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 .
Response to Amendment
Receipt is acknowledged of applicant's amendment filed on July 15, 2009. Claims 8 and 19 are cancelled. Claims 21-22 are new. Claims 1-7, 9-18 and 20-22 are currently pending and an action on the merits is as follows.
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 1-7, 9-18 and 20-22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim recites prompting the user to position the acoustic sensing unit on the patient and generating the output representing the patient’s lungs.
The limitation of prompting the user to position the acoustic sensing unit on the patient is a limitation that falls under “Certain methods of organizing human activity”. That is, other than the implied nature that these are instructions provide by the device nothing indicates that this is not just a step performed a person. Accordingly, the claim recites an abstract idea. Additionally, the limitation of generating the output representing the patient’s lungs, as drafted, is a process that, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components. That is, other than reciting “a data capture and processing unit”, the claims are direct to concepts relating to organizing information in a way that can be performed mentally or analogous to human mental work and nothing in the claim element precludes the steps from practically being performed in the mind. For example, but for the processing unit, “generating” in the context of this claim encompasses the user formulating an observation or evaluation based on the collected signals and sketching it. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea.
This judicial exception is not integrated into a practical application. In particular, the claim recites the additional elements of capturing an acoustic signal and capturing a camera image. These steps involve mere data gathering with generic sensor devices and amount to insignificant extra-solutional activity, specifically pre-solutional activity. The claims also recite outputting an acoustic image but this is extra solutional activity, specifically post-solutional output or display. Additionally, the data capture and processing unit is recited at a high-level of generality such that it amounts to no more than mere instructions to apply the exception using generic computer components. Accordingly, these additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. Similarly the dependent claims do not include additional elements that amount to significantly more. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept and well-understood, routine and conventional activity is not sufficient to amount to significantly more than the abstract idea itself. The claim is not patent eligible.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: acoustic sensing unit and data capture and processing unit in claims 1-7 and 9-20 which are interpreted as electronic stethoscope and mobile display device, phone or tablet, respectively.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 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 1-7, 9 and 21 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 output in the last line but there is no antecedent basis for this. It is assumed this means the acoustic image.
Claims 3 and 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. The claim recites synchronizing the acoustic signals but it is unclear if this is synchronizing them to each other or synchronizing them to some other time point or parameter. It is assumed that they are synchronized with each other.
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) 1-7, 9-18 and 20-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Randall et al. US 2023/0270389 in view of Kushnir et al. US 2003/0139679.
Regarding claims 1 and 10, Randall discloses an image based lung auscultation system comprising
an acoustic sensing unit positionable on a patient and having a controller and an acoustic sensor to capture and communicate an acoustic signal from a respiratory cycle of the patient ([¶69,72] the sensing unit or electronic stethoscope has a controller and sensor), and
a data capture and processing unit including ([¶114] mobile platform or web portal):
a camera operable by a user to identify a target position of the acoustic sensing unit on the patient ([¶141,178,195] mobile platform has a camera for detecting the sensing unit and positioning),
a user interface including user inputs to operate the data capture and processing unit, a display, and a processor and a memory device storing instructions that ([¶114] the computer or mobile phone has an input a processor and memory), when executed by the processor, receive the user inputs, display an image generated by the camera on the display, display real-time information of the acoustic signal on the display, and display an output representing the patient's lungs on the display ([FIG28][¶198-201] the images, signal information and anatomical model can be displayed), and
a controller including a processor and a memory device storing instructions that, when executed by the processor, receive and store the acoustic signal from the acoustic sensing unit, generate real-time information of the acoustic signal, generate the image of the patient's lung function, and communicate the real-time information and the output to the user interface ([¶197,304,374] collected signals can be displayed and observed in the real-time).
Randall does not specifically disclose the output is an acoustic image. Kushnir teaches a similar acoustic based lung assessment device that displays an acoustic image as part of its output ([¶47]). Therefore it would have been obvious to one of ordinary skill in the art at the time of filing to combine the device of Randall with the display of Kushnir in order to visualize the absence of airflow ([¶51]).
Regarding claims 2, 14 and 21, Randall discloses the acoustic signal includes more than one acoustic signal ([¶307] both microphones can record signals at the same time).
Regarding claims 3, 15 and 22, Randall discloses the memory device of the controller further stores instructions that, when executed by the processor, synchronizes the more than one acoustic signal ([¶306,307] the signals are recorded simultaneously so they are synchronized as no other limitations regarding the process of the synchronizing are recited).
Regarding claims 4 and 16, Randall discloses the acoustic sensing unit is an electronic stethoscope ([¶69,72] the sensing unit or electronic stethoscope has a controller and sensor).
Regarding claims 5 and 17, Randall discloses the acoustic sensing unit includes an acoustic sensor and a controller, wherein the controller includes a processor and a memory device storing instructions that, when executed by the processor, cause the acoustic sensor to capture the acoustic signal of the patient and communicate the acoustic signal to the controller of the data capture and processing unit ([¶69,72] the sensing unit or electronic stethoscope has a controller and sensor. [¶141,178,195] mobile platform has a processor for analyzing the signals).
Regarding claims 6 and 18, Randall discloses the data capture and processing unit is a mobile device ([¶144] the sensing device is connected to a computing platform or mobile phone).
Regarding claims 7 and 11, Randall discloses the memory device of the user interface further includes instructions, that, when executed by the processor, displays a guide on the display ( [¶106,140,188] the device guides the user through positioning and testing).
Regarding claims 9 and 20, Randall discloses the acoustic sensing unit and the data capture and processing unit are wirelessly connected ([¶125,137]).
Regarding claim 12, Randall discloses the method further comprising the step of depicting real-time information of the acoustic signal on a display of the data capture and processing unit ([¶197,304,374] collected signals can be displayed and observed in the real-time).
Regarding claim 13, Randall discloses the step of depicting the output representing the patient’s lungs on a display of the data capture and processing device ([¶197,304,374] collected signals can be displayed and observed in the real-time).
Response to Arguments
Applicant's arguments filed 2/2/26 have been fully considered but they are not persuasive.
Regarding Applicant’s arguments against the 101 rejection, Examiner respectfully disagrees. The output of the acoustic image cannot be performed in the human mind but this is not part of the judicial exception that falls under the mental process grouping. The output in this case is extra-solutional to the judicial exception.
Applicant’s arguments, see pg. 7, with respect to the rejection(s) of claim(s) 1-20 under 35 USC 102 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Kushnir.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL ANTHONY CATINA whose telephone number is (571)270-5951. The examiner can normally be reached 10-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert Chen can be reached at 5712723672. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL A CATINA/Examiner, Art Unit 3791 /TSE CHEN/Supervisory Patent Examiner, Art Unit 3791
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