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 .
Notice of Reply
This communication is responsive to the amendment(s) and/or argument(s) filed 4/27/26. The previous ground(s) of objection and/or rejection is/are withdrawn. The following new and/or reiterated ground(s) of rejection is/are set forth hereinbelow.
Claim Rejections - 35 USC § 112(b)
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 19-20 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.
Claim 19 depends from cancelled claim 18, rendering the scope of the claim indeterminate and thus indefinite. Claim 20 depending from 19 suffers and inherits the same indefiniteness. For the purpose of examination on the merits, claim 19 is considered as depending from independent claim 13, particularly consistent with the disclosure since now cancelled subject matter of claim 18 was incorporated into claim 13.
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 13-17 and 19-23 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more, wherein the abstract idea comprises determining skin tone which may be considered a mental process as an abstract idea.
For independent claim 13, the claim(s) recite(s) determining a skin tone of a subject from a resultant signal. As broadly as claimed these steps may be reasonably considered as the judicial exception of a mental process performable within the human mind, including by observation, evaluation, judgement and opinion forming, or by a human using pen and paper (see MPEP 2106.04(a)(2) subsection III). For example, at least, these limitations are nothing more than a medical professional capturing data, printing it out, and using the data to mentally extract, classify or learn from data features to determine a skin tone. The examiner notes that a mere layperson in society determines skin tones mentally on a routine basis when interacting with other individuals.
This judicial exception is not integrated into a practical application because the process steps as broadly as claimed are not tied to nor required to be performed, executed, or programmed on a special purpose computer. Further, the judicial exception is not even required to be performed on or tied to a mere generic processing device, controller, or the like.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the preliminary steps of illuminating with a light source of an optical vital signs monitoring by receiving a resultant signal with two or more detectors having different spectral response properties are well-known, routine and conventional amounting to insignificant data gathering as pre-solution activity. The skin tone determining is not tied to any particular additional element and instead is merely tied to received resultant signal(s). Lastly, it could be argued that, even in light of the disclosure, human eyes are well-known spectral sensors that in combination with a brain discriminate skin tone based on multiple received spectral signals.
Depending claims 14-17 and 19-23 inherit and do not remedy the non-statutory deficiency noted above, despite further specifying steps relating to stimulus application, feature extraction, relaxation technique training treatment, and/or using lookup tables could merely be provided verbally and/or completed mentally.
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.
(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.
Claim(s) 1-6, 9-17, and 19-24 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dietiker (US 2019/0261859 A1).
For claim 1, Dietiker discloses an optical vital signs monitor (100), comprising inter alia:
a light source (110) ([0026]);
a spectral sensor (120);
a processor (125); and
a non-transitory computer readable medium comprising instructions executable by the processor to perform or control performance of operations(130, 135) comprising:
illuminating (510), via the light source, a body of a subject (145) (Fig 5);
receiving (515), via the spectral sensor, a resultant signal from the body of the subject; (Fig 5) and
determining a skin tone of the subject from the received resultant signal (520, 525, 530) (Fig 5) ([0036-0040, 0060-0061]); wherein:
the spectral sensor comprises two or more detectors with different spectral response properties ([0036)];
receiving the resultant signal from the body of the subject includes receiving the resultant signal at a first detector of the two or more detectors and at a second detector of the two or more detectors ([0036-0040]); and
determining the skin tone of the subject from the received resultant signal comprises determining the skin tone of the subject from a first signal generated by the first detector responsive to receiving the resultant signal at the first detector and from a second signal generated by the second detector responsive to receiving the resultant signal at the second detector (520, 525, 530) (Fig 5) ([0036-0040]).
For claim 2, Dietiker discloses the optical vital signs monitor of claim 1, wherein the resultant signal comprises illumination radiation transmitted through the subject or reflected from the subject (Fig 5) ([0036]).
For claim 3, Dietiker discloses the optical vital signs monitor of claim 1, wherein the light source is configured to emit light in a broad spectral range ([0026, 0064-0065]).
For claim 4, Dietiker discloses the optical vital signs monitor of claim 3, wherein the broad spectral range spans at least 100 nanometers in the visible spectrum ([0026, 0036, 0065]).
For claim 5, Dietiker discloses the optical vital signs monitor of claim 3, further comprising a second light source ([0026, 0036, 0065]) and a third light source ([0026, 0036, 0065]), the second light source configured to emit radiation in the red spectral range and the third light source configured to emit radiation in the infrared spectral range ([0026, 0036, 0065]).
For claim 6, Dietiker discloses the optical vital signs monitor of claim 1, wherein the light source: is located adjacent to and facing a same direction as the spectral sensor; or is located spaced apart from and facing the spectral sensor (Figs 1-2).
For claim 9, Dietiker discloses the optical vital signs monitor of claim 8, wherein determining the skin tone of the subject from the first and second signals comprises performing signal processing on the first and second signals to accurately determine signal levels of the first and second signals (520, 525, 530) (Fig 5) ([0036-0040]).
For claim 10, Dietiker discloses the optical vital signs monitor of claim 9, further comprising a lookup table (400) (Fig 4) stored in the non-transitory computer readable medium, wherein determining the skin tone of the subject further comprises comparing the signal levels to correlation data stored in the lookup table, the correlation data correlating signal levels to skin tone (520, 525, 530) (Fig 5) ([0040, 0060-0061]).
For claim 11, Dietiker discloses the optical vital signs monitor of claim 10, the operations further comprising: generating a physiological measurement of the subject based on the received resultant signal; and correcting the physiological measurement based on the determined skin tone (520, 525, 530) (Fig 5) ([0040, 0060-0061]).
For claim 12, Dietiker discloses the optical vital signs monitor of claim 11, wherein the physiological measurement comprises peripheral oxygen saturation (SpO2) of the subject (520, 525, 530) (Fig 5) ([0040, 0060-0061]).
For claim 13, Dietiker discloses a method, comprising inter alia:
illuminating (510), via a light source (110) ([0026]) of an optical vital signs monitor (100), a body of a subject (145) (Figs 1, 5);
receiving (515), via a spectral sensor (120) of the optical vital signs monitor, a resultant signal from the body of the subject (Figs 1, 5); and
determining a skin tone of the subject from the received resultant signal (520, 525, 530) (Fig 5) ([0036-0040, 0060-0061]); wherein
the spectral sensor comprises two or more detectors ([0036]) with different spectral response properties ([0036-0040]);
receiving the resultant signal from the body of the subject includes receiving the resultant signal at a first detector of the two or more detectors and at a second detector of the two or more detectors ([0036-0040]); and
determining the skin tone of the subject from the received resultant signal comprises determining the skin tone of the subject from a first signal generated by the first detector responsive to receiving the resultant signal at the first detector and from a second signal generated by the second detector responsive to receiving the resultant signal at the second detector (520, 525, 530) (Fig 5) ([0040, 0060-0061]).
For claim 14, Dietiker discloses the method of claim 13, wherein receiving the resultant signal comprises receiving illumination radiation transmitted through the subject or reflected from the subject (Fig 5) ([0036]).
For claim 15, Dietiker discloses the method of claim 13, wherein illuminating the body of the subject comprises illuminating the body of the subject with light in a broad spectral range ([0026, 0064-0065]).
For claim 16, Dietiker discloses the method of claim 15, wherein the broad spectral range spans at least 100 nanometers in the visible spectrum ([0026, 0036, 0065]).
For claim 17, Dietiker discloses the method of claim 15, further comprising separately illuminating the body of the subject with red light and infrared light ([0026, 0036, 0065]).
For claim 19, Dietiker discloses the method of claim 13, wherein determining the skin tone of the subject from the first and second signals comprises performing signal processing on the first and second signals to accurately determine signal levels of the first and second signals (520, 525, 530) (Fig 5) ([0040, 0060-0061]).
For claim 20, Dietiker discloses the method of claim 19, wherein determining the skin tone of the subject further comprises comparing the signal levels to correlation data stored in a lookup table (400) (Fig 4) on the optical vital signs monitor, the correlation data correlating signal levels to skin tone (520, 525, 530) (Fig 5) ([0040, 0060-0061]).
For claim 21, Dietiker discloses the method of claim 10, further comprising: generating a physiological measurement of the subject based on the received resultant signal; and correcting the physiological measurement based on the determined skin tone (520, 525, 530) (Fig 5) ([0040, 0060-0061]).
For claim 22, Dietiker discloses the method of claim 21, wherein the physiological measurement comprises peripheral oxygen saturation (SpO2) of the subject (520, 525, 530) (Fig 5) ([0040, 0060-0061]).
For claim 23, Dietiker discloses the method of claim 13, further comprising accessing a specific lookup table of a plurality of lookup tables to generate a physiological measurement of the subject based on the received resultant signal ([0058-0061, 0066-0067]), the plurality of lookup tables corresponding to different skin tones and the specific lookup table corresponding to the determined skin tone ([0058-0061, 0066-0067]).
For claim 24, Dietiker discloses the optical vital signs monitor of claim 1, further comprising a plurality of lookup tables stored in the non-transitory computer readable medium and corresponding to different skin tones ([0058-0061, 0066-0067]), the operations further comprising accessing a specific lookup table of the plurality of lookup tables that corresponds to the determined skin tone to generate a physiological measurement of the subject based on the received resultant signal ([0058-0061, 0066-0067]).
Response to Arguments
Applicant's arguments filed 4/27/26 have been fully considered but they are not persuasive, wherein Applicant particularly argues the following:
Rejection Under 35 U.S.C. § 101
“As an initial matter, the Examiner's characterization of the claims improperly oversimplifies the claimed subject matter. Claim 13 recites "illuminating, via a light source of an optical vital signs monitor, a body of a subject; receiving, via a spectral sensor of the optical vital signs monitor, a resultant signal from the body of the subject; and determining a skin tone of the subject from the received resultant signal." The claims thus require specific hardware components-a light source and a spectral sensor of an optical vital signs monitor-that work together to illuminate a subject's body and receive a resultant signal from which skin tone is determined.
Regarding Step 2A, Prong One, Applicant submits that the claims do not recite a mental process. As set forth in MPEP § 2106.04(a)(2)(III), claims do not recite a mental process when they contain limitations that cannot practically be performed in the human mind. The MPEP provides that "the human mind is not equipped to perform the claim limitations" in cases such as "detecting suspicious activity by using network monitors and analyzing network packets." Similarly here, the human mind is not equipped to illuminate a body via a light source, receive a resultant signal via a spectral sensor, and determine skin tone from that received resultant signal. The claimed method requires the use of specific optical sensing equipment, a light source and spectral sensor of an optical vital signs monitor-to generate and capture spectral data that forms the basis for skin tone determination. This is fundamentally different from a person visually observing another individual's skin tone.
Even assuming arguendo that the claims recite an abstract idea, the claims integrate any such exception into a practical application under Step 2A, Prong Two. According to the MPEP, implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim is indicative of integration into a practical application. MPEP §§ 2106.04(d) and 2106.05(b). Here, the claims require the use of an optical vital signs monitor comprising a light source and a spectral sensor. These are not generic computer components, but rather specific optical sensing hardware that is integral to the claimed method. The light source illuminates the subject's body, and the spectral sensor receives the resultant signal-these hardware elements are not merely incidental to the claimed method but are essential to its performance.
Furthermore, the claims are directed to an improvement in vital signs monitoring technology. As disclosed in the specification, conventional monochromatic vital sign monitors suffer from "significant variations" arising from "skin tone" that "must be eliminated or reduced," and thus "conventional monochromatic vital sign monitors are limited in implementation and use within wearable devices." The claimed method addresses this technical problem by using the optical vital signs monitor to determine skin tone from the received resultant signal, which enables correction of physiological measurements based on the determined skin tone, as recited in dependent claims 21 and 22. This represents a technological improvement to vital signs monitoring, not merely the application of an abstract idea.
Regarding Step 2B, the Examiner has alleged that the steps of illuminating with a light source and receiving a resultant signal with a spectral sensor are "well-known, routine and conventional amounting to insignificant data gathering as pre-solution activity." However, the Examiner has not provided any evidentiary support for this assertion. The MPEP requires that when an examiner concludes that certain claim elements recite well-understood, routine, conventional activities, the examiner must expressly support the rejection in writing with one of the specified options, such as a citation to an express statement in the specification, a citation to court decisions, a citation to publications, or a statement of official notice supported by appropriate evidence. MPEP § 2106.05. The Office Action provides no such support.
Moreover, the additional elements, when considered in combination, provide significantly more than any alleged abstract idea. The claims recite a specific combination of a light source and spectral sensor of an optical vital signs monitor working together to illuminate a subject's body, receive a resultant signal, and determine skin tone from that signal. This ordered combination of elements represents more than mere data gathering-it is a specific technical implementation for skin tone detection in the context of vital signs monitoring.”
Rejection Under 35 U.S.C. § 102
“The Examiner has alleged that Dietiker discloses all elements of the pending claims, including the claimed step of "determining a skin tone of the subject from the received resultant signal." Applicant respectfully disagrees.
Dietiker does not disclose determining a skin tone of a subject from a received resultant signal as required by the claims. Rather, Dietiker is directed to determining vital signs, such as SpO2, from a resultant signal. As set forth in paragraph [0040], Dietiker merely lists "skin tone" as one of many possible "characteristics" that "may" be determined as part of a "context" for the resultant signal, alongside other characteristics such as "height, weight, medical conditions, or other information that may affect the received signal." Critically, Dietiker does not disclose how skin tone would be determined, nor does Dietiker disclose determining skin tone from the received resultant signal. The mere mention of skin tone as one possible characteristic among many does not constitute a disclosure of actually determining skin tone from the resultant signal as required by the claims.
Dietiker specifically discloses that the skin tone (or other context) "may be determined by the wearable device 105 based on inputs from the one or more sensors". Dietiker at [0040]. Dietiker's "one or more sensors" are described in paragraph [0027] of Dietiker: "The one or more sensors 140 may include, without limitation, a position sensor 140, ECG sensor 140b, temperature sensor 140c, movement sensor 140d, and an external sensor 140e." None of Dietiker's one or more sensors 140 is a spectral sensor that generates a resultant signal. As such, to the extent Dietiker even determines skin tone, it is determined based on inputs from the one or more sensors 140 as opposed to a resultant signal from a spectral sensor as required by claims 1 and 13.
Furthermore, Dietiker's disclosure is focused on determining vital signs based on spectral properties of the resultant signal. As shown in Dietiker's claims, the reference is directed to determining "a vital sign of the patient based, at least in part, on a lookup table and the spectral property of the resultant signal." Dietiker's lookup tables correlate signal levels to vital sign values such as SpO2, not to skin tone. In contrast, the pending claims specifically require determining skin tone from the received resultant signal, and dependent claims 10 and 20 further specify that the lookup table contains "correlation data correlating signal levels to skin tone."
Applicant submits that anticipation requires that each and every element of the claimed invention be disclosed in a single prior art reference, arranged as in the claim. Dietiker's passing reference to skin tone as one possible context characteristic does not disclose the claimed operation of determining skin tone from the received resultant signal. Accordingly, Dietiker fails to anticipate the claims.
To further advance prosecution, claim 1 is herein amended to incorporate the subject matter of claims 7 and 8 and claim 13 is herein amended to incorporate the subject matter of claim 18.
For example, each of claims 1 and 13 is amended to recite "the spectral sensor comprises two or more detectors with different spectral response properties" as previously recited in claims 7 and 18. In the rejections of claims 7 and 18, the Office Action alleges the foregoing elements of claims 7 and 18 is disclosed in paragraph [0036] of Dietiker. While paragraph [0036] of Dietiker discloses "the spectral sensor 120 may include one or more photodetectors configured to measure light power at one or a range of wavelengths", there is no indication in Dietiker whatsoever that, to the extent Dietiker's spectral sensor 120 includes two or more photodetectors, the two or more photodetectors have different spectral response properties as required by amended claims 1 and 13. The fact that Dietiker's "one or more photodetectors [are] configured to measure light power at one or a range of wavelengths" fails to teach that two (or more) of Dietiker's photodetectors have different spectral response properties as Dietiker's photodetectors could measure light power at the same wavelength or range of wavelengths.
The Office Action cites to paragraphs [0036]-[0040] of Dietiker as disclosing the subject matter of claim 8 and the subject matter of claim 18 not already discussed in the preceding paragraph. None of paragraphs [0036]-[0040] or any other portion of Dietiker explicitly or implicitly discloses first and second signals generated by first and second detectors responsive to receiving the resultant signal at each of the first and second detectors or determining skin tone of the subject from the first and second signals. There is simply no disclosure in Dietiker whatsoever of multiple signals being generated from the resultant signal and determining skin tone from the multiple signals.
Dietiker does not disclose lookup tables based on (e.g., indexed by) skin tone or correction of physiological measurements using skin-tone-specific lookup tables. Rather, Dietiker describes general calibration techniques unrelated to skin tone classification. There does not appear to be any disclosure in Dietiker indicating that skin tone is determined or used to select or modify calibration data.”
Regarding the 101 arguments and rejection as set forth and reiterated above, in response the Examiner respectfully disagrees and notes the following:
Claim 13 does not recite specific hardware amounting to significantly more. The light source and spectral sensor were identified as additional data gathering elements that do not amount to significantly more because they are considered well-known, routine and conventional amounting to insignificant data gathering as pre-solution activity (as evidenced by Dietiker). Similarly, the abstract idea of claim 13 was not identified to include illumination and signal reception and/or the hardware associated therewith. The “determining a skin tone of a subject from a resultant signal” may be completed mentally.
The integration into a practical application cannot include the light source and spectral sensor because they are additional elements not germane to the “determining a skin tone of a subject from a resultant signal” and instead merely gather data in a routine and conventional manner as additional elements. No additional hardware is required by the claim for completion of the abstract idea comprising “determining a skin tone of a subject from a resultant signal” such that it may be executed completely mentally. The “determining” step is entirely devoid of relationship to structure where it may be completed/executed. It is well within the grasp of an ordinary medical professional’s mental capability to look at resultant signals and determine skin tone based on well-known data gathering.
In response to applicant's argument that the claims are statutory as an improvement to technology, it is noted that the features upon which applicant relies (i.e., “an improvement in vital signs monitoring technology. As disclosed in the specification, conventional monochromatic vital sign monitors suffer from "significant variations" arising from "skin tone" that "must be eliminated or reduced," and thus "conventional monochromatic vital sign monitors are limited in implementation and use within wearable devices.") are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Regarding the 102 arguments and rejection as set forth and reiterated above, in response the Examiner respectfully disagrees and notes the following:
The mere fact that Dieteker lists skin tone along with other individual characteristics does not preclude it from being determined or resulting in determination along with factoring therein for or calibrating with SpO2 measurement calculation based on the individual’s characteristics.
Applicant appears to mischaracterize the nature of the rejection, wherein the spectral sensors were identified as element 120 which is a spectral sensor. Paragraph 0035 of Dietiker states: “Accordingly, the wearable device 105 may be configured to receive the reflected signal from body of the patient 145 via one or more photodetectors, such as the spectral sensor 120. In various embodiments, the spectral sensor 120 may include one or more photodetectors configured to measure light power at one or a range of wavelengths. Accordingly, in various embodiments, the wearable device 105 may be configured to determine spectral properties of the reflected signal based on inputs from the spectral sensor 120. For example, the determination of spectral properties may, in some embodiments, include determination of a transmission spectrum and/or a spectral power distribution.”
Regarding Dietiker’s lookup tables, the mere fact that Dietiker discloses the tables for SpO2 levels derived from polychromatic light source ratios being based on the context of the wearable necessarily includes the context of the skin tone [0040].
Dietiker [0061] states: “Accordingly, SpO2 levels, derived from the polychromatic light source using the ratio R between A and B channels may be determined based on the lookup tables 400 as described above. In further embodiments, different lookup tables and lookup table values may be utilized based on a context for the wearable device (e.g., an area of the body, or a characteristic of the patient). Accordingly, while embodiments of the wearable device may be configured to utilize the lookup tables 400, it is to be appreciated that in further embodiments, the wearable device may be configured to modify and/or use different lookup tables. In some embodiments, one or more lookup tables may be stored by the wearable device on, for example, an on-board computer or storage device. In some embodiments, the one or more lookup tables may be stored on a remote system, such as a separate, dedicated signal processing computer, server, database, or other remotely located device. Accordingly, the storage location of the lookup table may vary in different embodiments.”
Dietiker [0066] states: “At optional block 525, the method 500 may further include determining a context of the resultant signal, and at optional block 530, modifying a lookup table based on the context. As previously described, determining a context for the resultant signal may include, without limitation, determining an area of the body of the patient that is illuminated by incident light from the polychromatic light source. For example, in some embodiments, the context may be indicative that the wearable device was attached, without limitation, to a wrist, palm, back of a hand, arm, chest, forehead, or earlobe of the patient. Accordingly, based on the context for receiving a resultant signal, a corresponding lookup table may be modified. As previously described, in some embodiments modification of a lookup table may include modifying one or more values stored within a lookup table, or a relationship between one or more values of the lookup table. In other embodiments, modification of the lookup table may include selection of one or more lookup tables to be utilized according to the determined context.”
Dietiker [0040] states: “In yet further embodiments, the wearable device 105 may be configured to determine a context in which the vital signs are being determined. For example, a context may include, without limitation, an area of the body of the patient 135, or characteristics specific to the patient 135, from which signals are measured by the vital signs monitoring assembly. For example, the wearable device 105 may be configured to determine whether the sensor is receiving signals reflected from a specific body parts such as, without limitation, the hands, feet, arms, legs, wrists, elbows, neck, chest, back, or head. In some further examples, the wearable device 105 may be configured to determine further characteristics, such as height, weight, skin tone, medical conditions, or other information that may affect the received signal. Accordingly, in some embodiments, context may be determined by the wearable device 105 based on inputs from the one or more sensors, to determine characteristics specific to the patient 135. Alternatively, the wearable device 105 may be deployed with an initial configuration based on the type of device of the wearable device. For example, a wearable device such as a headband may be configured to include algorithms for determining vital signals based on a reflected signal from a forehead or scalp, whereas a wristband device may be configured to include determine vital signals based on reflected signals from a wrist or hand.”
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., “lookup tables based on (e.g., indexed by) skin tone or correction of physiological measurements using skin-tone-specific lookup tables”) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Conversely, the claimed lookup tables merely correspond to a determined skin tone such as the modified lookup tables based on context adjustment of [0066]. Dieteker’s lookup tables may more than fairly and reasonably be considered to at least correspond to skin tone on the basis they were modified by that context.
In response to applicant’s argument that Dietiker fails to show different spectral response properties of two or more photodetectors, the examiner respectfully notes Dietiker [0055] states: “In various embodiments, the method 300 begins, at block 305, by setting an equal gain for A and B channels of one or more light sensors. In various embodiments, the one or more photodetectors, such as a spectral sensor as previously described. In some embodiments, the spectral sensor may be configured to measure spectral power distribution and/or intensity of light at one or more wavelengths. In some embodiments, each of the A and B channels may be associated with spectral power and/or intensity at a respective wavelength and/or range of wavelengths.” Thus, Dietiker is expressly concerned with and evidentiarily demonstrates multiple photodetectors operating with different wavelengths to construct a resultant signal from a plurality of signals that is used in a lookup table corresponding to or modified by skin tone context to determine an physiological signal based on context.
Conclusion
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 Jeffrey G. Hoekstra whose telephone number is (571)272-7232, the examiner can normally be reached Monday through Thursday from 5am-3pm 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, Charles A. 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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Jeffrey G. Hoekstra
Primary Examiner
Art Unit 3791
/JEFFREY G. HOEKSTRA/ Primary Examiner, Art Unit 3791
Prosecution Insights