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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3/17/26 has been entered.
Response to Arguments
Applicant's arguments filed 3/17/26 have been fully considered but they are not persuasive. Regarding the 101 rejection the Applicant argues that the claims are not directed toward mathematical concepts, certain methods of organizing human activity or mental processes. The Applicant further argues that it is highly impractical for a human being to perform the transmitting of radar signals and for these reasons the subject matter is not an abstract idea. As previously noted, the transmitting a radar signal toward a subject and receiving the radar signal reflected from the subject is insignificant extra-solution activity of data gathering. With the gathered data, the user is then capable of performing the recited tasks with or without pen and paper. Here the applicant is relying upon the abstract idea itself (i.e., the mentally performable actions which include identifying areas of consistent complexity) for the improvement. The inventive concept cannot be furnished by the abstract idea itself, but must be furnished by the additional elements outside of the abstract idea (MPEP 2106.05, I). The use of a generic arrangement including a radar sensor, and a processing unit, all functioning in their usual capacity, is insufficient to show an improvement to the technology. It is further noted that the Applicant’s own specification states that the sleep score can be performed through a manual operation by an expert (e.g. Paragraph 7).
The broadest reasonable interpretation of the claims does not limit the assessment of complexity to any particular manner that would preclude a clinician from reviewing the data and mentally assessing a deviation from the expected or normal behavior, and identifying areas where the deviations or abnormalities were consistently appearing. Such an assessment involves the mental processes of comparison, analysis and judgement. Surely a sleep clinician is capable of recognizing deviations from the expected or normal sleep behavior and the stability/consistency of any recognized abnormal behavior when reviewing presented sleep data.
As stated in MPEP 2106.04(a)(2), Ill, B: The use of a physical aid (e.g., pencil and paper or a slide rule) to help perform a mental step (e.g., a mathematical calculation) does not negate the mental nature of the limitation, but simply accounts for variations in memory capacity from one person to another.
Further, the Applicant argues that the features of the claim, are not well-understood, routine or conventional and therefore amount to significantly more than an abstract idea. The Examiner respectfully disagrees. The additional elements of the radar sensor and processing unit fail to integrate the abstract idea into a practical application. Said elements are conventional, arranged in a conventional system, and operate in their usual capacity unaffected by the performance of the abstract idea. The prior art of record clearly shows that the features of the claim are well-understood, routine and conventional. Further, the additional elements that were considered insignificant extra solution activity have been re-analyzed and do not amount to anything more than what is well-understood, routine and conventional when considered individually and in combination with evidence provided. It is noted that the specification fails to elaborate and provide any structure as to the design of the radar device and the polysomnography device. MPEP 2164 states that the disclosure must be sufficient to allow a skilled practitioner to understand and replicate the invention but need not elaborate on standard or publicly known elements. Since the specification does not elaborate on the devices (other than the radar device is a transceiver which is a known design element), it is clearly shown that the Applicant at the time of filing believed that the elements are publicly known elements that are routine and conventional, and did not need any further description or elaboration. Therefore, the claims are directed toward an abstract idea and the rejection stands.
Regarding the 103 rejection, the Applicant argues that the Martinot reference fails to teach generating histograms to generate a model that is used for the scoring function. Mainly the system of Martinot fails to use polysomnography results. The Examiner respectfully disagrees. Martinot clearly discloses using polysomnography data to determine 3 labels (components), (wake, rem and non-rem), then uses histogram optimized approximate greedy tree construction algorithms (e.g. well known method of making histograms which are then used for a decision tree) to create a distribution model that is then used to determine a scoring function (e.g. ¶¶357, 364, 368-369). In this case the histograms consist of the polysomnography data to make the 3 labels as disclosed above. Therefore, the Martinot reference clearly discloses creating the histograms and then using them to make a distribution model that is then used for generating the scoring. It is noted that the claims are silent as to the exact polysomnography data, the exact components, the exact limitations and what is exactly used to create the histograms.
The Applicant also argues that Martinot determines respiration with gyroscopes and not radar and therefore does not teach the claimed language. It is noted that the claims is rejected under Martinot in view of Trivedi. Martinot teaches the creation of histograms and the derivation of sleep time and respiration data. Martinot discloses the claimed invention except for explicitly stating that the system utilizes radar for sensing movement. However, Trivedi teaches that it is known to use radar as set forth in Paragraph 45 to provide measurement of body motion, respiration and heart rate. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the gyroscope sensing as taught by Martinot, with radar sensing as taught by Trivedi, since such a modification would provide the predictable results of sensing sleep characteristics with known non-contact physiological sensors that provide the exact same data. Therefore, the system of Martinot in view of Trivedi teaches the claimed limitations.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim(s) 1-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1- Claim 8
Claim 8 and dependent claims 9-14 are drawn to a method and thus meet the requirements for step 1.
Step 2a (prong 1) - Claim 8
Claims 8 recites the step of “calculating a sleep quality score of the subject based on the calculated score” Under the broadest reasonable interpretation, this step covers a concept capable of being performed in the human mind, and thus falls within the mental processes grouping of abstract ideas. Other than reciting the method is “computer-implemented” in the preamble, nothing in the claim precludes the step from practically being performed in the mind. Further the specification states that the entire system can be done manually by an expert in paragraph 7.
Accordingly, claim 8 recites an abstract idea.
Step 2a (prong 2) – Claim 8
The judicial exception is not integrated into a practical application. Claim 8 recites the additional elements of:
Generating histograms is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data) is insignificant extra-solution activity (i.e., data output),
Generating distribution model for at least one of component of polysomnography is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data) is insignificant extra-solution activity (i.e., data output),
transmitting a radar signal toward a subject and receiving the radar signal reflected from the subject is insignificant extra-solution activity (i.e., data gathering),
deriving sleep time information is insignificant extra-solution activity (i.e., data gathering), and
calculating score for the at least one of components is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data) is insignificant extra-solution activity (i.e., data output), and
calculating a sleep quality score is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data) is insignificant extra-solution activity (i.e., data output).
These steps do not integrate the abstract idea into a practical application because they are insignificant extra solution activity.
Step 2b- Claim 8
The additional elements when considered individually and in combination are not enough to qualify as significantly more than the abstract idea. As discussed above with respect to the integration of the abstract idea into a practical application, providing a (calculating a sleep quality score) is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data). Further, transmitting a radar signal toward a subject and receiving the radar signal reflected from the subject is considered data gathering. The radar device is generically cited and the specification provides no structure other than the radar device is a generic transceiver.
The additional elements that were considered insignificant extra solution activity have been re-analyzed and do not amount to anything more than what is well-understood, routine and conventional when considered individually and in combination with evidence provided. Specifically:
a polysomnography is well understood, routine, and conventional (i.e., receiving data MPEP 2106.05(d)(II)).
a radar device is well understood, routine, and conventional (i.e., receiving data MPEP 2106.05(d)(II)).
deriving sleep time information is well-understood routine and conventional (i.e., gathering data/statistics MPEP 2106.05(d)(II)).
calculating a sleep quality score is considered to be well-understood, routine, and conventional (i.e., presenting data MPEP 2106.05(d)(II)).
Claim 8 is thus consider to be directed to an abstract idea without significantly more.
Claims 9-14 depend from claim 8. The type of data analyzed as stated in claims 9-14 are considered extra solution activity. Thus, the dependent claims do not change the overall analysis that claims 9-14 are also directed to an abstract idea.
Claims 1-7
Independent claim 1 is directed to a system containing limitations similar to that for claim 8. Analyzing the system of claim 1 under step 2a, prong 1, the system is recited at a high level of generality and merely use the computer elements (the processor and memory) as a tool. When analyzed under step 2a, prong 2, the system performs generic computer functions like processing data. Further, when the analysis is extended to step 2b, the system is considered to use the computer elements as tools, MPEP 2106.05(d)(II). Thus, claim 1 is also considered to be patent ineligible subject matter. Dependent claims 2-7 are similar to dependent claims 9-14 and are rejected on similar grounds.
Claim 15
Independent claim 15 is directed to a computer readable medium containing limitations similar to that for claim 1 and is similarly rejected as patent ineligible subject matter.
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 1-3, 5-10 and 12-15 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.
Claim 1 recites the limitation "a polysomnography" in line 6. This is vague as it is unclear if this is the same “polysomnography result” from line 3, or a separate new limitation.
Claims 2-3 and 5-7 are rejected for inheriting the same limitations as claim 1 above.
Claim 8 recites the limitation "a polysomnography" in line 6. This is vague as it is unclear if this is the same “polysomnography result” from line 3, or a separate new limitation.
Claims 9-10 and 12-14 are rejected for inheriting the same limitations as claim 1 above.
Claim 15 recites the limitation "a polysomnography" in line 7. This is vague as it is unclear if this is the same “polysomnography result” from line 5, or a separate new limitation.
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.
Claim(s) 1-3, 5-10 and 12-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Martinot (U.S. Pub. 2022/0330897) in view of Trivedi et al. (U.S. Pub. 2021/0287564 hereinafter “Trivedi”).
Regarding claims 1, 8 and 15, Martinot discloses a device for scoring sleep quality, comprising: generate histograms for respective components from the polysomnography result information generated by polysomnography device and measured from the plurality of polysomnography testees (e.g. ¶¶264, 357), and generate for each component of a polysomnography, a distribution model reflecting a degree to which scores are distributed on a corresponding distribution table based on the polysomnography result information (e.g. ¶357); generate for each component a scoring function corresponding to the distribution model (e.g. ¶264); a transceiver configured to transmit a signal toward a subject and receive the signal reflected from the subject (e.g. ¶108; “for example time-division multiplexing and/or using carrier waves of different frequencies”); an information derivation unit configured to derive sleep time information (e.g. ¶¶ 116, 131) related to the subject and event occurrence information related to breathing events occurring during sleep, based on the reflected signal (e.g. ¶181); a component score calculation unit configured to calculate score for the at least one of components by applying the sleep time information and the event occurrence information to the scoring function (e.g. ¶182); and a sleep quality calculation unit configured to calculate a sleep quality score of the subject based on the calculated score for the at least one of components (e.g. ¶116), wherein the scoring function covers a value for the sleep time information or the event occurrence information into a score based on a position in the distribution model (e.g. ¶¶116, 264 and 357). Martinot discloses the claimed invention except for explicitly stating that the system utilizes radar for sensing movement. However, Trivedi teaches that it is known to use radar as set forth in Paragraph 45 to provide measurement of body motion, respiration and heart rate. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the gyroscope sensing as taught by Martinot, with radar sensing as taught by Trivedi, since such a modification would provide the predictable results of sensing sleep characteristics with known non-contact physiological sensors that provide the exact same data.
Regarding claims 2 and 9, meeting the limitations of claim 1 and 8 above, Martinot further discloses wherein the sleep time information of the subject includes a component corresponding to at least one of a total sleep time, a total number of arousals and a sleep latency among the components of polysomnography (e.g. ¶116).
Regarding claims 3 and 10, meeting the limitations of claim 1 and 8 above, Martinot further discloses wherein the event occurrence information of the subject includes a component corresponding to at least one of a number of central sleep apneas, a number of obstructive sleep apneas, a number of hypopneas and a number of respiratory effort related arousals among the components of polysomnography (e.g. ¶303; Table 1).
Regarding claims 5 and 12, meeting the limitations of claim 1 and 8 above, Martinot further discloses wherein the scoring function generation unit is further configured to generate different distribution models depending on at least one of an age group and a disease group of the polysomnography testees (e.g. ¶365).
Regarding claims 6 and 13, meeting the limitations of claim 1 and 8 above, Martinot further discloses wherein the scoring function is generated for the distribution model and converts a value for the sleep time information or the event occurrence information input to each corresponding component into a score depending on a position in the distribution model (e.g. ¶116).
Regarding claims 7 and 14, meeting the limitations of claim 1, 6, 8 and 13 above, Trivedi further discloses wherein the sleep quality calculation unit is further configured to give weightings to the score and calculate a weighted sleep quality score, and the weightings are calculated based on feedback information input from the subject (e.g. ¶50; claims 8 and 18).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REX R HOLMES whose telephone number is (571)272-8827. The examiner can normally be reached Monday-Thursday 7:00AM-5:30PM.
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/REX R HOLMES/ Primary Examiner, Art Unit 3796