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 .
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, 2, 14, and 15 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. With regard to claims 1 and 2, it is unclear why the claims indicate that the blood glucose level is analyzed based on a neural network model, but also that the blood glucose estimation is based on a correlation. In particular, computing a mathematical parameter (correlation) and analysis by non-mathematical methods (neural network model) are generally not considered to be the same; however, the claim language implies they are. With regard to claim 2, the phrase “the image” (line 11) lacks antecedent basis. With regard to claim 14, it appears that Applicant intends to set forth a Markush group (MPEP 2117); however, the claim should indicate a closed group (“the group consisting of”) rather than the phrasing set forth in the claim (“a group…”). With regard to claim 15, the claim is drawn to a system, however it is unclear if Applicant is implying a step to be performed by indicating the model “is trained using…” or is trying to provide a property of the model.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1 – 9 and 12 – 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tran (USPGPub 2021/0212606 – cited by Applicant). Tran teaches a non-invasive blood glucose monitoring system, consistent with the broadly recited claim 3, with the system comprising:
a portable main body (130,149) configured to be secured adjacent a portion of a user, wherein the portion of a user is an ear (paragraph [0313]; Fig. 10) or a finger (paragraphs [0311] - [0312]; Figs. 8-9);
one or more sensors (144) disposed in the main body and configured to collect information relating to user characteristics via the portion of the user, wherein the one or more sensors is configured for infrared spectroscopy (paragraph [0101]); and
a computing device configured to receive the information relating to the user characteristics and to analyze, based on a model, a blood glucose level of the user (paragraphs [0099], [0109]).
Further, Tran discloses constructional details covering the requirements of Claim 4 (Fig 10 and the description thereof); use of lens and camera elements for collection of the spectroscopic data (paragraphs [0101], [0102], [0105]); and computational details related to determination of blood glucose level (paragraphs [0099], [0110]) including use of neural network model in the processing (paragraphs [0099], [0109], [0320], [0342], [0346], [0353]).
Additionally, regarding claims 1 and 2, which are more narrow-focused independent claims, as highlighted in the discussion of certain dependent claims above Tran discloses that a neural network model is used, and that the blood glucose level estimation is based on correlation and being output (paragraphs [0099], [0109], [0110]); as well as disclose a combination of a light source and a camera using infrared spectroscopy (paragraphs [0099], [0109]).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 10, 11, and 15 – 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tran, as applied to claim 3 and 9 above. Tran teaches a glucose monitoring system as discussed above, relying on a trained neural network model for some embodiments. Although Tran does not particularly discuss a desired accuracy level to achieve and/or the particular ratio of training data used for building and testing the model as it is constructed, these are generally recognized as result-effective parameters. As such, without a showing of unexpected results or criticality it would have been within the skill level of the art before the effective filing date, to perform routine experimentation/optimization to implement the system of Tran with a desired accuracy level and/or through use of a desired percent of training/testing data during model construction, since it has generally been held to perform such optimizations to yield predictable results.
Additionally, Tran recognizes that data collection and processing can be implemented in a variety of configurations (paragraphs [0011]; [0112], [0113], [0285]) and thus without a showing of criticality or unexpected results it would have been within the skill of the art to rely on known data processing structures, including cloud-based and app-based arrangements, since Tran indicate these modifications are within the skill of one implementing the system.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC FRANK WINAKUR whose telephone number is (571)272-4736. The examiner can normally be reached Mon-Fri 9 am - 6 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chuck Marmor, II can be reached at 571-272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIC F WINAKUR/Primary Examiner, Art Unit 3791
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