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/Restriction
This application contains claims directed to the following patentably distinct species:
Embodiments 1 and 2 of the different events, represented by the sleep apnea event or the fall event. The species are independent or distinct because they represent separate and unique ways to classify the event. In addition, these species are not obvious variants of each other based on the current record.
Applicant is required under 35 U.S.C. 121 to elect a single disclosed species, or a single grouping of patentably indistinct species, for prosecution on the merits to which the claims shall be restricted if no generic claim is finally held to be allowable. Currently, the independent claims are generic.
There is a serious search and/or examination burden for the patentably distinct species as set forth above because at least the following reason(s) apply: the embodiments/species are searched in different areas and/or are recognized divergent subject matter.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected species or grouping of patentably indistinct species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered nonresponsive unless accompanied by an election.
The election may be made with or without traverse. To preserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the election of species requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable on the elected species or grouping of patentably indistinct species.
Should applicant traverse on the ground that the species, or groupings of patentably indistinct species from which election is required, are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing them to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the species unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other species.
Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which depend from or otherwise require all the limitations of an allowable generic claim as provided by 37 CFR 1.141.
During a telephone conversation with Joseph Su on 6/16/26 a provisional election was made without traverse to prosecute the invention of embodiment 1, claims 2-3, 9-10, and 16. Affirmation of this election must be made by applicant in replying to this Office action. Claims 4, 11, and 17 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected 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 1-3, 5-10, 12-16, and 18-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claim 1, line 6, “via a decoder” is vague and inferentially included. It is unclear if the decoder is being positively recited/claimed or is meant as a functional/intended use recitation. If the decoder is meant to be positively claimed, it is suggested to state “an inference server having a decoder…”. Similarly, in line 7, “an anomaly detection model is vague and inferentially included. Since the model has further elements such as the encoder, it is suggested to state “an inference server having a decoder and an anomaly detection model…”. In the last paragraph, “by an error between…second compressed data” is vague and makes the claim incomplete for omitting an element to calculate/determine the error. It is suggested to first state the error is determined before it is used to determine the event, such as “determining an error between the first compressed data and the second compressed data, and determining an event of the physiological state or the motion state from the determined error”.
Similarly, claim 15 uses the same/similar language and is vague and indefinite.
In claim 2, line 3, “a sensing result” is vague as this term is used in claim 1, line 3 and it is unclear if they are the same element. If they are the same, then “the sensing result” should be used in claim 2. (Note that withdrawn claim 4 has this problem).
Similarly, claim 16 has this problem.
In claim 5, line 3, “obtained by a plurality of samples labeled as the event” is vague and makes the claim incomplete for omitting an element to perform this function. It is unclear if this is a positive recitation of a function of an element or an intended/function use recitation. It is suggested to first state an element to perform the “obtaining…”.
Similarly, claim 18 has this problem.
In claim 6, “via a lower power…LPWAN” is vague and inferentially including the LPWAN. It is suggested to first state the system “further comprises a” LPWAN before it is further used in the claim.
Similarly, claim 19 has this problem.
In claim 7, “a plurality of samples” is vague and inferentially included. It is unclear what element is providing the samples and if they are meant to be positively recited/claimed. In line 3, “based on an autoencoder” is vague and inferentially including the autoencoder. It is suggested to first state an element that has the autoencoder as the training is “based on” the autoencoder.
Similarly, claim 20 has these problems.
In claim 8, line 5, “based on an autoencoder” is vague and in the passive voice. Method steps should use active voice to positively recite a method step/function. It is unclear if the claim/prior art requires the autoencoder or not. In the last paragraph, “by an error between…second compressed data” is vague and unclear if the claim is positively reciting a method step to perform this function. It is suggested to first state the error is determined before it is used to determine the event, such as “determining an error between the first compressed data and the second compressed data, and determining an event of the physiological state or the motion state from the determined error”.
In claim 9, line 2, “is obtained…” is vague and in the passive voice and it is unclear if a method step is being positively recited/claimed. It is suggested to use active voice such as “obtaining the first compressed data by encoding…”. In line 2, “a sensing result” is vague as this term has been used previously in claim 8.
In claim 12, line 4, “is obtained…” is vague and in the passive voice.
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 1-3, 5-10, 12-16, and 18-20 are 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) the mental concept of generating data to compress, reconstruct, compress a second time and compare the first compression to the second compression to determine an event. This judicial exception is not integrated into a practical application because the combination of additional elements fails to integrate the judicial exception into a practical application. The generically recited computer elements (e.g. terminal device and inference server, or communication transceiver, memory and processor, etc.) do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. In addition, the transceiver does not add a meaningful limitation as it is merely a nominal or token extra-solution component of the claim and is nothing more than an attempt to generally link the system to a particular technological environment, and/or meant to gather/receive data for the abstract idea/mental concept. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered separately and in combination do not add significantly more to the exception. The additional limitations on store, transmit, and/or retrieve information from memory and these are well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP 2106.05.
The claims are directed to an abstract idea and/or the end result of the system/method, the essence of the whole, is a patent-ineligible concept. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they amount to a general computer performing a calculation. The claims are directed to an abstract idea, i.e. implementing the idea of generating data to compress, reconstruct, compress a second time and compare the first compression to the second compression to determine an event, such as may be done by a mental process, critical thinking, and/or paper and pencil, or done by a mathematical equation, with additional generic computer elements, or additional structure (e.g. terminal device and inference server, or communication transceiver, memory and processor, etc.) recited at a high level of generality that perform generic functions routinely used in the art, and do not add a meaningful limitation to the abstract idea because they would be routine in any computer implementation or in the relevant art. In addition, the transceiver does not add a meaningful limitation as it is merely a nominal or token extra-solution component of the claim and is nothing more than an attempt to generally link the system to a particular technological environment, and/or meant to gather/receive data for the abstract idea/mental concept. Thus, the recited generic computer components perform no more than their basic computer functions. These additional elements are well‐understood, routine and conventional limitations (see cited document(s)) that amount to mere instructions or elements to implement the abstract idea. In addition, the end result of the system/method, the essence of the whole, is a patent-ineligible concept. See the recent decisions by the U.S. Supreme Court, including Alice Corp., Myriad, and Mayo. In addition, the current claims are similar to other recent court decisions dealing with analyzing, comparing, and/or displaying data, such as Electric Power Group, Digitech, Grams, and Classen.
Based on the plain meaning of the words in the claim, the broadest reasonable interpretation of the claims (e.g. claim 15 having a transceiver, memory and processor, corresponding method claim 8, and claim 1 having a terminal device and inference server that may be accomplished by a transceiver, memory, and processor) is a system having a memory and processor, wherein the processor is programmed with executable instructions to perform the calculations/mental process/critical thinking. The claims do not impose any limits on how the sensing result information is received by the processor, and thus this step covers any and all possible ways in which this can be done, for instance by typing the information into the system, or by the system obtaining the information from another device. The claim also does not impose any limits on how the computations are accomplished, and thus it can be performed in any way known to those of ordinary skill in the art.
The calculations are simple enough to be practically performed in the human mind or through critical thinking. Note that even if most humans would use a physical aid (e.g., pen and paper, a slide rule, or a calculator) to help them complete the recited calculation, the use of such physical aid does not negate the mental nature of this limitation. Nor does the recitation of a processor in the claim negate the mental nature of this limitation because the claim here merely uses the processor as a tool to perform the otherwise mental process.
The memory and processor are recited so generically (no details whatsoever are provided other than that they are a memory and processor) that they represent no more than mere instructions to apply the judicial exception on a computer. These limitations can also be viewed as nothing more than an attempt to generally link the use of the judicial exception to the technological environment of a computer. In addition, the transceiver does not add a meaningful limitation as it is merely a nominal or token extra-solution component of the claim and is nothing more than an attempt to generally link the system to a particular technological environment, and/or meant to gather/receive data for the abstract idea/mental concept. It should be noted that because the courts have made it clear that mere physicality or tangibility of an additional element or elements is not a relevant consideration in the eligibility analysis, the physical nature of these computer components does not affect this analysis. See MPEP 2106.05(I) for more information on this point, including explanations from judicial decisions including Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 224-26 (2014).
Although the processor or claim limitations may fall under several exceptions (e.g., a mathematical concept-type abstract idea or a mental process-type abstract idea), there are no bright lines between the types of exceptions. See, e.g., MPEP 2106.04(I). Thus, it is sufficient for the examiner to identify that the limitations align with at least one judicial exception, and to conduct further analysis based on that identification.
The limitations of the claims are carried out by the processor, transceiver, and the memory. No element has been set forth to sense the sensing result of a physiological/motion state signal, and the only additional elements are the memory and transceiver, where the processor performs the necessary software tasks so that the result of the abstract mental process is just data/an event determination. The memory limitation represents extra-solution activity because it is a mere nominal or tangential addition to the claim. In addition, the transceiver does not add a meaningful limitation as it is merely a nominal or token extra-solution component of the claim and is nothing more than an attempt to generally link the system to a particular technological environment, and/or meant to gather/receive data for the abstract idea/mental concept. See MPEP 2106.05(g), discussing limitations that the Federal Circuit has considered to be insignificant extra-solution activity. Even when viewed in combination, the additional elements in this claim do no more than automate the mental processes (e.g., the mental computation of generating data to compress, reconstruct, compress a second time and compare the first compression to the second compression to determine an event, etc.), using the computer components as a tool. While this type of automation may improve the life of a practitioner/physician (by minimizing or eliminating the need for mentally computing metrics), there is no change to the computers and other technology that are recited in the claim as automating the abstract ideas, and thus this claim cannot improve computer functionality or other technology. See, e.g., Trading Technologies Int’l v. IBG, Inc., 921 F.3d 1084, 1093 (Fed. Cir. 2019) (using a computer to provide a trader with more information to facilitate market trades improved the business process of market trading, but not the computer) and the cases discussed in MPEP 2106.05(a)(I), particularly FairWarning IP, LLC v. Iatric Sys., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (accelerating a process of analyzing audit log data is not an improvement when the increased speed comes solely from the capabilities of a general-purpose computer) and Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055 (Fed. Cir. 2017) (using a generic computer to automate a process of applying to finance a purchase is not an improvement to the computer’s functionality). Accordingly, the claim as a whole does not integrate the recited judicial exception into a practical application and the claim is directed to the judicial exception.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The closest prior art of Bhograj et al shows the claimed limitations of a terminal device sending first compressed data, with an inference server that decodes/reconstructs the first compressed data, then re-compresses the reconstructed data to provide second compressed data, but does not determine an event by an error between the first and second compressed data.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to George Robert Evanisko whose telephone number is (571)272-4945. The examiner can normally be reached M-F 8AM-5PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Klein can be reached at 571-270-5213. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/George R Evanisko/ Primary Examiner, Art Unit 3792 6/23/26
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