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 .
Claims 1-2 and 6-9 are have been amended. Claims 3-4 were previously withdrawn in view of the restriction, but have been currently amended. Claims 10-20 have been cancelled. Claims 21 and 22 are new.
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 1-2, 6-9 and 21-22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 1
Claims 1-2, 6-9 and 21-22 are drawn to a method for remote monitoring of a patient which is within the four statutory categories (i.e. process).
Step 2A | Prong One
Claims 1-2, 6-9 and 21-22 (Group I) recite a computer-implemented method of remote monitoring a patient, the method comprising:
using a processing device executing a control module stored in memory to capture data (MPEP § 2106.05(f), apply it; MPEP § 2106.05(g), insignificant extra-solution activity) monitoring the patient under a first modality, wherein the first modality blocks identification of the patient;
using the processing device (MPEP § 2106.05(f), apply it) to determine whether an event is detected by the data under the first modality, wherein the event includes at least one of a patient fall, the patient exiting a bed, or the patient absconding from a patient environment; and
when an event is detected, using the processing device to transfer transmission of the data via a network interface to a device (MPEP § 2106.05(f), apply it; MPEP § 2106.05(g), insignificant extra-solution activity) authorized to view protected health information and to switch monitoring the patient under a second modality for capturing data, wherein the second modality is different from the first modality, wherein the second modality includes capturing images of the patient, and wherein the first modality reduces bandwidth for transmitting and storing the data compared to the second modality.
The bolded limitations, given the broadest reasonable interpretation, cover a certain method of organizing human activity because it recites fundamental economic practices, commercial or legal interactions, and/or managing personal behavior or relationships or interactions between people. Any limitations not identified above as part of the abstract idea are deemed “additional elements,” and will be discussed in further detail below. Examiner notes that independent claim 1 does not contain any additional elements.
Dependent Claims 2, 6-9 and 21-22 include other limitations, for example Claim 2 recites wherein the first modality includes capturing light detection and ranging (lidar) data to detect a location of the patient inside the patient environment, Claim 6 recites receiving a request from the patient to start a telehealth consultation; obtaining a live image of the patient; obtaining a stored image of the patient; comparing the live image of the patient with the stored image of the patient; and when the live image of the patient matches the stored image of the patient, initiating the telehealth consultation with a clinician remotely located with respect to the patient, Claim 7 recites when the live image of the patient does not match the stored image of the patient, terminating the telehealth consultation, Claim 8 recites wherein comparing the live image of the patient with the stored image of the patient includes using facial recognition technology, Claim 9 recites wherein the stored image of the patient is obtained from an electronic medical record of the patient, Claim 21 recites wherein the control module is a camera control module that controls operation of a camera for capturing the data, and Claim 22 recites wherein the data captured under the first modality does not contain protected health information of the patient, but these only serve to further limit the abstract idea, and hence are nonetheless directed towards fundamentally the same abstract idea as independent Claim 1.
Step 2A | Prong Two
Furthermore, Claims 1-2, 6-9 and 21-22 are not integrated into a practical application because the additional elements (i.e. the limitations not identified as part of the abstract idea) amount to no more than limitations which:
amount to mere instructions to apply an exception – for example, the recitation of processing device and device, which amounts to merely invoking a computer as a tool to perform the abstract idea, e.g. see paragraphs [0026-0027] of the present Specification, see MPEP 2106.05(f); and
add insignificant extra-solution activity to the abstract idea – for example, the recitation of transmitting and storing data, which amounts to an insignificant application, see MPEP 2106.05(g).
Step 2B
Furthermore, the Claims do not include additional elements that are sufficient to amount to “significantly more” than the judicial exception because, the additional elements (i.e. the elements other than the abstract idea) amount to no more than limitations which:
amount to elements that have been recognized as well-understood, routine, and conventional activity in particular fields, as demonstrated by:
The Specification expressly disclosing that the additional elements are well-understood, routine, and conventional in nature:
paragraphs [0026-0027] of the Specification discloses that the additional elements (i.e. processing device, device) comprise a plurality of different types of generic computing systems that are configured to perform generic computer functions (i.e. transmitting and storing data) that are well-understood, routine, and conventional activities previously known to the pertinent industry (i.e. healthcare);
Relevant court decisions: The following are examples of court decisions demonstrating well-understood, routine and conventional activities, e.g. see MPEP 2106.05(d)(II):
Receiving or transmitting data over a network, e.g. see Intellectual Ventures v. Symantec – similarly, the current invention receives image/patient data, and transmits the data to a device over a network, for example the Internet;
Electronic recordkeeping, e.g. see Alice Corp v. CLS Bank – similarly, the current invention merely recites the storing of control data on a database and/or electronic memory.
Dependent Claims 2, 6-9 and 21-22 include other limitations, but none of these functions are deemed significantly more than the abstract idea because they do not recite any additional elements beyond those recited in the independent claim.
Thus, taken alone, the additional elements do not amount to “significantly more” than the above-identified abstract idea. Furthermore, looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually, and there is no indication that the combination of elements improves the functioning of a computer or improves any other technology, and their collective functions merely provide conventional computer implementation.
Therefore, whether taken individually or as an ordered combination, Claims 1-2, 6-9 and 21-22 are nonetheless rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-2 and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson (U.S. Pub. No. 2012/0154582 A1) in view of Johnson and del Carpio (U.S. Pub. No. 2022/0280075 A1) (hereinafter del Carpio to avoid confusion between Johnson ‘582).
Regarding claim 1, Johnson discloses a method of remote monitoring a patient, the method comprising:
using a processing device executing a control module stored in memory to capture data monitoring the patient under a first modality, wherein the first modality blocks identification of the patient (Paragraphs [0053], [0076], [0106], [0129] and [0157] discuss monitoring the patient using optical sensors including LIDAR and cameras, construed as blocking the identification of the patient using a processing system that has a memory storing code to be executed.);
using the processing device to determine whether an event is detected by the data under first modality, wherein the event includes at least one of a patient fall, the patient exiting a bed, or the patient absconding from a patient environment (Paragraph [0043], [0086] and [0129] discuss using the optical sensors to detect an event using the processing system, including breaches in patient care protocols and falls.);
but Johnson does not appear to explicitly disclose:
when an event is detected, using the processing device to transfer transmission of the data via a network interface to a device authorized to view protected health information and to switch monitoring the patient under a second modality for capturing the data, wherein the second modality is different from the first modality, wherein the second modality includes capturing images of the patient, and wherein the first modality reduces bandwidth for transmitting and storing the data compared to the second modality.
del Carpio teaches when an event is detected, using the processing device to transfer transmission of the data via a network interface to a device authorized to view protected health information and to switch monitoring the patient under a second modality, wherein the second modality is different from the first modality wherein the second modality includes capturing images of the patient, and wherein the first modality reduces bandwidth for transmitting and storing the data compared to the second modality (Paragraphs [0021], [0029], [0039-0042] and [0048] discuss using processing device to use a secondary camera to capture a different or more detailed view of the patient in response to detecting an event and transmitting data over a network to the viewer client device. Examiner notes that the limitation of “wherein the first modality reduces bandwidth for transmitting and storing the data compared to the second modality” is merely claiming an intended result, and therefore, is not being given patentable weight.).
Therefore, it would have been obvious to one of ordinary skill in the art of patient monitoring before the effective filing date of the claimed invention to modify Johnson to include monitoring the patient under a second modality when an event is detected using a processing device, as taught by del Carpio, in order to provide “enhanced or supplemental monitoring (del Carpio, Paragraph [0048]).
Regarding claim 2, Johnson discloses wherein the first modality includes capturing light detection and ranging (lidar) data to detect a location of the patient inside a patient environment (Paragraph [0053] discusses wherein the modalities in LIDAR data to detect the location of the patient in the patient environment.).
Regarding claim 21, Johnson discloses wherein the control module is a camera control module that controls operation of a camera for capturing the data (Paragraphs [0052-0053] discuss controlling the sensors, including cameras, for capturing data.).
Regarding claim 22, Johnson discloses wherein the data captured under the first modality does not contain protected health information of the patient (Paragraphs [0053], [0076], [0106], [0129] and [0157] discuss monitoring the patient using optical sensors including LIDAR, construed as blocking the identification of the patient and not containing any protected health information of the patient.).
Claims 6 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson in view of del Carpio, and in further view of Joao (U.S. Pub. No. 2019/0096534 A1).
Regarding claim 6, Johnson does not appear to disclose:
receiving a request from the patient to start a telehealth consultation;
obtaining a live image of the patient;
obtaining a stored image of the patient;
comparing the live image of the patient with the stored image of the patient; and
when the live image of the patient matches the stored image of the patient, initiating the telehealth consultation with a clinician remotely located with respect to the patient.
Joao teaches:
receiving a request from the patient to start a telehealth consultation (Paragraph [0330] discusses a patient initiating a telehealth consultation.);
obtaining a live image of the patient (Paragraph [0333] discuses that at the start of the call, the provider can take a picture or photograph of the patient to verify their identify.);
obtaining a stored image of the patient (Paragraphs [0211] and [0333] discuss that at the start of the call, the provider can take a picture or photograph of the patient to verify their identify.);
comparing the live image of the patient with the stored image of the patient (Paragraphs [0211] and [0333] discuss that at the start of the call, the provider can take a picture or photograph of the patient to verify patient’s identify by comparing to a previous picture.); and
when the live image of the patient matches the stored image of the patient, initiating the telehealth consultation with a clinician remotely located with respect to the patient (Paragraph [0333] discusses verifying the patient’s identity prior to starting the telehealth visit.).
Therefore, it would have been obvious to one of ordinary skill in the art of patient monitoring before the effective filing date of the claimed invention to modify Johnson to include verifying the patient’s identity, as taught by Joao, in order to provide “facilitate and/or to conduct remote or virtual conferences, discussions, and/or consultations, via and/or through the use of video calls, video chat sessions, and/or videoconferences, with and between an individual, a patient, and/or a caregiver for the individual or the patient, a healthcare provider, a healthcare insurer or a healthcare payer, and/or an intermediary (Joao, Paragraph [0082]).
Regarding claim 9, Johnson does not appear to explicitly disclose wherein the stored image of the patient is obtained from an electronic medical record of the patient.
Joao teaches wherein the stored image of the patient is obtained from an electronic medical record of the patient (Paragraphs [0040] and [0211-0212] discuss the patient’s electronic medical record includes all information related to the patient and captured during the session in the database, include pictures of the patient.).
Therefore, it would have been obvious to one of ordinary skill in the art of patient monitoring before the effective filing date of the claimed invention to modify Johnson to include store pictures of the patient in the patient’s electronic medical record, as taught by Joao, in order to allow for “later retrieval and use as needed or desired by any provider, payer, patient, individual, or intermediary (Joao, Paragraph [0212]).”
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson in view of del Carpio and Joao, and in further view of Fish (U.S. Pub. No. 2021/0407668 A1).
Regarding claim 7, Johnson does not appear to explicitly disclose when the live image of the patient does not match the stored image of the patient, terminating the telehealth consultation.
Fish teaches when the live image of the patient does not match the stored image of the patient, terminating the telehealth consultation (Paragraphs [0108-0109] discuss terminating the remote access session if the user is not authenticated.).
Therefore, it would have been obvious to one of ordinary skill in the art of patient monitoring before the effective filing date of the claimed invention to modify Johnson to include terminating the session if the patient’s identity is not verified, as taught by Fish, in order to confirm the identity of the user before allowing access (Fish, Paragraph [0109]).
Regarding claim 8, Johnson does not appear to explicitly disclose wherein comparing the live image of the patient with the stored image of the patient includes using facial recognition technology.
Fish teaches wherein comparing the live image of the patient with the stored image of the patient includes using facial recognition technology (Paragraph [0109] discusses using facial recognition to verify a patient’s identity.).
Therefore, it would have been obvious to one of ordinary skill in the art of patient monitoring before the effective filing date of the claimed invention to modify Johnson to include facial recognition, as taught by Fish, in order to confirm the identity of the user before allowing access (Fish, Paragraph [0109]).
Response to Arguments
Applicant's arguments filed 04/07/2026 have been fully considered but they are not persuasive.
Claim Rejections – 35 U.S.C. § 101
Applicant asserts that the claims result in a technical solution because the instant specification states that “switching between the first modality and second modalities for monitoring the patient in the patient environment PE is explicitly described as improving computer network and data transmission technology by providing a technical solution to bandwidth and storage limitations in remote monitoring systems (Remarks, pages 4-5).” Examiner disagrees with this assertion as none of the devices used in the claimed invention are improved or appear to be improved as a result of it. The improvement, if any, is to the abstract idea itself. The additional elements recited in the claim, including the processing device and device are not improved as a result of the claimed invention.
With respect to Step 2A, Prong Two, Applicant asserts that “the method reduces bandwidth consumption by monitoring patients under a first modality that blocks identification of the patient, switching to a second, higher-bandwidth image-capturing modality only when specific events are detected (Remarks, page 5).” Examiner maintains this is an improvement to the abstract idea itself. Sending less data is not an improvement. The processing device and device are not improved as a result of the claimed invention.
Applicant further asserts that “the method implements automated PHI-based transmission control via the network interface, transferring data to devices authorized to view protected health information only when events are detected (Remarks, page 5).” Again, none of the devices are improved by this. Sending data is well-known, routine and conventional activity as indicated in the above rejection.
MPEP § 2106.04(d)(I) states limitations that the courts have also identified limitations that did not integrate a judicial exception into a practical application:
Merely reciting the words "apply it" (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f);
Adding insignificant extra-solution activity to the judicial exception, as discussed
in MPEP § 2106.05(g); and
Generally linking the use of a judicial exception to a particular technological
environment or field of use, as discussed in MPEP § 2106.05(h).
The recited additional elements fall under the above, rather than resulting in a technical improvement as alleged by Applicant.
With respect to Step 2B, Applicant asserts that the claims recite significantly more than the abstract idea because they are “not a conventional or routine implementation because conventional patient monitoring systems either sacrifice privacy by continuously transmitting captured video that can potentially identify a patient or sacrifice alert specificity by avoiding image/video capture altogether.” For Step 2B, Examiners should answer this question by first identifying whether there are any additional elements (features/limitations/steps) recited in the claim beyond the judicial exception(s), and then evaluating those additional elements individually and in combination to determine whether they contribute an inventive concept (i.e., amount to significantly more than the judicial exception(s)). See MPEP § 2106.05(II). Per the above analysis, the claims do not result in significantly more than the abstract idea itself as they are recited at an “apply it” level or recite well-understood, routine and conventional activity. Applicant is arguing that portions of the abstract idea result in a practical application of the abstract idea, which is not persuasive.
Examiner notes Applicant’s reminder regarding the August 2025 memo, however, the claims remain rejected as being directed towards ineligible subject matter.
Claim Rejections – 35 U.S.C. § 103
Applicant’s arguments have been considered, but are moot in view of the updated rejection in response to the amendments.
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 Rachelle Reichert whose telephone number is (303)297-4782. The examiner can normally be reached M-F 9-5 MT.
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/RACHELLE L REICHERT/Primary Examiner, Art Unit 3686
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