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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on December 19, 2025 has been entered.
Status of Claims
Claims 2-21, as recited in an amendment filed on September 12, 2025, were previously pending and subject to a final office action filed on October 16, 2025 (the “October 16, 2025 Final Office Action”). On December 8, 2025, Applicant filed a response to the October 16, 2025 Final Office Action, which amended claims 2 and 12 (the “December 8, 2025 After Final Response). On December 12, 2025, an Advisory Action was mailed to Applicant advising that the amendments in the “December 8, 2025 After Final Response would not be entered, because: (1) they raised new issues that would require further consideration and/or search; and (2) they were not deemed to place the application in better form for appeal by materially reducing or simplifying the issues for appeal.
On December 19, 2025, Applicant filed a Request for Continued Examination in accordance with 37 CFR 1.114, where Applicant requested entry and consideration of claims 2-21 as filed in the December 8, 2025 After Final Response (the “December 19, 2025 RCE”). Based on the December 19, 2025 RCE, claims 2-21, as recited in the December 8, 2025 After Final Response, are entered, currently pending, and subject to the non-final office action below.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on December 19, 2025 is in compliance with the provisions of 37 CFR 1.97(b)(4), and has been considered by the examiner.
Response to Applicant’s Remarks
Response to Applicant’s Remarks Concerning the Double Patenting Rejections
Applicant’s arguments, see Applicant’s Remarks, pp. 7-8, I. Discussion of Double Patenting Rejections Section, filed December 8, 2025, with respect to the non-statutory double patenting rejections of claims 2-21 have been considered, but they are moot in light of Applicant’s amendments to independent claims 2 and 12. Specifically, Applicant amended the claims to include limitations directed to “responsive to a determination that the one or more hardware processors are operating successfully after booting from the upgraded image module, writing the image upgrade over the system image of the first image module or the second image module having the older system image”, as described in amended claims 2 and 12. These amendments make Applicant’s claims sufficiently different from prior art cited in the Double Patenting Rejection cited in the October 16, 2025 Final Office Action. Therefore, the Double Patenting Rejections are no longer necessary and are hereby withdrawn.
Response to Applicant’s Remarks Concerning Rejections under 35 U.S.C. § 103
Applicant’s arguments, see Applicant’s Remarks, pp. 8-12, III. Discussion of Claim Rejections under 35 U.S.C. § 103 Section, filed December 8, 2025, with respect to rejections of claims 2-21 under 35 U.S.C. § 103 in view of Volpe (Pub. No. US 2016/0253471), as modified in view of Carlton-Foss (Pub. No. US 2008/0129518), have been considered, but they are moot in light of Applicant’s amendments to independent claims 2 and 12. Therefore, the combination of references previously cited in the October 16, 2025 Final Office Action, are not relied upon to teach the newly amended claim limitations in independent claims 2 and 12. Consequently, any arguments pertaining to the newly amended claim limitations are moot. Please see the amended rejections under the Claim Rejections - 35 U.S.C. § 103 Section below, for further clarification and complete analysis.
In regard to dependent claims 3-11 and 13-21, Examiner notes that Applicant did not argue against any of the prior art cited against these claims specifically; and rather, requests withdrawal of the § 103 rejections in light of Applicant’s arguments against the prior art cited against independent claim 2 (which claims 3-11 individually depend on) and independent claim 12 (which claims 13-21 individually depend on). See Applicant’s Arguments, at pp. 11-12, Subsection C. Dependent Claims 3-11 and 13-21, filed December 8, 2025. Thus, in light of the analysis above, the § 103 rejections of claims 3-11 and 13-21 are also amended in this office action. Please see the amended rejections under the Claim Rejections - 35 U.S.C. § 103 Section below, for further clarification and complete analysis.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitations use a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are:
- "a data module" in claims 2 and 12;
- "a first image module" in claims 2 and 12; and
- "a second image module" in claims 2 and 12.
The specification discloses sufficient structure for the “data module”; “first image module”; and “second image module”, wherein Applicant describes these components as being stored on a memory and including executable instructions (i.e., software code) for performing the functions of “storing the one or more measurements of the at least one physiological parameter”, and “determining the one or more measurements of the at least one physiological parameter.” See Applicant’s specification as originally filed on March 14, 2024, paragraph [0007]. Therefore, the “data module”; “first image module”; and “second image module” are interpreted as software that is stored in the memory of the patient monitoring device and executed by the patient monitoring device (i.e., the modules are interpreted to be executed by the one or more hardware processors of the patient monitoring device).
Because these claim limitations are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have these limitations interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitations recite sufficient structure to perform the claimed function so as to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
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.
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.
Claims 2, 3, 5-7, 9-13, 15-17, and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over:
- Volpe (Pub. No. US 2016/0253471), in view of:
- Utschig-Utschig et al. (Pub. No. US 2011/0119651); and
- Carlton-Foss (Pub. No. US 2008/0129518).
Regarding claims 2 and 12,
- Volpe (Pub. No. US 2016/0253471) teaches:
- in a caregiver environment, a patient monitoring device comprising (as described in claim 2) (Volpe, paragraph [0003]; Paragraph [0003] teaches a medical monitoring and/or treatment device.):
- a method to upgrade operation of a patient monitoring device that is used in a caregiver environment (as described in claim 12) (Volpe, paragraph [0020]; Paragraph [0020] teaches a method of downloading a software update to a wearable medical monitoring device.):
- a receiver configured to receive a signal from a physiological sensor (as described in claim 2); and the patient monitoring device configured to communicate with a physiological sensor that generates a signal indicative of at least one physiological parameter of the patient (as described in claim 12) (Volpe, paragraphs [0108] and [0111]; Paragraph [0108] teaches that the medical device can be operatively connected to an electrode assembly 3. Paragraph [0111] teaches that the electrode assembly 3 can include sensing electrodes and devices (not shown) (i.e., physiological sensors) such as, but not limited to, heart beat sensors, accelerometers, and sensors (i.e., examples of physiological sensors) capable of measuring blood pressure, heart rate, thoracic impedance, respiration rate, heart sounds, acoustic sensors, audio transducers, and the activity level of the subject (i.e., receiving a signal of physiological measurements that are sensed by the physiological sensors).), the signal indicative of at least one physiological parameter of the patient, wherein the signal is indicative of a monitoring event (as described in claim 2) (Volpe, paragraphs [0119] and [0136]; Paragraph [0136] teaches that the monitor 5 operates when an abnormal event is detected by the detection algorithm of one or both of the processors 69, 71 (i.e., the signal is indicative of a monitoring event), where paragraph [0111] generally teaches that the cardiac data that is monitored includes a patient’s heart rate and respiratory rate (i.e., the signal is indicative of at least one physiological parameter of the patient).);
- one or more hardware processors in communication with the receiver, the one or more hardware processors configured to determine one or more measurements of the at least one physiological parameter of the patient from the received signal (as described in claim 2); and the patient monitoring device further configured to receive the signal and determine one or more measurements of the at least one physiological parameter of the patient from the received signal via one or more hardware processors of the patient monitoring device, the method comprising (as described in claim 12) (Volpe, paragraph [0119]; Paragraph [0119] teaches that the device can include one or more processors (i.e., one or more hardware processors) that can execute instructions configured to monitor a patient’s cardiac status and provide defibrillation when deemed necessary. The processors can also provide additional functionality, including but not limited to: conducting device-administered patient tests; collecting, storing, analyzing, and transmitting cardiac data and related metrics (i.e., ‘collecting and analyzing the cardiac data and related metrics from the patient’ are the equivalent of “determining one or more measurements of at the least one physiological parameter of the patient from the received signal”, as described in the claimed invention).);
- memory comprising at least a data module, a first image module, and a second image module (as described in claim 2) (Volpe, paragraph [0119]; Paragraph [0119] teaches that the medical device functionality is carried out by one or more software modules (i.e., the data module, first image module, and second image module) stored in a memory unit. NOTE: Claim Interpretation – Based on Applicant’s disclosure, the data module, first image module, second image module described in Applicant’s claimed invention are interpreted as software modules (see Applicant’s specification, paragraph [0007], filed on April 25, 2018 – where the aforementioned modules include executable instructions (i.e., software code) for performing their associated functions.).), the data module configured to store the one or more measurements of the at least one physiological parameter, each of the first and second image modules comprising a system image that includes executable instructions to at least determine the one or more measurements of the at least one physiological parameter of the patient from the received signal (as describe in claim 2); and storing in memory comprising a data module the one or more measurements of the at least one physiological parameter, the memory further comprising at least a first image module and a second image module, each of the first and second image modules comprising a system image that includes executable instructions to at least determine the one or more measurements of the at least one physiological parameter of the patient from the received signal (as described in claim 12) (Volpe, paragraph [0119]; Paragraph [0119] teaches that the device can include one or more processors (i.e., hardware processors) that can execute instructions configured to monitor a patient’s cardiac status and provide defibrillation when deemed necessary. The processors can also provide additional functionality, including but not limited to: conducting device-administered patient tests; collecting, storing, analyzing, and transmitting cardiac data and related metrics (i.e., (1) ‘storing cardiac data and related metrics’ such as a patient’s heart rate is the equivalent of “storing at least one physiological parameter”; and (2) ‘collecting and analyzing the cardiac data and related metrics’ are the equivalent of “determining one or more measurements of the at least one physiological parameter of the patient from a received signal”, as described in the claimed invention).), one of the first and second image modules being a tested image module that includes a latest used or tested system image (as described in claims 2 and 12) (Volpe, paragraph [0153]; Paragraph [0153] teaches that one or more of processors 69, 71 can include, or be configured to access, a memory having two primary partitions. A first partition (i.e., the first image module) can be labeled as a boot partition that includes a current version of the software (i.e., a tested image module that includes a latest used or tested system image) for the monitor 5 to perform its intended functionality. Further, paragraph [0153] teaches that in a two-partition arrangement, the monitor 5 can include a redundant booting scheme to, in the event of errors of other problems being associated with the software update, boot using an older version of the software (i.e., a latest used or tested system image). NOTE: Claim Interpretation – Based on Applicant’s disclosure, “the tested image module that includes a latest used or tested system image” is interpreted as an original or manufacturer’s version of software (see Applicant’s specification, paragraphs [0126] and [0127] – where the tested image module is described as being an older version of the image module that was written by the manufacturer and has been proven to work (i.e., manufacturer’s software)).);
- the one or more hardware processors in communication with the memory and further configured to (as described in claim 2) (Volpe, paragraph [0119]; Paragraph [0119] teaches that the software modules are stored in a memory unit associated with and executed by the processors.):
- determine whether a system image upgrade is available (as described in claims 2 and 12) (Volpe, paragraph [0145]; Paragraph [0145] teaches that a remote server 204 can receive the current software version of the medical device 1 and determine if updated software is available for the medical device 1 (i.e., determining whether a system image upgrade is available).);
- verify versions of the system image of the first image module and the second image module with the available image upgrade prior to downloading the available system image upgrade to determine whether to upgrade either the first image module or the second image module (as described in claim 2 and 12); and download the available system image upgrade and replace the latest used system image (as described in claim 2 and 12) (Volpe, paragraphs [0153] and [0172]; Paragraph [0153] teaches that once the software update is downloaded and installed (i.e., downloading the software upgrade), and the update manager 51 verifies the installation (i.e., the system verifies the version of the software that is installed on the device), the functionality of the individual partitions can be reversed. For example, paragraph [0153] further teaches that the update manager 51 can relabel the second partition as the boot partition such that the monitor 5 will be running the updated software when next booted (i.e., replacing the older module when the software upgrade is downloaded and available). Further, paragraph [0172] teaches that if the hardware versions do not match, the software version is checked for compatibility (i.e., the version number is used to verify the version of the software) and, if necessary, updated to provide compatibility (i.e., the image module is verified prior to downloading the available system image upgrade). For example, software versions on the BNP 17 of equal or higher value to the belt node image within the monitor 5 can be allowed to run. If the software version is less than the belt node image within the monitor 5, the belt node software can be updated (i.e., further evidence showing that the image module is verified prior to downloading the available system image upgrade). Further, paragraph [0172] teaches that the update manager 51 can determine when to download and/or install the updated belt node software (i.e., the upgraded image module is downloaded and installed after the versions of the image modules are verified).);
- boot from the first or second image module including the upgraded image (as described in claim 2 and 12) (Volpe, paragraph [0153]; Paragraph [0153] teaches that one or more of processors 69, 71 can include, or be configured to access, a memory having two primary partitions. A first partition (i.e., the first image module) can be labeled as a boot partition that includes a current version of the software (i.e., a tested image module that includes a latest used or tested system image) for the monitor 5 to perform its intended functionality. The second partition (i.e., the second image module) can be labeled as an update partition. The software manager 51 can be configured to facilitate downloading and installation of a software update on the update partition (i.e., downloading the upgraded image module to the second image module). Further, paragraph [0153] teaches that the update manager 51 can relabel the second partition as the boot partition such that the monitor 5 will be running the updated software when next booted (i.e., booting from the second image module that includes the upgraded image).); and
…
- monitor the one or more hardware processors to determine whether the one or more hardware processors are functioning correctly (as described in claims 2 and 12) (Volpe, paragraphs [0153] and [0180]; Paragraph [0153] teaches that in a two-partition arrangement, the monitor 5 can include a redundant booting scheme to, in the event of errors of other problems being associated with the software update, boot using an older version of the software (i.e., booting from the older version of the image module after determining that the one or more hardware processors are not functioning correctly successfully after booting from the upgraded image module). Paragraph [0180] also teaches that the supervisory circuit 300 can be configured to monitor a state of at least one processor 302 (such as BNP 17, first processor 69, and/or second processor 71), e.g., for boot errors and operation errors, when the at least one processor 302 is configured to boot from a current boot drive 304 (i.e., monitoring the one or more hardware processors to determine whether the one or more hardware processors are functioning correctly). For example, the supervisory circuit 300 can be configured to monitor a number of times that the at least one processor 302 enters a failure state during or after booting from the current boot drive 304 (i.e., monitoring the one or more hardware processors to determine whether the one or more hardware processors are functioning correctly).)…
- Volpe does not explicitly teach, however, in analogous art of systems and methods for managing software updates for devices, Utschig-Utschig et al. (Pub. No. US 2011/0119651) teaches a system and method, comprising:
- responsive to a determination that the one or more hardware processors are operating successfully after booting from the upgraded image module, writing the image upgrade over the system image of the first image module or the second image module having the older system image (Utschig-Utschig, paragraphs [0133] and [0134]; Paragraph [0134] teaches that a check is then made to see if validation was successful (step 1212) (i.e., determining that the one or more hardware processors are operating successfully after booting from the upgraded image module). If it is determined in 1212 that validation is successful then the old version of the application may be replaced by the new version of the application received in 1202 (step 1214) (i.e., writing the image upgrade over the system image of the first image module or the second image module having the older system image). Paragraph [0133] teaches that this feature is beneficial for determining whether the new version of the application conforms to its intended usage.).
Therefore, it would have been obvious to one of ordinary skill in the art of systems and methods for managing software updates for devices at the time of the effective filing date of the claimed invention to modify the downloading and booting method and system for a patient monitoring device taught by Volpe, to incorporate a step and feature directed to writing the image upgrade over the system image of the first image module or the second image module having the older system image in response to a determination that the one or more hardware processors are operating successfully after booting from the upgraded image module, as taught by Utschig-Utschig, in order to determine whether the new version of the application conforms to its intended usage. See Utschig-Utschig, paragraph [0133]; see also MPEP § 2143 G.
- The combination of: Volpe, as modified in view of Utschig-Utschig, does not explicitly teach, however, in analogous art of systems and methods for updating medical monitoring devices, Carlton-Foss (Pub. No. US 2008/0129518) teaches a system and method, wherein:
- the one or more hardware processors perform a self-check to determine whether the one or more hardware processors are operating successfully (as described in claims 2 and 12) (Carlton-Foss, paragraphs [0029] and [0115]; Paragraph [0029] teaches that in one arrangement the wearable device performs a periodic or on-command self-check to determine if the device and individual components are functioning properly (i.e., performing a self-check to determine whether the one or more processors are operating successfully). For example, paragraph [0115] teaches that the algorithm checks each component of the wearable fall detection monitor 22 to verify that it is functioning according to the verification conditions, and sends as little as a single bit of information to the console for pass through to the call center to indicate that everything is functioning properly, or not (i.e., performing a self-check to determine whether the one or more processors are operating successfully). Paragraph [0115] teaches that this feature is beneficial for ensuring that the device is functioning properly and providing a reasonable expectation that it will perform when it is called upon to do so.).
Therefore, it would have been obvious to one of ordinary skill in the art of systems and methods for updating medical monitoring devices at the time of the effective filing date of the claimed invention to further modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of Utschig-Utschig, to incorporate a step and feature directed to performing a self-check to determine that the components are functioning properly, as taught by Carlton-Foss, in order to ensure that a device is functioning properly, and provide a reasonable expectation that the device will perform when it is called upon to do so. See Carlton-Foss, paragraph [0115]; see also MPEP § 2143 G.
Regarding claims 3 and 13,
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, teaches the limitations of: claim 2 (which claim 3 depends on) and claim 12 (which claim 13 depends on), as described above.
- Volpe further teaches a device and method, wherein:
- the first image module and the second image module store a version number for verifying the version of the system image (as described in claims 3 and 13) (Volpe, paragraph [0172]; Paragraph [0172] teaches that the monitor 5, or the update manager 51, can communicate directly with the BNP module 17 and, for example, remote server 204 to determine if one or more software updates are available for the BNP module (i.e., checking to see if the image upgrade is available). The version check compares two version numbers (i.e., the image modules store a version number for verifying the version of the system image), the hardware version and the software version.).
The motivations and rationales to modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, described in the analysis of the obviousness rejection of claims 2 and 12 above similarly apply to this obviousness rejection, and are incorporated herein by reference.
Regarding claims 5 and 15,
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, teaches the limitations of: claim 2 (which claim 5 depends on) and claim 12 (which claim 15 depends on), as described above.
- Volpe further teaches a device and method, wherein:
- the one or more processors are further configured to determine whether the one or more hardware processors are operating successfully after booting from the upgraded image module (as described in claims 5 and 15) (Volpe, paragraph [0180]; Paragraph [0180] teaches that the supervisory circuit 300 can be configured to monitor a state of at least one processor 302 (such as BNP 17, first processor 69, and/or second processor 71), e.g., for boot errors and operation errors, when the at least one processor 302 is configured to boot from a current boot drive 304 (i.e., while this paragraph was deemed to teach “determining whether the one or more hardware processors are functioning correctly” in independent claims 2 and 12, it is also deemed to be the equivalent of monitoring the one or more hardware processors to determine whether the one or more hardware processors are operating successfully after booting from the upgraded image module, because under the broadest reasonable interpretation, “functioning correctly” and “operating successfully” are deemed to be equivalent phrases for determining whether processors are working properly). For example, the supervisory circuit 300 can be configured to monitor a number of times that the at least one processor 302 enters a failure state during or after booting from the current boot drive 304 (i.e., while this paragraph was deemed to teach “determining whether the one or more hardware processors are functioning correctly” in independent claims 2 and 12, it is also deemed to be the equivalent of monitoring the one or more hardware processors to determine whether the one or more hardware processors are operating successfully after booting from the upgraded image module, because under the broadest reasonable interpretation, “functioning correctly” and “operating successfully” are deemed to be equivalent phrases for determining whether processors are working properly).).
The motivations and rationales to modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, described in the analysis of the obviousness rejection of claims 2 and 12 above similarly apply to this obviousness rejection, and are incorporated herein by reference.
Regarding claims 6 and 16,
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, teaches the limitations of: claim 5 (which claim 6 depends on) and claim 15 (which claim 16 depends on), as described above.
- Carlton-Foss further teaches a device and method, wherein:
- the one or more hardware processors are further configured to determine whether the one or more hardware processors are operating successfully after booting form the upgraded image module by performing a self-check (as described in claims 6 and 16) (Carlton-Foss, paragraphs [0029] and [0115]; Paragraph [0029] teaches that in one arrangement the wearable device performs a periodic or on-command self-check to determine if the device and individual components are functioning properly (i.e., as described in the § 112(b) Rejections above, this claim limitation is deemed to be indefinite and is interpreted to be the equivalent of “wherein the one or more hardware processors perform a self-check to determine whether the one or more processors has a function that is working properly”, since Applicant has not provided any details or description as to what is considered full functionality and what is not considered full functionality.). For example, paragraph [0115] teaches that the algorithm checks each component of the wearable fall detection monitor 22 to verify that it is functioning according to the verification conditions, and sends as little as a single bit of information to the console for pass through to the call center to indicate that everything is functioning properly, or not (i.e., performing a self-check to determine whether the one or more processors has full functionality).).
The motivations and rationales to modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, described in the analysis of the obviousness rejection of claims 2 and 12 above similarly apply to this obviousness rejection, and are incorporated herein by reference.
Regarding claims 7 and 17,
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, teaches the limitations of: claim 5 (which claim 7 depends on) and claim 15 (which claim 17 depends on), as described above.
- Volpe further teaches a device and method, wherein:
- the one or more hardware processors are further configured to boot from the tested image module when the one or more hardware processors are not operating successfully after booting from the upgraded image module (as described in claims 7 and 17) (Volpe, paragraph [0153]; Paragraph [0153] teaches that in a two-partition arrangement, the monitor 5 can include a redundant booting scheme to, in the event of errors of other problems being associated with the software update, boot using an older version of the software (i.e., booting from the tested image module when the one or more hardware processors are not operating successfully after booting from the upgraded image module).).
The motivations and rationales to modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, described in the analysis of the obviousness rejection of claims 2 and 12 above similarly apply to this obviousness rejection, and are incorporated herein by reference.
Regarding claims 9 and 19,
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, teaches the limitations of: claim 2 (which claim 9 depends on) and claim 18 (which claim 19 depends on), as described above.
- Volpe further teaches a device and method, wherein:
- the one or more processors are further configured to download the image upgrade to the tested image module responsive to a determination that the one or more hardware processors are operating successfully after booting from the upgraded image module (as described in claims 9 and 19) (Volpe, paragraph [0150]; Paragraph [0150] teaches that after downloading, the update manager 51 can verify the download completed successfully and locally store the downloaded software update at, for example, a memory associated with one of processors 69, 71 (i.e., downloading the image upgrade to the tested image module in response to determining the one or more hardware processors are operating successfully).).
The motivations and rationales to modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, described in the analysis of the obviousness rejection of claims 2 and 12 above similarly apply to this obviousness rejection, and are incorporated herein by reference.
Regarding claims 10 and 20,
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, teaches the limitations of: claim 2 (which claim 10 depends on) and claim 18 (which claim 20 depends on), as described above.
- Volpe further teaches a device and method, wherein:
- the one or more processors are further configured to download the image upgrade to the upgraded image module responsive to a determination that the one or more hardware processors are not operating successfully after booting from the upgraded image module (as described in claims 10 and 20) (Volpe, paragraph [0153]; Paragraph [0153] teaches that one or more of processors 69, 71 can include, or be configured to access, a memory having two primary partitions. A first partition can be labeled as a boot partition that includes a current version of the software for the monitor 5 to perform its intended functionality. The second partition can be labeled as an update partition (i.e., the update partition is deemed to be the equivalent of the upgraded image module, because it initially holds the software update that hasn’t been verified yet) such that the monitor 5 will be running the updated software when next booted. Further, paragraph [0153] teaches that in a two-partition arrangement, the monitor 5 can include a redundant booting scheme to, in the event of errors of other problems (i.e., in response to determining that the processors are not operating successfully after booting from the upgraded image module) being associated with the software update, boot using an older version of the software (i.e. the software update that was downloaded and booted remains in the update partition, which is deemed to be the equivalent of the upgraded image module, when the processors are not operating successfully after booting from the upgraded image module).).
The motivations and rationales to modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, described in the analysis of the obviousness rejection of claims 2 and 12 above similarly apply to this obviousness rejection, and are incorporated herein by reference.
Regarding claims 11 and 21,
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, teaches the limitations of: claim 10 (which claim 11 depends on) and claim 20 (which claim 21 depends on), as described above.
- Volpe further teaches a device and method, wherein:
- the one or more hardware processors are further configured to boot from the tested image module when the one or more hardware processors are not operating successfully after booting from the upgraded image module (as described in claims 11 and 21) the one or more hardware processors are further configured to download the upgraded image from the Internet (Volpe, paragraph [0142] and FIG. 7A; Paragraph [0142] teaches that Figure 7A depicts a sample system 200 for downloading data such as a software update to a device such as medical device 1 (i.e., downloading the upgraded image). The update manager 51, as noted above, can establish or facilitate establishment of an operable connection to a remote server 204 via a network 206. Depending upon the location and communication capabilities of the various devices, the network 206 can be a local area network such as a Wi-Fi network in a doctor's or other similar medical service provider’s office. Alternatively, the network 206 can be a wide area network such as the Internet (i.e., downloading the upgraded image from the Internet).).
The motivations and rationales to modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, described in the analysis of the obviousness rejection of claims 2 and 12 above similarly apply to this obviousness rejection, and are incorporated herein by reference.
Claims 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over:
- The combination of: Volpe (Pub. No. US 2016/0253471), as modified in view of: Utschig-Utschig et al. (Pub. No. US 2011/0119651) and Carlton-Foss (Pub. No. US 2008/0129518), as applied to claims 2 and 12 above, and further in view of:
- Elghazzawi (Pub. No. US 2014/0031884).
Regarding claims 4 and 14,
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, teaches the limitations of: claim 2 (which claim 4 depends on) and claim 12 (which claim 14 depends on), as described above.
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, does not explicitly teach, however, in analogous art of systems and methods for servicing medical equipment, Elghazzawi (Pub. No. US 2014/0031884) teaches a system and method, wherein:
- a system image associated with the upgraded image module has a later timestamp that a system image associated with the tested image module (as described in claims 4 and 14) (Elghazzawi, paragraph [0033]; Paragraph [0033] teaches that current configurations or software versions for the AEDs can be compared to a list of available updates to see if the most recent configurations and software are stored on the AEDs. The software and configurations available for a particular AED may be based on a make or model of the AED. For example, some software updates may only be available to a subset of AED models. In some examples, software updates and configuration updates can be associated with model numbers and with a timestamp of when the software update or configuration update was provided (i.e., the upgraded image module has timestamps associated with them and the latest image updates necessarily have later timestamps associated with them when compared to older image updates). Paragraph [0033] teaches that this feature is beneficial for determining whether configuration or software updates are available for the device.).
Therefore, it would have been obvious to one of ordinary skill in the art of systems and methods for servicing medical equipment at the time of the effective filing date of the claimed invention to further modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, to incorporate a step and feature directed to providing timestamps and model numbers for when the software updates are provided to the system, as taught by Elghazzawi, in order to determine whether configuration or software updates are available for the device. See Elghazzawi, paragraph [0033]; see also MPEP § 2143 G.
Claims 8 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over:
- The combination of: Volpe (Pub. No. US 2016/0253471), as modified in view of: Utschig-Utschig et al. (Pub. No. US 2011/0119651) and Carlton-Foss (Pub. No. US 2008/0129518), as applied to claims 5 and 15 above, and further in view of:
- Vidal et al. (Pub. No. US 2011/0214021).
Regarding claims 8 and 18,
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, teaches the limitations of: claim 5 (which claim 8 depends on) and claim 15 (which claim 18 depends on), as described above.
- The combination of: Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, does not explicitly teach, however, in analogous art of systems and methods for initiating software repairs, Vidal et al. (Pub. No. US 2011/0214021) teaches a system and method, wherein:
the one or more hardware processors are further configured to repair the upgraded image module when the one or more hardware processors are not operating successfully (as described in claims 8 and 18) (Vidal, paragraph [0019]; Paragraphs [0001] and [0019] teaches that system includes a notification tool 104 and package manager 110, and/or other logic which can generate one or more software repair actions in response to the detected state of client 102 and its set of installed packages 112 and/or other resources. In aspects, notification tool 104 can for instance detect and identify one or more corrupted, damaged, and/or missing files in connection with one or more package update 150, and/or other files (i.e., identifying that one or more hardware processors are not operating successfully). In instances where a damaged or missing file or files is discovered, notification tool 104 can initiate a downloading and re-installation of that missing file or files (i.e., repairing the upgraded image module when the system is not operating successfully). Replacement files can for instance be accessed and/or downloaded from one or more repository 144, and/or from other data stores, locations, or sites. In aspects, notification tool 104 and/or other logic can detect or identify other conditions requiring or permitting software re-installation or other repair (i.e., identifying that one or more hardware processors are not operating successfully). Paragraph [0001] teaches that this software repair feature is beneficial, because it helps to replace or correct irregular or faulty software on a target machine in conjunction with software package installations.).
Therefore, it would have been obvious to one of ordinary skill in the art of systems and methods for servicing medical equipment at the time of the effective filing date of the claimed invention to further modify the downloading and booting method and system for a patient monitoring device taught by Volpe, as modified in view of: Utschig-Utschig and Carlton-Foss, to incorporate a step and feature directed to repairing damaged or corrupted files in connection with a software update, as taught by Vidal, in order to replace or correct irregular or faulty software on a target machine in conjunction with software package installations. See Vidal, paragraph [0001]; see also MPEP § 2143 G.
Conclusion
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/N.A.A./Examiner, Art Unit 3686
/JONATHON A. SZUMNY/Primary Examiner, Art Unit 3686