DETAILED ACTION
Acknowledgements
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-2, 4-20 are pending; claims 12-20 are withdrawn.
This action is Final.
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 5, 10-11 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.
Regarding claims 5 and 10, the limitations “a cycle” renders the claim indefinite in view of claim 1 requirement “a cycle”. It is not clear if these are the same or different “a cycle” or are “a cycle” in the two cycles. This makes the mete and bounds of the claim unclear which renders the claims indefinite.
Claim 11 is rejected for depending on a rejected claim.
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 1-2, 4-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more. The claim(s) recite(s):
Claim 1:
compare data derived from the plethysmograph to data derived from the at least one of the flow waveform and the pressure waveform (mental process, and/or mathematical concepts);
determine a trapped volume during a cycle (mental process, and/or mathematical concepts);
compare an expiratory time between two cycles to previous expiratory times (mental process, and/or mathematical concepts);
determine if an asynchronous event occurred by:
comparing the data derived from the plethysmograph to the data derived from the at least one of the flow waveform and the pressure waveform (mental process, and/or mathematical concepts); and
determining whether the trapped volume is greater than a threshold volume (mental process, and/or mathematical concepts);
classify the asynchronous event (mental process, and/or mathematical concepts);
These claim limitations fall within the identified groupings of abstract ideas:
Mathematical Concepts:
mathematical relationships
mathematical formulas or equations
mathematical calculations
Mental Processes
concepts performed in the human mind (including an observation, evaluation, judgment, opinion)
This judicial exception is not integrated into a practical application because:
Under the step 2A, analysis is conducted on the additional features of the claim. Under this analysis, the additional features beyond the judicial exception are:
Claim 1:
a receiver configured to receive ventilation data from at least one of a mechanical ventilator, an airway flow sensor, or an airway pressure sensor and impedance data from an electrical impedance tomography device (limitations related to data gathering, insignificant pre solution activities);
a processor (computer structures used as a tool for implementation);
a memory device configured to store the ventilation data and the impedance data (computer structures used as a tool for implementation);
a display (generic computer display as a tool, limitations related to insignificant post solution activities); and
a non-transitory computer readable medium storing instructions thereon that, when executed by the processor, cause the processor to perform steps (computer structures used as a tool for implementation)
retrieve a plethysmograph from the impedance data (limitations related to data gathering, insignificant pre solution activities);
retrieve at least one of a flow waveform and a pressure waveform from the ventilation data (limitations related to data gathering, insignificant pre solution activities);
provide the classification of the asynchronous event to a user through the display (limitations related to insignificant post solution activities)
These features in the claim do not integrate the exception into a practical application of the exception as the additional elements in the claim do not apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is no more than a drafting effort designed to monopolize the exception.
Limitation concepts that are indicative of integration into a practical application:
Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP 2106.05(e) and Vanda Memo
Limitation concepts that are not indicative of integration into a practical application:
Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f)
Adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g)
Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h)
Under Step 2B, the claim limitations are evaluated for an inventive concept. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, when considered separately and in combination, they do not add significantly more to the exception. Analyzing the additional claim limitations individually, the additional limitation that is not directed to the abstract idea are the same as those identified above in step 2A. Such limitations related to the receiver and retrieving are recognized by the courts as routine data gathering in order to input data to the mathematical algorithm, and thus, do not add a meaningful limitation to the system as it would be routinely used by those of ordinary skill in the art in order to apply the mathematical algorithm. In addition, the sensor structures are claimed in inference intended to be used with the required computer related structures gathering data and processing data. The computer structures cited above are claimed as performing generic computer functions routinely used in computer applications. Generic computer components recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system. The additional limitations recited in the dependent claims are directed to further limitations related to extra solution activities including to the inference intended to be used structures, and to further details of the data algorithm (A more specific abstraction is still an abstraction). Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. Therefore, analyzing the claims as an ordered combination under the Mayo/Alice analysis the features claimed are directed to patent ineligible limitations.
Response to Arguments
The examiner acknowledges applicant’s submission of amendments to the claims and specification filed 7/8/2026; and IDS filed 4/23/2026.
Applicant’s arguments regarding the drawing objections have been fully considered and are persuasive due to the amendments to the specification; the objections are withdrawn.
Applicant’s arguments regarding the specification objections have been fully considered and are persuasive due to the amendments to the specification; the objections have been withdrawn.
Applicant’s arguments regarding the rejections of the claims under 35 U.S.C. 112(a) have been fully considered and are persuasive due to the amendments to the claims; the rejections are withdrawn.
Applicant’s arguments regarding the rejections of the claims under 35 U.S.C. 112(b) have been fully considered and are partially persuasive due to the amendments to the claims and arguments; however, the amendments necessitated new grounds as presented above.
Applicant’s arguments regarding the rejections of the claims under 35 U.S.C. 101 have been fully considered but are not persuasive. The rejections have been updated to account for the amendments to the claims. Applicant argues that the claims do not recite judicial exceptions. The examiner respectfully disagrees as identified in the rejection. Applicant argues that the claims are directed to a particular machine. This is not found persuasive as the machine test is a tool and not a brightline indicator in the analysis. In general, the sensors are sensing the expected data, and computer structures are analyzing the data, and the inclusion of a display does not, by itself, move the limitations to eligible alone. Applicant argues improvement to monitoring technology, but these statements, without citation to the specification providing basis for the improvement, appear to be at most conclusory attorney arguments. Applicant’s direction to claims 8 and 9 are noted but claim 8 is not a specific prophylaxis as this relies on further steps to apply changing therapy. Claim 9 is close, but the claim merely sends a signal to the mechanical ventilator claimed in inference as a possible data source of the data retrieved without actually imparting the adjustment on a required system component. A better claim would be “wherein the system includes the mechanical ventilator, wherein the instructions cause the processor to send a signal providing an adjustment to the mechanical ventilator, and where the mechanical ventilator adjusts airflow based on the signal received”. The rejections are respectfully maintained.
Applicant’s arguments regarding the rejections of the claims in view of prior art have been fully considered and are persuasive due to the amendments to the claims; the rejections are withdrawn.
Applicant’s request for rejoinder has been fully considered but is premature as no claims are in condition for allowance.
Conclusion
No prior art rejections have been made, but the claims are not allowable due to the rejections under 101.
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 MICHAEL R BLOCH whose telephone number is (571)270-3252. The examiner can normally be reached M-F 11-8 EST.
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, Robert (Tse) Chen can be reached at (571)272-3672. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL R BLOCH/Primary Examiner, Art Unit 3791
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