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
Election/Restriction
Claims 12-15, 17-21 and 24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 7/28/2026.
Claim Objections
The claims are objected to because of the following informalities:
Claim 2 recites “the indicators”. This should read “the plurality of indicators”.
Claim 3 recites “the size”. This should read “a size”.
Appropriate correction is required.
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 1-4, 6-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s):
Each of Claims 1-4, 6-11 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1-4, 6-11 recite at least one step or instruction for calculating an expiratory volume and determining the suitable group for the calculated expiratory volume, which is grouped as a mental process under the 2019 PEG. Accordingly, each of Claims 1-4, 6-11 recite an abstract idea.
Specifically, Claim 1 recites (bolded: additional elements and underlined: abstract ideas)
A ventilation assistance device comprising: a duct configured to be connectable between a source of gas and an interface device, for establishing fluid communication between the source of gas and the interface device for delivering gas to a subject's airway (additional element); a flow sensor configured to measure a volume of gas received by flowing in the duct (additional element), the ventilation assistance device being configured to calculate an expiratory volume of gas of the subject based on determining a measurement, by the flow sensor, of a volume of gas exhaled by [[in]] the [[duct]] subject and flowing in the duct (mental process - evaluation or judgement); and an operator interface configured to represent the calculated expiratory volume of gas received by the subject by way of a plurality of indicators, each indicator being representative of one of a plurality of reference subject groups having respective characteristics (additional element - display) ; wherein the operator interface ventilation assistance device is configured to determine, based on the calculated expiratory volume of gas received by the subject, for which of the plurality of reference subject groups the calculated expiratory volume of gas received by the subject is suitable (mental process - evaluation or judgement)[[,]]; and [[to]] display, on the operator interface, one of the plurality of indicators to represent to an operator the characteristic of the reference subject group for which the calculated expiratory volume of gas received by the subject has been determined to be suitable (additional element - display).
The abstract ideas listed above are a mental process as the abstract ideas are simply “collecting information, analyzing it, and displaying certain results of the collection and analysis” similar to Electric Power Group LLC v. Alstom, S.A as set forth in the 2019 PEG;
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Further, dependent Claims 2-4, 6-11 merely include limitations that either further define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed.
Step 2A, Prong 2
The above-identified abstract idea in independent Claim 1 (and dependent Claims 2-4, 6-11) is not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claim 1), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use. More specifically, the additional elements of: a duct, a source of gas, an interface device, a flow sensor, an operator interface, and display as recited in independent Claim 1 and its dependent claims are generically recited elements which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea identified above in independent Claim 1 (and its respective dependent claims) is not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed system merely implements the above-identified abstract idea (mental process) using rules (computer instructions) executed by a computer (ventilation assistance device/operator interface as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claim 1 (and its respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claim 1 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B
None of Claims 1-4, 6-11 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: a duct, a source of gas, an interface device, a flow sensor, an operator interface, and display as recited in independent Claim 1 and its dependent claims.
The above-identified additional elements are generically claimed components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Per Applicant’s specification, [0059] describes the operator interface/ventilation assistance device’s computational elements generically without structure or detailed drawings, and thus such computer components are well understood, routine and conventional.
Accordingly, in light of Applicant’s specification, the claimed term ventilation assistance device/operator interface is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process. Smith et al. (WO 2015/040548 A1) further shows that a duct (through 1 between 10 and 10 as shown in figure 2), source of gas (30), interface device (32), flow sensor (page 7, lines 5), and display (16) are routine and conventional components.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the operator interface/ventilation assistance device. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1-4, 6-11 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the system of claims 1-4, 6-11 are directed to applying an abstract idea (e.g., mental process or certain method of organizing human activity) on a general purpose computer without (i) improving the performance of the computer itself (as in McRO, Bascom and Enfish), or (ii) providing a technical solution to a problem in a technical field (as in DDR). In other words, none of claims 1-4, 6-11 provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1-4 and 6-11 do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. As such, the above-identified additional elements, when viewed as whole, do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1-4, 6-11 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1-4, 6-11 amounts to significantly more than the abstract idea itself.
Accordingly, Claims 1-4, 6-11 are not patent eligible and rejected under 35 U.S.C. 101 as being directed to abstract ideas implemented on a generic computer in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al. and 2019 PEG.
Discussion of the Prior Art
The closes prior art of record is Smith et al. (WO 2015/040548 A1).
Regarding claim 1, Smith discloses: A ventilation assistance device (figure 1) comprising:
a duct (through 1 between 10 and 10 as shown in figure 2) configured to be connectable between a source of gas (30) and an interface device (32), for establishing fluid communication between the source of gas and the interface device for delivering gas to a subject's airway (page 7, lines 5-17);
a flow sensor (page 7, lines 5) configured to measure a volume of gas flowing in the duct (page 7, lines 25-28), the ventilation assistance device being configured to calculate an expiratory volume of gas of the subject based on a measurement (page 7, lines 25-28), by the flow sensor of a volume of gas exhaled by the subject and flowing in the duct (page 7, lines 25-28) (page 9, lines 4-12); and
an operator interface (12) configured to represent the calculated expiratory volume of gas by way of a plurality of indicators (indicators being described on page 9, lines 14-20 which are associated with target lung function details as per page 8, lines 21-25), each indicator being representative of one of a plurality of reference subject groups having respective characteristics (characteristics being set forth on page 8, lines 7-15 which determine target lung function as per page 8, lines 21-25 and each indicator alert/light is associated with the comparison between actual flow/volume and target flow/volume and therefore is representative of one of a plurality of reference subject groups with respective characteristics).
Smith does not explicitly disclose: wherein the ventilation assistance device is configured to determine, based on the calculated expiratory volume of gas, for which of the plurality of reference subject groups the calculated expiratory volume of gas received by the subject is suitable (emphasis added), and
display one of the plurality of indicators to represent to an operator the characteristic of the reference subject group for which the calculated volume of gas received by the subject has been determined to be suitable as required per claim 1.
Conclusion
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/VICTORIA MURPHY/Primary Patent Examiner, Art Unit 3785
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