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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on April 15, 2026 has been entered.
Response to Arguments
I. Previous Claim Objection
Applicant’s amendment to claim 1 has successfully overcome the previous objection. That objection is now withdrawn.
II. Information Disclosure Statement
The Examiner confirms that the IDS filed August 15, 2023 was previously considered. An annotated copy indicating as such is attached with this action.
III. Previous Claim Rejections under 35 U.S.C. § 103
Applicant’s remarks concerning the previous obviousness rejections have been fully considered but are not persuasive.
Applicant first argues that Bornn fails to teach that the electrodes “form a matrix adaptable to individual body geometry to provide comprehensive electrode coverage around the torso.” The Examiner respectfully disagrees. As noted in the Response to Arguments section of the previous Office Action (and indicated in the rejections), Bornn teaches electrodes on front, back and side portions, and specifically teaches that the use of numerous electrodes is done “so that contact with at least one reference electrode can be ensured at all times” (Col. 10 lines 24-30) and that the electrodes are generally “evenly spaced through the bands” (Col. 9 lines 26-33). As such, Bornn’s arrangement of electrodes is a “matrix” that is fully capable of adapting to more than one body geometry, and provides “comprehensive” coverage around the torso at least due to the number of electrodes spaced at many locations around the torso (the Examiner notes that the term “comprehensive” here is vague).
Applicant next argues that Bornn fails to teach “the evaluating electronics are configured to perform load phase measurements during physical training exercises.” The Examiner respectfully disagrees. This statement amounts to an intended use of the device. Bornn’s device is fully capable of being used in a variety of “load phases.” For instance, a user with Bornn’s device would be fully capable of engaging in basic weight lifting exercises while wearing the device, as an example. As such, the claimed limitation is met by Bornn’s structure which is fully capable of carrying out the recited intended use.
Applicant’s further remarks concerning the alleged advantages of Applicant’s invention as compared to Bornn are considered moot because they do not relate to any specific claim limitations not addressed by the art.
In light of the reasoning above, the previous grounds of rejection are maintained.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 5-8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over US 5,348,008 to Bornn et al. (hereinafter “Bornn”) in view of US 2013/0131460 A1 to Yuen (hereinafter “Yuen”).
Regarding Claims 1 and 6, Bornn teaches equipment for monitoring the effectiveness of physical activities, comprising:
a plurality of electrodes placed on an upper body of a user, wherein said at least two electrodes are fixed in an electrode strap (see e.g. 1000 in FIG. 1A);
a connector secured on the strap and providing an electrical connection to the electrodes (see e.g. Col. 23 lines 10-13: “in the preferred embodiment of the present invention, signals from the ecg electrodes 24 are coupled to the processing module 102B by way of shielded cables or wires”);
evaluating electronics attached to the electrode strap, communicating with the at least two electrodes (see 102A and/or 102B in FIG. 1A: see FIG. 3A); and
a display unit realized with a mobile personal digital computing device communicating wirelessly with the evaluating electronics (e.g. 3004 in FIG. 1A);
wherein the at least two electrodes are unipolar or bipolar lead electrodes arranged in the strap and are located to anatomically fit the body size of the user so that the top row of the permissible measuring point matrix determining the location of the electrodes is located at the height of the user's collarbone, its lowest line is located at the height of the user's navel, and in the case of the electrode, applicable both for male and female body geometry, the connection between the cervical band and the waist strap is provided by a connecting band running along the collarbone insensitive to the body geometry (see generally patient unit 1000 in e.g. FIG. 1A),
wherein the strap comprises a front section contacting the front surface of the user's body, side sections contacting respective side surfaces of the user, and a back section contacting the back of the user (visible in e.g. FIG. 1A; for example, strap 14 extends all around the front, back and sides of the user);
wherein a respective electrode is located in the front, side, and back sections of the strap for contact with corresponding surfaces of the user's body, wherein the electrodes form a matrix adaptable to individual body geometry to provide comprehensive electrode coverage around the torso (see e.g. FIG. 1A showing them clearly on at least the front and back; concerning the sides, see e.g. Col. 10 lines 24-30: “These common or reference electrodes are typically located on the side or back portion of the torso band 14, FIG. 1A. The preferred embodiment of the present invention uses several of such electrodes, for example a dozen, so that contact with at least one reference electrode can be ensured at all times” and Col. 9 lines 26-33: “In one embodiment of the present invention, a minimum of eight ecg electrodes 24 are used, although other numbers of ecg electrodes 24 can be used within the spirit of the invention. Two are used as references and the other six form three pairs of electrodes. They can be configured in a number of different ways, but they are generally configured around the heart and evenly spaced through the bands.” Since the bands clearly extend around all of the patient’s front, back, and sides as seen in FIG. 1A, it stands to reason that electrodes “evenly spaced through the bands” will include some along the front, some along the back, and some along the sides.) and wherein the evaluating electronics are configured to perform load phase measurements during physical training activities (Bornn’s device is considered fully capable of meeting this statement of intended use because Bornn’s device is fully capable of being used in a variety of “load phases.” For instance, a user with Bornn’s device would be fully capable of engaging in basic weight lifting exercises while wearing the device, as an example).
Bornn teaches that the electrodes are connected to the evaluating electronics via wire(s) (i.e. connector(s)), but there appears to be no disclosure of the connector being releasable. However, releasable electrical connections are extremely commonplace, easy to implement, and presents predictable benefits. An example of a similar device using such a releasable connection can be seen in Yuen (evaluating electronics 200 connects to strap 100 via releasable connections such as snap connections, which allows for communication with electrodes 120 and 140). It would have been obvious to one of ordinary skill in the art as of Applicant's effective filing date to modify Bornn to provide a releasable electrical connection between the electrodes and evaluating electronics because it would provide the well known and predictable benefits of releasable connections, e.g. allowing individual components to be replaced and/or cleaned.
Regarding Claims 2 and 7, see e.g. FIG. 12A of Bornn (various sets of equal resistors are seen).
Regarding Claims 3 and 8, Bornn fails to specify if the electrodes are dome-shaped, elastic conductive rubber. However, the Examiner previously noted that this is extraordinarily well-known configuration for diagnostic electrodes. Applicant' s reply did not traverse the Examiner's assertion of official notice; therefore, the facts under official notice are now taken to be admitted prior art. See MPEP § 2144.03(C) (“If applicant does not traverse the examiner' s assertion of official notice or applicant' s traverse is not adequate, the examiner should clearly indicate in the next Office action that the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant either failed to traverse the examiner' s assertion of official notice or that the traverse was inadequate.”). It would have been obvious to one of ordinary skill in the art as of Applicant's effective filing date to modify Bornn to utilize dome-shaped, elastic conductive rubber electrodes because it would amount to merely selecting an extraordinary well-known electrode shape and material configuration.
Regarding Claims 5 and 10, see e.g. sensors 26 (in Bornn) which detect respiration.
Claim 4 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Bornn in view of Yuen and further in view of WO 2017/009880 A1 to Boldi (hereinafter “Boldi”) (cited in Applicant’s IDS).
Regarding Claim 4, Bornn as modified above teaches the equipment of claims 1 and 6 but fails to specifically teach that the mobile device is a smartphone (as they were not invented and widespread as of the time of Bornn’s invention). Another reference, Boldi, teaches an analogous wearable vital sign monitoring device including a smartphone (203) in communication with the measuring unit. It would have been obvious to one of ordinary skill in the art as of Applicant's effective filing date to further modify Bornn to utilize a smartphone as the mobile device because smartphones are incredibly common and well known mobile computing devices with powerful processing, communication and display technologies and which are widely used in medical contexts for diagnostic monitoring.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 JOHN R DOWNEY whose telephone number is (571)270-7247. The examiner can normally be reached Monday-Friday 8:30am-5:00pm ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, NIKETA PATEL can be reached at (571)-272-4156. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN R DOWNEY/Primary Examiner, Art Unit 3792
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