DETAILED ACTION
Remarks
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 § 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 1-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
STEP 1 = YES: The claimed invention is to a process and product, and thus fall under one of the four statutory categories (Step 1: YES).
STEP 2A, Prong 1 = YES: The claim(s) recite(s) a series of steps which can be practically performed by one or more humans through mental process (i.e., observation, evaluation, judgement, and/or opinion)(see MPEP § 2106.04(a)(2), subsection III) and/or certain methods of organizing human activity (i.e., managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions) (see MPEP § 2106.04(a)(2), subsection II). Moreover, the claims recite steps akin to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, which the court in Electric Power Group held to recite a mental process. Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016). This includes an exercise monitoring method and system comprising:
obtaining an exercise course … by a user (mental process: observation; certain methods of organizing human activity: interpersonal interaction, teaching);
detecting a reference respiratory pattern of the user performing the exercise course … within a reference time interval (mental process: observation; certain methods of organizing human activity: interpersonal interaction, teaching);
detecting a first respiratory pattern of the user performing the exercise course … within a first time interval (mental process: observation; certain methods of organizing human activity: interpersonal interaction, teaching); and
providing a first exercise adjustment suggestion based on a first comparison result between the first respiratory pattern and the reference respiratory pattern (mental process: evaluation, judgement, opinion; certain methods of organizing human activity: interpersonal interaction, teaching);
wherein the reference respiratory pattern comprises a reference respiratory rhythm of the user within the reference time interval, and the first respiratory pattern comprises a first respiratory rhythm of the user within the first time interval (wherein clause further defines abstract idea identified above); and
wherein providing the first exercise adjustment suggestion based on the first comparison result between the first respiratory pattern and the reference respiratory pattern comprises: providing a respiratory rhythm adjustment suggestion as the first exercise adjustment suggestion in response to determining that the first respiratory rhythm does not match the reference respiratory rhythm (wherein clause further defines abstract idea identified above);
wherein the reference respiratory pattern comprises a reference respiratory frequency of the user within the reference time interval, the first respiratory pattern comprises a first respiratory frequency of the user within the first time interval (wherein clause further defines abstract idea identified above); and wherein providing the first exercise adjustment suggestion based on the first comparison result between the first respiratory pattern and the reference respiratory pattern comprises: providing a respiratory frequency adjustment suggestion as the first exercise adjustment suggestion in response to determining that the first respiratory frequency does not match the reference respiratory frequency (wherein clause further defines abstract idea identified above);
wherein providing the respiratory frequency adjustment suggestion as the first exercise adjustment suggestion comprises: providing a respiratory frequency reduction suggestion as the respiratory frequency adjustment suggestion in response to determining that the first respiratory frequency is higher than the reference respiratory frequency (wherein clause further defines abstract idea identified above);
wherein after providing the first exercise adjustment suggestion based on the first comparison result between the first respiratory pattern and the reference respiratory pattern, the method further comprises: detecting a second respiratory pattern of the user performing the exercise course … within a second time interval (mental process: observation; certain methods of organizing human activity: interpersonal interaction, teaching); and providing an exercise intensity adjustment suggestion in response to determining that the second respiratory pattern does not match the reference respiratory pattern (mental process: evaluation, judgement, opinion; certain methods of organizing human activity: interpersonal interaction, teaching);
wherein the reference respiratory pattern comprises a reference respiratory frequency of the user within the reference time interval, the second respiratory pattern comprises a second respiratory frequency of the user within the second time interval (wherein clause further defines abstract idea identified above), and providing the exercise intensity adjustment suggestion comprises: providing an exercise intensity reduction suggestion as the exercise intensity adjustment suggestion in response to determining that the second respiratory frequency is higher than the reference respiratory frequency (mental process: evaluation, judgement, opinion; certain methods of organizing human activity: interpersonal interaction, teaching);
wherein the exercise course comprises a target distance (wherein clause further defines abstract idea identified above).
The steps identified above are akin to organizing human activity and/or mental processes, and thus fall within an enumerated category of abstract ideas. Note that even if most humans would use a physical aid (e.g., pen and paper, a slide rule, or a calculator) to help them complete the recited steps above, the use of such physical aid does not negate the mental nature of these limitations. Therefore, the claims recite an abstract idea (Step 2A, Prong 1: YES).
STEP 2A, Prong 2 = NO: This judicial exception is not integrated into a practical application.
To the extent the claims recite additional elements related to defining a computer environment to implement the abstract idea above (i.e., defining the claimed invention as for an exercise monitoring device; and further comprising a storage circuit, storing a program code; and a processor, coupled to the storage circuit, accessing the program code to perform; and further comprising A computer-readable storage medium, wherein the storage computer-readable medium records an executable computer program, and the executable computer program is loaded by an exercise monitoring device to perform the abstract idea identified under Prong 1), they are recited at a high level of generality such that they do not amount to a particular machine or technical improvement thereof, nor do they represent an improvement in any other technology. Rather, the generic manner which these additional elements are claimed amount to mere instructions to implement the abstract idea in a computer environment, i.e., field of use, and thus do not integrate the judicial exception into a practical application.
To the extent the claims recite additional elements related to a physical component for providing data collection (i.e., receiving information input by a user or through a wearable device and further defining receiving information as wherein the wearable device is earphones, and detecting the reference respiratory pattern within the reference time interval of the user performing the exercise course through the wearable device comprises: collecting an in-ear signal generated by the user within the reference time interval through the earphones; and determining the reference respiratory pattern based on the in-ear signal ), these limitations amount to insignificant pre-solution data gathering activity. The claims lack particular technical detail defining how input is received by a user or particular technical detail defining how the earphones achieve the claimed function of detecting the reference respiratory pattern within the reference time interval of the user performing the exercise course. Rather, the claim recites at a high level of generality that the earphones collect an in-ear signal and subsequently determine a reference respiratory pattern based on the in-ear signal, without any particular detail defining how that is achieved. Thus, these limitations merely define a field of use for performing the abstract idea, which is otherwise practically capable of being performed by human analog, e.g., by mental observation. Therefore, these limitations related to gathering data does not integrate the judicial exception into a practical application.
It should be noted that because the courts have made it clear that mere physicality or tangibility of an additional element or elements is not a relevant consideration in the eligibility analysis, the physical nature of the physical components identified above does not affect this analysis. See MPEP 2106.05(I) for more information on this point, including explanations from judicial decisions including Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 224-26 (2014). Even when viewed in combination, these additional elements do not integrate the recited judicial exception into a practical application and the claim is directed to the judicial exception. Therefore, the claims are directed to an abstract idea (Step 2A, Prong 2: YES).
STEP 2B = NO: The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because as provided under Prong 2, the additional elements are recited at a high level of generality, and for the purpose of insignificant pre-solution data gathering activity. Moreover, the specification of the instant application further demonstrates that the additional elements are recited for their well-understood, routine and conventional functionality, which refers to elements of the computer system in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a)(e.g., see par. 0016: “The processor 104 is coupled to the storage circuit 102 and may be a general-purpose processor”; par. 0014: “the exercise monitoring device 100 may also be implemented as various wearable devices, such as various earphones”). Thus, the additional elements defining the field of use as a computer-implemented environment with earphones to collect data amount to merely automating a manual process, which the courts have held to be insufficient in showing an improvement in computer-functionality. See Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055, 123 USPQ2d 1100, 1108-09 (Fed. Cir. 2017); see also LendingTree, LLC v. Zillow, Inc., 656 Fed. App'x 991, 996-97 (Fed. Cir. 2016) (non-precedential).
Therefore, the claims are not directed to significantly more than the abstract idea (Step 2B: NO).
Therefore, claims 1-10 are not directed to patent eligible subject matter.
Claim Rejections – 35 USC 102 (AIA )
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-6 and 9-10 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US 2022/0378322 A1 to COOK.
Regarding claim 1, COOK teaches An exercise monitoring method for an exercise monitoring device (Abstract: breathing coach system and method is disclosed comprising a biometric device; par. 0009: FIG. 1 depicts a wearable smart device 106 … capable of measuring respiration rate or receiving respiration rate measurements from a biometric device), comprising:
obtaining an exercise course input by a user (par. 0031: The user enters the activity it is doing from a predetermined list (e.g. weight training, running, cycling, working, meditating) using the application interface or voice commands.);
detecting a reference respiratory pattern of the user performing the exercise course through a wearable device within a reference time interval (par. 0011: the user initializes the application by recording the baseline conscious breathing pattern 202. The conscious breathing pattern is stored in the wearable smart device 106 as the baseline.);
detecting a first respiratory pattern of the user performing the exercise course through the wearable device within a first time interval (par. 0012: Then the application measures respiration rate 204; par. 0021: the application records the breathing pattern of the user); and
providing a first exercise adjustment suggestion based on a first comparison result between the first respiratory pattern and the reference respiratory pattern (par. 0014: If the measured respiration rate does not match the baseline 208, the user is notified 210; par. 0016: The application measures respiration rates 204 on an ongoing basis and continuously compares to the baseline to provide continuous feedback. Optionally, the application can be configured via setting to only provide feedback during specific times of day; par. 0017: As the user goes on about its day and forgets to breath consciously, the watch will constantly remind the user to go back to their baseline natural conscious breathing pattern; par. 0021: Using this data, the application can display the breathing pattern in comparison with previous time segments or in comparison with the baseline conscious breathing pattern to show improvements achieved using the notifications; par. 0028: the application uses the respiration rate measured by the device to calculate which type of predetermined breathing pattern is needed; par. 0031: The application recommends a breathing pattern that is specific to the activity).
Regarding claim 9, COOK teaches An exercise monitoring device, comprising: a storage circuit, storing a program code; and a processor, coupled to the storage circuit, accessing the program code (Abstract: A breathing coach system and method is disclosed comprising…an application executed on a processor on a wearable device monitoring) to perform: obtaining an exercise course input by a user; detecting a reference respiratory pattern of the user performing the exercise course through a wearable device within a reference time interval; detecting a first respiratory pattern of the user performing the exercise course through the wearable device within a first time interval; and
providing a first exercise adjustment suggestion based on a first comparison result between the first respiratory pattern and the reference respiratory pattern (see citations to COOK re: claim 1, which are incorporated herein by reference).
Regarding claim 10, COOK teaches A computer-readable storage medium, wherein the storage computer-readable medium records an executable computer program, and the executable computer program is loaded by an exercise monitoring device (Abstract: A breathing coach system and method is disclosed comprising…an application executed on a processor on a wearable device monitoring) to perform: obtaining an exercise course input by a user; detecting a reference respiratory pattern of the user performing the exercise course through a wearable device within a reference time interval;
detecting a first respiratory pattern of the user performing the exercise course through the wearable device within a first time interval; and providing a first exercise adjustment suggestion based on a first comparison result between the first respiratory pattern and the reference respiratory pattern (see citations to COOK re: claim 1, which are incorporated herein by reference).
Regarding claim 2, COOK further teaches wherein the reference respiratory pattern comprises a reference respiratory rhythm of the user within the reference time interval, and the first respiratory pattern comprises a first respiratory rhythm of the user within the first time interval (par. 0018: the application can be configured to implement different types of breathing rhythms (or predetermined breathing patterns) including a pause after the inhale and/or before the exhale); and wherein providing the first exercise adjustment suggestion based on the first comparison result between the first respiratory pattern and the reference respiratory pattern comprises: providing a respiratory rhythm adjustment suggestion as the first exercise adjustment suggestion in response to determining that the first respiratory rhythm does not match the reference respiratory rhythm (par. 0014: If the measured respiration rate does not match the baseline 208, the user is notified 210; par. 0016: application measures respiration rates 204 on an ongoing basis and continuously compares to the baseline to provide continuous feedback; par. 0021: the application records the breathing pattern of the user. Using this data, the application can display the breathing pattern in comparison with previous time segments or in comparison with the baseline conscious breathing pattern; par. 0034: application sets a breathing pattern to a specific rate, depth and speed).
Regarding claim 3, COOK further teaches wherein the reference respiratory pattern comprises a reference respiratory frequency of the user within the reference time interval, the first respiratory pattern comprises a first respiratory frequency of the user within the first time interval (par. 0012, 0014, 0016: respiration rate); and wherein providing the first exercise adjustment suggestion based on the first comparison result between the first respiratory pattern and the reference respiratory pattern comprises: providing a respiratory frequency adjustment suggestion as the first exercise adjustment suggestion in response to determining that the first respiratory frequency does not match the reference respiratory frequency (par. 0014: If the measured respiration rate does not match the baseline 208, the user is notified 210; par. 0016: application measures respiration rates 204 on an ongoing basis and continuously compares to the baseline to provide continuous feedback; par. 0021: the application records the breathing pattern of the user. Using this data, the application can display the breathing pattern in comparison with previous time segments or in comparison with the baseline conscious breathing pattern; par. 0034: application sets a breathing pattern to a specific rate, depth and speed).
Regarding claim 4, COOK further teaches wherein providing the respiratory frequency adjustment suggestion as the first exercise adjustment suggestion comprises: providing a respiratory frequency reduction suggestion as the respiratory frequency adjustment suggestion in response to determining that the first respiratory frequency is higher than the reference respiratory frequency (par. 0014: If the measured respiration rate does not match the baseline 208, the user is notified 210 using a vibration or a sound generated by the wearable smart device 106. For example if the user tries to exhale before the 4th bar of the inhale is reached; par. 0019: A subtle vibration of the wearable smart device 106 on the wrist triggers the user to inhale and hold their breath for 4 seconds, then another vibration will notify the user to exhale; par. 0035: The application selects and executes a pre-determined breathing pattern that triggers the user to take deeper inhales and exhales with at lower speed between inhale and exhale).
Regarding claim 5, COOK further teaches wherein after providing the first exercise adjustment suggestion based on the first comparison result between the first respiratory pattern and the reference respiratory pattern, the method further comprises: detecting a second respiratory pattern of the user performing the exercise course through the wearable device within a second time interval; and providing an exercise intensity adjustment suggestion in response to determining that the second respiratory pattern does not match the reference respiratory pattern (par. 0016: application measures respiration rates 204 on an ongoing basis and continuously compares to the baseline to provide continuous feedback).
Regarding claim 6, COOK further teaches wherein the reference respiratory pattern comprises a reference respiratory frequency of the user within the reference time interval, the second respiratory pattern comprises a second respiratory frequency of the user within the second time interval (par. 0021: the application records the breathing pattern of the user. Using this data, the application can display the breathing pattern in comparison with previous time segments or in comparison with the baseline conscious breathing pattern to show improvements achieved using the notifications), and providing the exercise intensity adjustment suggestion comprises: providing an exercise intensity reduction suggestion as the exercise intensity adjustment suggestion in response to determining that the second respiratory frequency is higher than the reference respiratory frequency (par. 0014: If the measured respiration rate does not match the baseline 208, the user is notified 210 using a vibration or a sound generated by the wearable smart device 106. For example if the user tries to exhale before the 4th bar of the inhale is reached; par. 0019: A subtle vibration of the wearable smart device 106 on the wrist triggers the user to inhale and hold their breath for 4 seconds, then another vibration will notify the user to exhale; par. 0035: The application selects and executes a pre-determined breathing pattern that triggers the user to take deeper inhales and exhales with at lower speed between inhale and exhale).
Claim Rejections - 35 USC § 103 (AIA )
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 7 is rejected under 35 U.S.C. 103 as being obvious over COOK, as applied to claim 1, in view of US 2006/0020421 A1 to DARLEY.
Regarding claim 7, COOK teaches the elements above, including the user enters the activity it is doing from a predetermined list (e.g. running, cycling)(par. 0031), but does not expressly disclose wherein the exercise course comprises a target distance. However, DARLEY also teaches a system and method of monitoring an activity of a user in locomotion on foot (par. 0003) and includes monitoring physiological parameters, such as respiration rate (par. 0481, 0515), and further teaches receiving as input by a user a goal distance, and may request to be given feedback each time a certain fraction of the goal distance has been completed (par. 0498). Additionally, DARLEY discloses that based on the input goal distance, the user also can be provided with feedback regarding a projected time in which the user will complete the goal distance if the user maintains his or her current pace (par. 0499). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a goal distance associated with the selected exercise course, as taught by DARLEY, into the invention of COOK, in order to allow the user to specify their goal distance so that they can receive feedback at predetermined intervals during that distance and a projected finishing time if they maintain the current pace.
Claim 8 is rejected under 35 U.S.C. 103 as being obvious over COOK, as applied to claim 1, in view of US 2022/0054039 A1 to RAHMAN.
Regarding claim 8, COOK teaches a wearable smart device and/or a biometric device coupled with the application device via a communication protocol, for capturing the respiration of the user (par. 0009, 0010), but does not expressly disclose wherein the wearable device is earphones, and detecting the reference respiratory pattern within the reference time interval of the user performing the exercise course through the wearable device comprises: collecting an in-ear signal generated by the user within the reference time interval through the earphones; and determining the reference respiratory pattern based on the in-ear signal. However, RAHMAN also teaches a system and method of monitoring a user’s breathing with a portable device worn by the user (Abstract; par. 0098). RAHMAN discloses that acoustic data can be conventionally captured using a portable device, such as earbuds, which can passively monitor the user’s breathing patterns (par. 0024). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate earbuds configured to monitor a user’s breathing patterns, as taught by RAHMAN, into the invention of COOK, in order to apply a conventional technique for measuring respiratory patterns of a user, thereby achieving a predictable result.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James Hull whose telephone number is 571-272-0996. The examiner can normally be reached on Monday-Friday from 8:00am to 5:00pm MST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Xuan Thai, can be reached at telephone number 571-272-7147. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES B HULL/Primary Examiner, Art Unit 3715