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.
This action is Non-Final.
Election/Restrictions
Applicant's election of Group I (Claims 1-13, 18-20), and with traverse Species B (claims 7-10, 19) in the reply filed on 1/12/2026 is acknowledged. The traversal(s) is/are on the ground(s) that the group of inventions are directed to the same inventions due to the amendment to claim 14 (although it is noted group I election is incomplete and does not clearly state such is traversed), and that the species requirement set forth are not properly species as the species are argued to be to the claims, and that “is improper as the species are all disclosed as being used together in a single embodiment” including all features in independent claims and in a signal embodiment of Figures 2 and 11. The first (presumed) traversal among groups I and II is not found persuasive because it is incomplete, but even if it were properly traversed and treated as an argument that the groups are not independent/distinct would not be persuasive. This is not persuasive because the independent claims of Group I and Group II have been shown to be distinct/independent in the requirement, even with the new amendments removing “in a vehicle” from claim 14, which was only one aspect for why the claims are independent/distinct. This is because the inventions as claimed can have a materially different design, mode of operation, function, or effect as claim 14 relies on a single assembly unit and monitors based on speckle, wherein the claims 1 and 18 systems specifically include laser projector, can be used with projector and image capture being separate units, and can include other light analysis outside speckle content, including IR light or spot analysis. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants. As this is the only point of comment in the incomplete election argument (of traversal) among the two groups, the arguments are not persuasive and the requirement is made final.
In regards to the Species, the traversal is persuasive and the species requirement is hereby withdrawn.
Claims 14-17 are hereby withdrawn from further consideration.
The claims could be considered for rejoinder should the withdrawn claim recite all the claimed limitations of an allowable claim; considering the light assembly is a narrowed form of claim 1, but claim 9 is not a linking claim because the scopes are different in what is being claimed in processing of data, but the examiner will reconsider for rejoinder, nonetheless, at such future time. Applicant should amend claim 14 as appropriate for future consideration of rejoinder.
The requirement is still deemed proper and is therefore made FINAL.
Drawings
The drawings are objected to because Figure 7 is a poor quality photograph and is hereby being required to be replaced with a drawing. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 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.
Appropriate correction is required.
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 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 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)
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, 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), (Carmon, US 2015/0157224), and in general are claimed generically producing the expected light reflected data which can include 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 § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-2, 7-8, 11-13 18-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhang et al. (Zhang, US 2020/0156648).
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 (see at least Figure 1 110, [0060]-[0061]) and 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 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 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]).
Regarding claim 2, 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, 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, Zhang teaches wherein the optical pattern includes at least one spot (see at least [0013], [0022], [0061] spot is result of laser, thus structures capable of generating spot).
Regarding claim 11, 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 at least one of a plurality of pre-saved respiratory models, the baseline characteristic of the subject's respiration rate, or an average of the plurality of pre-saved respiratory models and the baseline characteristic of the subject's respiration rate (see at least [0083], claim 1).
Regarding claim 12, Zhang teaches 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).
Regarding claim 13, Zhang teaches wherein the memory further includes instructions that cause the processor to: filter non-respiratory related movements when developing the baseline characteristic of the subject's respiration rate (see at least [0079, [0081], [0083] bandpass removes higher frequency motion noises and heart related motion noises for RR signals).
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) and 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 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 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]).
Regarding claim 19, 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, Zhang teaches wherein the memory further includes instructions that cause the processor to: filter non-respiratory related movements when developing a baseline characteristic of the subject's respiration rate (see at least [0079, [0081], [0083] bandpass removes higher frequency motion noises and heart related motion noises for RR signals).
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 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (Zhang, US 2020/0156648) 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, 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 Zhang in view of 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 Zhang in view of 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 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 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 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (Zhang, US 2020/0156648) as applied to claim 8 above, and further in view of Carmon et al. (Carmon, US 2015/0157224).
Regarding claim 9, the limitations are met by Zhang, except the features of wherein the memory further includes instructions that cause the processor to: detect changes in a speckle content of the at least one spot 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: detect changes in a speckle content of the at least one spot (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.
Regarding claim 10, the limitations are met by Zhang in view of Carmon, 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.
Conclusion
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert (Tse) Chen can be reached at (571)272-3672. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL R BLOCH/Primary Examiner, Art Unit 3791
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