being satisfied: determine whether there is a change in color of the skin using a light source of the plurality of light sources having a predetermined central wavelength, and set an operating condition of the sensor based on the determination of whether there is a change in the color of the skin.
and a processor disposed in the main body and electrically connected to the memory, wherein the processor is configured to: operate a sensor device under initial operating conditions stored in the memory based on a request for estimating an antioxidant index being received, adjust, based on an initial amount of received light being obtained from skin of a user, at least one of a light exposure time and a light source current among operating conditions of the sensor device based on the initial amount of received light, obtain a spectrum from skin of the user by operating the sensor device under adjusted operating conditions, and estimate the antioxidant index based on the spectrum.
28
The nonstatutory double patenting obviousness analysis rejections below apply to Claims 1, 13, and 19.
The identified difference of the sensor comprising “a plurality of light sources having different central wavelengths; and at least one detector configured to detect light,” is addressed in the spec of Eom ‘833 (Paragraph 0005, a sensor including a light source configured to emit light to the analyte; Paragraph 0055, A light source 111 may include one or more light emitters…The one or more light emitters may be configured to emit light of different wavelengths; Paragraph 0005, a detector configured to measure a spectrum of light reflected from the analyte). Thus, a minor design change to modify the apparatus/method/electronic device of Eom ‘833 to be comprised of “a plurality of light sources having different central wavelengths; and at least one detector configured to detect light” would have been obvious to one having ordinary skill in the art because it would yield the predictable results of the sensor, which is already within the capability of the apparatus/method/electronic device of Eom ‘833.
The identified difference of the operating condition utilizing reflectances of skin and operating condition utilizing the initial amount of received light is addressed in the spec of Eom ‘833 (Paragraph 0023, The determining of the optimal operating conditions may include determining the optimal operating conditions based on a ratio of the initial amount of received light to a preset optimal amount of received light and the initial operating conditions; Paragraph 0032, The processor may be configured to operate a sensor device under initial operating conditions stored in the memory based on a request for estimating an antioxidant index being received, adjust, based on an initial amount of received light being obtained from skin of a user; [Examiner’s note, the reflectance is the optimal amount of received light]; Paragraph 0060, The processor 120 may operate the sensor 110 by using predefined initial operating conditions, and when the sensor 110 acquires data on an initial amount of received light from the analyte according to the initial operating conditions, determine optimal operating conditions using the acquired data. Then, the processor 120 may acquire a spectrum from the analyte by operating the sensor 110 according to the determined optimal operating conditions. The processor 120 may operate the light source 111 of the sensor 110 at a point in time at which a predetermined pressure is applied to the analyte while the analyte is in contact with the sensor 110). Thus, a minor design change to implement the operating condition based on the reflectance of skin would have been obvious to one having ordinary skill in the art because it would yield the predictable results of operating condition utilizing the initial amount of received light, which is already within the capability of the apparatus/method/electronic device of Eom ‘833.
Conclusion
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/SRISTI DIVINA GOMES/Examiner, Art Unit 3791
/PATRICK FERNANDES/Primary Examiner, Art Unit 3791
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