DETAILED ACTION
Acknowledgements
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-20 are pending; claims 14-17 are withdrawn.
This action is Final.
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.
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) or pre-AIA 35 U.S.C. 112, sixth paragraph, 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) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(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) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, 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) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. 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) or pre-AIA 35 U.S.C. 112, sixth paragraph, 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) 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: image capturing module in claims 1, 18-19.
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 Objections
Claims 1, 18 are objected to because of the following informalities: claim 1 uses “and” 5 times, it seems that the second and third “and” should be removed and the elements separated by the second and fourth and have a semicolon. Claim 18 the “and” following alarm device should be removed.
Appropriate correction is required.
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 11-13 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 11 recites the limitation "the plurality of pre-saved respiratory models categorized by age, sex, or weight". There is insufficient antecedent basis for this limitation in the claim.
Claims 12-13 are rejected for depending on a rejected claim.
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 1-13, 18-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more. The claim(s) recite(s):
Claim 1
monitor the images and detect changes in a speckle pattern of the optical pattern from more than one light spot of the plurality of light spots (mathematical concepts);
average the change of the speckle pattern in the more than one light spot to differentiate between changes caused by a respiration of the subject and other non- respiratory causing changes in the speckle pattern (mathematical concepts/mental processes);
determine and monitor a respiration rate of the subject based on changes to the optical pattern reflecting from the surface (mathematical concepts/mental processes)
determine if the monitored respiration rate is within a threshold variance (mathematical concepts/mental processes)
Claim 18
monitor the images to determine a baseline characteristic of a subject's respiration over an initial period of time based on changes to the optical pattern reflecting from the surface corresponding to amplitudes and frequency of movements during exhalation and inhalation (mathematical concepts);
average the baseline characteristic with a pre-saved model to develop a hybrid model (mathematical concepts/mental processes);
determine if the monitored respiration rate is within a threshold variance from the hybrid model (mathematical concepts/mental processes)
These claim limitations fall within the identified groupings of abstract ideas:
Mathematical Concepts:
mathematical relationships
mathematical formulas or equations
mathematical calculations
Mental Processes
concepts performed in the human mind (including an observation, evaluation, judgment, opinion)
This judicial exception is not integrated into a practical application because:
Under the step 2A, analysis is conducted on the additional features of the claim. Under this analysis, the additional features beyond the judicial exception are:
Claim 1
an optical projector configured to project an optical pattern and an image capturing module configured to capture images of the optical pattern reflecting from a surface (limitations related to data gathering, insignificant pre-solution activities)
an alarm device (generic structure related to post-solution activities)
a processor and a memory including instructions that, when executed by the processor, cause the processor to (generic computer structures used as a tool)
upon a determination that the monitored respiration rate is outside of the threshold variance, generate a notification with the alarm device (generic structure related to post-solution insignificant activities)
Claim 18
an optical projector including a laser configured to project an optical pattern that includes at least one spot and an image capturing module configured to capture images of the optical pattern reflecting from a surface (limitations related to data gathering, insignificant pre-solution activities)
an alarm device (generic structure related to post-solution activities)
a processor and a memory including instructions that, when executed by the processor, cause the processor to (generic computer structures used as a tool)
upon a determination that the monitored respiration rate is outside of the threshold variance of the hybrid model, generate a notification with the alarm device (generic structure related to post-solution insignificant activities)
These features in the claim do not integrate the exception into a practical application of the exception as the additional elements in the claim do not apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is no more than a drafting effort designed to monopolize the exception.
Limitation concepts that are indicative of integration into a practical application:
Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP 2106.05(e) and Vanda Memo
Limitation concepts that are not indicative of integration into a practical application:
Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f)
Adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g)
Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h)
Under Step 2B, the claim limitations are evaluated for an inventive concept. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, when considered separately and in combination, they do not add significantly more to the exception. Analyzing the additional claim limitations individually, the additional limitation that is not directed to the abstract idea are the same as those identified above in step 2A. Such limitations related to the illumination and image capture are recognized by the courts as routine data gathering in order to input data to the mathematical algorithm/mental process, and thus, do not add a meaningful limitation to the method as it would be routinely used by those of ordinary skill in the art in order to apply the mathematical algorithm. In addition, these sensor structures are known from Zhang et al. (Zhang, US 2020/0156648), Lee (KR101742698B1), Lintz et al. (Lintz, US 2018/0260640), Caron et al. (Carmon, US 2015/0157224), and in general are claimed generically producing the expected light reflected data which can include speckle/photoplethysmographic (PPG) related data signals. The computer structures cited above are claimed as performing generic computer functions routinely used in computer applications, including alarms. Generic computer components recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system. The additional limitations recited in the dependent claims are directed to conventional locations and features of the claimed data gathering elements, and to more details in data analysis of the data gathered and processed (A more specific abstraction is still an abstraction). Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. Therefore, analyzing the claims as an ordered combination under the Mayo/Alice analysis the features claimed are directed to patent ineligible limitations.
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 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 1-2, 7-10 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (Zhang, US 2020/0156648) in view of Carmon et al. (Carmon, US 2015/0157224) and Verkruijsse et al. (Verkruijsse, US 2024/0032810).
Regarding claim 1, Zhang teaches a monitoring system for measuring and monitoring a respiratory rate of a subject (see at least title, abstract, Figure 1), the monitoring system comprising:
an optical projector configured to project an optical pattern with a plurality of light spots (see at least Figure 1 110, [0060]-[0061], plurality of light spots reads on the light illuminated on a ROI which is not a single point on the face);
an image capturing module configured to capture images of the optical pattern reflecting from a surface (see at least Figure 1 120, [0060], [0062]-[0063], [0092]);
an alarm device (see at least Figure 2 180, [0018], [0060], [0092]);
a processor (see at least [0026], [0046], [0048], [0050]-[0051], [0106]); and
a memory including instructions that, when executed by the processor, cause the processor to (see at least [0026], [0046], [0048], [0050]-[0051], [0106]):
determine and monitor a respiration rate of the subject based on changes to the optical pattern reflecting from the surface (see at least Figure 1 15, [0003], [0012], [0057], [0078]-[0079], [0081]);
determine if the monitored respiration rate is within a threshold variance (see at least claim 1, [0083] within or outside critical deviation range); and
upon a determination that the monitored respiration rate is outside of the threshold variance, generate a notification with the alarm device (see at least claim 1, [0092], [0104]);
however, the limitations of monitor the images and detect changes in a speckle pattern of the optical pattern from more than one light spot of the plurality of light spots; average the change of the speckle pattern in the more than one light spot to differentiate between changes caused by a respiration of the subject and other non- respiratory causing changes in the speckle pattern are not directly taught.
Carmon teaches a related system to evaluate physiological signals using laser sources and reflected light (see at least title and abstract), and teaches that the system measures changes in speckle of laser light emitted, which reasonably teaches wherein the memory further includes instructions that cause the processor to: monitor the images and detect changes in a speckle pattern of the optical pattern from more than one light spot of the plurality of light spots (see at least [0015], [0023], [0032]-[0035]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of using speckles of laser illuminated data to determine physiological signals, including breathing, in order to detect changes in physiological patterns of a subject from micromovements of skin and clothes in addition to or in replacement of PPG signals from skin reflected signals.
Verkruijsse teaches a related system for analyzing human perfusion related data using optical measurements (see at least title and abstract), and teaches a known technique to average in a speckle image a region of interest in order to monitor respiration rate, which reasonably teaches average the change of the speckle pattern in the more than one light spot to differentiate between changes caused by a respiration of the subject and other non- respiratory causing changes in the speckle pattern (see at least [0005], Figures 1, 10, 12-15, [0128]-[0132]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of using averaging of a region of interest in a speckle image to derive heart and respiration related data of a person exposed to the light in order to monitor changing status of the person.
Regarding claim 2, the limitations are met by Zhang in view of Carmon and Verkruijsse, where Zhang teaches wherein the alarm device is configured to generate at least one of an audible notification, a haptic notification, or a visual notification (see at least [0092]).
Regarding claim 7, the limitations are met by Zhang in view of Carmon and Verkruijsse, where Zhang teaches wherein the optical projector is configured to project the optical pattern within an infrared wavelength (see at least [0064]-[0065], [0067]).
Regarding claim 8, the limitations are met by Zhang in view of Carmon and Verkruijsse, where Verkruijsse teaches wherein the processor is configured to detect changes in a speckle pattern of the optical pattern from more than one light spot of the plurality of light spots by reviewing a pixel array captured in the images corresponding to the speckle pattern and assigning intensity values to each pixel in the pixel array optical pattern includes at least one spot (capabilities of the speckle system and processing, see at least Figures 1, 10, 12-15, [0005], [0040]-[0041], [0046]-[0054], [0128]-[0132]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of analyzing pixels to correct amplitude values in order to reduce attenuation of the signals measured.
Regarding claim 9, the limitations are met by Zhang in view of Carmon and Verkruijsse, where Verkruijsse teaches wherein the memory further includes instructions that cause the processor to: assign the intensity values in grayscale intensity values; and detect changes in a speckle content of the at least one spot by detecting changes in the grayscale intensity value to each pixel (capabilities of the speckle system and processing, grayscale is obvious variant to color as evidenced by the grayscale Figure 13, see at least Figures 1, 10, 12-15, [0005], [0040]-[0041], [0046]-[0054], [0128]-[0132]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of analyzing pixels to correct amplitude values in order to reduce attenuation of the signals measured.
Regarding claim 10, the limitations are met by Zhang in view of Carmon and Verkruijsse, where Carmon teaches wherein the memory further includes instructions that cause the processor to: based on the detected changes of the speckle content, extrapolate micro-movements of the subject related to respiration (see at least [0001], [0015], [0023], [0032]-[0035]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of using speckles of laser illuminated data to determine physiological signals, including breathing, in order to detect changes in physiological patterns of a subject from micromovements of skin and clothes in addition to or in replacement of PPG signals from skin reflected signals.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (Zhang, US 2020/0156648) in view of Carmon et al. (Carmon, US 2015/0157224) and Verkruijsse et al. (Verkruijsse, US 2024/0032810) as applied to claim 2 above, and further in view of Lee (KR101742698B1; including machine translation).
Regarding claim 3, the limitations are met by Zhang in view of Carmon and Verkruijsse, except the limitations of wherein the alarm device includes a display device is not directly taught.
Lee teaches a related system for use in a vehicle which includes biological sensing, alarms, and displaying information related to the biological data, where the components can be combined into a housing which reasonably teaches wherein the alarm device includes a display device (see at least Figures 2-5, machine translation “According to the present invention, a rearview mirror mounted on a vehicle includes a sensor unit, a control unit, a display unit, and an alarm unit”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of combining a display device with an alarm device into a rear-view mirror in order to easily display measured features to a driver.
Regarding claim 4, the limitations are met by Zhang in view of Carmon and Verkruijsse and Lee, where Lee teaches wherein the display device is located in a rearview mirror of a vehicle (see at least Figures 2-5, machine translation “According to the present invention, a rearview mirror mounted on a vehicle includes a sensor unit, a control unit, a display unit, and an alarm unit”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of combining a display device with an alarm device into a rear-view mirror in order to easily display measured features to a driver.
Regarding claim 5, the limitations are met by Zhang in view of Carmon and Verkruijsse and Lee, where Lee teaches wherein the image capturing module is located in the rearview mirror (see at least Figures 2-5, machine translation “According to the present invention, a rearview mirror mounted on a vehicle includes a sensor unit, a control unit, a display unit, and an alarm unit”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of combining sensing units (camera), a display device with an alarm device into a rear-view mirror in order to easily measure occupant features and display features to a driver.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (Zhang, US 2020/0156648) in view of Carmon et al. (Carmon, US 2015/0157224) and Verkruijsse et al. (Verkruijsse, US 2024/0032810) and Lee (KR101742698B1; including machine translation) as applied to claim 5 above, and further in view of Lintz et al. (Lintz, US 2018/0260640).
Regarding claim 6, the limitations are met by Zhang in view of Carmon and Verkruijsse and Lee, except the limitations of wherein the rearview mirror includes a partially reflective, partially transmissive element is not directly taught.
Lintz teaches a related system for monitoring car occupant which includes an LCD, camera, and emitters in a rear-view mirror (see title, abstract, and Figure 1), and teaches that the rearview mirror can include rearview mirror includes a partially reflective, partially transmissive element (see at least Figures 1-2, [0017]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of including includes a partially reflective, partially transmissive element on a rearview mirror in order to allow for sensing/display of data with mirrored images for easier discernment of the different data.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (Zhang, US 2020/0156648) in view of Carmon et al. (Carmon, US 2015/0157224) and Verkruijsse et al. (Verkruijsse, US 2024/0032810) as applied to claim 1 above, and further in view of Kremer et al. (Kremer, US 2019/0030278).
Regarding claim 11, the limitations are met by Zhang in view of Carmon and Verkruijsse, where Zhang teaches wherein the memory further includes instructions that cause the processor to: develop a baseline characteristic of the subject's respiration rate (see at least [0083], claim 1); and compare the monitored respiration rate with the baseline characteristic of the subject's respiration rate (see at least [0083], claim 1), but fails to directly teach develop a baseline characteristic of the subject's respiration rate based on at least one of age, sex, or weight; and
compare the monitored respiration rate with an average of at least one of the plurality of pre-saved respiratory models categorized by age, sex, or weight, and the baseline characteristic of the subject's respiration rate.
Kremer teaches a related system for respiration monitoring (see title and abstract), and teaches techniques to establish baselines based on demographic information, and using such information for monitoring breath changes including combine hybrid models of the user and like users which reasonably teaches the claimed features develop a baseline characteristic of the subject's respiration rate based on at least one of age, sex, or weight; and compare the monitored respiration rate with an average of at least one of the plurality of pre-saved respiratory models categorized by age, sex, or weight, and the baseline characteristic of the subject's respiration rate (see at least [0056] “The target breath architecture may be a fixed breath architecture, or may be variable and may be based upon any combination of a baseline and/or historical average breath architecture (e.g., of the user), a current target respiration rate, a stage of the current sleep session (e.g., how far into the sleep session, expected sleep onset, etc.), norms for the user's physiological characteristics (e.g., height, weight, age, gender, etc.), or other factors.”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of monitoring respiration using hybrid data sources to form individualized limits based on demographics as well as individual patterns in order to improve identifying adverse breathing of a monitored person.
Regarding claim 12, the limitations are met by Zhang in view of Carmon and Verkruijsse and Kremer, where Zhang wherein the baseline characteristic of the subject's respiration rate includes at least one of a frequency or an amplitude of respiration (see at least [0083], claim 1, Figure 1 the RR signal has amplitude used for determining rate, and “cpm” is a frequency).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (Zhang, US 2020/0156648) in view of Carmon et al. (Carmon, US 2015/0157224) and Verkruijsse et al. (Verkruijsse, US 2024/0032810) and Kremer et al. (Kremer, US 2019/0030278) as applied to claim 11 above, and further in view of Taghvaeeyan et al. (Taghvaeeyan, US 2021/0267488).
Regarding claim 13, the limitations are met by Zhang in view of Carmon and Verkruijsse and Kremer, where Zhang teaches wherein the memory further includes instructions that cause the processor to: develop the baseline characteristic over a period of 5 minutes or less initially before determining if the monitored respiration rate is within a threshold variance (see at least [0083] “beginning of a drive” reasonably reads on 5 minutes or less, or in the alternative, selecting the beginning of a drive to be 5 minutes or less in setting the baseline is a matter of obvious design choice). Taghvaeeyan teaches a related system for monitoring physiological data, and teaches that baseline establishing can be conducted in periods of 5 minutes (see at least [0108] “In other examples, one or more different approaches may be used to determine a baseline respiratory related parameter. In one example approach, user 102 may rest for a specified time interval (e.g., 5 minutes), during which sensor 104 measures and determines a set of average baseline respiratory parameters (e.g., normal breathing.”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of establishing baseline readings in a time period of 5 minutes as is known in the art for such baseline establishing for a representative respiration comparison of later changes.
Claims 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (Zhang, US 2020/0156648) in view of Kremer et al. (Kremer, US 2019/0030278).
Regarding claim 18, Zhang teaches a monitoring system for measuring and monitoring a respiratory rate of a subject (see at least title, abstract, Figure 1), the monitoring system comprising:
an optical projector including a laser configured to project an optical pattern that includes at least one spot (see at least Figure 1 110, [0013], [0022], [0060]-[0061] spot is result of laser, thus structures capable of generating at least one spot, also reads on the light illuminated on a ROI which is not a single point on the face);
an image capturing module configured to capture images of the optical pattern reflecting from a surface (see at least Figure 1 120, [0060], [0062]-[0063], [0092]);
an alarm device (see at least Figure 2 180, [0018], [0060], [0092]); and
a processor (see at least [0026], [0046], [0048], [0050]-[0051], [0106]); and
a memory including instructions that, when executed by the processor, cause the processor (see at least [0026], [0046], [0048], [0050]-[0051], [0106]) to:
monitor the images to determine a baseline characteristic of a subject's respiration over an initial period of time based on changes to the optical pattern reflecting from the surface corresponding to amplitudes and frequency of movements during exhalation and inhalation (see at least Figure 1 15, [0003], [0012], [0057], [0078]-[0079], [0081], [0083], claim 1, Figure 1 the RR signal has amplitude used for determining rate, and “cpm” is a frequency);
determine if the monitored respiration rate is within a threshold variance (see at least claim 1, [0083] within or outside critical deviation range); and
upon a determination that the monitored respiration rate is outside of the threshold variance, generate a notification with the alarm device (see at least claim 1, [0092], [0104]);
however, the limitation of average the baseline characteristic with a pre-saved model to develop a hybrid model and making determination and notification based on such is not directly taught.
Kremer teaches a related system for respiration monitoring (see title and abstract), and teaches techniques to establish baselines based on demographic information and averaging, and using such information for monitoring breath changes including combine hybrid models of the user and like users which updating comparisons of baseline in Zhang teaches the claimed features including average the baseline characteristic with a pre-saved model to develop a hybrid model and making determination and notification based on such (see at least [0056] “The target breath architecture may be a fixed breath architecture, or may be variable and may be based upon any combination of a baseline and/or historical average breath architecture (e.g., of the user), a current target respiration rate, a stage of the current sleep session (e.g., how far into the sleep session, expected sleep onset, etc.), norms for the user's physiological characteristics (e.g., height, weight, age, gender, etc.), or other factors.”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of monitoring respiration using hybrid data sources to form individualized limits based on demographics as well as individual patterns in order to improve identifying adverse breathing of a monitored person.
Regarding claim 19, the limitations are met by Zhang in view of Kremer, where Zhang teaches wherein the laser is configured to project the optical pattern in an infrared wavelength of light (see at least [0064]-[0065], [0067]) and the image capturing module is configured to capture images within the infrared wavelength of light (see at least [0067]).
Regarding claim 20, the limitations are met by Zhang in view of Kremer, where Kremer teaches wherein the pre-saved model is chosen from a plurality of pre-saved models based on a categorization of at least one of age, sex, or weight (see at least [0056] “The target breath architecture may be a fixed breath architecture, or may be variable and may be based upon any combination of a baseline and/or historical average breath architecture (e.g., of the user), a current target respiration rate, a stage of the current sleep session (e.g., how far into the sleep session, expected sleep onset, etc.), norms for the user's physiological characteristics (e.g., height, weight, age, gender, etc.), or other factors.”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of monitoring respiration using hybrid data sources to form individualized limits based on demographics as well as individual patterns in order to improve identifying adverse breathing of a monitored person.
Response to Arguments
The examiner acknowledges applicant’s submission of amendments to the claims, drawings filed 7/24/2026.
Applicant’s arguments regarding the objections to the claims have been fully considered and are partially persuasive due to the amendments to the claims; the objections remain as presented above.
Applicant’s arguments regarding the drawing objections have been fully considered, the drawing is accepted as filed; the objections are withdrawn.
Applicant’s arguments regarding the rejections of the claims under 35 U.S.C. 101 have been fully considered but are not persuasive. Applicant argues that the claims do not recite judicial exceptions by arguing the monitoring step as amended is not simply math and cannot be performed in the mind. The examiner respectfully disagree. Mathematical concepts do not require explicit equations and can include any limitation that sets forth mathematical concepts being claimed. The examiner is unpersuaded that the amendments move the claimed concepts from judicial exception to features outside the exception. Counter, even if these limitations were related to data gathering, the other features still recite an exception without significantly more than the data gathering elements, alarm device for post solution, and computer elements for implementation. The rejections are respectfully maintained to account for the amendments to the claims.
Applicant’s arguments regarding the rejections of the claims in view of prior art have been fully considered but are not persuasive and are moot in view of the new grounds of rejection necessitated by the amendments to the claims.
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 R BLOCH whose telephone number is (571)270-3252. The examiner can normally be reached M-F 11-8 EST.
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/MICHAEL R BLOCH/Primary Examiner, Art Unit 3791
