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 .
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 1-26 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 computer implemented method for providing a fertility indicator or an ovulation status for a subject. Thus, the claim is directed to a machine/apparatus, which is one of the statutory categories of invention. The claim is then analyzed to determine whether it is directed to any judicial exception. The following limitations set forth a judicial exception:
"receiving…a voice sample from the subject using the fertility application...extracting…at least one feature value from the voice sample for at least one predetermined voice feature…determining…at least one voice feature value…"
These limitations describe a mathematical calculation. Furthermore, the limitations also describe 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, or using simple pen/paper.
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. For this part of the 101 analysis, the following additional limitations are considered:
"A computer implemented method for providing a fertility indicator or an ovulation status for a subject, the method comprising: providing, at a user device, a fertility application; a processor of the user device…at an output device…a user interface…”.
These additional limitations do not integrate the judicial exception into a practical
application. Rather, the additional limitations are each recited at a high level of generality such that it amounts to insignificant extra-solution activity, e.g., mere data gathering steps necessary to perform the identified judicial exception do not integrate the claims into a practical application. See MPEP 2106.05(g).
The additional limitations also do not add significantly more to the identified judicial exception because they are recited at a high level of generality. Moreover, Examiner takes official notice that "a user device, a processor, an output device" is widely- understood, routine, and conventional.
Independent claims 14 is also not patent eligible for substantially similar reasons.
Dependent claims 2-13 and 15-26 also fail to add something more to the abstract independent claims as they merely further limit the abstract idea, recite limitations that do not integrate the claims into a practical application for substantially similar reasons as set forth above, and/or do not recite significantly more than the identified abstract idea for substantially similar reasons as set forth above.
Therefore, claims 1-26 are not patent eligible under 35 USC 101.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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(s) 1, 4, 6-8, 14, 17, 19, 20-21, 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ajit (US 20180322893) in view of Banai (“Voice in different phases among naturally cycling women and users of hormonal contraceptives”).
Regarding claim 1, Ajit discloses A computer-implemented method for providing a fertility indicator or an ovulation status for a subject (abstract), the method comprising:-
Providing, at a user device (104), a fertility application (“applications residing on the user device 104) (paragraph 0025);
receiving, at a processor (201) of the user device (104) in communication with a memory (203), a voice sample from the subject using the fertility application (PARAGRAPH 0031); - extracting, at the processor, at least one voice feature value from the voice sample for at least one predetermined voice feature (PARAGRAPH 0033-0034); - determining, at the processor, an ovulation status for the subject based on the at least one voice feature value (PARAGRAPH 0035, 0041-0045); and - outputting, at an output device (202 via report) (paragraph 0026) of the user device (104) (paragraph 0026-0028), a user interface (202) comprising at least one selected from a group of: (i) a fertility level indicator for the subject based on the ovulation status, and (ii) an ovulation status indicator for the subject based on the ovulation status (tables 3 and 5) (steps 309-310, Fig 3) (paragraph 0018, 0051).
Ajit discloses all of the claimed limitations except the at least one predetermined voice feature compromising a fundamental frequency (f0). Banai teaches the at least one predetermined voice feature compromising a fundamental frequency (f0) (“Results: Acoustical Analysis”, page 6; Table 1). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Ajit to include detection of the fundamental frequency as taught by Banai for the purpose of use of fundamental frequency is crucial in phonetics and speech research as it improves speech detection accuracy.
Regarding claim 4, Ajit discloses The method of claim 2, wherein the fertility level indicator for the subject is a category comprising: menstruating, follicular, or luteal; and wherein the ovulation status indicator comprises an indicator of ovulation based on a transition from the follicular category to the luteal category (tables 1-5 provide information on hcg, estrogen, fsh, progesterone, and lh levels which would provide information on what stage a female is in).
Regarding claim 6, Ajit discloses The method of claim 3, wherein the fertility level indicator comprises a percentage; and wherein the at least one predetermined voice feature is at least 39 one selected from a group of a spectral flux feature, a jitter feature, a harmonic to noise ratio feature, a shimmer feature, and an alpha ratio feature (paragraph 0034).
Regarding claim 7, Ajit disclose all of the claimed limitations except The method of claim 6, wherein the at least one predetermined voice feature comprises a fundamental frequency standard deviation feature, and wherein the determining, at the processor, the ovulation status for the subject comprises:- determining, at the processor, the at least one voice feature value comprising a mean fundamental frequency standard deviation of the voice sample and a deviation of the fundamental frequency standard deviation of the voice sample from the mean fundamental frequency standard deviation of the voice sample; and when the deviation is greater than a predetermined threshold, determine an occurrence of ovulation. Banai teaches wherein the at least one predetermined voice feature comprises a fundamental frequency standard deviation feature, and wherein the determining, at the processor, the ovulation status for the subject comprises:- determining, at the processor, the at least one voice feature value comprising a mean fundamental frequency standard deviation of the voice sample and a deviation of the fundamental frequency standard deviation of the voice sample from the mean fundamental frequency standard deviation of the voice sample; and when the deviation is greater than a predetermined threshold, determine an occurrence of ovulation (“Results: Acoustical Analysis”, page 6; Table 1). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Ajit to include detection of the fundamental frequency as taught by Banai for the purpose of use of fundamental frequency is crucial in phonetics and speech research as it improves speech detection accuracy.
Regarding claim 8, Ajit discloses of the limitation of the claim except The method of claim 7, wherein the determining, at the processor, the ovulation status for the subject comprises:- determining, at the processor, the at least one voice feature value comprising a derivative of the fundamental frequency (FO) feature; and - determining the ovulation status based on the derivative of the fundamental frequency (FO) feature, wherein the ovulation status is determined based on a negative derivative of the fundamental frequency (FO). Banai teaches The method of claim 7, wherein the determining, at the processor, the ovulation status for the subject comprises:- determining, at the processor, the at least one voice feature value comprising a derivative of the fundamental frequency (FO) feature; and - determining the ovulation status based on the derivative of the fundamental frequency (FO) feature, wherein the ovulation status is determined based on a negative derivative of the fundamental frequency (FO) (“Results: Acoustical Analysis”, page 6; Table 1). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Ajit to include detection of the fundamental frequency as taught by Banai for the purpose of use of fundamental frequency is crucial in phonetics and speech research as it improves speech detection accuracy.
Regarding claim 14, Ajit discloses A system for determining a fertility level for a subject, the system comprising:- a memory (203) comprising a fertility application (“applications residing on the user device 104) (paragraph 0025); - a processor (201) in communication with the memory, the processor (201) configured to: - receive a voice sample from the fertility application from the subject (PARAGRAPH 0031) using the fertility application (paragraph 0031); - extract at least one voice feature value from the voice sample for at least one predetermined voice feature (PARAGRAPH 0033-0034); - determine an ovulation status for the subject based on the at least one voice feature value (PARAGRAPH 0035, 0041-0045); and - output, at an output device (202 via report) (paragraph 0026), a user interface (202) comprising at least one selected from a group of: (i) a fertility level indicator for the subject based on the ovulation status, and/or (ii) an ovulation status indicator for the subject based on the ovulation status (tables 3 and 5) (paragraph 0018, 0051).
Ajit discloses all of the claimed limitations except the at least one predetermined voice feature compromising a fundamental frequency (f0). Banai teaches the at least one predetermined voice feature compromising a fundamental frequency (f0) (“Results: Acoustical Analysis”, page 6; Table 1). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Ajit to include detection of the fundamental frequency as taught by Banai for the purpose of use of fundamental frequency is crucial in phonetics and speech research as it improves speech detection accuracy.
Regarding claim 17, Ajit discloses The method of claim 2, wherein the fertility level indicator for the subject is a category comprising: menstruating, follicular, or luteal; and wherein the ovulation status indicator comprises an indicator of ovulation based on a transition from the follicular category to the luteal category (tables 1-5 provide information on hcg, estrogen, fsh, progesterone, and lh levels which would provide information on what stage a female is in).
Regarding claim 19, Ajit discloses The system of claim 16, wherein the fertility level indicator comprises a percentage; and wherein the at least one predetermined voice feature is at least one selected from a group of a spectral flux feature, a jitter feature, a harmonic to noise ratio feature, a shimmer feature, and an alpha ratio feature (paragraph 0034).
Regarding claim 20, Ajit discloses all of the claimed limitations except The system of claim 19, wherein the at least one predetermined voice feature comprises a fundamental frequency standard deviation feature, and wherein the processor determines the ovulation status for the subject by:- determining the at least one voice feature value comprising a mean fundamental frequency standard deviation of the voice sample and a deviation of the fundamental frequency standard deviation of the voice sample from the mean fundamental frequency standard deviation of the voice sample; and when the deviation is greater than a predetermined threshold, determine an occurrence of ovulation. Banai teaches wherein the at least one predetermined voice feature comprises a fundamental frequency standard deviation feature, and wherein the processor determines the ovulation status for the subject by:- determining the at least one voice feature value comprising a mean fundamental frequency standard deviation of the voice sample and a deviation of the fundamental frequency standard deviation of the voice sample from the mean fundamental frequency standard deviation of the voice sample; and when the deviation is greater than a predetermined threshold, determine an occurrence of ovulation (“Results: Acoustical Analysis”, page 6; Table 1). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Ajit to include detection of the fundamental frequency as taught by Banai for the purpose of use of fundamental frequency is crucial in phonetics and speech research as it improves speech detection accuracy.
Regarding claim 21, Ajit discloses all of the claimed limitations except the system of claim 20, wherein the processor determines the ovulation status for the subject by:- determining the at least one voice feature value comprising a derivative of the fundamental frequency (FO) feature; and - determining the ovulation status based on the derivative of the fundamental frequency (FO) feature, wherein the ovulation status is determined based on a negative derivative of the fundamental frequency (FO). Banai teaches wherein the processor determines the ovulation status for the subject by: determining the at least one voice feature value comprising a derivative of the fundamental frequency (FO) feature; and determining the ovulation status based on the derivative of the fundamental frequency (FO) feature, wherein the ovulation status is determined based on a negative derivative of the fundamental frequency (FO) (“Results: Acoustical Analysis”, page 6; Table 1). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Ajit to include detection of the fundamental frequency as taught by Banai for the purpose of use of fundamental frequency is crucial in phonetics and speech research as it improves speech detection accuracy.
Regarding claim 23, Ajit discloses The system of claim 14 wherein the processor is further configured to:- authenticate the subject by comparing the voice sample to the initial voice sample prior to performing the determining and outputting of the ovulation status (paragraph 0031-0032).
Claim(s) 2, 3, 5, 9, 15-16, 18, 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ajit in view of Banai further in view of Shoup-Knox et al (“Fertility-Dependent Acoustic Variation in Women’s Voices Previously Shown to Affect Listener Physiology and Perception”)
Regarding claim 2, Ajit discloses all of the limitations of the claim except The method of claim 1, wherein the fertility level indicator for the subject comprises a historical fertility indicator for the subject, the historical fertility indicator is provided over a single menstrual cycle of the subject. Shoup teaches wherein the fertility level indicator for the subject comprises a historical fertility indicator for the subject, optionally wherein the historical fertility indicator is provided over a single menstrual cycle of the subject (“Fertility Assessment”, page 3-4). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include an indicator of fertility status as taught by Shoup for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases.
Regarding claim 3, Ajit discloses all of the limitations of the claim except The method of claim 2, wherein the fertility level indicator for the subject is a category comprising fertile or not fertile. Shoup teaches wherein the fertility level indicator for the subject is a category comprising fertile or not fertile (Fig 1-3). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include an indicator of fertility status as taught by Shoup for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases.
Regarding claim 5, Ajit discloses all of the limitations of the claim except The method of claim 3, wherein the fertility level indicator for the subject is a category comprising: a low category, a medium category, and a high category, the low category, the medium category, and the high category each comprise thresholds. Shoup teaches wherein the fertility level indicator for the subject is a category comprising: a low category, a medium category, and a high category, the low category, the medium category, and the high category each comprising predetermined thresholds (“Fertility Assesment”, pages 3-4, Table 1, Fig 1-3). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include an indicator of fertility status as taught by Shoup for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases.
Regarding claim 9, Ajit discloses all of the claimed limitations except the method of claim 8, wherein the at least one predetermined voice feature is a shimmer mean feature and wherein the determining the ovulation status for the subject comprises:- determining the at least one voice feature value comprising at least one local maximum shimmer mean feature value of the voice sample, and - determining the ovulation status based on the at least one local maximum shimmer mean feature value; and - wherein the ovulation status is determined based a decision tree, the decision tree using the at least one predetermined voice feature of the voice sample to determine the ovulation status. Shoup teaches wherein the at least one predetermined voice feature is a shimmer mean feature and wherein the determining the ovulation status for the subject comprises:- determining the at least one voice feature value comprising at least one local maximum shimmer mean feature value of the voice sample, and - determining the ovulation status based on the at least one local maximum shimmer mean feature value; and - wherein the ovulation status is determined based a decision tree, the decision tree using the at least one predetermined voice feature of the voice sample to determine the ovulation status (“Acoustic Analysis”, page 4-5, Table 1-2). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include an indicator of fertility status as taught by Shoup for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases.
Regarding claim 15, Ajit discloses all of the claimed limitations except The system of claim 14, wherein the fertility level indicator for the subject comprises a historical fertility indicator for the subject, the historical fertility indicator is provided over a single menstrual cycle of the subject. Shoup teaches wherein the fertility level indicator for the subject comprises a historical fertility indicator for the subject, the historical fertility indicator is provided over a single menstrual cycle of the subject (“Fertility Assessment”, page 3-4). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include an indicator of fertility status as taught by Shoup for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases.
Regarding claim 16, Ajit discloses all of the claimed limitations except the system of claim 15, wherein the fertility level indicator for the subject is a category comprising fertile or not fertile. Shoup teaches wherein the fertility level indicator for the subject is a category comprising fertile or not fertile (Fig 1-3). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include an indicator of fertility status as taught by Shoup for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases.
Regarding claim 18, Ajit discloses all of the claimed limitations except The system of claim 16, wherein the fertility level indicator for the subject is a category comprising: a low category, a medium category, and a high category and optionally wherein the low category, the medium category, and the high category each comprise predetermined thresholds. Shoup teaches wherein the fertility level indicator for the subject is a category comprising: a low category, a medium category, and a high category and optionally wherein the low category, the medium category, and the high category each comprise predetermined thresholds (“Fertility Assessment”, pages 3-4, Table 1, Fig 1-3). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include an indicator of fertility status as taught by Shoup for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases.
Regarding claim 22, Ajit discloses all of the claimed limitations except The system of claim 21, wherein the at least one predetermined voice feature is a shimmer mean feature and wherein the determining the ovulation status for the subject comprises:- determining the at least one voice feature value comprising at least one local maximum shimmer mean feature value of the voice sample, and - determining the ovulation status based on the at least one local maximum shimmer mean feature value; and - wherein the ovulation status is determined based a decision tree, the decision tree using the at least one predetermined voice feature of the voice sample to determine the ovulation status. Shoup teaches wherein the at least one predetermined voice feature is a shimmer mean feature and wherein the determining the ovulation status for the subject comprises:- determining the at least one voice feature value comprising at least one local maximum shimmer mean feature value of the voice sample, and - determining the ovulation status based on the at least one local maximum shimmer mean feature value; and - wherein the ovulation status is determined based a decision tree, the decision tree using the at least one predetermined voice feature of the voice sample to determine the ovulation status (“Acoustic Analysis”, page 4-5, Table 1-2). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include an indicator of fertility status as taught by Shoup for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases.
Claim(s) 10, 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ajit (US 20180322893) in view of Banai further in view of Goren (US 20090306537)
Regarding claim 10, Ajit discloses all of the claimed limitations except authenticating the subject by comparing the voice sample to the initial voice sample prior to performing the determining and outputting of the ovulation status. Goren teaches authenticating the subject by comparing the voice sample to the initial voice sample prior to performing the determining and outputting of the ovulation status (paragraph 0013-0014). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include using voice authentication to ensure accurate patient identity as taught by Goren for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases of the correct individual.
Regarding claim 23, Ajit discloses all of the claimed limitations except the system of claim 14 wherein the processor is further configured to:- authenticate the subject by comparing the voice sample to the initial voice sample prior to performing the determining and outputting of the ovulation status. Goren teaches authenticate the subject by comparing the voice sample to the initial voice sample prior to performing the determining and outputting of the ovulation status (paragraph 0031-0032). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to include using voice authentication to ensure accurate patient identity as taught by Goren for the purpose of providing an easy, accurate, non-invasive and timely indicator to estimate hormone levels and predict gynecological phases of the correct individual.
Response to Arguments
Applicant’s arguments with respect to claim(s) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In regards to the 101 rejection, the claims were significantly amended and therefore, required a new 101 analysis in view of the amendments. The 101 rejection is upheld. The claims do not show an improvement, or a treatment step. The use of a fundamental frequency is well-known in voice analysis techniques in addition the claims do not show how the use of this fertility application is an improvement over current methods/products. Examiner notes that claims 12-13, 25-26 which recite use of the fertility application for conception or prevention of conception could be helpful in the independent claims. Further clarifying the claims regarding the use of the fundamental frequency and its association with fertility and conception/ prevention of conception would also move the claims in the correct direction in both terms of art and the 101 rejection.
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 YASMEEN S WARSI whose telephone number is (571)272-9942. The examiner can normally be reached Monday-Friday 9 am to 5 pm.
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/YASMEEN S WARSI/Examiner, Art Unit 3791
/MAY A ABOUELELA/Primary Examiner, Art Unit 3791
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