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
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/10/2023. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Clams 1-20 are objected to because of the following informalities: the numerical references between parenthesis should be cancelled. Appropriate correction is required.
Limitation “enables” and/or “can” in the claims are objected to because of the following informalities: the phrase “enables” and/or “can” should be amended to read –configured--. Appropriate correction is required.
Claim 1 is objected to because of the following informalities: the phrase “it” in claim 1 should be cancelled. Appropriate correction is required.
Claim 1 is objected to because of the following informalities: the phrase “the analysis” in line 30 should be amended to read –the analysis results--. Appropriate correction is required.
Claims 2-12 are objected to because of the following informalities: the phrase “An analysis system” in line 1 should be amended to read --The portable breath analysis system--. Appropriate correction is required.
Claims 2-8 are objected to because of the following informalities: the phrase “breath measuring device (10) it has comprises a gas sensor (12) measuring Carbon Monoxide (CO) gas in the range of” in lines 2-3 should be amended to read –the breath measuring device comprises the gas sensor measuring Carbon Monoxide (CO) gas in a range of--. Appropriate correction is required.
Claim 9 is objected to because of the following informalities: the phrase “a mobile device” in line 2 should be amended to read –the mobile device--. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: the phrase “the warnings” in lines 2 should be amended to read –the user warnings--. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: the phrase “it has” in line 3 should be cancelled. Appropriate correction is required.
Claim 13 is objected to because of the following informalities: the phrase “it has” in line 2 should be cancelled. Appropriate correction is required.
Claim 13 is objected to because of the following informalities: the phrase “data obtained” in lines 11 and 13 should be amended to read –the received data--. Appropriate correction is required.
Claim 13 is objected to because of the following informalities: the phrase “a result” in line 15 should be amended to read –the result--. Appropriate correction is required.
Claim 13 is objected to because of the following informalities: the phrase “he analysis results” in line 17 should be amended to read –the analysis results--. Appropriate correction is required.
Claim 13 is objected to because of the following informalities: the phrase “mobile device” in line 18 should be amended to read –the mobile device--. Appropriate correction is required.
Claims 14-20 are objected to because of the following informalities: the phrase “An analysis method” in line 1 should be amended to read –The analysis method--. Appropriate correction is required.
Claim 14 is objected to because of the following informalities: the phrase “a result” in line 3 should be amended to read –the result--. Appropriate correction is required.
Claim 15 is objected to because of the following informalities: the phrase “a result” in lines 3 and 7 should be amended to read –the result--. Appropriate correction is required.
Claim 16 is objected to because of the following informalities: the phrase “data obtained” in line 4 should be amended to read –the received data--. Appropriate correction is required.
Claim 18 is objected to because of the following informalities: the phrase “data obtained” in line 3 should be amended to read –the received data--. Appropriate correction is required.
Claim 19 is objected to because of the following informalities: the phrase “a result” in line 3 should be amended to read –the result--. Appropriate correction is required.
Claim 20 is objected to because of the following informalities: the phrase “a result” in line 3 should be amended to read –the result--. Appropriate correction is required.
Claim 20 is objected to because of the following informalities: the phrase “a meal” in line 6 should be amended to read –the meal--. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
Limitation “by means of transmitting” in claim 9, the claim does not recite enough structure that corresponds to the claimed “means of transmitting”. However, the specification discloses wireless transmission via Bluetooth as means of transmission (par.58) which may be interpreted as the structure that corresponds to the claimed “means of transmitting”.
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 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 1-20 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 the limitation “enables the personal metabolism and fat burning rate from breath analysis” this limitation is not defined by the claim, which renders the claim indefinite. One with ordinary skill in the art would not be able to know how if the server is analyzing the personal metabolism and fat burning rate from breath analysis, or generating the personal metabolism and fat burning rate from breath analysis. The scope of the claim remains indeterminate because of the claimed “enables”.
Claim 16 recite the limitation “protect it by the server” this limitation is not defined by the claim, which renders the claim indefinite. One with ordinary skill in the art would not be able to know the term “it” refers to which parameter, or to which structural element. A s broadly as claimed the scope of the claim is indeterminate with respect to the claimed “protects it by the server”.
Claim 1 recites the limitation "the respiratory gases" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the person’s health" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the user" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the Carbon" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the wireless transmission" in line 11. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the received data" in line 11. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the mobile device" in line 11. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the exhaled breath" in line 16. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the personal metabolism" in lines 19-20. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the missing" in line 20. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the nutrition program" in line 21. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the determination" in line 21. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the foods" in line 21. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the diet" in line 22. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the creation" in line 23. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the data obtained" in line 24. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the analysis results" in lines 24-25. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the gas data" in line 27. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation "the carbohydrate" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the charge status" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation "the changes" in line 8. There is insufficient antecedent basis for this limitation in the claim.
Claim 16 recites the limitation "the nutritional" in lines 6-7. There is insufficient antecedent basis for this limitation in the claim.
Claim 16 recites the limitation "the ketone level" in lines 7-8. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "the hunger level" in lines 6-7. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "the meal" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Allowable Subject Matter
Claims 1-20 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is an examiner’s statement of reasons for allowance: the combination of the most pertinent prior art Ratto et al (US 10,682,072) and Reddy et al (US 2020/0337594) teaches a portable breath analysis system that helps healthy eating and weight loss by analyzing the respiratory gases taken from the person's breath, characterized in that, it comprises; a breath measuring device having a blowing mouthpiece that allows the user to blow his/her breath, that measures the Carbon Monoxide (CO), Nitrogen Dioxide (NO2), Ethanol (C2H5OH), Hydrogen (H2), Ammonia (NH3), Methane (CH4), Acetone (C3H6O) gases simultaneously and instantaneously, a gas sensor for measuring the gases in the breath, a breath chamber, in which the blown breath is transmitted to the gas sensor, electronic circuit card that enables the wireless transmission of the received data to the mobile device and gives the user warnings of the breath measuring device, a button that enables the breath measuring device to be switched on and off and to start receiving data, a charge input port that allows the breath measuring device to be charged, and an air outlet opening that allows the exhaled breath to exit the breath measuring device.
The prior art does not teach, disclose and/or fairly suggest a server that analyzes the data received by the breath measuring device via the mobile device, and enables the personal metabolism and fat burning rate from breath analysis, the missing or excess nutrients in the nutrition program, the determination of the foods that cause digestive problems and their removal from the diet, that enables the creation of a personalized nutrition plan and monitoring its effectiveness in line with the data obtained, that sends the analysis results back to the mobile device and displays the results, analyzes, and special nutrition plan on the mobile device, a mobile device that transmits the gas data received from the breath measuring device to the server, that takes the analysis and the nutrition plan created by the server and displays it to the user through its interface.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAY A ABOUELELA whose telephone number is (571)270-7917. The examiner can normally be reached 8-5.
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, JACQUELINE CHENG can be reached at 5712725596. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MAY A ABOUELELA/Primary Examiner, Art Unit 3791