I. ACKNOWLEDGEMENTS
This Office Action addresses U.S. Application No. 18/334506 (“’506 Application” or “instant application”). Based upon a review of the instant application, the actual filing date of the instant application is June 14, 2023.
This action is being issued following Applicant’s response of 12/3/2025, which included claim amendments and arguments.
II. STATUS OF CLAIMS
Claims 1-20 were filed with the application. The amendment of 12/3/2025 amended claims 1, 5, 6, 14, 19 and 20, and cancelled claims 3 and 4. Therefore, as of the date of this Office Action, the status of the claims is:
a. Claim 1, 2, 5-20 (“Pending Claims”).
b. Claim 1, 2, and 5-20 are examined (“Examined Claims”)
III. PRIORITY AND CONTINUING DATA
The ‘506 application claims priority to German Application DE 10 2022 206012.1, filed June 14, 2022. Because the earliest possible effective filing date is after March 16, 2013, the first to file provisions of the AIA , apply to this proceeding.
IV. DECLARATION
The declaration filed July 12, 2023 is approved.
V. REJECTIONS UNDER 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.
Claims 1, 2, 5, and 14-17 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 is rejected as being indefinite in that it is unclear whether second determining step is intended to further limit the first determining step, or be additional to the first determining step. In other words, does the claim determine one or two pulse rates.
Claims 2, 5, and 14-17 are rejected as being dependent upon a rejected base claim.
VI. REJECTIONS UNDER 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, 2, and 5-20 are rejected under 35 USC 101 because the claimed invention is directed to an abstract idea without significantly more (See MPEP 2106.04(a)).
Claim 1 recites the limitations:
providing at least one first hearing instrument with an electroacoustic first input transducer
using the first input transducer to pick up a first structure-borne sound signal at an ear of the person and to generate a first input signal from the first structure borne-signal
determining a pulse rate based on an amplitude profile of the first input signal
determining the pulse rate based on a correlation measurement of the first input signal
determining a correlation of the first input signal with a test function, being assigned a predetermined frequency, for the correlation measurement; and
outputting the determined pulse rate for use in at least one of:
monitoring the health of the person; or
determining at least one cardiovascular variable of the person to provide information on possible risks to the person of cardiovascular disease.
The first step in the 101 analysis, step 1 in MPEP 2106, is whether the claimed invention is in one of the 4 statutory classes of invention. Here, the claim is drawn to a method of measuring the pulse of a person by using a hearing system. A method is one of the 4 statutory classes of invention. Hence, step 1 is satisfied.
The next step in the analysis, step 2A prong one, is whether the claim is directed to judicial exception, i.e. a law of nature, a natural phenomenon, or an abstract idea. Here, the determining a pulse rate step is a mental process that can be carried out with pen and paper. Additionally, steps of determining a pulse rate the based on a correlation measurement of the first input signal and determining a correlation of the first input signal with a test function involves mathematical processes. Both mental processes and mathematical processes are judicial exceptions that recite an abstract idea. See MPEP 2164.
In Step 2A, prong two of the analysis, the claim is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. There are several additional elements. First, the step of providing and using a electroacoustic sensor to measure a first structure-borne signal is an additional step. This steps merely amount to data gathering, which is insignificant pre-solution activity. In addition, the step of outputting the determined pulse rate is an additional step. This step is merely insignificant post-solution activity.
Further, the structure is recited at a high level of generality. Neither of these steps integrate the exception into a practical application. As such, the answer to step 2A, prong 2, is no.
The final step of the analysis, step 2B, where the claim is evaluated to determine whether the recited additional elements amount to significantly more than the judicial exception. Here, the additional step simply recites well-understood, routine, and conventional processing data. Hence, the step does not recite an inventive concept.
As such, claim 1 is directed to an abstract idea and is not patent eligible.
As to claims 2, 5, and 14-17, the claims recite additional more mental and/or mathematical steps and structure recited at a high level of generality and therefore are still drawn to a judicial exception.
Hence, claims 1, 2, 5, and 14-17 are non-statutory.
As to claim 6,
Claim 6 recites the limitations:
providing at least one first hearing instrument with an electroacoustic first input transducer
using the first input transducer to pick up a first structure-borne sound signal at an ear of the person and to generate a first input signal from the first structure borne-signal
determining a pulse rate based on an amplitude profile of the first input signal
in a normal mode, determining pulse rate based on the amplitude profile of the first input signal,
in the event of an error when determining the pulse rate in the normal mode, changing to a special mode;
in the special mode, obtaining a first item of information about a pulse beat of the person, based on at least one of an auxiliary signal or a correlation measurement, and determining the pulse rate based on the first item of information; and
outputting the determined pulse rate for use in at least one of:
monitoring the health of the person; or
determining at least one cardiovascular variable of the person to provide information on possible risks to the person of cardiovascular disease.
The first step in the 101 analysis, step 1 in MPEP 2106, is whether the claimed invention is in one of the 4 statutory classes of invention. Here, the claim is drawn to a method of measuring the pulse of a person by using a hearing system. A method is one of the 4 statutory classes of invention. Hence, step 1 is satisfied.
The next step in the analysis, step 2A prong one, is whether the claim is directed to judicial exception, i.e. a law of nature, a natural phenomenon, or an abstract idea. Here, the determining a pulse rate steps are mental processes that can be carried out with pen and paper. Mental processes are judicial exceptions that recite an abstract idea. See MPEP 2164.
In Step 2A, prong two of the analysis, the claim is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. There are several additional elements. First, the step of providing and using a electroacoustic sensor to measure a first structure-borne signal is an additional step. In addition, obtaining the first item of information is an additional step. Both of these steps merely amount to data gathering, which is insignificant pre-solution activity. In addition, the step of outputting the determined pulse rate is an additional step. This step is merely insignificant post-solution activity.
Further, the structure is recited at a high level of generality. Neither of these steps integrate the exception into a practical application. As such, the answer to step 2A, prong 2, is no.
The final step of the analysis, step 2B, where the claim is evaluated to determine whether the recited additional elements amount to significantly more than the judicial exception. Here, the additional step simply recites well-understood, routine, and conventional processing data. Hence, the step does not recite an inventive concept.
As such, claim 6 is directed to an abstract idea and is not patent eligible.
As to claims 7-13, 18 and 19 recite additional more mental and/or mathematical steps and structure recited at a high level of generality and therefore are still drawn to a judicial exception.
Claim 20 recites structure to perform the method of claim 6, but the structure is recited at a high level of generality. Hence, the claim is still drawn to the judicial exception.
Hence, claims 6-13 and 18-20 are non-statutory
VII. ALLOWABLE SUBJECT MATTER
Claims 1, 2, and 5-20 would be allowable if the rejection under 35 USC 101 were overcome.
Claims 1, 2, 5, 14-17 define over the art of record in that none of the art teaches correlating the first input signal with a test function, being assigned a predetermined frequency.
Claims 6-13 and 18-20 define over the art in that none of the art has the two modes, a normal mode for determining the pulse rate based on the amplitude profile of the first input signal, and a special mode, when there is an error in the normal mode, which determines the pulse rate based on an auxiliary signal or a correlation measurement.
VIII. ANSWER TO ARGUMENTS
As to the 101 rejection, Applicant has asserted that the current claims do not amount to mental processes. Specifically, Applicant has asserted that the determination of pulse rate cannot be performed mentally, as it requires physical interaction with the person to obtain the measurement data. Applicant has argued that using a structure-borne sound pickup is not something a human is capable of. The Examiner notes that the issue is whether the exception can be performed mentally, not the entire claim. The measuring steps, are gather data steps, as defined in MPEP 2106.05(g), and are additional steps to the exception and therefore need not be performed mentally. The issue is whether the exception can be performed mentally given the inputs.
Applicant has also asserted that no human would be able to calculate the correlations recited in the claims, as the correlations require mathematical operations far beyond the capability of human calculus. The Examiner disagrees. The details of the correlation measurements are not recited in the claims. Rather, the claim merely states determining a correlation measurement. The disclosure states that the pulse rate is determined by minimum tracking, i.e. tracking the minimums of the amplitude profile. If one were to give a person a printout of the test signal at a frequency and the amplitude profile of the pulse wave, one could indeed determine whether the two correlate, i.e. are the same of similar frequencies. No advanced mathematical steps are required. Further, as noted above, claim 1, as now written includes a mathematical process. As such, the rejection stands.
Applicant has further asserted that adding the output step integrates the claims into a practical application. The Examiner disagrees. All the claim recites is outputting a value. The value is not actually used to monitoring the health or to assess the risk of cardiovascular disease, but it is merely for use in those calculations, i.e. it is intended use. It is well settled that merely outputting a value does not integrate the exception into a practical application. See MPEP 2106.05(g). At present, the outputting does not meaningfully limit the claim.
IX. CONCLUSION
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 ROBERT L NASSER whose telephone number is (571)272-4731. The examiner can normally be reached M-F 8-6.
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/ROBERT L NASSER/ Primary Examiner, Art Unit 3992