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, 6-8, and 14-15 are hereby under examination.
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, 6-8, and 14-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more.
Step 1 of the subject matter eligibility test (see MPEP 2106.03).
Claims 14-15 are directed to a “device”, which describes one of the four statutory categories of patentable subject matter, i.e., a machine. Claims 1-2, 6-8 are directed to a “method”, which describes one of the four statutory categories of patentable subject matter, i.e., a process.
Step 2A of the subject matter eligibility test (see MPEP 2106.04)
Prong one: Claims 1-2, 6-8, and 14-15 recite abstract idea, as follows:
As to claim 1: “obtaining, using a set of one or more processors, sensor data comprising one or more of a sensor signal received from a force sensor worn by a patient and descriptive metadata of the sensor signal; determining, using the set of one or more processors, a breathing event of the patient is a cough or another breathing event based on the sensor data by utilizing one or more features of the sensor data to identify a pair of signal peaks occurring within a predetermined time period and a ratio of slopes relating one of the pair of signal peaks prior to a trough and another of the pair of signal peaks following the trough; and providing, using the set of one or more processors, an indication of a cough.”
Claims 14-15 substantially recite similar claims.
Based on the broadest reasonable interpretation, obtaining sensor data received from a force sensor, determining between a cough and another breathing event, and providing an indication of cough can be done mentally with the aid of a pen and paper. A person can obtain sensor data on a piece of paper in graphical form of a sensor data from a force sensor, and look at the graph to distinguish between a cough and another breathing event, and provide an indication of the cough by either verbally or graphically indicating where the cough on the graph is located.
Prong two: Claims 1-2, 6-8, and 14-15 do not include additional elements that integrate the abstract into a practical application.
The additional elements are as follows:
A force sensing capacitor (claims 1, 14-15)
a set of one or more processors (claims 14-15)
a non-transitory storage device (claim 15)
Reciting a computer or computer components (processors, non-transitory storage device) simply amounts to reciting a general processor to perform general functions of a computer as above to perform the mental processes of obtaining sensor data received from a force sensor, determining between a cough and another breathing event, and providing an indication of cough are mere instructions to apply the judicial exception to general technology. Such elements do not integrate the exception into a practical application since they are merely instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f).
Reciting force sensor, force sensing capacitor, or wearable force sensor do not integrate the exception into a practical application since it is merely insignificant extra-solution activity to the judicial exception, e.g., mere data gathering at a higher level of generality.
Therefore, claims 1-2, 6-8, and 14-15 are ineligible at step 2A, prong two.
Step 2B of the subject matter eligibility test (see MPEP 2106.05)
Reciting a computer or computer components (processors, non-transitory storage device) simply amounts to reciting a general processor to perform general functions of a computer as above to perform the mental processes of obtaining sensor data received from a force sensor, determining between a cough and another breathing event, and providing an indication of cough are mere instructions to apply the judicial exception to general technology.
Such elements do not qualify as significantly more because this limitation is simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Reciting force sensing capacitor does not integrate the exception into a practical application since it is merely insignificant extra-solution activity to the judicial exception, e.g., mere data gathering at a higher level of generality.
U.S. Patent Application Publication No. US 20170135417 A1 (previously cited) discloses that wearable capacitive force sensors are conventional [0003], “various fitness trackers, smart watches, and similar devices are increasingly common and becoming more popular. Additionally, wearable technologies are increasingly being integrated into various other articles such as articles of clothing. These wearable technologies often rely on sensors such as force sensitive resistor and/or force sensitive capacitive sensors”
In view of the above, the additional elements individually do not integrate the exception into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
Therefore, claims 1-2, 6-8, and 14-15 are ineligible at step 2B.
Allowable Subject Matter
Claims 1-2, 6-8, and 14-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more. If the 101 rejections are overcome, the following is a statement of reasons for the indication of allowable subject matter:
the closest art of record is US20120302921A1 (Gavriely et. al), previously cited and hereto referred as Gavriely. As to claims 1 and 14-15, Garvriely teaches obtaining, using a set of one or more processors, sensor data comprising one or more of a sensor signal received from a force sensing capacitor worn by a patient and descriptive metadata of the sensor signal ([0033], "When the person coughs, a sudden change in the tracheal dimensions causes an abrupt transient change in the electrical impedance…an abrupt transient change in the electrical impedance"; the examiner interprets abrupt transient change in the electrical impedance as the metadata)
determining, using the set of one or more processors, if a breathing event of the patient is a cough or another breathing event based on the sensor data ([0032], "This figure demonstrates the discrimination ability of this new method to differentiate between genuine cough, generated by the index subject and cough-like noises"); and
providing, using the set of one or more processors, an indication of a cough ([0025], "register 10 that keeps log of the coughing activity detected").
However, Gavriely does not teach determining if a breathing event of the patient is a cough or another breathing event based on the sensor data by utilizing one or more features of the sensor data to identify a pair of signal peaks occurring within a predetermined time period and a ratio of slopes relating one of the pair of signal peaks prior to a trough and another of the pair of signal peaks following the trough, alone or in combination with other steps or elements.
Response to Arguments
Applicant's arguments filed 2/3/2026 have been fully considered but they are not fully persuasive.
The previous art rejections are overcome by amendment of the claims. The art rejections are withdrawn. However, as to the 101 rejections, Applicant alleges “With respect to the § 101 rejections, the claimed functionality, particularly as amended, cannot practically be performed in the mind or with pen and paper”, the examiner disagrees. Signals can be interpreted on paper either by a table, graph, or mathematical formula. Modification and analysis of the signals can also be done on paper by using mental calculations or arithmetic on paper. Applicant also alleges “specific improvements in accuracy for real-time remote respiratory monitoring”. However, the improvements must be for function of the computer, not improvement to the judicial exception itself. As such, the 101 rejections are maintained.
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 ELINA S JANG whose telephone number is (571)272-7019. The examiner can normally be reached M-F 9:00 am - 6:00 pm.
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/ELINA SOHYUN JANG/Examiner, Art Unit 3791
/JENNIFER ROBERTSON/Supervisory Patent Examiner, Art Unit 3791
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