DETAILED ACTION
Acknowledgements
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-8, 13-14, 16-17, 26-31 are pending, 3-4, 8, 13-14, 16-17, 26 are withdrawn.
This action is Final.
Drawings
The drawings are objected to because Figures 1-3, 5, 7-8 have improper usage of underlining where lead lines must be used (please check Figure 4 is a surface for 110 or replace as appropriate).
(p) Numbers, letters, and reference characters.
(3) Numbers, letters, and reference characters must measure at least .32 cm. (1/8 inch) in height. They should not be placed in the drawing so as to interfere with its comprehension. Therefore, they should not cross or mingle with the lines. They should not be placed upon hatched or shaded surfaces. When necessary, such as indicating a surface or cross section, a reference character may be underlined and a blank space may be left in the hatching or shading where the character occurs so that it appears distinct.
(q) Lead lines. Lead lines are those lines between the reference characters and the details referred to. Such lines may be straight or curved and should be as short as possible. They must originate in the immediate proximity of the reference character and extend to the feature indicated. Lead lines must not cross each other. Lead lines are required for each reference character except for those which indicate the surface or cross section on which they are placed. Such a reference character must be underlined to make it clear that a lead line has not been left out by mistake. Lead lines must be executed in the same way as lines in the drawing. See paragraph (l) of this section.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 27-28 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant amended claim 1 to positively require steps occurring for determining the target heart rate signal but claims 27-28 are limitations which appear to replace those contingent steps with parallel required steps. While each are embodiments for a broader concept, the inclusion of claims 27 ([0069]), and 28([0094]) features with the required features of claim 1 (original claim 10, [0098]-[0100]) for positively required steps that occur in the claimed method are arrangements which are new matter for a claimed process. Although the description states “In addition, some features, structures, or features in the present disclosure of one or more embodiments may be appropriately combined”, this does not explain how the required contingent functions are operating together in the newly positively claimed method steps. The claims are not to a system which can have numerous contingency or alternatively running algorithms on a computer, the claims are directed to a method which must perform the positively recited and required steps. To summarize, while the specification does describe each of claims 27-28 in parallel to the features amended into claim 1 there is no discussion into how these features, which all require to determine the target heart rate signal via different methodology, are all performing simultaneously which is new matter to the claimed process. Although such step may be possible, this is not the test for compliance with the written description requirement. Rather, “the test for [written description] sufficiency is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). In this case, Applicant merely establish that the inventor(s) could have had possession of the claimed subject matter as of the filing date, not that they did have possession at that time.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2, 5-8, 27-31 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.
Applicant has amended claim 1 to recite the limitations “determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal, including:
determining a signal amplitude of the motion signal;
determining whether the signal amplitude is greater than an amplitude threshold;
in response to determining that the signal amplitude is greater than the amplitude threshold, determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal; and
in response to determining that the signal amplitude is equal to or less than the amplitude threshold, designating a heart rate signal corresponding to the first signal as the target heart rate signal” which renders the claim indefinite.
It is not clear whether the “designating...as the target heart rate signal” is the same or different from the “determining the target heart rate signal. The biggest issue here is that the required determination is based on 3 signals, but this second newly added contingency appears to be based on only 1 signal and arguably 2 since such is based on motion compared threshold. The affirmed target rate signal cannot be based on only 1-2 signal as claimed for the contingent feature based on the prior requirements in the claim such that it is not clear what is being limited with the claimed requirements. This makes the metes and bounds of the claim unclear, which renders the claim indefinite.
Regarding claims 27-28, the limitations further render the claims indefinite. Applicant amended claim 1 to positively require steps occurring for determining the target heart rate signal including through contingencies but claims 27-28 are limitations which appear to replace those steps with these parallel steps. While each are embodiments for a broader concept, the inclusion of claim 27-28 features with the required features of claim 1 do not further limit the requirements of claim 1 which makes the metes and bounds of the claim unclear which renders the claim indefinite. How are all these steps being performed together (1 and 27; 1 and 28)?
Claim 1
determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal, including:
determining a signal amplitude of the motion signal;
determining whether the signal amplitude is greater than an amplitude threshold;
in response to determining that the signal amplitude is greater than the amplitude threshold, determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal; and
in response to determining that the signal amplitude is equal to or less than the amplitude threshold, designating a heart rate signal corresponding to the first signal as the target heart rate signal.
27. (New) The method of claim 1, wherein the determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal includes:
determining, based on the motion frequency, a reference heart rate signal corresponding to the motion frequency, the reference heart rate signal referring to a predetermined signal or signal range based on heart rate signal statistical data; and
replacing the second signal with the reference heart rate signal to determine the target heart rate signal.
28. (New) The method of claim 1, wherein the determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal includes:
obtaining first signals of a same object in different motion states or first signals of different objects in a same motion state;
identifying a corresponding second signal in each of the first signals;
determining a variation relationship of the corresponding second signal with the motion signal based on a data analysis algorithm, the variation relationship including a mapping relationship between a proportion of motion components in the motion signal and the corresponding second signal;
determining motion components in the corresponding second signal based on the mapping relationship; and
processing the corresponding second signal based on the motion components in the corresponding second signal to determine the target heart rate signal.
In view of these uncertainties, it is not clear how these steps of a claimed process function together to generate the claimed singular target hear rate signal of the claimed process. Due to the uncertainty of proper claim scope, assumptions, and speculation, it would be improper to speculatively apply and reject the claims in view of prior art, In re Steele. See MPEP 2173.06.
“Second, where there is a great deal of confusion and uncertainty as to the proper interpretation of the limitations of a claim, it would not be proper to reject such a claim on the basis of prior art. As stated in In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection under 35 U.S.C. 103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.”
The dependent claims are rejected for depending on a rejected claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 27-28 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Applicant amended claim 1 to positively require steps occurring for determining the target heart rate signal using contingencies but claims 27-28 are limitations which appear to replace those steps with these parallel steps. While each are embodiments for a broader concept, the inclusion of claim 27-28 features with the required features of claim 1 (past claim 10) do not further limit the requirements of claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-2, 5-8, 27-31 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more. The claim(s) recite(s):
Claim 1
identifying a second signal with a target frequency from the first signal based on a motion frequency corresponding to the motion signal, the target frequency originating from a linear superposition of the motion frequency and a heart rate frequency corresponding to the target heart rate signal (mathematical concepts/mental processes); and
determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal, including (mathematical concepts/mental processes):
determining a signal amplitude of the motion signal (mathematical concepts/mental processes);
determining whether the signal amplitude is greater than an amplitude threshold (mathematical concepts/mental processes);
in response to determining that the signal amplitude is greater than the amplitude threshold, determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal (contingent clause, mathematical concepts/mental processes); and
in response to determining that the signal amplitude is equal to or less than the amplitude threshold, designating a heart rate signal corresponding to the first signal as the target heart rate signal (contingent clause, mathematical concepts/mental processes).
These claim limitations fall within the identified groupings of abstract ideas:
Mathematical Concepts:
mathematical relationships
mathematical formulas or equations
mathematical calculations
Mental Processes
concepts performed in the human mind (including an observation, evaluation, judgment, opinion)
This judicial exception is not integrated into a practical application because:
Under the step 2A, analysis is conducted on the additional features of the claim. Under this analysis, the additional features beyond the judicial exception are:
Claim 1
A method for monitoring a heart rate, wherein the method is executed by a system including at least one storage device storing a set of instructions and at least one processor (field of use/generic computer structure for implementation of the exception(s))
obtaining a first signal, the first signal including a target heart rate signal in a motion state, and the target heart rate signal is obtained using a photoplethysmography pulse wave sensor; obtaining a motion signal corresponding to the motion state (limitations related to insignificant extra solution activities of data gathering)
These features in the claim do not integrate the exception into a practical application of the exception as the additional elements in the claim do not apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is no more than a drafting effort designed to monopolize the exception.
Limitation concepts that are indicative of integration into a practical application:
Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP 2106.05(e) and Vanda Memo
Limitation concepts that are not indicative of integration into a practical application:
Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f)
Adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g)
Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h)
Under Step 2B, the claim limitations are evaluated for an inventive concept. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, when considered separately and in combination, they do not add significantly more to the exception. Analyzing the additional claim limitations individually, the additional limitation that is not directed to the abstract idea are the same as those identified above in Step 2A related to obtaining signals. Such limitations related to the obtaining signals are recognized by the courts as routine data gathering in order to input data to the mathematical algorithm/mental process, and thus, do not add a meaningful limitation to the method as it would be routinely used by those of ordinary skill in the art in order to apply the mathematical algorithm/mental processes. In addition, these limitations recite no structures, such that off the shelf conventional sensors including those known from Lee et al. (Lee, US 2003/0212336)could be used. The computer structures cited above are claimed as performing generic computer functions routinely used in computer applications. Generic computer components recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system. The additional limitations recited in the dependent claims are directed to further details of the processing of data (A more specific abstraction is still an abstraction), and further details of the data gathering using conventional sensors to generate conventional PPG data for use in the abstract idea. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. Therefore, analyzing the claims as an ordered combination under the Mayo/Alice analysis the features claimed are directed to patent ineligible limitations.
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.
Claims 1-2, 5-7, 29 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lee et al. (Lee, US 2003/0212336).
Regarding claim 1, Lee teaches a method for monitoring a heart rate, wherein the method is executed by a system including at least one storage device storing a set of instructions and at least one processor (see at least Figures 1-11 algorithmic processes and structures interpreted as reading on the field of use claimed in computer implementation), and the method comprises:
obtaining a first signal, the first signal including a target heart rate signal in a motion state, and the target heart rate signal is obtained using a photoplethysmography pulse wave sensor (see at least Figures 3, 7 S10);
obtaining a motion signal corresponding to the motion state (see at least Figures 3-4, 7 S30);
identifying a second signal with a target frequency from the first signal based on a motion frequency corresponding to the motion signal, the target frequency originating from a linear superposition of the motion frequency and a heart rate frequency corresponding to the target heart rate signal (“based on” is broad limitation, the signals acquired are based on the natural aggregate property of such signals in the data sampled as linear combination of such data being present in the sampled PPG signals in a linear additive manner, see at least Figures 3-4, 7 processes of S10 to S70 read on such details based on such details to then be used to identify motion greater than a threshold, [0086]-[0112]); and
determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal (“based on” is broad limitation, see at least Figures 3-4, 7 including step S90, optional step S110 and remaining steps S130-S210 where such determination is based on these features), including:
determining a signal amplitude of the motion signal (see at least [0086]-[0088]);
determining whether the signal amplitude is greater than an amplitude threshold (see at least Figure 7 S90 yes or no, [0088]);
in response to determining that the signal amplitude is greater than the amplitude threshold, determining the target heart rate signal by processing, based on the motion signal and the second signal, the first signal (contingent limitations as “in response to” is a contingency clause and is not required to occur, see MPEP 2111.04(II)); and
in response to determining that the signal amplitude is equal to or less than the amplitude threshold, designating a heart rate signal corresponding to the first signal as the target heart rate signal (see at least Figure 7, process following no at step S90 reasonably reads on this process).
Regarding claim 2, Lee teaches wherein the obtaining a motion signal corresponding to the motion state includes: obtaining a filtered signal by performing a filtering operation on the first signal; and determining the motion signal based on the filtered signal (see at least Figures 3-4, 7, [0080]).
Regarding claim 5, Lee teaches wherein the second signal includes a superimposed signal between the motion signal and the target heart rate signal, the superimposed signal refers to a noise signal generated by an interaction between the motion signal and the target heart rate signal, and the superimposed signal is related to amplitudes and frequencies of the motion signal and the target heart rate signal (see at least Figures 15a-b, [0088] “by performing the hard thresholding process of the smoothed PPG signal on the basis of a predetermined level suitable for the TEO output value within the interval where the normal heartbeat signal exists (S90)”; the underlined added features appear to merely define the natural property of the signals sensed in that the PPG has motion signals due to the presence of motion which are inherent features).
Regarding claim 6, Lee teaches wherein the superimposed signal includes a non-linear superimposed signal (see at least Figures 15a-b).
Regarding claim 7, Lee teaches wherein the target frequency is equal to a sum of the motion frequency and the heart rate frequency (see at least [0088] “by performing the hard thresholding process of the smoothed PPG signal on the basis of a predetermined level suitable for the TEO output value within the interval where the normal heartbeat signal exists (S90)”).
Regarding claim 29, Lee teaches wherein the identifying the second signal with the target frequency from the first signal based on the motion frequency corresponding to the motion signal includes: locating a peak at the target frequency in a spectrum of the first signal, and identifying a signal component corresponding to the peak as the second signal (see at least [0070]-[0071] Figure 9).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
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 30 is rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (Lee, US 2003/0212336) as applied to claim 2 above, and further in view of “Peng” (Peng et al. “Motion artifact removal from photoplethysmographic signals by combining temporally constrained intendent component analysis and adaptive filter”, Biomedical Engineering Online, 13(1), 2014).
Regarding claim 30, the limitations are met by Lee except the features of ICA are not directly taught in the limitation wherein the determining the motion signal based on the filtered signal includes: performing an independent component analysis (ICA) on the filtered signal to separate, from the filtered signal, a motion signal that is statistically independent of the target heart rate signal.
However, such usage of ICA in adaptive filtering of motion artifact from PPG signals is known in the art as taught by Peng (see methods and results). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of using ICA with adaptive filtering in order to improve the PPG signal by isolating the motion artifact with such known principles in the signals.
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (Lee, US 2003/0212336) as applied to claim 1 above, and further in view of Galen et al. (Galen, US 9,113,830).
Regarding claim 31,the limitations are met by Lee which measures a PPG (see Figure 1 and claim 1) but fails to teach the claimed features of wherein the first signal is an alternating current (AC) signal extracted from a transmitted light signal received by a photoelectric sensing component, and the AC signal denotes a change of blood volume generated between a systolic phase and a diastolic phase of a cardiac cycle. However, these features are inherent features of the PPG signal sensed as evidenced from Galen Figure 5 element 504, which is caused by blood volume changes). It would have been obvious to one of ordinary skill in the art that such properties claimed are present in PPG signals measured.
Response to Arguments
The examiner acknowledges applicant’s submission of amendments to the claims, drawings, and specification filed 7/6/2026; and IDS filed 7/6/2026.
Applicant’s arguments regarding the objections of the drawings have been fully considered and are partially persuasive due to the amendments to the drawings and specification, however, not all lead lines/underlining issues have been remedied.
Applicant’s argument regarding the objections to the specification have been fully considered and are persuasive due to the amendments. Applicant’s blank statement of No New matter is presumed to apply to the substitute specification filed. The objections are withdrawn.
Applicant’s arguments regarding the rejections of the claims under 35 U.S.C. 112(a) have been fully considered and are partially persuasive due to the amendments to the claims; however, the amendments have necessitated new grounds of rejections.
Applicant’s arguments regarding the rejections of the claims under 35 U.S.C. 112(b) have been fully considered and are partially persuasive due to the amendments to the claims; however, the amendments have necessitated new grounds of rejections.
Applicant’s arguments regarding the rejections of the claims under 35 U.S.C. 101 have been fully considered but are not persuasive.
Applicant contends that any exception is integrated into a practical application by way of obtaining PPG data from a PPG sensor and motion data. The examiner respectfully disagrees as adaptive filtering based on motion signals with conventional PPG data is not an improvement per se based on the art of record. The expected data is gathered using the expected sensors for gathering such data necessarily for the claimed algorithmic exception of data processing being claimed. Applicant further argues improvement by the contingency clauses amended into claim 1 method, but these clauses are further details into the claimed exception, and the exception alone cannot provide for the improvement to technology. Contrary to example 45, there is no post-solution of a control mechanism for injection molding apparatus, the instant claims cease at determining the target heart rate signal alone, nothing is done or completed or controlled injection molding by such black box result of data determination. Applicant further purports power consumption improvement, but the examiner fails to see any discussion of such in the disclosure as filed to give weight to such position, in addition to the fact the claims are not directed to any such battery powered/sourced device. Under step 2B, applicant contends the rejection does not show such structures are well-known, conventional, routine. The examiner respectfully disagrees in view of the evidence of record for the data gathered, sensor, and computer structures as presented in the rejection. The rejections are respectfully maintained and updated to account for the amendments to the claims.
Applicant’s arguments regarding the rejections of the claims in view of prior art have been fully considered but are not persuasive. The rejections have been updated to account for the amendments to the claims. Applicant’s arguments on p. 28-29 requesting a special definition be applied do not make sense. Applicant argues that “linear superposition” has a special technical definition in paragraph 88 to be “non-linear multiplicative superposition signal”. The examiner respectfully disagrees that such has a special technical definition; why does claim 6 exist if such feature is to have such meaning? The disclosure as filed does not set forth a special technical definition, if such is to be the explicit meaning then the claims must recite such as claim limitations are considered under a broadest reasonable interpretation in light of the specification without reading limitations from the specification into the claims. On page 29-30 applicant argues that the invention seeks to harness a natural law of converting non-linear features in signals to linear features. The examiner fails to see how the signals captured are not natural properties of such signals based on the position applicant has taken. Applicant argues that Lee does not obtain a motion frequency or identify a second signal. The examiner respectfully disagrees as addressed in the rejection, under a broadest reasonable interpretation all three aspects are taught by usage of Figure 7 algorithm, and the fact that “based on” is broad limitation, the signals acquired are based on the natural aggregate property of such signals in the data sampled as linear combination of such data being present in the sampled PPG signals in a linear additive manner (see at least Figures 3-4, 7 processes of S10 to S70 read on such details based on such details to then be used to identify motion greater than a threshold, [0086]-[0112]). Applicant argues against the claim interpretation of contingency clauses in the method by adding a second contingency. Proper claim interpretation dictates that if one can occur alone then the other need not be considered to bear patentable weight for the claimed method. As explained in MPEP 2111/04, such process claims and product claims have different claim interpretation of contingency clauses. The examiner disagrees that a value of artifact in not an equivalent to signal amplitude claimed, as amplitude can mean magnitude/quantity/size. If such is not an amplitude then what is compared to a threshold for making a determination of motion artifact greater than a threshold in Lee? It reasonably teaches the claimed features as stated in the rejection. All limitations have been considered, but not all limitations necessarily bear patentable weight, especially in contingent method claims. See MPEP 211.04. Applicant’s arguments for claim 5 have been fully considered but are not persuasive. Limiting what the noise is that is captured naturally/necessarily in the expected data from the conventional sensor does not become patentable from describing what the noise is. This amounts to the added features to merely define the natural property of the signals sensed in that the PPG has motion signals due to the presence of motion which are inherent features. Applicant’s arguments in claim 7 have been considered but are not persuasive. The features are taught in the algorithmic processing of LEE which evaluates amplitude and frequency of the PPG signal. It is noted that the claims do not limit any algorithmic processing to be exclusive to data in the frequency domain as argued but merely defines what the target frequencies include in the signal, which again are naturally present in a signal recording heart and motion sounds and necessarily has the data related to such frequencies. The rejections are respectfully maintained as updated to account for the amendments to the claims.
MPEP 211.04
II. CONTINGENT LIMITATIONS
The broadest reasonable interpretation of a method (or process) claim having contingent limitations requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met. For example, assume a method claim requires step A if a first condition happens and step B if a second condition happens. If the claimed invention may be practiced without either the first or second condition happening, then neither step A or B is required by the broadest reasonable interpretation of the claim. If the claimed invention requires the first condition to occur, then the broadest reasonable interpretation of the claim requires step A. If the claimed invention requires both the first and second conditions to occur, then the broadest reasonable interpretation of the claim requires both steps A and B.
The broadest reasonable interpretation of a system (or apparatus or product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The system claim interpretation differs from a method claim interpretation because the claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed.
See Ex parte Schulhauser, Appeal 2013-007847 (PTAB April 28, 2016) for an analysis of contingent claim limitations in the context of both method claims and system claims. In Schulhauser, both method claims and system claims recited the same contingent step. When analyzing the claimed method as a whole, the PTAB determined that giving the claim its broadest reasonable interpretation, “[i]f the condition for performing a contingent step is not satisfied, the performance recited by the step need not be carried out in order for the claimed method to be performed” (quotation omitted). Schulhauser at 10. When analyzing the claimed system as a whole, the PTAB determined that “[t]he broadest reasonable interpretation of a system claim having structure that performs a function, which only needs to occur if a condition precedent is met, still requires structure for performing the function should the condition occur.” Schulhauser at 14. Therefore "[t]he Examiner did not need to present evidence of the obviousness of the [ ] method steps of claim 1 that are not required to be performed under a broadest reasonable interpretation of the claim (e.g., instances in which the electrocardiac signal data is not within the threshold electrocardiac criteria such that the condition precedent for the determining step and the remaining steps of claim 1 has not been met);" however to render the claimed system obvious, the prior art must teach the structure that performs the function of the contingent step along with the other recited claim limitations. Schulhauser at 9, 14.
Conclusion
No prior art rejections have been applied to claims 27-28 as addressed above in the 112(b) section. Due to the uncertainty of proper claim scope, assumptions, and speculation, it would be improper to speculatively apply and reject the claims in view of prior art, In re Steele. See MPEP 2173.06.
“Second, where there is a great deal of confusion and uncertainty as to the proper interpretation of the limitations of a claim, it would not be proper to reject such a claim on the basis of prior art. As stated in In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection under 35 U.S.C. 103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.”
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 MICHAEL R BLOCH whose telephone number is (571)270-3252. The examiner can normally be reached M-F 11-8 EST.
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/MICHAEL R BLOCH/Primary Examiner, Art Unit 3791
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