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 Amendment
Claims 1-10 and 13-22 are currently pending. Claims 19 and 20 remain withdrawn. Claims 11 and 12 have been cancelled. Claims 1, 13, and 14 have been amended. Claims 21 and 22 have been added.
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 1-10, 13-18, 21, and 22 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 steps or acts, including receiving, from the first sensor, first sensor data. Thus, the claim is directed to a process, 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:
determining whether the first sensor data indicates movement of the wearable device;
sending an instruction to operate the component of the second sensor in an active state, the active state comprising the component associated with the second sensor is used to actively sense or process sensor data; and
wherein the determination that the second sensor indicates that the wearable device has been placed on the user’s body includes determining that the second sensor data, as compared to subsequent sensor data from the second sensor, reflects a change in data sensed by the second sensor, and the subsequent sensor data indicates that the one or more sensing channels of the second sensor are receiving data below the noise threshold, the subsequent sensor data being below the noise threshold indicating that the wearable device is no longer worn
set forth a judicial exception. The determining 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 “sending an instruction” step describes a concept that is 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 1 recites in accordance with a determination that the second sensor data indicates that the wearable deice has been placed on a user’s body, sending another instruction to continue to operate the component associated with the second sensor in the active state, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The continuation of operating the component 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 continuation of operating the component, 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:
receiving, from the sensor, first sensor data, wherein the second sensor data indicates that one or more sensing channels of the second sensor are receiving data at or above a noise threshold, the second sensor data being at or above the noise threshold indicating that the wearable device is worn; and
after activating the component associated with the second sensor, receiving, from the second sensor, second sensor data
The receiving steps are well-understood, routine and conventional activities for those in the field of medical diagnostics. Further, receiving 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 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 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)).
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 device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited first sensor and second sensor are generic sensors configured to perform pre-solutional data gathering activity and the wearable device 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.
The dependent claims also fail to add something more to the abstract independent claims. Claims 2-4 recite steps that recite the pre-solution activity of data gathering. Claims 5, 6, and 15-18 recite what the consumption rates, the wearable device, and authentication input are, which does not add anything significantly more. Claims 7 and 21 recite a pre-solution data gathering step and steps that add to the Abstract Idea. Claims 8-10, 13, 14, and 21 recite steps that add to the Abstract Idea. 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 the amendments are not directed to an Abstract Idea. Examiner respectfully disagrees, as the steps of “sending an instruction” is interpreted as organizing human activity. Furthermore, it is noted that computer components are used to perform the claimed steps. 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.
Applicant’s arguments with respect to the 35 U.S.C. 102(a)(1) rejections have been fully considered and are persuasive. The 35 U.S.C. 102(a)(1) rejections have been withdrawn.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Park et al. ‘905 (US Pub No. 2016/0259905) teaches when the noise level exceeds a threshold, the electronic device 101 can determine that the electronic device 101 is improperly worn and can output a user interface to induce proper wearing ([0259]) but does not teach when a noise threshold is exceeded, the wearable device is worn.
THIS ACTION IS MADE FINAL. 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 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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