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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“A first light emitting part” in claims 1 - 7, 9, 13, and 14;
“a second light emitting part” in claims 1 - 5, and 7;
“a first light receiving part” in claims 1 - 4, 6 - 10, 13, & 15;
“a second light receiving part” in claims 1 - 4, 7 - 8, 10, & 12;
“a first optical member” in claims 1 - 10, & 13;
“a second optical member” in claims 1 - 10, & 12;
“a first wall part” in claims 6, 9, & 13 - 14;
“a second wall part” in claims 6 & 13;
“a third wall part” in claim 9
“an information analysis part” in claim 16;
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1 - 16 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). Claim 1 recites, “a first light emitting part that emits a first light … toward a living body”, “a second light emitting part that emits a second light… toward the living body”, “a first light receiving part that receives the first light… radiated from the living body,” and “a second light receiving part that receives the second light… radiated from the living body”, which improperly positively claim a “living body”. Human organisms, which would be encompassed by the claim limitation of a “living body” is not allowed under 35 U.S.C. 101. Claim 11 additionally recites, “a third light emitting part that emits a third light… toward the living body” and claim 12 recites, “a third light emitting part that emits a third light… toward the living body, wherein the second light receiving part receives the second light and the third light that are radiated from the living body,” which similarly improperly claim “the living body”. Applicant should amend the claims to include function phrasing by adding “for” (e.g., -- a first light emitting part that for emitting a first light … toward a living body --) such that the “living body” is no longer positively claimed. Claims 2 - 10 and 13 - 16 are rejected by virtue of dependence on claim 1.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1 & 16 are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi (JP 2018061675 A ) in view of Connor (US 20210379388 A1).
In regard to claim 1, Kobayashi discloses a detection device that comprises a first light emitting part (FIG. 2, component E1) and second light emitting part (FIG. 2, component E2) where the first light emitting part emits a first light towards a measurement site of a living body (FIG. 2, component M) where the first light is green and is shorter in wavelength than the red light emitted by the second light emitting part towards a measurement site of a living body (Page 2, paragraph 4). The device additionally includes a first light receiving part (FIG. 2, component R1) that receives a first light from the first light emitting part (see FIG. 2, light path from E1 to R1) and a second light receiving part (FIG. 2, component R2) that receives the second light emitted from the second light emitting part (see FIG. 2, light path from E2 to R2).
While Kobayashi discloses the detection device with multiple light emitting and receiving parts, they do not disclose a first or second optical member that refracts the first and second light.
However, Connor teaches a wearable device with a plurality of biometric sensors (Abstract) where the wearable device comprises one or more optical members or lenses that refract lights. Connor further teaches that the lenses can selectively refract and/or focus light between a light emitter and a body tissue and/or between a body tissue and a light receiver (paragraph [0158]) and that the lens may be a Fresnel lens, concave lens, convex lens, a combination of multiples lenses, and variable-focal lens (paragraph [0158]). One of ordinary skill in the art would recognize that the optical members would have to be placed in the light path of the light emitting parts to the measurement site of the living body and/or the light path of the measurement site of the living body that radiates light to the light receiving part in order to refract or focus the light and additionally that multiple optical members can be incorporated into the detection device such that there is a first optical member and second optical member that refract a first and second light respectively.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the system disclosed by Kobayashi which includes multiple light emitters that direct light to a measurement site of the living body and light receivers that receive light from a measurement site of the living body and the teaching of Connor that an optical member or lens can be placed in the light path of the light emitting parts to the measurement site of the living body and/or the light path of the measurement site of the living body that radiates light to the light receiving part because doing so would be considered combining prior art elements according to known methods to yield the predictable result of refracting and focusing light for the irradiation and collection of light of a measurement site of a living body.
In regard to claim 16, Kobayashi as modified discloses the invention of claim 1. Kobayashi further discloses a measurement device (FIG. 1, component 100) comprising the detection device according to claim 1 and an information analysis part (FIG. 2, component 20) configured to identify biological information of the subject from the plurality of detection signals generated by the detection device, including pulse rate and oxygen saturation (Page 4, paragraph 2).
Claims 2 - 4, 6, 7, 9 - 13, & 15 are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi (JP 2018061675 A ) in view of Connor (US 20210379388 A1) as applied to 1 above, and further in view of Matsuura (US 20200323451 A1 - Cited by Applicant).
In regard to claims 2 and 3, Kobayashi as modified discloses the invention of claim 1. While Kobayashi discloses a plurality of light emitting parts and receiving parts that require directing light towards a measurement site and collecting the light reflected from the measurement site of the living body (FIG. 2) and Connor further teaches that an optical member or lens can be included in a light path from a light emitting part to a measurement site and/or from a measurement site to a light receiving part of a detection device in order to selectively refract light and/or focus light (paragraph [0158]), neither Kobayashi nor Connor specify details about the focal length of the optical members.
However, Matsuura (US 20200323451 A1) teaches a detection device that includes a light emitting part that directs light towards a measurement site of the living body and a light receiving part that receives light reflected from the measurement site of the living body (paragraph [0009]) where the detection device additionally comprises an optical member or lens (FIG. 12, component 81) in the light path of the light emitting part and light receiving part. Matsuura further teaches that the focal length of the lens can be adjusted in order to adjust the site where the emitted light and received light are condensed, allowing for the optimization of sensitivity of the measurement of a biological signal, such as pulse wave (paragraph [0092]). One of ordinary skill in the art would recognize that the focal length of the first optical member and second optical member in relation to one another could be determined through routine experimentation in order to optimize the ability to focus light or the directivity of a given wavelength emitted by a light emitting part to a measurement site or the light received by a light receiving part from a measurement site to increase the proportion of light being transmitted and control the depth of penetration of the light into the living body such that the focal length of the first optical member could be shorter or longer than that of a focal length of the second optical member.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the detection device disclosed by Kobayashi as modified by Connor that includes optical members in the light path of the light emitting parts and the measurement site and the light receiving parts and measurement site with the teaching of Matsuura that focal length of an optical member can be adjusted because Connor already teaches that the optical member is used to selectively refract light and/or focus light and Matsuura further teaches that the focal length of an optical member can be adjusted to control where light is condensed and increase the proportion of light collected by a light-receiving unit such that sensitivity of the detection device is increased (Matsuura, paragraph [0122]).
Additionally, Kobayashi discloses that the distance from the first light emitting part to the first light receiving part (FIG. 3, components E1 and R1) is shorter than a distance from the second light emitting part to the second light receiving part (FIG. 3, components E2 and R2). Matsuura further teaches that the distance between the light emitting part and the light receiving part of the detection device are impacted by the distance between the light emitting parts and receiving parts (paragraph [0052]). One of ordinary skill in the art would recognize that the configuration of the distances between the first light emitting part to the first light receiving part and between the second light emitting part to the second light receiving part of the detection device could be optimized through routine experimentation such that the distance between the first light emitting part to the first light receiving part is longer than the distance between the second light emitting part to the second light receiving part in order to optimize the intensity of light being collected by the light receiving part.
In regard to claim 4, Kobayashi as modified discloses the invention of claim 2. Kobayashi further discloses a case member (FIG. 1, component 12) that houses the first and second light emitting parts and the first and second light receiving parts. Connor further teaches that an optical member or lens can be included in a detection device where the lens is used to selectively refract and/or focus light between a light emitter and a body tissue (paragraph [0158]). One of ordinary skill in the art would recognize that the optical members would have to be placed in the light path of the light emitting parts to the measurement site of the living body such that the first and second optical members would overlap at least a part of a first and second light emitting region in which the first and second light emitting part of the case member is provided.
In regard to claim 6, Kobayashi as modified discloses the invention of claim 4. Kobayashi further discloses that the case member (FIG. 1, component 12) includes a first wall part (FIGs. 3 & 4, component 74A) provided between the first light emitting part (FIG. 3, component E1) and the first light receiving part (FIG. 3, component R1) and a second wall part (FIGs. 3 & 4, component 74B) on a side opposite the first wall part. Connor further teaches that optical members are incorporated into the light path of the light emitting parts to the measurement site of the living body as described above, such that the first and second optical members would be held between the first wall part and the second wall part as the two wall parts define the optical path from the light emitting parts to the measurement site of the living body.
In regard to claim 7, Kobayashi as modified discloses the invention of claim 2. Kobayashi discloses a case member (FIG. 1, component 12) that holds the first and second light emitting parts and receiving parts (FIG. 3, components E1, E2, R1, & R2). Connor further teaches that that an optical member or lens can be included in a detection device where the lens is used to selectively refract and/or focus light between a body tissue and light receiving part (paragraph [0158]). One of ordinary skill in the art would recognize that the optical members would have to be placed in the light path of the measurement site of the living body to the light receiving parts such that the first and second optical members would overlap at least a part of a first and second light receiving region in which the first and second light receiving part of the case member is provided.
In regard to claim 9, Kobayashi as modified discloses the invention of claim 7. Kobayashi discloses that the case member (FIG. 1, component 12) includes a first wall part (FIG. 4, component 64) and third wall part on the opposite side of the first wall part with respect to the first light receiving part (FIG. 4, component 40). Connor further teaches that optical members are incorporated into the light path of the measurement site of the living body to the light receiving parts of the detection device as described above, such that the first and second optical members would be held between the first wall part and the third wall part as the first and third wall parts define the optical path from the measurement site of the living body to the first and second light receiving parts (FIG. 4, components R1 & R2) contained in the light transmitting part (FIG. 4, component 62) of the detection device.
In regard to claim 10, Kobayashi as modified discloses the invention of claim 7. Matsuura teaches that an optical member (FIG. 12, component 81) in the light pathway of a light receiving part is larger in area than the light receiving part (FIG. 12, component 6). Kobayashi discloses a first light receiving part and a second light receiving part and Connor further teaches that multiple optical members or lenses can be incorporated into a detection device where the optical members are in the light pathway of measurement site of the body to a light receiving part such that when combined, Kobayashi as modified by the teachings of Connor and Matsuura meet the claim limitation of an area of a first optical member being greater than an area of the first light receiving part, and an area of a second optical member being greater than an area of the second light receiving part.
In regard to claim 11, Kobayashi as modified discloses the invention of claim 2. Kobayashi discloses that the detection device further comprises a third light emitting part (FIG. 2, component E3) that emits near infrared light. Connor further teaches that an optical member or lens can be integrated into a detection device in order to selectively refract and/or focus light between a light emitter and a body (paragraph [0158]) such that a third optical member could be incorporated into the device.
In regard to claim 12, Kobayashi as modified discloses the invention of claim 7. Kobayashi discloses that that the detection device further comprises a third light emitting part (FIG. 2, component E3) that emits near infrared light (Page 3, paragraph 4) toward the measurement site of the living body (FIG. 2, component M) where the second light receiving part (FIG. 2, component R2) receives the second and third light that are radiated from the body and refracted by the second optical member taught by Connor.
In regard to claim 13, Kobayashi as modified discloses the invention of claim 2. Kobayashi discloses a first wall part (FIG. 5, component 64) and a second wall part on the opposite side (FIG. 5, component 74B) where the second wall part (FIG. 5, component 74B) reflects light transmitted from the light emitting part to the measurement site of the living body (FIG. 5, see light path a2; Page 7, paragraph 2). Connor further teaches that an optical member can be placed in the light path from a light emitting part to the measurement site of the body such that the light reflected from the second wall would be reflected towards the first optical member.
In regard to claim 15, Kobayashi as modified discloses the invention of claim 2. Connor teaches that a wearable device (Abstract) can comprise a plurality of optical filters that partially absorb or block light transmission between the measurement site of the living body and a light receiver part (paragraph [0157]) and that the one or more optical filters can selectively block one or more selected wavelength ranges (paragraph [0157]). One of ordinary skill in the art would recognize that the optical filter could be optimized through routine experimentation to allow transmission of a wavelength range that includes the first light and block a wavelength range that includes the second light.
Claims 5 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi (JP 2018061675 A ) in view of Connor (US 20210379388 A1) and further in view of Matsuura (US 20200323451 A1 - Cited by Applicant) as applied to claims 4 and 7 above, and further in view of Lee (US 20190305180 A1).
In regard to claim 5, Kobayashi as modified discloses the invention of claim 4. While Kobayashi discloses a first and second light emitting part and Connor further teaches that an optical member can be included in the optical path of a light emitting part that emits light to a measurement site, neither Kobayashi nor Connor specify that the center position of the first light emitting part is different from the center position of the first optical member or that the center position of the second light emitting part is different from the center position of the second optical member.
However, Lee teaches that the optical member (FIG. 2, component 550) in the optical path of a light emitter can be eccentrically positioned in one direction from the center of a light emitter (FIG. 2, component 200; paragraph [0043]) which allows for light to be refracted at a precise angle (paragraphs [0006] & [0022]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the detection device disclosed by Kobayashi as modified by Connor, which includes multiple light emitters and the teaching that optical members can be used to refract light from light emitters, with the teaching of Lee that the center position of an optical member can be different from the center position of a light emitter because doing so allows for light to be refracted at a precise angle (Lee, paragraphs [0006] & [0022]).
In regard to claim 8, Kobayashi as modified discloses the invention of claim 7. While Kobayashi discloses a first and second light receiving part and Connor further teaches that an optical member or lens can be included in a detection device where the lens is used to selectively refract and/or focus light between a body tissue and light receiving part (paragraph [0158]) and that the optical member comprises a Fresnel lens, concave lens, convex lens, or combination of multiples lenses (paragraph [0158]), neither Kobayashi nor Connor specify that the center position of the first light receiving part is different from the center position of the first optical member or that the center position of the second light receiving part is different from the center position of the second optical member.
However, Lee teaches that the optical member (FIG. 2, component 550) can include two lenses, including a convex lens portion that is eccentric compared to the bottom lens portion (FIG. 2, component 200; paragraph [0043]) and allows for light to be refracted at a precise angle (paragraphs [0006] & [0022]). While the optical member taught be Lee is used in conjunction with a light emitting part (FIG. 2, component 200), Connor teaches that optical members can be used to selectively refract and/or focus light between a light emitter and a body tissue and between a body tissue and a light receiver (paragraph [0158]), such that it would be obvious to one of ordinary skill in the art that the optical member taught by Lee could also be used to focus light between the body tissue and the light receiving part.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the detection device disclosed by Kobayashi as modified by Connor, which includes multiple light emitters and the teaching that optical members can be used to refract light from light emitters, with the teaching of Lee that the center position of an optical member can be different from the center position of a light emitter because doing so allows for light to be refracted at a precise angle (Lee, paragraphs [0006] & [0022]).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi (JP 2018061675 A ) in view of Connor (US 20210379388 A1) and further in view of Matsuura (US 20200323451 A1 - Cited by Applicant) as applied to claim 13 above, and further in view of Tago (US 20220034712 A1).
In regard to claim 14, Kobayashi as modified discloses the invention of claim 13. Kobayashi further discloses that the first wall part (FIG. 5, component 64) of the detection device blocks light (Page 8, paragraph 4). While Kobayashi additionally discloses that the first wall part (component 64) can be fabricated from a light-blocking resin material (Page 8, paragraph 3), they do not specify that the first wall part blocks light by absorbing the first light emitted from the first light emitting part.
However, Tago teaches a detection device that includes a light-blocking layer made of a black colored resin material that serves as a light-absorbing layer to block light (paragraph [0068]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the first wall part (FIG. 5, component 64) disclosed by Kobayashi that is made of a light-blocking resin material with the teaching that light-blocking resin materials can be light-absorbing by choosing a black colored resin material as taught by Tago (Tago, paragraph [0068]) because it would be considered simple substitution of one known element, in this case the light-blocking resin material disclosed by Kobayashi, for another, in this case the light-absorbing resin material taught by Tago, to obtain the predictable result of blocking light from a light emitting part.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SIENNA CHRISTINE PYLE whose telephone number is (703)756-5798. The examiner can normally be reached 8 am - 5:30 pm M - T; Off first Fridays; 8 am - 4 pm second Fridays.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles 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
/S.C.P./Examiner, Art Unit 3791
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