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 13-24 are pending.
This action is Non-Final.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The listing of references in the specification 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 as failing to comply with 37 CFR 1.84(p)(4) because reference character “14” has been used to designate both hospital bed and corridor. 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. 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.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “48” has been used to designate both fasteners and computer readable storage medium. 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. 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.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “20” has been used to designate both window and controller. 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. 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: the issues raised in the drawing objections; amendments will be required to both the drawings and specification.
Appropriate correction is required.
The use of the term Bluetooth, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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.
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: “calculator adapted to” in claim 13 and “an interface unit adapted to” in claim 18.
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
Claim 18 is objected to because of the following informalities: claim 18 has text after the period and this should be removed as claims end with the period. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 13- are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 13, the following render the claim indefinite.
-line 3 “the sleep” lacks proper antecedent basis.
-line 4 “the electrical activity of the subject” lacks proper antecedent basis.
-line 5 “the sleep state” lacks proper antecedent basis.
For these reasons, the metes and bounds of the claim are unclear which renders the claim indefinite.
Claim 14 recites the limitation "the environment" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 15, the phrase "notably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For examination purposes, the terms are interpreted as not bearing patentable weight.
Regarding claim 18, the following render the claim indefinite.
-claim 18 depends on claim 13, but the like terminology being redefined is unclear if this is the same or different, including terms: a subject, a sleep analyzer
-similarly, it is not clear if the “a receiver” set forth in claim 18 is in reference to the inferential “external receiver” set forth in claim 13
For these reasons, the metes and bounds of the claim are unclear which renders the claim indefinite.
Regarding claim 21, the phrase "notably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For examination purposes, the terms are interpreted as not bearing patentable weight.
Regarding claim 21 further, it is unclear if “a subject” is the same or different from those previously set forth in the claim chain.
Regarding claim 22, the phrase "notably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For examination purposes, the terms are interpreted as not bearing patentable weight.
Regarding claims 21-22 , the limitations are indefinite. The metes and bounds of the claim are unclear as the claims are dependent claims, which are directed to claiming a room from a series of rooms, which contain a system/product. The form of claims do not further limit the system/product in any way, but merely set forth claiming the environment such product or system can be found. It is suggested to cancel these claims or to claim the room(s) “invented” in a different and independent form.
Regarding claim 23, the following render the claim indefinite.
-line 1 “the sleep” lacks proper antecedent basis.
-line 6 “the electrical activity of the subject” lacks proper antecedent basis.
-line 7 “the sleep state” lacks proper antecedent basis.
For these reasons, the metes and bounds of the claim are unclear which renders the claim indefinite.
Regarding claim 24, the following render the claim indefinite.
-claim 24 depends on claim 23, but the like terminology being redefined is unclear if this is the same or different, and which is then being further limited, including terms: a subject, a sleep analyzer, a housing, a sleep recorder, a calculator, a transceiver, an electrode
-similarly, it is not clear if the “a receiver” set forth in claim 24 is in reference to the “external receiver” set forth in claim 23
-“the steps” in line 6 lacks proper antecedent basis.
For these reasons, the metes and bounds of the claim are unclear which renders the claim indefinite.
The dependent claims are rejected for depending on a rejected claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 21-22 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Specifically, claims 21-22 are directed to claiming a facility and do not further limit the claimed product or system in any way, merely a separate manufacture which the claimed product/system can be located in. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 13-20, 23-24 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kim et al. (Kim, US 2016/0045135).
Regarding claim 13, Kim teaches a sleep analyzer, the sleep analyzer comprising:
a housing (see entire document, especially Figures 1-9),
a sleep recorder adapted to sense physical values relative to the sleep of a subject, the sleep recorder including an electrode adapted to record the electrical activity of the subject (see entire document, especially Figures 1-9, [0081], [0014], [0186]),
a calculator adapted to deduce the sleep state of the subject from the sensed physical values (see entire document, especially Figure 9 controller, [0186], [0121]), and
a transceiver adapted to transmit a data obtained from the deduced state of the subject to an external receiver (see entire document, especially Figure 9, [0121]), the sleep recorder, the calculator and the transceiver being in the housing (see entire document, especially Figures 1-9).
Regarding claim 14, Kim teaches wherein the sleep analyzer comprises a sensor for sensing a parameter relative to the environment of the sleep analyzer (see entire document, especially Figures 1-9, [0115]).
Regarding claim 15, Kim teaches wherein the sleep analyzer comprises a sensor for sensing a parameter relative to the subject, notably to the breath of the subject, the movement of the subject or the brain activity of the subject (the limitations after notably do not bear patentable weight; see entire document, especially Figures 1-9, [0115]-[0116]).
Regarding claim 16, Kim teaches wherein an external volume is defined for the housing, the external volume housing being comprised between 50 cm.sup.3 and 100 cm.sup.3 (see entire document, especially Figures 1-9, 26, [0104] where the dimensions disclosed fall into the range claimed).
Regarding claim 17, Kim teaches wherein the sleep analyzer is provided with a power supply, the power supply being in the housing (see entire document, especially [0080]).
Regarding claim 18, Kim teaches a system for monitoring the sleep of a subject comprising:
a sleep analyzer according to claim 13 (see rejection of claim 13),
a receiver adapted to receive the data obtained from the deduced state of the subject (see entire document, especially Figure 9, receiving module, [0121]), and
an interface unit adapted to indicate at least one of the received data (see entire document, especially [0121], [0131], [0203]-[0204]).
Regarding claim 19, Kim teaches wherein the interface unit is a human machine interface (see entire document, especially [0121], [0131], [0203]-[0204]).
Regarding claim 20, Kim teaches wherein the interface unit comprises at least one of a tablet and an indicator (see entire document, especially [0072], [0121], [0131], [0203]-[0204]).
Regarding claim 23, Kim teaches a method for analyzing the sleep of a subject with a sleep analyzer, the sleep analyzer comprising a housing (see entire document, especially Figures 1-9), a sleep recorder and the sleep recorder comprising an electrode (see entire document, especially Figures 1-9, [0081], [0014], [0186]), a calculator (see entire document, especially Figure 9 controller, [0186], [0121]), and a transceiver (see entire document, especially Figure 9, [0121]), the sleep recorder, the calculator and the transceiver being in the housing (see entire document, especially Figures 1-9),
the method for analyzing comprising:
sensing physical values relative to the sleep of the subject by using the sleep recorder, the sensing comprising recording the electrical activity of the subject with the electrode (see entire document, especially Figure 26, [0013]-[0014], [0121]),
deducing the sleep state of the subject from the sensed physical values by the calculator (see entire document, especially Figure 9 controller, [0186], [0121]), and
transmitting with the transceiver a data obtained from the deduced state of the subject to an external receiver (see entire document, especially Figure 9, [0121]).
Regarding claim 24, Kim teaches a method for monitoring the sleep of a subject with a system for monitoring the sleep of the subject, the system of monitoring comprising a sleep analyzer (see entire document, especially Figure 9 100), a receiver (see entire document, especially Figure 9, receiving module, [0121]) and an interface unit (see entire document, especially [0121], [0131], [0203]-[0204]),
the sleep analyzer comprising a housing (see entire document, especially Figures 1-9), a sleep recorder and the sleep recorder comprising an electrode (see entire document, especially Figures 1-9, [0081], [0014], [0186]), a calculator (see entire document, especially Figure 9 controller, [0186], [0121]), and a transceiver (see entire document, especially Figure 9, [0121]), the sleep recorder, the calculator and the transceiver being in the housing (see entire document, especially Figures 1-9),
the method for monitoring comprising:
carrying out the steps of a method for analyzing according to claim 23 (see rejection of claim 23),
receiving the data obtained from the deduced state of the subject by the receiver (see entire document, especially Figure 9, receiving module, [0121]), and
indicating at least one of the received data with the interface unit (see entire document, especially [0121], [0131], [0203]-[0204]).
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.
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.
Claims 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al. (Kim, US 2016/0045135) as applied to claim 18 above, and further in view of Levendowski et al. (Levendowski, US 2018/0333558).
Regarding claim 21, the limitations are met by Kim, except the limitations that sleep being monitored from the device is a healthcare room in the limitations “a healthcare room, notably an intensive healthcare room, equipped with a system for monitoring the sleep of a subject according to claim 18” (it is noted all limitations under notably do not bear any patentable weight).
Levendowski teaches a related system for measuring physiological data including sleep information, and suggests such systems can be readably used in a hospital setting including a room (see entire document, especially abstract, [0070], claims 1, 13). 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 the Kim system in a hospital setting with hospital rooms in order to monitor physiological data.
Regarding claim 22, the limitations are met by Kim in view of Levendowski, where the combination teaches a healthcare installation, notably an intensive healthcare installation, comprising several healthcare rooms, at least one of the healthcare room being according to claim 21 (it is noted all limitations under notably do not bear any patentable weight; see Kim rejections of the system of claim 18, see Levendowski teaching of using such systems in a hospital setting, including abstract, [0070], claims 1, 13). 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 the Kim system in a hospital setting with hospital rooms in order to monitor physiological data.
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