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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 23 March 2026 has been entered.
Response to Amendment
Claims 1-3, 5-10, and 13-19 are currently pending. Claims 1, 5, 10, and 18 have been amended. Claims 4 and 20 have been cancelled.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-3, 5-10, and 13-19 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.
STEP 1
Regarding claim 1, the claim recites a series of structural elements, including a housing. Thus, the claim is directed to a machine, which is one of the statutory categories of invention.
STEP 2A, PRONG ONE
The claim is then analyzed to determine whether it is directed to any judicial exception. The steps of
wherein the discordance detector is configured to determine an expected step cadence range based on the information from the external equipment,
to determine whether the measured step cadence is within the expected step cadence range, and
to discard the VO2 max value if the measured step cadence is outside of the expected step cadence range
set forth a judicial exception. These steps describe a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to a Mental Process, which is an Abstract Idea. The discarding step also describes a concept of managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). Thus, the claim is also drawn to Organizing Human Activity, which is also an Abstract Idea.
STEP 2A, PRONG TWO
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Claim 9 recites wherein the display is configured to display an estimated maximum volumetric flow of oxygen (VO2 max) value based at least on the step cadence, the heart rate, and the received information, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The displaying of the estimated VO2 max value does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the displayed estimated VO2 max value, nor does the method use a particular machine to perform the Abstract Idea.
STEP 2B
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the Abstract Idea, the claim recites additional steps of:
a first sensor in the housing, wherein the first sensor is configured to measure a step cadence; and
a second sensor in the housing, wherein the second sensor is configured to measure a heart rate
The measuring steps are well-understood, routine and conventional activities for those in the field of medical diagnostics. Further, the providing and recording steps are each recited at a high level of generality such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering and comparing activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the obtaining and comparing steps do not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Regarding claim 1, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited first and second sensors are generic sensors configured to perform pre-solutional data gathering activity, the display is configured to perform insignificant extra-solution activity, and the discordance detector is configured to perform the Abstract Idea. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application. Furthermore, the housing, wherein the housing is configured to be coupled to a wrist with a strap is an additional element that is not significantly more. Furthermore, Battaglini et al. ‘134 (US Pub No. 2019/0009134 – previously cited) teaches that these structures are known in the art (Fig. 6 and [0052]).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
The same rationale applies to claims 10 and 18.
The dependent claims also fail to add something more to the abstract independent claims. Claims 2-9 and 11-17 receive steps that add to the Abstract Idea as the steps are mental processes. Claim 19 recites a step that adds insignificant extra-solution activity to the judicial exception. The steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Response to Arguments
Applicant argues that because the independent claims were amended to be directed to the specific technical improvement of using motion and heart rate measurements to determine VO2 max and selectively discarding VO2 max determinations to improve cardiac monitoring technology. Examiner respectfully disagrees, as the step of determining an expected step cadence range, whether the measured step cadence is within the expected step cadence range, and discarding the VO2 max value if the measured step cadence is outside of the expected step cadence range are Abstract Ideas (see 35 U.S.C. 101 rejection above). Furthermore, Applicant argues that the steps are an unconventional method of determining VO2 max. However, VO2 max is determined based at least one the step cadence, heart rate, and received information, which was previously taught by Battaglini et al. ‘134 (see art rejections in Final Office Action mailed on 23 December 2025). As previously mentioned, the steps of determining an expected step cadence range, whether the measured step cadence is within the expected step cadence range, and discarding the VO2 max value if the measured step cadence is outside of the expected step cadence range are Abstract Ideas. It is noted that section 2106.05(a) II. of the MPEP states that “…it is important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology.”
It is noted that the Applicant has amended the independent claims to include a “discordance detector.” At first, the claims seemingly recite structures that are not well-understood, routine, and conventional. However, upon further consideration, it was found that the discordance detector is not a detector/sensor. Rather, the discordance detector is part of the VO2 max estimator, which is part of the control circuitry, as mentioned in Fig. 5 and [0051]-[0052] of the PGPUB, indicating that the discordance detector is merely a component of a generic controller. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application. As such, Applicant’s arguments are not persuasive and the 35 U.S.C. 101 rejection has been maintained.
Applicant’s arguments regarding the 35 U.S.C. 102(a)(1) rejections have been fully considered and are persuasive. Thus, the 35 U.S.C. 102(a)(1) and 103 rejections of claims 1-3, 5-10, and 13-19 have been withdrawn.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Daly et al. ‘556 (US Pub No. 2009/0023556) teaches determining whether a user’s cadence falls in or near typical heart rate ranges, which may interfere or complicate reading the output signals from biopotential sensors when determining the user’s heart rate ([0038]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AURELIE H TU whose telephone number is (571)272-8465. The examiner can normally be reached [M-F] 7:30-3:30.
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/AURELIE H TU/ Primary Examiner, Art Unit 3791
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