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 .
DETAILED ACTION
Status of the Claims
Claims 1-12 are rejected under Double Patenting.
Claims 1-12 are rejected under 35 USC §101.
Claims 1-7 and 10-12 are rejected under 35 USC §102.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 10, 11, and 12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-4, 8, 9, and 10 of copending Application No. 18/511,155. in view of Bonomi et al., (US Pub.20210267471A1).
It would have obvious provide the smart watch device (para [003], Fig. 2, # 1) in order to more accurately detect the biological measurements for long term capabilities.
This is a provisional nonstatutory double patenting rejection.
Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations of the claims in the current application are encompassed in the previous application. The latter pending application encompasses the same system as the pending application and is arrange in different manner using different wording.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 1-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more as addressed below.
The new 2019 Revised Patent Subject Matter Eligibility Guidance published in the Federal Register (Vol. 84 No. 4, Jan 7, 2019 pp 50-57) has been applied and the claims are deemed as being patent ineligible.
The current 35 USC 101 analysis is based on the current guidance (Federal Register vol. 79, No. 241. pp. 74618-74633). The analysis follows several steps. Step 1 determines whether the claim belongs to a valid statutory class. Step 2A prong 1 identifies whether an abstract idea is claimed. Step 2A prong 2 determines whether an abstract idea is integrated into a practical application. If the abstract idea is integrated into a practical application the claim is patent eligible under 35 USC 101. Last, step 2B determines whether the claims contain something significantly more than the abstract idea. In most cases the existence of a practical application predicates the existence of an additional element that is significantly more.
Under the Step 1 of the eligibility analysis, we determine whether the claims are to a
statutory category by considering whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C.
101: Process, machine, manufacture, or composition of matter. The below claim is considered to be in a statutory being a thing or product. See MPEP 2106.03.
Under Step 1 of the analysis, claim 1 does belong to a statutory category, namely it is a process claim.
Under Step 2A Prong 1, the independent claim 1 includes abstract ideas as highlighted (using a bold font) below.
“ Claim 1. A smart watch comprising:
a 3-axis accelerometer configured to measure and store position and acceleration information for the smart watch;
a memory configured to store instructions; and
a processor communicatively connected to the 3-axis accelerometer and the memory; the processor configured to execute the instructions at least to:
receive the stored position and acceleration information from the 3-axis accelerometer;
determine one or more physical activities corresponding to the stored position and acceleration information; and store the determined one or more physical activities.”
“12. A smart watch system comprising:
a smart watch including: a 3-axis accelerometer configured to measure and store position and acceleration information for the smart watch;
a transceiver configured to connect the smart watch to an external computer device for data communication;
a memory configured to store instructions; and
a processor communicatively connected to the 3-axis accelerometer and the memory, the processor configured to execute the instructions at least to:
receive the stored position and acceleration information from the 3-axis accelerometer; determine one or more physical activities corresponding to the stored position and acceleration information; and store the determined one or more physical activities; and
the external computer device, wherein the external computer device is configured to be communicatively connected to the smart watch, wherein the external computer device obtains data from the smart watch, and wherein external computer device displays information related to the data to a user.”
The highlighted steps, as drafted, is a process that, under its broadest reasonable interpretation, covers performance of the limitation in mind or by a person using a pen and paper. Therefore, an abstract idea is involved.
2. Under step 2A prong 2, The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered both individually and as an ordered combination do not amount to significantly more than the abstract idea. The independent claims 1 and 12 recite the additional limitations of “smart watch”, “accelerometer”, “memory”, “transceiver”, “processor”, “computer device” etc. The mentioned limitations are recited at a high level of generality and are considered to be data gathering/processing which are mere extra-solution activity. The elements amount to 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 2106.04(d) and 2106.05(f)). Accordingly, each of the additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limitations on practicing the abstract idea.
The Step of “store the determined one or more physical activities” just insignificant additional step.
3. Under step 2B. The emphasized elements cited above do not amount to significantly more than the judicial exception because these limitations are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’I, 110 USPQ2d 1976 (2014)).
In view of the above, the additional elements individually do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process. Simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry, as discussed in Alice Corp., 573 U.S. at 225, 110 USPQ2d at 1984 (see MPEP § 2106.05(d)).
Claims 2-11 depend on claim 1. The mentioned dependent claims recite the same abstract idea as the independent claims. Furthermore, these claims only contain recitations that further limit the abstract idea (that is, the claims only recite limitations that further limit the mental process). For example, the dependent claim recites the limitations “power source”, “semiconductor crystal”, “transceiver”, “external computer”, “processor”, etc., are recited at a high level of generality and are mere extra-solution activity, and recited as performing generic computer functions. i.e., data processing. The elements amount to 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 2106.04(d) and 2106.05(f)). It is noted that the act of training data and using learning model falls under the judicial exception of mathematical calculations.
The additional elements individually do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
Thus, claims 1-12 are directed to an abstract idea and are therefore rejected.
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, 4, and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bonomi et al., (US Pub.20210267471A1), hereinafter Bonomi.
Regarding Claim 1, Bonomi disclose a smart watch comprising:
a 3-axis accelerometer configured to measure and store position and acceleration information for the smart watch(para 0060, 0062, 0066 “motion signal providing unit 20”, “a multi-dimensional accelerometer”);
a memory configured to store instructions(para 0016, 0074-0075); and
a processor communicatively connected to the 3-axis accelerometer and the memory (para [0060], [0062], [0066] “motion signal providing unit 20”, “a multi-dimensional accelerometer”);
the processor configured to execute the instructions (para 0016, 0074-0075) at least to:
receive the stored position and acceleration information from the 3-axis accelerometer (para 0016-0017, 0074-0075, where PPG signal can be obtained in real time or can be stored and provided for later analysis);
determine one or more physical activities corresponding to the stored position and acceleration information (PPG signal measuring motion activity by the accelerometer,
see para [005]); para [0016]-[0017], [0074]-[0075],where PPG signal is stored, measurement unit such as a PPG sensor; The PPG signal and the motion signal preferably correspond to each other; para [0024], where vibration, rotation or acceleration sensors capable of detecting peculiar motion of nearby body parts of the subject with respect to the body part the PPG signal originates from); and
store the determined one or more physical activities(para 0063-0065).
Regarding Claim 2, Bonomi disclose the smart watch according to claim 1, further comprising a power source configured to provide power to the smart watch(para 0030, it is understood that wearable devices include a power supply).
Regarding Claim 4, Bonomi disclose the smart watch according to claim 1, further comprising a transceiver configured to connect the smart watch to an external computer device for data communication (para [0060]).
Regarding Claim 12, Bonomi disclose a smart watch system comprising:
a smart watch including:
a 3-axis accelerometer configured to measure and store position and acceleration
information for the smart watch (para [0060], [0062], and [0066] “motion signal providing unit 20”, “a multi-dimensional accelerometer”);
a transceiver configured to connect the smart watch to an external computer
device for data communication (para [0060]);
a memory configured to store instructions (para [0016], and [0074]-[0075]); and
a processor communicatively connected to the 3-axis accelerometer and the
memory (para [0060], [0062], and [0066] “motion signal providing unit 20”, “a multi-dimensional accelerometer”), the processor configured to execute the instructions at least to:
receive the stored position and acceleration information from the 3-axis
accelerometer (para [0016]-[0017], [0074]-[0075]);
determine one or more physical activities corresponding to the stored
position and acceleration information (PPG signal measuring motion activity by the accelerometer (see para [005]); para [0016]-[0017], [0074]-[0075], where PPG signal is stored, measurement unit such as a PPG sensor; The PPG signal and the motion signal preferably correspond to each other; para [0024], where vibration, rotation or acceleration sensors capable of detecting peculiar motion of nearby body parts of the subject with respect to the body part the PPG signal originates from); and
store the determined one or more physical activities; and
the external computer device (para [0060] “more or all of the units can be provided at different and/or remote locations, such as implemented on a server”), wherein the external computer device is configured to be communicatively connected to the smart watch, wherein the external computer device obtains data from the smart watch, and wherein external computer device displays information related to the data to a user (para [0082]-[0083] “output”).
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.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Bonomi, as applied to claim 1 above, and further in view of Mcdonald (WO2010093461A1), hereinafter Mcdonald.
Regarding Claim 3, Bonomi disclose the smart watch according to claim 1, measuring and storing the position and acceleration information using the 3-axis accelerometer, as recited in claim 1.
Bonomi does not disclose further comprising a semiconductor crystal configured to provide a clock signal, wherein the clock signal is used to determine a frequency.
Mcdonald disclose a semiconductor crystal configured to provide a clock signal, wherein the clock signal is used to determine a frequency (para 0012, where frequency generator described herein may be employed to generate multiple clock frequencies using semiconductor technology and one crystal rather than a plurality of crystals in systems that require a plurality of clock signals of various frequencies)
Therefore, it would have been obvious to one of ordinary skill in the art at the time the applicants' invention was made to provide a clock signal, as taught by Mcdonald into Bonomi in order to enabling synchronous operation across components to prevent errors.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Bonomi, as applied to the claim 1 and further in view of Jung et al., (US Pub.20180248990A1), hereinafter Jung.
Regarding Claim 5, Bonomi disclose the smart watch according to claim 1, but does not disclose further comprising a display.
Jung disclose smart watch comprising a display (Abstract, where the smart watch may include a display device).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the applicants' invention was made to provide display, as taught by Jung into Bonomi in order to display an image.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Bonomi, as applied to claim 1 above, and further in view of Newberry (US Pub.20190286233-A1), hereinafter Newberry and Li at al., (US Pub.20160089080A1), hereinafter Li.
Regarding Claim 6, Bonomi disclose the smart watch according to claim 1, but do not wherein the processor is further configured to execute the instructions at least to: disclose:
calculated output data based on the stored position and acceleration information using one or more classifier algorithms, wherein the one or more classifier algorithms include one or more of a physical activity classifier, a step count algorithm, and a step activity classifier.
Newberry, from a similar field of endeavor, teaches using machine learning techniques to improve accuracy in prediction (para [0145]-[0151], [0161] discusses the training of the model, etc.).
It would have been obvious before the filing date of the claimed invention to modify the disclosure of Bonomi with the teachings of Newberry to provide the predictable result of improving accuracy in prediction.
Li disclose calculated output data (para [0039], where a set of output devices 26, a set of storage devices 28… Smartphone 14 may further include a phone accelerometer 32, a geolocation device 34, a power management device 36, and a set of sensing devices 38) based on the stored position and acceleration information (para [0056], where smartphone 14 may transmit phone accelerometer data 74 to smartwatch 12, together with a location indicator 76 indicative of the current physical location of smartphone 14) using one or more classifier algorithms, wherein the one or more classifier algorithms include one or more of a physical activity classifier (para [0056], where machine learning model may be trained to classify or predict whether input data corresponds to a particular non-step-related activity), a step count algorithm (para [0049], where the step counting device 102 can determine whether the user is driving or is stepping (e.g., walking or running) or otherwise physically active. The determination may be made using one or more classifiers or other models trained to detect the signature of driving or stepping in input data), and a step activity classifier (para [0056], where machine learning model may be trained to classify or predict whether input data corresponds to a particular non-step-related activity).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the applicants' invention was made to provide physical activity classifier, a step count algorithm, and a step activity classifier, as taught by Li into Bonomi in order to more accurately analyze the motion activity.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Bonomi, as applied to claim 1 above, and further in view of Thiemjares at al., (WO2020236091A2), hereinafter Thiemjares.
Regarding Claim 7, Bonomi disclose the smart watch according to claim 1, wherein the processor is further configured to execute the instructions at least to:
divide the physical activities into two categories, wherein the two categories are rhythmic activities and non-rhythmic activities.
Thiemjares disclose divide the physical activities into two categories, wherein the two categories are rhythmic activities and non-rhythmic activities (Page 8, lines 12-21, where step of classifying activities, postures, and falls 23, there is the sample information of activities and postures including lying down, sitting, standing, walking, running, jumping, static activity, dynamic activity, fall, prior-to-fall activity, or post-fall activity at least one or the combination thereof, e.g., running, jumping corresponds to the rhythmic activity and fall, prior-to-fall activity, or post-fall activity corresponds to the non-rhythmic activity).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the applicants' invention was made to provide rhythmic activities and non-rhythmic activities as taught by Thiemjares into Bonomi in order to more accurately recognize the motion activity.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Bonomi, as applied to the claim 1 and further in view of Newberry (US Pub.20190286233-A1), hereinafter Newberry.
Regarding Claim 10, Bonomi disclose the smart watch according to claim 1, but does not disclose wherein the processor is further configured to execute the instructions at least to:
generate a dataset of input features and corresponding output labels from a database of previously stored position and acceleration information;
train one or more machine learning classifiers using a first portion of the generated
dataset;
determine whether the one or more machine learning classifiers are generalized by testing the one or more machine learning classifiers on a second portion of the generated dataset;
in a case where the one or more machine learning classifiers are not generalized, validate the one or more machine learning classifiers using a third portion of the generated dataset until the one or more machine learning classifiers are generalized; and in a case where the one or more machine learning classifiers are generalized,
determine the one or more physical activities corresponding to the stored position and acceleration information using the generalized one or more machine learning classifiers.
Newberry, from a similar field of endeavor, teaches using machine learning techniques to improve accuracy in prediction (para [0145]-[0151], [0161] discusses the training of the model, etc.).
It would have been obvious before the filing date of the claimed invention to modify the disclosure of Bonomi with the teachings of Newberry to provide the predictable result of improving accuracy in prediction.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Bonomi, in view of Newberry as applied to the claim 10 and further in view of Galarneau et al., (US Pub.20210308465A1), hereinafter Galarneau and Saini et al., (WO2017032635A1), hereinafter Saini.
Regarding Claim 11, Bonomi and Newberry discloses the smart watch according to claim 10, further Bonomi disclose database of previously stored position and acceleration information(para 0016-0017, 0074-0075, where PPG signal can be obtained in real time or can be stored and provided for later analysis), and
wherein one or more physical activities (para [0022], where motion signal is indicative of a motion of a body part of the subject, and the plurality of predefined motion classes comprises i) an activity of the subject, ii) a posture change of the subject and iii) a movement of an adjacent body part. Preferably, the activity of the subject can be any activity other than sedentary, such as cycling, walking, running etc.).
Bonomi and Newberry but do not disclose wherein the input features include signal strength, rhythmicity, and frequency stability, each of which is calculated from the database of previously stored position and acceleration information, and
wherein the output labels correspond to the one or more physical activities.
Galarneau disclose input features include signal strength, rhythmicity, and frequency stability, each of which is calculated (para [0163], where a value determined by the medical device from a sensor signal, e.g., a motion signal such as an acceleration signal sensed by an accelerometer, that is correlated to the strength (amplitude), frequency (or rate) and/or regularity (relative to atrial events) of the ventricular event signals in the sensor signal over multiple atrial cycles).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the applicants' invention was made to provide signal strength, rhythmicity, and frequency stability, as taught by Galarneau in combination of Bonomi and Newberry in order to more accurately identify the physical activity.
Bonomi disclose output [labels] data (para [0082]-[0083] “output”).
Saini disclose labels correspond to the one or more physical activities (Page 7, lines 26-30, where identify an activity tag "walking" for the time period from 9am until 10am, an activity tag "running" for the time period from 10am until 1 lam, and an activity tag "sleeping").
Therefore, it would have been obvious to one of ordinary skill in the art at the time the applicants' invention was made to provide labels correspond to the one or more physical activities, as taught by Saini into Bonomi output and further into Newberry reference in order to easier identify the physical activity.
1) Examiner note regarding the prior art of the record:
Regarding Claim 8:
Martikka et al., (US Pub.2017/0202486A) disclose in a case that a physical activity is classified as rhythmic, perform a spectral analysis on the data captured by the accelerometer to identify the frequency of movement (para [0083], where second step is checking that the cadence is at an allowed frequency range (corresponding to frequency of wrist movement during walking and/or running)).
Hopcroft et al., (CN104486995), disclose in a case that a physical activity is perform a time-domain analysis(para [009], where provide preemptive evaluation and to prevent an increase of the chance of patient fall. specific features and characteristics of sensitivity of the accelerometer such that the physiological condition of the patient (e.g. cardiac pulse of the patient) can be observed. can use time domain and frequency domain information to analyze the physiological data).
The prior art of record does not teach or fairly suggest a smart watch having the steps of “that a physical activity is classified as non-rhythmic, perform a time-domain analysis, in which each oscillation in the data collected by the accelerometer is considered independently”.
Claim 9 is not rejected under 102/103 Rejection as being dependent from base claim 8.
Conclusion
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/KALERIA KNOX/
Examiner, Art Unit 2857
/MICHAEL J DALBO/Primary Examiner, Art Unit 2857