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 .
Response to Arguments
I. Claim Objections
Applicant’s amendments to claims 12 and 13 have successfully overcome the previous claim objections. Those objections are now withdrawn.
II. Claim Rejections under 35 U.S.C. § 101
First, the previous rejection of claim 15 under § 101 as being software per se is overcome and withdrawn due to Applicant’s amendment to the claim.
Second, Applicant’s remarks concerning the remaining § 101 rejections have been fully considered but are not persuasive.
Applicant argues that the claims here are eligible for similar reasons to claim 3 of Example 47 of the July 2024 Subject Matter Eligibility Examples. Specifically, claim 3 of Example 47 is indicated as eligible in Step 2A, Prong Two primarily because of the remedial actions of steps (e) and (f) of that claim which included automatically dropping malicious network packets and blocking future traffic from the identified source address. Applicant argues that the presently claimed step of filtering via adaptive noise cancellation is analogous to those remedial actions of steps (e) and (f) in claim 3 of Example 47. The Examiner respectfully disagrees. The fundamental problem being addressed in Example 47 is inherently technological in nature because the entire concept of malicious network packets, and the problems associated with them, only exists within the technological context of computer networks. While the Example claim included some steps that could be done mentally, ultimately the final steps of the claim were the type of steps that could only be done (and only make sense) in that technological context. In the analysis for Step 2A, Prong One of Example 47, claim 3, it confirms that steps (d)-(f) were not considered part of the mental process: “Limitations (d)-(f) do not recite mental processes because they cannot be practically performed in the human mind. That is, the human mind is not equipped to detect a source address associated with malicious network packets, drop the malicious network packets in real time, and block future traffic as recited in the claim.”
This is in stark contrast to the claims here, where the filtering step carried out by the processor is a mental step (i.e., part of the judicial exception). A person can mentally (or manually with pen and paper) combine two data sets and adaptively filter out contributions of one to the other. The end result of this is an improvement (less noise or no noise) in the (filtered) data set, which is not inherently a technological improvement since the improved (filtered) data set has the same benefit whether it was filtered mentally/manually or filtered by a computer. It also has the same benefit whether the data was originally captured by a device or captured manually. The concept of a noisy diagnostic data set is not fundamentally rooted in technology in the same manner as malicious network packets because even a data set gathered entirely mentally or manually (with no technology, e.g. a data set gathered by a doctor just using their own senses) can be contaminated by noise from another set of data, and the benefit of removing the noise can be realized even in the absence of technology because a diagnostic data set with noise removed has diagnostically-relevant value even in its abstract form (e.g., even when it exists only mentally or on a piece of paper). This is quite different from network packets where removal of malicious packets in the hypothetical abstract (e.g. from a hypothetical mental list of packets) would have no benefit at all; the benefit can only exist when those malicious packets are removed in reality from the technological environment because the problem only ever exists in the technological environment.
The claimed steps also do not ultimately change the functionality of the processor or the sensor(s). The claims here do not require anything resembling the remedial actions recited in claim 3 of Example 47 which were not mental steps and were fundamentally a technological improvement that could only yield benefits in a technological environment. Accordingly, the § 101 rejections are maintained.
III. Claim Rejections under 35 U.S.C. §§ 102 and 103
The previous § 102 rejections are overcome in view of the claim amendments, except for claim 9. Claim 9 is effectively the same scope as presented previously. The reference to claim 1 in the preamble of claim 9 is considered a mere statement of intended use, since the scope of claim 9 is limited to the “An infant soother …” and does not encompass the other limitations found in claim 1. For instance, claim 9 doesn’t actually require the processor or its steps recited in claim 1; rather, it merely requires an infant soother that could theoretically be used with such a processor. Zwartkruis still teaches an infant soother meeting the limitations of claim 9, and Applicant has presented no remarks specifically addressing this.
Concerning the § 103 rejections, Applicant’s remarks have been fully considered but are not persuasive. Applicant’s only argument is that Zwartkruis discloses that the infant’s sucking motion is a physiological signal of interest whose detection is the objective of the system, and thus also treating that signal as a reference noise source would allegedly run counter to the operating principles of Zwartkruis. The Examiner respectfully disagrees. Treating the sucking motion as a reference noise source for one type of signal would not require ignoring or dismissing the sucking motion as its own signal of interest. One skilled in the art would understand that the signal processing steps for each signal could (and would have to be) different, and that while the sucking motion might have diagnostic value on its own, it can also have a negative impact as noise on other signal(s). In the proposed combination, the sucking motion can still be collected and analyzed as its own signal of interest (as desired by Zwartkruis) while also being used as a reference noise source in a different signal processing step for a different signal of interest. In other words, none of Zwartkruis’ functionality need be lost by making the combination.
Claim Objections
Claim 1 is objected to because of the following informalities: in the second-to-last line, two commas were added after “frequency.” One of these should be removed. Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 2-4, 11 and 16-18 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, these claims merely recite limitations which have been added to independent claims 1, 10 and 15; these dependent claims no longer appear to recite any further limitations that further limit the scope of their respective independent claims. 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 § 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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a mental process without significantly more.
Step 1: All of claims 1-20 are directed either to a method/process or to a system/machine.
Step 2A, Prong One: The claims recite a mental process including steps such as “remove or reduce an influence of a sucking motion of the soother portion on the vital signs sensor output using the soother sensor signal by combining the vital signs sensor output and the soother sensor signal by using adaptive noise cancelation, with the soother sensor signal functioning as a noise reference signal, to filter out contributions at a sucking motion frequency, to obtain a vital signs measurement.” which could be performed by the human mind and/or by a human with a physical aid such as pen and paper. Essentially, the claims recite a mental process of analyzing two signals together to obtain a result.
Step 2A, Prong Two: This judicial exception is not integrated into a practical application because the claims merely implement the mental process using generic processing technology and add insignificant extra-solution activity. Specifically: the steps of sensing the sensor signals (e.g. soother sensor signal, vital signs sensor output) using various known generic sensors is considered insignificant pre-solution activity of mere data gathering, since it merely collects the data necessary to carry out the mental process. Furthermore, merely carrying out mental steps using generic computing technology such as “a processor” is well established to not amount to an integration into a practical application under the § 101 analysis. See, e.g., MPEP §§ 2106.04(a)(2)(III)(C) and 2106.04(d)(I) and 2106.05(f).
Step 2B: The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the only additional elements recited in the claims are generic processing/computing components and generic data collection/sensing components. The Examiner previously took official notice that these are basic, generic components which are well-understood, routine and conventional in the medical diagnostic arts, and the claims here merely use them for their well-understood, routine and conventional functions. Applicant’s subsequent reply did not traverse the Examiner's assertion of official notice; therefore, the facts under official notice are now taken to be admitted prior art. See MPEP § 2144.03(C) (“If applicant does not traverse the examiner' s assertion of official notice or applicant' s traverse is not adequate, the examiner should clearly indicate in the next Office action that the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant either failed to traverse the examiner' s assertion of official notice or that the traverse was inadequate.”). As such, those additional elements cannot be considered “significantly more” than the judicial exception in Step 2B of the § 101 analysis.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 9 is rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by US 2014/0296661 A1 to Zwartkruis-Pelgrim et al. (hereinafter “Zwartkruis”).
Regarding Claim 9, Zwartkruis teaches an infant soother (30 in FIG. 3 and/or 40 in FIG. 4), for use in the system of claim 1 (statement of intended use; Zwartkruis is fully capable of this) comprising:
a soother portion (31 in FIG. 3 and/or 41 in FIG. 4); and
a soother sensor (32 in FIG. 3 and/or 42 in FIG. 4) for detecting sucking motion of the infant soother (see e.g. Paras. 59-60) for use in interpreting a vital signs sensor output by taking account of the frequency of the sucking motion (statement of intended use; Zwartkruis is fully capable of being used for this).
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.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Zwartkruis in view of US 2016/0206247 A1 to Morland et al. (hereinafter “Morland”).
Regarding Claims 1-4, 9-11 and 15-18, Zwartkruis teaches an infant monitoring system, comprising:
an infant soother system (30 in FIG. 3 and/or 40 in FIG. 4), comprising:
a soother portion (31 in FIG. 3 and/or 41 in FIG. 4); and
a soother sensor (32 in FIG. 3 and/or 42 in FIG. 4) providing a soother sensor signal for identifying a position or movement of the soother portion (see e.g. Paras. 59-60);
a vital signs sensor for providing a vital signs sensor output (see e.g. “[0041] In a particularly preferred embodiment according to the invention it is provided that the system further comprises at least one device selected from the group consisting of: [0042] actigraph [0043] polysomnograph [0044] temperature sensor [0045] infrared video camera system [0046] night vision based video camera system, and/or [0047] pressure pads or accelerometers for sleep position sensing.”); and
a processor (see e.g. “computer” in Para. 48 and 61), configured to:
[analyze] the vital signs sensor output [and] the soother sensor signal, to obtain a vital signs measurement (see e.g. Para. 63).
Zwartkruis fails to specifically teach “remove or reduce an influence of a sucking motion of the soother portion on the vital signs sensor output using the soother sensor signal by combining the vital signs sensor output and the soother sensor signal by using adaptive noise cancelation, with the soother sensor signal functioning as a noise reference signal, to filter out contributions at a sucking motion frequency.” Concerning those deficiencies, attention is further directed to Morland which teaches that a vital sign sensor output of interest (in this case PPG) can be interpreted by using an adaptive filter to filter out undesired motion frequencies by using a motion reference signal (see e.g. the abstract and claim 1; see terms “adaptive filter” and “reference signal” throughout Morland). It would have been obvious to one of ordinary skill in the art as of Applicant's effective filing date to modify Zwartkruis to use the measured sucking frequency as a noise reference signal to be used in an adaptive filter on the vital sign data, akin to that seen in Morland, because it would predictably enhance the detection of desired signals (e.g. breathing or heart signals) by removing or reducing contribution of the sucking motion.
Regarding Claims 5-6, 12 and 19, see e.g. Paras. 41-47 of Zwartkruis, which are quoted in full in the rejection of claim 1 above.
Regarding Claims 7, 13 and 20, see e.g. Paras. 59-60 of Zwartkruis.
Regarding Claims 8 and 14, see e.g. Para. 49 of Zwartkruis.
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 JOHN R DOWNEY whose telephone number is (571)270-7247. The examiner can normally be reached Monday-Friday 8:30am-5:00pm ET.
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.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, NIKETA PATEL can be reached at (571)-272-4156. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN R DOWNEY/Primary Examiner, Art Unit 3792
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