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 .
Priority
Per the decision on the “Petition under 37 CFR 1.182” mailed by the Office on 10/26/2023 and the Applicant’s response on 11/01/2023, the filing date of the claims in this application will be considered to be 06/22/2023.
Information Disclosure Statement
The listing of references in the specification (see page 16) is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Drawings
The drawings are objected to because:
Figs. 1-3 and 6-10 all recite the word “hearth” instead of “heart”.
All instances of the term “respiration frequency unit” should read “respiration frequency measuring unit”.
All instances of the term “hearth frequency unit” should read “heart frequency measuring unit”.
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.
Specification
The disclosure is objected to because of the following informalities:
All instances of the word “hearth” should be replaced by “heart”.
All instances of the word “litter” should be replaced by “liter”.
All instances of the term “respiration frequency unit” should read “respiration frequency measuring unit”.
All instances of the term “hearth frequency unit” should read “heart frequency measuring unit”.
Appropriate correction is required.
Claim Objections
Claims 1-20 are objected to because of the following informalities:
All instances of the word “hearth” should be replaced by “heart”.
All instances of the word “litter” should be replaced by “liter”.
All instances of the term “respiration frequency unit” should read “respiration frequency measuring unit”.
All instances of the term “hearth frequency unit” should read “heart frequency measuring unit”.
All instances of the term “pulmonary and cutaneous respiration” should read “pulmonary respiration and cutaneous respiration”.
In Claim 6, “at least one of the respiration frequency and the heartbeat frequency that are measured at at least two levels of physical stress of a user of said device” should read “at least one of the respiration frequency and the heartbeat frequency that are measured at [[at]] least two levels of physical stress of a user of said device”.
In Claim 7, a double comma follows the phrase “claim 2” and should be a single comma.
Appropriate correction is required.
Claims 4-5 and 8-20 are objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim cannot depend from any other multiple dependent claim. See MPEP § 608.01(n). Accordingly, the claims have not been further treated on the merits.
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 and 6-7 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 1 recites “wherein the digital data processing unit of said device runs algorithms written in a computer programming language that use a relation between the cumulative energy expenditure and the pulmonary and cutaneous respiration of a user of said device and a relation between the cumulative energy intake and the masses of carbohydrates, fats and proteins in the dietary intake of said user”. The terms “cumulative energy expenditure” and “cumulative energy intake” are both unclear, as it is unclear what category the accumulation is happening in. In other words, the cumulative energy intake/expenditure of who/what? These terms could refer to the cumulative energy intake/expenditure over a certain period of time, from a specific organism, or any other category. For the purposes of substantive examination, the examiner is construing this claim limitation as “wherein the digital data processing unit of said device runs algorithms written in a computer programming language that use a relation between the cumulative energy expenditure for a period of time and the pulmonary and cutaneous respiration during said period of time of a user of said device and a relation between the cumulative energy intake during said period of time and the masses of carbohydrates, fats and proteins in the dietary intake during said period of time of said user”.
Claims 2-3 and 6-7 are rejected by virtue of dependence on Claim 1.
Claim 2 recites “the pulmonary and cutaneous respiration of a user of said device”. It is unclear if the recited “a user” is the same user as recited in parent Claim 1, or a different user. For the purposes of substantive examination, it is presumed these are the same user.
Claim 3 recites “the pulmonary and cutaneous respiration of a user of said device”. It is unclear if the recited “a user” is the same user as recited in parent Claim 1, or a different user. For the purposes of substantive examination, it is presumed these are the same user.
Claim 6 recites “least two levels of physical stress of a user of said device”. It is unclear if the recited “a user” is the same user as recited in parent Claim 1, or a different user. For the purposes of substantive examination, it is presumed these are the same user.
Claim 7 recites “a routine usage by a user of said device”. It is unclear if the recited “a user” is the same user as recited in parent Claim 1, or a different user. For the purposes of substantive examination, it is presumed these are the same user.
Examiner’s Note
The examiner notes the terms “the cumulative energy expenditure”, “the pulmonary and cutaneous respiration of a user of said device”, “the pulmonary and cutaneous respiration of a user of said device”, “the cumulative energy intake” and “the masses of carbohydrates, fats and proteins in the dietary intake of said user” are not rejected under 35 U.S.C. § 112(b) as energy expenditures, respiration, energy intakes, dietary intakes comprising of carbohydrates, fats, and proteins with mass are inherent to humans and air-breathing animals.
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 and 6-7 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
Regarding Claim 1, the claim recites a device for measuring energy expenditures and calculating energy intakes and balances of humans and air-breathing animals. Thus, the claim is directed to an apparatus, which is one of the statutory categories of invention (Step 1).
The claim is then analyzed to determine whether it is directed to any judicial exception (Step 2A, Prong One). The following limitations set forth a judicial exception:
algorithms … that use a relation between the cumulative energy expenditure and the pulmonary and cutaneous respiration of a user of said device and a relation between the cumulative energy intake and the masses of carbohydrates, fats and proteins in the dietary intake of said user
These limitations describe a mathematical calculation and/or a mental process as the skilled artisan is capable of performing the recited limitations and making a mental assessment thereafter. Examiner also notes that nothing from the claims suggest that the limitations cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time. Examiner also notes that nothing from the claims suggests an undue level of complexity that the mathematical calculations and/or the mental process steps cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps.
For example:
Algorithms that use a relation between the cumulative energy expenditure and the pulmonary and cutaneous respiration of a user of said device and a relation between the cumulative energy intake and the masses of carbohydrates, fats and proteins in the dietary intake of said user are mathematical calculations that can be performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, integrates the identified judicial exception into a practical application (Step 2A, Prong Two).
The following limitations amount to insignificant extra-solution activity to the judicial exception, e.g. mere data gathering. See MPEP 2106.05(g).
a cumulative tidal volume measuring unit
at least one of a respiration frequency unit and a hearth frequency unit
The following limitations amount to a recitation of the words "apply it" (or an equivalent) and/or nothing more than mere instructions to implement the abstract idea on a generic computer. See MPEP 2106.05(f).
a digital data processing unit
a digital memory storage unit
a power supply unit
a user interface unit
wherein the digital data processing unit of said device runs algorithms written in a computer programming language that…
Therefore, these additional limitations do not integrate the judicial exception into a practical application.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, amounts to significantly more than the identified judicial exception (Step 2B):
The following limitations do not amount to significantly more than the abstract idea for substantially similar reasons applied in Step 2A, Prong Two.
a cumulative tidal volume measuring unit
at least one of a respiration frequency unit and a hearth frequency unit
a digital data processing unit
a digital memory storage unit
a power supply unit
a user interface unit
wherein the digital data processing unit of said device runs algorithms written in a computer programming language that…
The following limitations is/are considered to be well-understood, routine, and conventional (WURC).
The digital memory storage unit, the user interface unit, the cumulative tidal volume measuring unit, the respiration frequency unit, and the hearth frequency unit are considered to be well-understood, routine, and conventional based on statement from the applicant' s specification filed 06/03/2023 (See [0034]).
The digital data processing unit is considered to be well-understood, routine, and conventional based on statement from the applicant' s specification filed 06/03/2023 (See [0033]).
The power supply unit is considered to be well-understood, routine, and conventional based on statement from the applicant' s specification filed 06/03/2023 (See [0055]).
Dependent Claims 6-7 also fail to add subject matter qualifying as significantly more to the abstract independent claims as they merely further limit the abstract idea.
Dependent Claims 2-3 and 6-7 also fail to add subject qualifying as significantly more to the abstract independent claims as they recite limitations that do not integrate the claims into a practical application for substantially similar reasons as set forth above.
Dependent Claims 2-3 and 6-7 also fail to add subject matter integrating the judicial exception or qualifying as significantly more to the abstract independent claims as they do not recite significantly more than the identified abstract idea for substantially similar reasons as set forth above.
Therefore, Claims 1-3 and 6-7 are not patent eligible under 35 U.S.C. § 101.
Claim Rejections - 35 USC § 102/103
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as anticipated by de St. Amatus et al (AU 2017101440 A4, hereinafter de St. Amatus) or, in the alternative, under 35 U.S.C. 103 as obvious over de St. Amatus in view of the Non-Patent Literature to Winwood-Smith et al (“Short-duration respirometry underestimates metabolic rate for discontinuous breathers”, hereinafter Winwood-Smith), the Non-Patent Literature to Volk et al (“Cutaneous Respiration In Man”, hereinafter Volk) and Radecka et al (US 20160166195 A1, hereinafter Radecka).
Regarding Claim 1, de St. Amatus discloses a device (See [0048]-[0049]) for measuring energy expenditures (See [0046] step c “Calorie Counting”) and calculating energy intakes and balances of humans and air-breathing animals (“A method and an apparatus for measurement of the energy consumption of living bodies of humans and air-breathing animals”, Abstract) comprising:
a digital data processing unit (“In the preferred embodiment, a Controller is the apparatus that utilises the method for measurement of the energy consumption of living air-breathing organisms”, [0033]),
a digital memory storage unit (“In the proffered embodiment, the Controller operates using two units and a programmable processor combined with storage of digital data”, [0033]),
a power supply unit (“In one embodiment, the Controller can be designed and manufactured as an individual item, in which case the device can be completed with memory storage, a power supply unit, a monitor and other peripheral devices”, [0048]),
a user interface unit (“In one embodiment, the Controller can be connected to a “smart” mobile (cellular) telephone or a similar device”, [0049]; commercially available smartphones comprise touchscreens and other user interface units),
a cumulative tidal volume measuring unit (“The first unit of the Controller is used to measure the tidal volume of the breathing air”, [0034]; “In one embodiment, the unit that is used to measure the tidal volume of the breathing air is a spirometer that can be of any kind and design or, alternatively, this can be any other device that is capable of measuring the tidal volume of the breathing air”, [0035]),
at least one of a respiration frequency unit (“In this embodiment, the spirometer is connected to a data recording and processing device.”, [0044]; See the time variables listed in [0044](f) Step B.2, which list the duration of a complete respiratory cycle in seconds as variable P; the duration of one complete respiratory cycle in seconds is also the frequency of respiratory rate per second) and a hearth frequency unit (Examiner’s note: this limitation is listed in the alternative and does not need to be expressly recited in order for the claim to be anticipated),
wherein the digital data processing unit of said device runs algorithms written in a computer programming language (“the microchip and the memory storage of the “smart” telephone can be used to run the core, the reverse and the calorie intake algorithms”, [0049]) that use a relation between the cumulative energy expenditure and the pulmonary and cutaneous respiration of a user of said device and a relation between the cumulative energy intake and the masses of carbohydrates, fats and proteins in the dietary intake of said user (See [0033] and [004]; because this limitation claims the digital data processing unit in “programmable to” language instead of “programmed to” language, the broadest reasonable interpretation of this limitation requires only a processor capable of performing these functions as opposed to a processor expressly programmed to do so).
In the alternative:
De St. Amatus discloses wherein the digital data processing unit of said device runs algorithms written in a computer programming language (“the microchip and the memory storage of the “smart” telephone can be used to run the core, the reverse and the calorie intake algorithms”, [0049]) that use a relation between the cumulative energy expenditure and the pulmonary respiration of a user (“a Controller is the apparatus that utilises the method for measurement of the energy consumption of living air-breathing organisms, which is based on a correlation between the volume of the inhaled or exhaled air during a respiratory cycle, and therefore - the energy release of the body and the recorded breath sounds”, [0033]) and a relation between the cumulative energy intake and the ratios of carbohydrates, fats and proteins in the dietary intake of said user (“Step D.4: Populating Column 3 of Database D with the solution of Equation 1 or a similar expression that relates the energy release of the body, E, (Cal) with the concentration change of CO2 or O2 the volume of the inhaled or exhaled air, the calorific values of the carbohydrates, fats and proteins per litter of 02 consumed and the ratio of carbohydrates, fats and proteins in the dietary intake”, [0044]).
De St. Amatus discloses the claimed invention except for expressly disclosing wherein the algorithms use a relation between the cumulative energy expenditure and the cutaneous respiration of a user of said device and a relation between the cumulative energy intake and the masses of carbohydrates, fats and proteins in the dietary intake of said user.
However, Winwood-Smith teaches that many published values of metabolic rate in air-breathing animals that utilize cutaneous gas exchange may be underestimates (See Abstract), and Volk teaches that cutaneous respiration happens in humans in a measurable amount (Discussion, paragraph 1; Summary, Point 8). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the calculation of cutaneous respiration to the relationship in the algorithm of de St. Amatus, in order to account for any potential inaccuracies in metabolic calculations due to missing variables and create a more accurate algorithm.
Radecka teaches wherein the algorithms use a relation between the cumulative energy intake (See Fig. 2 “energy balance” and “food tracking”) and the masses of carbohydrates, fats and proteins in the dietary intake of said user (See Fig. 34, wherein the mass of carbs, proteins, and fat are recorded). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the algorithms of de St. Amatus to use the masses of carbohydrates, fats and proteins in the dietary intake of said user, as taught by Radecka, because this provides additional information to the algorithm for more accurate and robust calculations of energy expenditure and intake.
Claims 2-3 and 6 are rejected under 35 U.S.C. 102(a)(1) as anticipated by de St. Amatus et al (AU 2017101440 A4, hereinafter de St. Amatus) or, in the alternative, under 35 U.S.C. 103 as obvious over de St. Amatus in view of the Winwood-Smith and Radecka, and further in view of Bonomi (US 20180242907 A1, hereinafter Bonomi).
Regarding Claim 2, de St. Amatus discloses the device for measuring energy expenditures and calculating energy intakes and balances of humans and air-breathing animals according to claim 1, wherein in the relation between the cumulative energy expenditure and the pulmonary and cutaneous respiration of a user of said device, the cumulative energy expenditure for a period of time equals to a sum of the calorific values of the carbohydrates, fats and proteins per litter of oxygen that are each multiplied by the respective ratios of carbohydrates, fats and proteins in the dietary intake of said user for said period of time; and said sum is multiplied by the concentration of oxygen in the atmosphere, and the absolute value of the concentration change of carbon dioxide or oxygen in the air inhaled or exhaled by said user, and the pulmonary tidal volume of said user for said period of time to which a value for the respective cutaneous respiration of said user is added (See [0033] and [004]; because this limitation claims the digital data processing unit in “programmable to” language instead of “programmed to” language, the broadest reasonable interpretation of this limitation requires only a processor capable of performing these functions as opposed to a processor expressly programmed to do so).
In the alternative:
De St. Amatus discloses wherein in the relation between the cumulative energy expenditure and the pulmonary and cutaneous respiration of a user of said device, the cumulative energy expenditure for a period of time equals to (“the energy release of the human body, E; (Cal), can be calculated from the amount of oxygen consumed, Equation 1”, 0004]) a sum of the calorific values of the carbohydrates, fats and proteins per litter of oxygen (“aCH = 5.047 Cal/1, afat= 4.686 Cal/1 and aprot = 4.485 Cal/1 are the calorific values of the carbohydrates, fats and proteins per litter of O2 consumed,”, [0004]) that are each multiplied by (See Equation 1) the respective ratios of carbohydrates, fats and proteins in the dietary intake of said user for said period of time (“XCH, Xfat and Xprot is the ratio of carbohydrates, fats and proteins in the dietary intake”, [0004]); and, and the absolute value of the concentration change of carbon dioxide or oxygen in the air inhaled or exhaled by said user (“where |C| is the concentration change of CO2 or O2;”, [0004]), and the pulmonary tidal volume of said user for said period of time (“W (l) is the volume of the inhaled or exhaled air”, [0004]).
De. St. Amatus discloses the claimed invention except for expressly disclosing wherein said sum is multiplied by the concentration of oxygen in the atmosphere and the pulmonary tidal volume of said user for said period of time to which a value for the respective cutaneous respiration of said user is added. However, Winwood-Smith teaches that many published values of metabolic rate in air-breathing animals that utilize cutaneous gas exchange may be underestimates (See Abstract), and Volk teaches that cutaneous respiration happens in humans in a measurable amount (Discussion, paragraph 1; Summary, Point 8). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the respective cutaneous respiration of said user to the pulmonary tidal volume of said user for said period of time, in order to account for any potential inaccuracies in metabolic calculations due to missing variables and create a more accurate algorithm.
Bonomi teaches wherein said sum is multiplied by the concentration of oxygen in the atmosphere (“The system combines contextual and location information of the user as provided by a wearable sensor (such as heart rate, acceleration, etc.) and an environmental sensor measuring air quality parameters (such as carbon dioxide concentration, air temperature, humidity, noise, pressure, etc.) in indoor spaces”, [0031]; “one embodiment the at least one environmental measurement is selected from the group consisting of ambient carbon dioxide and ambient oxygen”, [0012]; this combination could include multiplication by routine experimentation) in algorithms for calculating energy expenditures (“In one embodiment the at least one metabolic parameter is selected from the group consisting of resting metabolic rate, muscle mass, body composition, energy expenditure and cardio-respiratory fitness”, [0012]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the concentration of oxygen in the atmosphere to the algorithm of de St. Amatus because taking additional parameters like this concentration into account make the algorithm more robust and more accurate.
Regarding Claim 3, de St. Amatus discloses the device for measuring energy expenditures and calculating energy intakes and balances of humans and air-breathing animals of claim 1 or claim 2, wherein in the relation between the cumulative energy expenditure and the pulmonary and cutaneous respiration of a user of said device there are constant terms including the concentration of oxygen in the atmosphere, and the absolute value of the concentration change of carbon dioxide or oxygen in the air inhaled or exhaled by said user, and the calorific values of the carbohydrates, fats and proteins per litter of oxygen, and the ratio of the pulmonary to cutaneous respiration of said user; and there are variable terms including the masses of carbohydrates, fats and proteins in the dietary intake of said user and the pulmonary tidal volume of said user for said period of time (See [0033] and [004]; because this limitation claims the digital data processing unit in “programmable to” language instead of “programmed to” language, the broadest reasonable interpretation of this limitation requires only a processor capable of performing these functions as opposed to a processor expressly programmed to do so).
In the alternative, de St. Amatus discloses wherein in the relation between the cumulative energy expenditure and the pulmonary and cutaneous respiration of a user of said device (See the modification made to de St. Amatus in the rejection of Claims 1-2 above) there are constant terms including the concentration of oxygen in the atmosphere (See the modification made to de St. Amatus in the rejection of Claims 1-2 above wherein the concentration of oxygen in the atmosphere was added to the algorithms of de St. Amatus), and the absolute value of the concentration change of carbon dioxide or oxygen in the air inhaled or exhaled by said user (“where |C| is the concentration change of CO2 or O2;”, [0004]), and the calorific values of the carbohydrates, fats and proteins per litter of oxygen (“aCH = 5.047 Cal/1, afat= 4.686 Cal/1 and aprot = 4.485 Cal/1 are the calorific values of the carbohydrates, fats and proteins per litter of O2 consumed,”, [0004]); and there are variable terms including the masses of carbohydrates, fats and proteins in the dietary intake of said user (See the rejection of Claim 1 above, where the variable terms including the masses of carbohydrates, fats and proteins in the dietary intake of said user were added to the algorithm of de St. Amatus via Radecka, Fig. 34) and the pulmonary tidal volume of said user for said period of time (“W (l) is the volume of the inhaled or exhaled air”, [0004]). De St. Amatus discloses the claimed invention except for expressly disclosing wherein the constant terms include the ratio of the pulmonary to cutaneous respiration of said user. However, Volk teaches the ratio of the pulmonary to cutaneous respiration of said user (Summary, Point 8). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the ratio of the pulmonary to cutaneous respiration of said user to the algorithms of de St. Amatus, because taking additional parameters like this ratio into account make the algorithm more robust and more accurate.
Regarding Claim 6, de St. Amatus discloses the device for measuring energy expenditures and calculating energy intakes and balances of humans and air-breathing animals according to claim 1, wherein the digital data processing unit of said device is configured to run a calibration algorithm (“In one embodiment, the calibration sub-algorithm comprises the following order of steps…”, [0044]) written in a computer programming language (“the microchip and the memory storage of the “smart” telephone can be used to run the core, the reverse and the calorie intake algorithms”, [0049]), in which a correlation is obtained in a form of a calibration equation that fits data points of the cumulative tidal volume (“In one embodiment, the core algorithm of the method can be subdivided on two subalgorithms: a) a calibration sub-algorithm, which is used to establish a correlation, in a form of an equation that fits a calibration curve, between the measured tidal volume of the breathing air (and therefore - the energy release of the body) and the recorded breath sounds”, [0043]), and at least one of the respiration frequency (See the time variables listed in [0044](f) Step B.2, which list the duration of a complete respiratory cycle in seconds as variable P; the duration of one complete respiratory cycle in seconds is also the frequency of respiratory rate per second) and the heartbeat frequency (Examiner’s note: this limitation is listed in the alternative and does not need to be expressly recited in order for the claim to be anticipated) that are measured at least two levels of physical stress of a user of said device (“Steps A.1-3 and B.1-3 are repeated over some number of different levels of the physical stress of the tested person, which can be marked for example as low, medium and high”, [0044]).
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over de St. Amatus, or in the alternative, over de St. Amatus in view of the Winwood-Smith and Radecka, further in view of Behar et al (US 20100274100 A1, hereinafter Behar).
Regarding Claim 7, de St. Amatus discloses the device for measuring energy expenditures and calculating energy intakes and balances of humans and air-breathing animals of claim 1 or claim 2, wherein the digital data processing unit of said device is configured to run a reverse algorithm (“ In one embodiment, the core algorithm of the method can be subdivided on two sub-algorithms: a… and b) a reverse sub-algorithm, which uses the equation fitting the calibration curve to find the levels of energy consumption that correspond to particular breath sound patterns”, [0043]) written in a computer programming language (“the microchip and the memory storage of the “smart” telephone can be used to run the core, the reverse and the calorie intake algorithms”, [0049]), in which the calibration equation uses at least one of the respiration frequency (“In one embodiment, once the relation Ei/Pi versus I is established in a form of a calibration equation, this calibration equation can be used for inter- or extrapolation of the energy release of the body by applying a reverse sub-algorithm. The input data for this reverse sub-algorithm is based on measuring the breath sound only”, [0045]) and the heartbeat frequency (Examiner’s note: this limitation is listed in the alternative and does not need to be expressly recited in order for the claim to be anticipated) that are measured during a routine usage by a user of said device (“ Use the resulted information for the energy release rate for real-time monitoring and/or store the data to provide hourly, daily, monthly etc. energy consumption averages in convenient to the user units of energy per unit time”, [0045]); and in which the masses of carbohydrates, fats and proteins in the dietary intake of said user (“Step D.4: Populating Column 3 of Database D with…the calorific values of the carbohydrates, fats and proteins per litter of 02 consumed and the ratio of carbohydrates, fats and proteins in the dietary intake”, [0044]; see the modification to Claim 1 using Radecka, wherein the masses of carbohydrates, fats and proteins in the dietary intake of said user were also taken into account) are used to calculate at least one of the cumulative energy expenditure and the cumulative energy intake and the energy balance of said user for said period of time (“Calculating the difference between the calorie expenditure and calorie input data”, [0047]); and in which warning signals are generated in cases of energy imbalance of said user (“Using visual and sound signals for displaying real-time and time-averaged energy expenditure data, calories intake data and sending warning signals in case of energy disbalance”, [0047]).
De. St. Amatus discloses the claimed invention except for expressly disclosing wherein the calibration equation uses at least one of the respiration frequency and the hearth frequency to calculate the cumulative tidal volume of said user for a period of time and in which said cumulative tidal volume and in which the masses of carbohydrates, fats and proteins in the dietary intake of said user are used to calculate at least one of the cumulative energy expenditure and the cumulative energy intake and the energy balance of said user for said period of time.
However, Behar teaches wherein the calibration equation uses at least one of the respiration frequency and the hearth frequency to calculate the cumulative tidal volume of said user for a period of time (“If appropriate sensor data is gathered, LDUs preferably extract respiration rate, and/or heart rate, and/or body temperature, and/or posture, and/or indicia of activity, and/or oxygen saturation. LDUs can extract other or additional physiological parameters that may be appropriate for particular applications of this invention. For example, tidal volume and minute ventilation can be extracted from plethysmographic respiratory data.”, [0011]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the calculation of cumulative tidal volume to the algorithm of de St. Amatus, in which said cumulative tidal volume and in which the masses of carbohydrates, fats and proteins in the dietary intake of said user are used to calculate at least one of the cumulative energy expenditure and the cumulative energy intake and the energy balance of said user for said period of time, because taking additional parameters like the cumulative tidal volume into account make the algorithm more robust and more accurate.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
See the Non-Patent Literature (NPL) to Fitzgerald (“Cutaneous respiration in man”).
See the Non-Patent Literature (NPL) to Full et al (“Exercising with and Without Lungs: I. The Effects of Metabolic Cost, Maximal Oxygen Transport and Body Size on Terrestrial Locomotion in Salamander Species”), which discusses cutaneous respiration in metabolic rate calculations.
See the Non-Patent Literature (NPL) to Stücker et al (“The cutaneous uptake of atmospheric oxygen contributes significantly to the oxygen supply of human dermis and epidermis”).
See the Non-Patent Literature (NPL) to Wojciechowski et al (“Phenotypic flexibility in heat production and heat loss in response to thermal and hydric acclimation in the zebra finch, a small arid-zone passerine”), which discusses cutaneous heat loss in metabolic rate calculations.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN EPHRAIM COOPER whose telephone number is (571)272-2860. The examiner can normally be reached Monday-Friday 7:30AM-5:30PM EST.
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.
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/JONATHAN E. COOPER/ Examiner, Art Unit 3791
/JACQUELINE CHENG/ Supervisory Patent Examiner, Art Unit 3791