DETAILED ACTION
Status of Claims
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-26 are pending.
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 1-26 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a mental process) without significantly more. The claim(s) recite, inter alia, calculation of heart rate based on one or more overlapping segments of one or more digital readings by identifying R-peaks within the one or more overlapping segments, calculating one or more sample values based on times between adjacent R-peaks, discarding one or more samples that are influenced by false peak detection or missed peak detection, and calculating one or more averages of remaining sample value; dentifying R-peaks within the first segment of digital readings; calculating a first plurality of sample values based on times between adjacent R- peaks; selecting a first subset of the first plurality of sample values including only sample values within a first threshold of a previous heart rate value; calculating a first updated heart rate value based on an average of the first subset of the first plurality of sample values; and displaying the first updated heart rate value; applying one or more statistical tests to determine an acceptable upper and/or lower bound for each value; and utilizing a backward filling method to replace the one or more outlier values with a next available value that falls within an acceptable range established in a current window of samples.
These limitations, as drafted, is a process that, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components. The mere nominal recitation of a generic computer elements (e.g., server, display device) does not take the claim limitation out of the mental processes grouping. Thus, the claim recites a mental process.
Moreover, these additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea This judicial exception is not integrated into a practical application because the generic recitation is no more than mere instructions to apply the exception using generic computer components.
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 1-26 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. US 11850053 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because it would be obvious for the person of ordinary skill in the art at the time of the invention to use a electrocardiogram sensor to measure heart rate.
Prior Art of Record
The prior art made of record and not relied upon is considered to be pertinent to applicant's disclosure. The closest prior art is Ramos et al. ("Real-Time Approach to HRV Analysis", 2018) teaches overlapping windows for detecting R-peaks in ECG waveforms. But Ramos et al. does not teach
discarding one or more samples that are influenced by false peak detection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SCOTT T LUAN whose telephone number is (571)270-1860. The examiner can normally be reached on 9am-5pm, M-F (generally).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Gary Jackson, can be reached on 571-272-4697. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Scott Luan, Ph.D.
/SCOTT LUAN/Primary Examiner, Art Unit 3792