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
Claims 1-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/04/2025. Claims 1-20 are canceled. Claims 21-34 remain pending.
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 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) 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):
(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). The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f), 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). The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f), is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
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) 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) because the claim limitations use 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 limitations are:
The nonce term “device” is used in claim 24, 28, and 30, for “storage device” configured to store two types of temperature data invokes 35 USC 112(f)
The term “mechanism” for precisely controlling the pressure of the temperature sensors recited in claim 32 invokes 35 USC 112(f)
The term, “device” and “mechanism” is a non-structural generic placeholder that does not include any specific structure for performing the accompany functions. See MPEP 2181.I.A: The following is a list of non-structural generic placeholders that may invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, paragraph 6: "mechanism for," "module for," "device for," "unit for," "component for," "element for," "member for," "apparatus for," "machine for," or "system for." Welker Bearing Co., v. PHD, Inc., 550 F.3d 1090, 1096, 89 USPQ2d 1289, 1293-94 (Fed. Cir. 2008); Massachusetts Inst. of Tech. v. Abacus Software, 462 F.3d 1344, 1354, 80 USPQ2d 1225, 1228 (Fed. Cir. 2006); Personalized Media, 161 F.3d at 704, 48 USPQ2d at 1886–87; Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1214-1215, 48 USPQ2d 1010, 1017 (Fed. Cir. 1998).
Because these claim limitations are being interpreted under 35 U.S.C. 112(f) they 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 these limitations interpreted under 35 U.S.C. 112(f) applicant may: (1) amend the claim limitations to avoid them being interpreted under 35 U.S.C. 112(f) (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitations recite sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f).
Please note that for the purposes of this examination the phrase “storage” is being interpreted to include generic “storage” devices or processor as described in Paragraphs ¶0093 in the specification as performing the claimed function, and equivalents thereof.
Please note that for the purposes of this examination the phrase “mechanism” does not have structural information disclosed in the specification or drawings for the functions of precisely controlling the pressure of the temperature sensors.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
As discussed above, the claim limitations below are interpreted under 35 U.S.C. 112 (f).
Claim 32: “a mechanism capable of precisely controlling the pressure of the temperature sensors on the skin.”
In the specification, at least ¶0012 & ¶0083 discloses the function being performed “a mechanism capable of precisely controlling the pressure of the temperature sensors” However, one of ordinary skill in the art would not understand the specification, the drawing and the original claims to disclose any particular structure that achieves the disclosed functionality.
These limitations fail to comply with the written description requirement as the limitations are unbound functional imitations which cover all ways of performing the respective functions and inventor has not provided sufficient disclosure to show possession of such an invention. The limitations therefore fails to comply with the written description requirement. See MPEP 2181.II.A.
The dependent claims of the above rejected claims are rejected due to their dependency.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 21-34 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
There are many factors to be considered when determining whether there is sufficient evidence to support a determination that a disclosure does not satisfy the enablement requirement and whether any necessary experimentation is "undue." These factors include, but are not limited to:
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
(G) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
Claims 21-34 are rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as failing to comply with the enablement requirement. The claims are directed to a method and system for measuring the strength of "Ying-nutrient Qi" based on the temperature differential between body surface and infrared temperature measurements. However, the specification fails to enable a person of ordinary skill in the art to make and use the full scope of the claimed invention without undue experimentation.
The examiner will address each factor separately and then based on the combination of evidence, reasonably conclude that the claimed invention is not enabled for detection of strength of the Ying-nutrient Qi.
An analysis of the In re Wands factors is provided below:
Breadth of the Claims:The claims are broadly directed to detecting and quantifying an undefined physiological phenomenon (“Ying-nutrient Qi”) across multiple meridians using sensor arrays and data analysis. The breadth extends to both hardware configuration and physiological interpretation without clear boundaries or scientific basis.
Nature of the Invention:
The invention purports to measure and quantify an abstract and undefined traditional Chinese medicine concept ("Ying-nutrient Qi") using conventional temperature sensors. The correlation between measurable temperature differences and the claimed energy strength is speculative and unsupported by scientific evidence.
State of the Prior Art:
There is no recognized or accepted scientific correlation/basis between body temperature differentials and the strength of "Ying-nutrient Qi" in mainstream biomedical literature. Although, the specification cites a range of TCM temperature experiments, none provide a scientifically accepted, reproducible method for detecting or quantifying Qi. The cited literature (e.g., acupuncture-induced changes, bilateral acupoint temperature) points to anecdotal correlations, not predictive or diagnostic standards. As such, the claimed invention is not grounded in established science, which increases the enablement burden on the specification.
Level of Ordinary Skill in the Art:
A person of ordinary skill in the art of biomedical engineering or sensor-based diagnostics would not possess inherent or intuitive knowledge of how to translate temperature measurements into meaningful representations of "Qi" without valid detailed, specific, and reproducible instruction.
Level of Predictability in the Art:
The level of one of ordinary skill in this art is high. The art of temperature-based physiological sensing is relatively predictable; however, applying it to metaphysical or undefined concepts such as "Ying-nutrient Qi" is highly unpredictable due to the lack of scientific consensus or validation (i.e., defined biomarkers, known interaction models, or validation protocols).
Amount of Direction Provided:
The specification does not provide sufficient guidance (i.e., insufficient actionable guidance) on how to interpret the temperature differential as meaningful representations linked to the strength of "Ying-nutrient Qi," nor does it define the term in scientifically measurable terms. The charts and flow diagrams illustrate hypothetical outcomes but it lacks algorithms, clinical correlation data, or standards for interpreting the results. The amount of direction fails to match the speculative and complex nature of the claimed functionality.
Existence of Working Examples:
The application fails to provide working examples or test data demonstrating how the method or system successfully quantifies "Ying-nutrient Qi," particularly in a reproducible or clinically meaningful way.
Quantity of Experimentation Needed:
Given the abstract nature of "Ying-nutrient Qi" and the absence of a standard or reproducible method of validating results, a substantial and undue amount of experimentation would be required to both understand and implement the claimed method and system. Furthermore, the mere correlation of level of experimentation of temperature differential linked to the strength of “Ying-nutrient Qi” is beyond what is considered routine and constitutes undue experimentation.
Given consideration to all the above factors, it is reasonable for the examiner to conclude a lack of enablement for the claimed invention. The examiner finds particularly –the measurement and interpretation of Ying-nutrient Qi strength as claimed by the inventor to be reliant on metaphysical constructs, and lacks empirical grounding and absence of concrete guidance rendering the lack of enablement for the claimed invention.
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 21-34 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as failing to set forth 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 21:
Claim 21, the phrase, “the strength of Ying-nutrient Qi” in line 1. There is insufficient antecedent basis for this limitation in the claim. Appropriate correction is required.
Claim 21, the phrase, “the body surface temperature” in line 3. There is insufficient antecedent basis for this limitation in the claim. Appropriate correction is required.
Claim 21, the phrase, “the infrared temperature” in line 4. There is insufficient antecedent basis for this limitation in the claim. Appropriate correction is required.
Claim 21, the phrase, “the difference” in line 5. There is insufficient antecedent basis for this limitation in the claim. Appropriate correction is required.
Claim 21, the phrase, “infrared temperature sensors” and “contact temperature sensors” render the claim indefinite. It is unclear what the difference between infrared temperature sensors and contact temperature sensor is. Both infrared temperature sensors and contact temperature sensors obtain temperature. Appropriate correction is required.
Claim 21, the phrase, “the two temperatures” in line 5 renders the claim indefinite and there is insufficient antecedent basis for this limitation in the claim. It is unclear if the two temperatures refer to the infrared temperature and the body surface temperature or another and separate two temperatures. The phrase is interpreted as the calculating a difference between the body surface temperature and the infrared temperature. Appropriate correction is required.
Claim 21, the phrase, “thereby obtaining” in line 5 renders the claim indefinite. It is unclear what the technical feature of the meaning of obtaining refers to. It is unclear how the numerical representation refers to the strength of the Ying-nutrient Qi. The phrase does not clearly define that the numerical representation is actually a result of the Ying-nutrient Qi being processed by the difference between the two temperatures (i.e., the difference between the body surface temperature and the infrared temperature. Appropriate correction is required.
Claim 22:
Claim 22, the phrase, “a contact temperature sensor” renders the claim indefinite. It is unclear if the phrase refers to the contract temperature sensor in line 3 of the antecedent claim 21 or if the phrase refers to another and separate contact temperature sensor. The phrase is interpreted as the contact temperature sensor referring to the contact temperature sensor in line 3 of the antecedent claim 21. Appropriate correction is required.
Claim 23:
Claim 23, the phrase. “the strengths of the Ying-nutrient Qi” in line 2 renders the claim indefinite and there is insufficient antecedent basis for this limitation in the claim. The phrase is unclear because the claim does not recite any step, nor a step of determining multiple strengths of the Ying-nutrient Qi., The scope of “the strengths of the Ying-nutrient Qi” hence is unclear. Appropriate correction is required.
Claim 23, the phrase, “in a human body” in line 2 renders the claim indefinite. It is unclear if the phrase refers to the human body in line 2 of the antecedent claim 21 or if the phrase refers to another and separate human body. The phrase is interpreted as the human body referring the human body in line 2 of the antecedent claim 21. Appropriate correction is required.
Claim 23, the phrase, “the same time” in lines 2-3 render the claim indefinite and there is insufficient antecedent basis for the limitation in the claim. It is unclear what the same time means and refers to. Appropriate correction is required.
Claim 23, the phrase, “the multiple results obtained” in line 3 renders the claim indefinite and there is insufficient antecedent basis for the limitation in the claim. It is unclear what the multiple results obtained refers to. The claim does not recite a step of results obtained. Appropriate correction is required.
Claim 23, the phrase, “the relative strength” in line 3 renders the claim indefinite and there is insufficient antecedent basis for the limitation in the claim. It is unclear if the relative strength refers to the strength or another and separate strength measured. Appropriate correction is required.
Claim 23, the phrase, “different meridians” in line 4 renders the claim indefinite. It is unclear if these different meridians refer to the multiple meridians in line 2 of claim 23 or a another and separate category of meridians. Appropriate correction is required.
Claim 24:
Claim 24, the phrase, “the strength and variation of” in line 1. There is insufficient antecedent basis for this limitation in the claim. Appropriate correction is required.
Claim 24, the phrase, “a CPU” in lines 3 renders the claim indefinite. It is unclear what the abbreviated term refers to. The claim does not specify what CPU stands for. Appropriate correction is required.
Claim 24, the phrase, “a human body” in line 4 renders the claim indefinite. It is unclear if the phrase refers to the human body in line 2 of the claim or if the phrase refers to another and separate human body. The phrase is interpreted as the human body referring the human body in line 2 of the claim. Appropriate correction is required.
Claim 24, the phrase, “infrared temperature sensors” and “contact temperature sensors” render the claim indefinite. It is unclear what the difference between infrared temperature sensors and contact temperature sensor is. Both infrared temperature sensors and contact temperature sensors obtain temperature. Appropriate correction is required.
Claim 24, the phrase, “and every infrared temperature sensor” in lines 4-5 renders the claim indefinite. It is unclear if the phrase every infrared temperature sensor refers to the at least two pairs infrared temperature sensor or not. Appropriate correction is required.
Claim 24, the phrase, “and every infrared temperature sensor is paired with a contact temperature sensor to get two types of temperatures of a site” in lines 4-6 render the claim indefinite. (1) It is unclear if the phrase “every infrared temperature sensor” refers to the at least two pairs infrared temperature sensor or not. (2) its unclear how the system “gets” these two types of temperatures of a site. (3) the phrase, “types” is held to be indefinite because it is unclear what “types” is intended to convey. (4) it is unclear if a site refer to a site of the contact temperature sensors on a human body or not. Appropriate correction is required.
Claim 25:
Claim 25, the phrase, “the contact temperature sensors” in lines 1-2 renders the claim indefinite and there is insufficient antecedent basis for this limitation in the claim. It is unclear if the phrase refers to contact temperature sensors in lines 2-3 of claim 24 or the contact temperature sensors of the infrared temperature sensor in line 5 of claim 24. Appropriate correction is required.
Claim 25 the phrase, “to measure body surface temperatures of a human body by direct contacting” renders the claim indefinite. (1) it is unclear if the measured body surface temperatures are the same or different than the measured body contact temperature sensors as recited in line 4 of claim 24. (2) It is unclear if the phrase refers to the human body in line 2 of the claim 24 or line 4 of claim 24 or if the phrase refers to another and separate human body. The phrase is interpreted as the human body referring the human body in line 2 of the claim. It is also unclear if the intended scope of the claims are directed to measuring three human bodies or one human body. (3) the phrase, “by direct contacting” renders the claim indefinite. It is unclear if the phrase refers to direct contacting the human body or the sensors temperature sensors. The claim places to feature to which the direct contacting refers to (i.e., directly contacting X or Y) Appropriate correction is required.
Claim 27:
Claim 27, the phrase, “the contact temperature sensors” in lines 1-2 renders the claim indefinite. it is unclear if the measured body surface temperatures are the same or different than the measured body contact temperature sensors as recited in line 4 of claim 24. Appropriate correction is required.
Claim 27, the phrase, “the infrared temperature sensors” in line 2 renders the claim indefinite. It is unclear if the phrase refers to the at least two infrared temperature sensors or another and separate infrared temperature sensors. Appropriate correction is required.
Claim 28:
Claim 28, the phrase, “the part of the storage device is configured to store two types of temperature data and corresponding timestamps at the same time, with a storage duration of grater than 30 minutes” renders the claim indefinite. (1) the recitation of “the part of the storage device”, it is unclear what the part refers to with respect to the storage device. (2) the recitation of “two types of temperature data”, is unclear. (2a) the phrase, “types” is held to be indefinite because it is unclear what “types” is intended to convey. (2b) it is unclear if the phrase “two types of temperature data” refers to the same two types of temperature data recited in lines 5-6 in claim 24 or a another separate and different set of two types of temperature data. (3) the recitation of “corresponding timestamps” is unclear. (3a) it is unclear if the timestamps correspond to the two types of temperature sensors in claim 28 or the two types of temperatures recited in claim 24, or if the timestamps correspond to a separate feature not recite, or if the timestamps refers to this part of the storage device. (4) the recitation of “at the same time” is unclear. It is unclear what is being stored at the same. (5) the recitation of “a storage duration of greater than 30 minutes” renders the claim indefinite. The recitation is deemed indefinite because greater than 30 minutes is an unbounded range extending to infinity. Claims that define a range without an upper limit are considered indefinite because it does not clearly specify the scope of the invention. Furthermore, its unclear what a storage duration of greater than 30 minutes means with respect to the storing the two types of temperature data and corresponding timestamps. Appropriate correction is required.
Claim 29:
Claim 29, contains the trademark/trade name “a Bluetooth or WIFI communication”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe “Bluetooth” and “WIFI” and, accordingly, the identification/description is indefinite. Appropriate correction is required.
Claim 31:
Claim 31, the phrase, “the pressure” in line 2. There is insufficient antecedent basis for this limitation in the claim. Appropriate correction is required.
Claim 31, the phrase “temperature sensors” in line 2 renders the claim indefinite. It is unclear if the temperatures refer to the contact temperature sensors and/or infrared temperature sensors. Appropriate correction is required.
Claim 31, the phase “the skin” in line 2. There is insufficient antecedent basis for this limitation in the claim. Appropriate correction is required.
Claim 32:
Claim 32, the phrase, “the temperature sensors” in line 2 renders the claim indefinite. It is unclear if the temperatures refer to the contact temperature sensors and/or infrared temperature sensors. Appropriate correction is required.
Claim 32, the phrase, “precisely” in line 2. The term in claim is a relative term which renders the claim indefinite. The term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Appropriate correction is required.
Claim 32, claim limitation “a mechanism capable of precisely controlling” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim 33:
Claim 33, the phrase “detecting subject motion” in line 2 renders the claim indefinite. It is unclear what the subject refers to. Appropriate correction is required.
Claim 34:
Claim 34, the phrase, “the temperature sensors” in line 2 renders the claim indefinite. It is unclear if the temperatures refer to the contact temperature sensors and/or infrared temperature sensors. Appropriate correction is required.
Claim 34, the phrase, “a side of finders” in line 2 renders the claim indefinite. (1) It is unclear what fixing the temperature sensors on a side of fingers is intended to convey. Specifically, the phrase does not clearly define whether the temperature sensors are on a side of each finger individually or a collective side of multiple fingers. (2) Furthermore, it is unclear what side is being referred to. Specifically, it is unclear where the temperature sensors are to be positioned relative to the fingers. Appropriate correction is required.
The dependent claims of the above rejected claims are rejected due to their dependency.
Claim Objection
Claim 25 is objected to because of the following informalities: “The system according to Claim 24 wherein” should recite –The system according to Claim 24, wherein--. The preamble is missing a comma. Appropriate correction is required.
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 24 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) configured for performing a method according to claim 24. This judicial exception is not integrated into a practical application because limitation for configured for performing the method does not necessarily mean that the computer is storing a program specifically for performing the method of claim rather the claim is only directed to a computer capable of performing the method steps. Claim 24 is rejected under 35 U.S.C. 101 because the broadest reasonable interpretation of the phrase “CPU" includes non-transitory embodiments, such as memory elements (ROM, RAM) and memory media (CDs) as well as transitory embodiments, such as carrier waves encoded with the computer program steps. However, transitory forms of signals are not statutory (In re Nuijten, 84 USPQ2d 1495). A claim that covers both statutory and non-statutory embodiments embraces subject matter that is improperly directed to non-statutory subject matter. The Examiner suggests amending the “CPU" limitation to include the term " non-transitory computer readable medium", as long as the specification support a non-transitory embodiment.
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.
Claims 21-34 are rejected under 35 U.S.C. 101 because the claimed invention is not supported by either a credible asserted utility or a well-established utility.
As explained above using factors A-H, one of ordinary skill cannot reasonably conclude a credible-asserted utility link between body temperature differentials and the strength of "Ying-nutrient Qi", and therefore cannot credibly be an indicator of the strength of Ying-nutrient Qi. In addition, measuring Qi and assessing Qi is not a credibly-asserted utility. Merriam-Webster Dictionary defines “Qi” as “vital energy that is held to animate the body internally and is of central importance in some Eastern systems of medical treatment (such as acupuncture) and of exercise or self-defense (such as tai chi)”. There is no known creditably-asserted utility to measure Qi and its definition is abstract in nature.
Claims 21-34 are also rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph. Specifically, because the claimed invention is not supported by either a credible asserted utility or a well-established utility for the reasons set forth above, one skilled in the art clearly would not know how to use the claimed 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.
Claims 21-25, 27, and 31-32 are rejected under 35 U.S.C. 103 as being unpatentable over Gong (CN 106491095 A) in view of Jin et al (CN 110880368 A).
Claim 21: Gong discloses, A method for measuring the body temperature in a human body, (¶0017, ‘The detection probe comprises a probe body, a core temperature detection device arranged in the middle of the probe body, and a surface temperature detection device arranged outside the opposite side of the core temperature detection device, an insulation layer is arranged between the core temperature detection device and the surface temperature detection device, and a pressure sensor is arranged at the bottom of the insulation layer;’) measuring the body surface temperature of the site using a contact temperature sensor, (¶0042, ‘the detection signals of the first thermistor 425 and the second thermistor 426 are the same, thereby obtaining the core temperature, obtaining the body surface temperature through the infrared probe 432, and obtaining the body surface pressure through the pressure sensor 45.’), and simultaneously measuring the infrared temperature of the site using an infrared temperature sensor, and then calculating the difference between the two temperatures. (¶0042, ‘(3) The detection probe 4 is used to measure the body surface temperature, core temperature and surface pressure of a specific part, and output them to the data processing device 5, where the measured core temperature is used to correct the human body temperature fusion image measured in step 2; the detection probe 4 is heated by the heater 427 so that the detection signals of the first thermistor 425 and the second thermistor 426 are the same, thereby obtaining the core temperature, obtaining the body surface temperature through the infrared probe 432, and obtaining the body surface pressure through the pressure sensor 45.’).
Gong fails to disclose measuring the strength of Ying-nutrient Qi, comprising: selecting a site on a running path of a meridian in a human body, and the claimed feature of thereby obtaining a numerical representation of the strength of the Ying-nutrient Qi.
However, Jin in the context of traditional Chinese medicine diagnosis and treatment system discloses, measuring the strength of Ying-nutrient Qi, comprising: selecting a site on a running path of a meridian in a human body, and thereby obtaining a numerical representation of the strength of the Ying-nutrient Qi. (¶0006, ‘The purpose of the present invention is to provide a remote visualized TCM diagnosis and treatment system, which uses infrared thermal imaging to determine the state of human meridians or regions,’; ¶0013, ‘Preferably, the cloud platform is further used to perform the following operations: the cloud platform is used to receive the patient condition information and the infrared thermal imaging dynamic image, obtain the temperature change values of some acupoints of at least one of the twelve meridians of the human body according to the infrared thermal imaging dynamic image, judge the state of the acupoint according to the temperature change value, and generate a part state table with the temperature change value of the acupoint and the corresponding state of the acupoint.’; ¶0019, ‘the present invention assists doctors in distinguishing the six meridians, internal organs, deficiency and excess, yin and yang, and the relationship between the exterior and interior of the human body through the changes in temperature differences of various parts, so as to make a syndrome diagnosis.’; ¶0028, ‘Doctors can use infrared thermal imaging to identify the rise and fall of qi and blood as well as physiological and pathological changes in the twelve meridians and the three parts and nine signs. In addition, the cloud platform can obtain the temperature change value of a predetermined part of the human body based on the infrared thermal imaging dynamic image, determine the state of the part based on the temperature change value, and generate a part state table based on the temperature change value of the part and the corresponding state of the part to facilitate the doctor's diagnosis. Furthermore, doctors can determine the process of the six meridians of the human body through the relationship between infrared thermal imaging dynamic images and meridian qi, further analyze the pathogenesis, pathology and related data of the internal organs and meridians, and make a syndrome-oriented diagnosis.’)
It would have been obvious to one of ordinary skilled in the art before the effective filing date of the claimed invention to modify the system of Gong such that it includes measuring the strength and variation of Ying-nurtient Qi and selecting a site on a running path of a meridian in the human body and obtaining a numerical representation of the strength of the Ying-nutrient Qi as taught in view of the teachings of Jin for the advantage of providing an improved apparatus with such an apparatus being able to further analyze the pathogenesis, pathology and related data of internal organs and meridians, and make a syndrome-oriented diagnosis, as suggested by Jin, ¶0028.
Claim 22: Gong as modified discloses all the elements above in claim 21, Gong further discloses, wherein the body surface temperature of the site is measured by directly contacting a contact temperature sensor (FIG. 1, detection probe 4 includes thermistor 425 and thermistor 426) with the site. (¶0042, ‘(3) The detection probe 4 is used to measure the body surface temperature, core temperature and surface pressure of a specific part, and output them to the data processing device 5, where the measured core temperature is used to correct the human body temperature fusion image measured in step 2; the detection probe 4 is heated by the heater 427 so that the detection signals of the first thermistor 425 and the second thermistor 426 are the same, thereby obtaining the core temperature, obtaining the body surface temperature through the infrared probe 432, and obtaining the body surface pressure through the pressure sensor 45.’)
Claim 23: Gong as modified discloses all the elements above in claim 21, Gong fails to disclose:
further comprising: measuring the strengths of the Ying-nutrient Qi in multiple meridians in a human body at the same time, and then comparing the multiple results obtained to obtain the relative strength of the Ying-nutrient Qi of different meridians.
However, Jin is relied upon above discloses, further comprising: measuring the strengths of the Ying-nutrient Qi in multiple meridians in a human body at the same time, and then comparing the multiple results obtained to obtain the relative strength of the Ying-nutrient Qi of different meridians. (¶0006, ‘The purpose of the present invention is to provide a remote visualized TCM diagnosis and treatment system, which uses infrared thermal imaging to determine the state of human meridians or regions,’; ¶0013, ‘Preferably, the cloud platform is further used to perform the following operations: the cloud platform is used to receive the patient condition information and the infrared thermal imaging dynamic image, obtain the temperature change values of some acupoints of at least one of the twelve meridians of the human body according to the infrared thermal imaging dynamic image, judge the state of the acupoint according to the temperature change value, and generate a part state table with the temperature change value of the acupoint and the corresponding state of the acupoint.’; ¶0019, ‘the present invention assists doctors in distinguishing the six meridians, internal organs, deficiency and excess, yin and yang, and the relationship between the exterior and interior of the human body through the changes in temperature differences of various parts, so as to make a syndrome diagnosis.’; ¶0028, ‘Doctors can use infrared thermal imaging to identify the rise and fall of qi and blood as well as physiological and pathological changes in the twelve meridians and the three parts and nine signs. In addition, the cloud platform can obtain the temperature change value of a predetermined part of the human body based on the infrared thermal imaging dynamic image, determine the state of the part based on the temperature change value, and generate a part state table based on the temperature change value of the part and the corresponding state of the part to facilitate the doctor's diagnosis. Furthermore, doctors can determine the process of the six meridians of the human body through the relationship between infrared thermal imaging dynamic images and meridian qi, further analyze the pathogenesis, pathology and related data of the internal organs and meridians, and make a syndrome-oriented diagnosis.’)
It would have been obvious to one of ordinary skilled in the art before the effective filing date of the claimed invention to modify the system of modified Gong such that it further includes measuring the strengths of the Ying-nutrient Qi in multiple meridians in a human body at the same time, and then comparing the multiple results obtained to obtain the relative strength of the Ying-nutrient Qi of different meridians as taught in view of the teachings of Jin for the advantage of providing an improved apparatus with such an apparatus being able to further analyze the pathogenesis, pathology and related data of internal organs and meridians, and make a syndrome-oriented diagnosis, as suggested by Jin, ¶0028.
Claim 24: Gong discloses: A system for measuring the temperature in a human body, (¶0017, ‘The detection probe comprises a probe body, a core temperature detection device arranged in the middle of the probe body, and a surface temperature detection device arranged outside the opposite side of the core temperature detection device, an insulation layer is arranged between the core temperature detection device and the surface temperature detection device, and a pressure sensor is arranged at the bottom of the insulation layer;’) comprising:
at least two pairs of infrared temperature sensors (FIG. 1, infrared detectors 21, ¶0034, ‘A group of infrared detectors 21 are provided on the inner surface of the infrared detection device 2,… The number of infrared detectors 21 is 4, which are evenly arranged on the same longitudinal section of the inner surface of the infrared detection device 2.’, FIG. 2, infrared probes 432 disposed on the top of the detection channels 431,’)
and contact temperature sensors (FIG. 1, detection probe 4 includes thermistor 425 and thermistor 426),
a CPU, and a storage device, (FIG. 1 processing device 5, ¶0041, ‘(2) the data processing device 5 draws a human body image using the data from the microwave transceiver unit 31, and fuses the detection data of the infrared detection device 2 with the human body image to form an image;’)
wherein the contact temperature sensors are configured to measure body surface temperatures of a human body (¶0042, ‘the detection signals of the first thermistor 425 and the second thermistor 426 are the same, thereby obtaining the core temperature, obtaining the body surface temperature through the infrared probe 432, and obtaining the body surface pressure through the pressure sensor 45.’),
and every infrared temperature sensor is paired with a contact temperature sensor to get two types of temperatures of a site (¶0042, ‘(3) The detection probe 4 is used to measure the body surface temperature, core temperature and surface pressure of a specific part, and output them to the data processing device 5, where the measured core temperature is used to correct the human body temperature fusion image measured in step 2; the detection probe 4 is heated by the heater 427 so that the detection signals of the first thermistor 425 and the second thermistor 426 are the same, thereby obtaining the core temperature, obtaining the body surface temperature through the infrared probe 432, and obtaining the body surface pressure through the pressure sensor 45.’).
Gong fails explicitly disclose: the system intended for measuring the strength and variation of Ying-nutrient Qi in a human body,
In regard to the limitation of “measuring the strength and variation of Ying-nutrient Qi in a human body”, it is considered an intended use of the claimed device. Such a limitation does not further limit the structure of the claimed device. There is no recitation in the claim what structural limitation causes system to measure the strength and variation of Ying-nutrient Qi in the human body. As Jin in the context of traditional Chinese medicine diagnosis and treatment system discloses, (¶0019, ‘the present invention assists doctors in distinguishing the six meridians, internal organs, deficiency and excess, yin and yang, and the relationship between the exterior and interior of the human body through the changes in temperature differences of various parts, so as to make a syndrome diagnosis.’; ¶0028, ‘Doctors can use infrared thermal imaging to identify the rise and fall of qi and blood as well as physiological and pathological changes in the twelve meridians and the three parts and nine signs. In addition, the cloud platform can obtain the temperature change value of a predetermined part of the human body based on the infrared thermal imaging dynamic image, determine the state of the part based on the temperature change value, and generate a part state table based on the temperature change value of the part and the corresponding state of the part to facilitate the doctor's diagnosis. Furthermore, doctors can determine the process of the six meridians of the human body through the relationship between infrared thermal imaging dynamic images and meridian qi, further analyze the pathogenesis, pathology and related data of the internal organs and meridians, and make a syndrome-oriented diagnosis.’), it is considered reading on the limitation of “A system for measuring the strength and variation of Ying-nutrient Qi in a human body”. For the above consideration, see MPEP § 2114.II: "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differe