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 .
Claim Objections
Claim 10 is objected to because of the following informalities: claim 10 line 7 includes a period. Each claim must begin with a capital letter and end with a period. See MPEP 608.01(m).
Claim 4 recites “smart heat tracker” which should be amended to “smart heart tracker”.
Claim 5 recites “bionsensor” which should be amended to “biosensor”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 1-10 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.
Regarding claims 1 and 10, the phrase "worn as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 3 recites “semiconductor crystal configured to provide a clock signal”, it is unclear how the semiconductor crystal is able to provide a clock signal. The specification does not provide any details.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-10 are rejected under 35 U.S.C. 101 because of the following analysis:
1 – statutory category: Claims 1-10 recite a device and/or system, and therefore, falls under the statutory category of being a thing or products. See MPEP 2106.03.
2A – Prong 1: The independent claims 1 and 10 recite a judicial exception by reciting the limitations of “determine one or more physical activities corresponding to the stored position and acceleration information”. These limitations, 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.
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 10 recite the additional limitations of “smart heart tracker”, “accelerometer”, “optical biosensor”, “memory”, “transceiver”, “external computing 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.
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 2-9 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 device”, “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 1-10 are directed to an abstract idea and are therefore rejected.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 1-2, 4-7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 20210267471 to Bonomi et al. (hereinafter “Bonomi”).
Regarding claim 1. Bonomi discloses a smart heart tracker shaped and dimensioned to be worn as a piece of jewelry (para 0060, fig. 1 “casing 6”) comprising: a 3-axis accelerometer configured to measure and store position and acceleration information for the smart heart tracker (para 0060, 0062, 0066 “motion signal providing unit 20”, “a multi-dimensional accelerometer”); an optical biosensor configured to measure heart rate (para 0060-0061, “PPG signal providing unit 10”); a memory configured to store instructions (para 0016, 0074-0075); 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 (para 0016-0017, 0074-0075); determine one or more physical activities corresponding to the stored position and acceleration information; and store the determined one or more physical activities (para 0063-0065).
Regarding claim 2. Bonomi discloses the smart heart tracker according to claim 1, further comprising a power source configured to provide power to the smart heart tracker (para 0030, it is understood that wearable devices include a power supply).
Regarding claim 4. Bonomi discloses the smart heart tracker according to claim 1, further comprising a transceiver configured to connect the smart heat tracker to an external device for data communication (para 0060).
Regarding claim 5. Bonomi discloses the smart heart tracker according to claim 1, wherein the optical bionsensor obtains a photoplethysmography (PPG) signal (para 0060-0061, “PPG signal providing unit 10”).
Regarding claim 6. Bonomi discloses the smart heart tracker according to claim 5, wherein the processor is configured to execute the instructions to use the obtained PPG signal in an optical heart rate monitoring (oHRM) algorithm for the measurement of at least one of cardiovascular activity or sleep patterns (para 0010, 0026, 0039, “abnormal variation of the heart rate, such as a false positive determination of AF episodes, can be reduced”).
Regarding claim 7. Bonomi discloses the smart heart tracker according to claim 5, wherein the processor is configured to execute the instructions use an optical heart rate monitoring (oHRM) algorithm that uses position and acceleration information obtained from the 3-axis accelerometer in combination with data acquired with the obtained PPG signal generate output data related to one or more of activity type, sleep quality, heart rate (HR), heart rate variability (HRV), stress level, or physical state (para 0065, 0069, etc.).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over multiple embodiments of US 20210267471 to Bonomi et al. (hereinafter “Bonomi”).
Regarding claim 10. Bonomi discloses a smart heart tracker system comprising: a smart heart tracker shaped and dimensioned to be worn as a piece of jewelry (para 0060, fig. 1 “casing 6”) including: a 3-axis accelerometer configured to measure and store position and acceleration information for the smart heart tracker (para 0060, 0062, 0066 “motion signal providing unit 20”, “a multi-dimensional accelerometer”); an optical biosensor configured to measure heart rate (para 0060-0061, “PPG signal providing unit 10”); a transceiver configured to connect the smart heart tracker to an external computing device for data communication. a memory configured to store instructions (para 0016, 0060, 0074-0075); and a processor communicatively connected to the 3-axis accelerometer and the memory (para 0016-0017, 0074-0075), 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 (para 0063-0065); and the external computing 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 device is configured to be communicatively connected to the smart heart tracker, wherein the external device obtains data from the smart heart tracker, and wherein external device displays information related to the data to a user (para 0082-0083 “output”).
Claim(s) 8-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bonomi as applied to claim 1-2, 4-7 above, and further in view of US 20190286233 to Newberry.
Regarding claim 8. Bonomi discloses the smart heart tracker according to claim 1, but fails to 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.
Regarding claim 9. Bonomi as modified by Newberry renders obvious the smart heart tracker according to claim 8, 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 (Bonomi, para 0075, “using real time or previously stored signal”; Newberry, 0122, 0149, etc., using features).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANA SAHAND whose telephone number is (571)272-6842. The examiner can normally be reached M-Th 8:30 am -5:30 pm; F 9 am-3 pm.
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/SANA SAHAND/Examiner, Art Unit 3796