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 .
Response to Arguments
Applicant's arguments filed 10/21/25 have been fully considered but they are not persuasive. Regarding the 101 rejections, the Applicant argues claim 26 recites an ordered combination that provides feedback via a breathing pacer. The Examiner respectfully disagrees. The Examiner considers the analysis of the heart rate data to be mentally performable. A cardiologist can identify the heart rate, and provide feedback based on said data. A cardiologist may further perform any of the algorithms cited as they represent mathematical operations on data. The Algorithms further contain no limitations on their execution -merely assigning a name to the algorithm, with no limitations on any of the various steps required to perform the algorithm(s) that remove the algorithm from the realm of mentally performable processes. The Applicant further argues that the various complexity assessments cannot be practically performed within the mind. Further, while it may be easier to use a computer to improve speed and efficiency of an existing process, simply adding a generic computer/processor and insignificant data gathering structure to perform the process has been considered by the courts to be insufficient for eligibility (MPEP 2106.05(f)). Additionally, as argued above, the claimed algorithms contain no limitations on their execution -merely assigning a name to the algorithm, with no limitations on any of the various steps required to perform the algorithm(s) that remove the algorithm from the realm of mentally performable processes.
The Applicant further argues that the system controls a breathing pacer and therefore, it constitutes a tangible result. The Examiner respectfully disagrees as the breathing pacer as claimed is just an output device that provides visual, audio or haptic feedback. Providing a output is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data) is insignificant extra-solution activity (i.e., presenting data MPEP 2106.05(d)(II)).
Therefore, the 35 USC 101 rejection stands.
Applicant’s arguments, see Remarks, filed 10/21/25, with respect to 102 rejections have been fully considered and are persuasive. The 35 USC 102(b) rejections of 10/21/25 have been withdrawn.
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.
Claim(s) 26-33 and 37-42 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1- Claim 26
Claim 26 and dependent claims 27-33 and 37-42 are drawn to a method and thus meet the requirements for step 1.
Step 2a (prong 1) - Claim 26
Claims 26 recites the step of “analyzing heart rate measurement data and calculating instantaneous heart rate data” Under the broadest reasonable interpretation, this step covers a concept capable of being performed in the human mind, and thus falls within the mental processes grouping of abstract ideas. Other than reciting the method is “computer-implemented” in the preamble, nothing in the claim precludes the step from practically being performed in the mind.
Accordingly, claim 26 recites an abstract idea.
Step 2a (prong 2) – Claim 26
The judicial exception is not integrated into a practical application. Claim 26 recites the additional elements of:
Receiving heart rate measurement data is insignificant extra-solution activity (i.e., data gathering),
Analyzing the heart rate measurement data is insignificant extra-solution activity (i.e., data gathering), and
Providing a periodic biofeedback function is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data) is insignificant extra-solution activity (i.e., data output).
A breathing pacer providing feedback that is visual, audio, haptic or a combination is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data) is insignificant extra-solution activity (i.e., data output).
These steps do not integrate the abstract idea into a practical application because they are insignificant extra solution activity.
Step 2b- Claim 26
The additional elements when considered individually and in combination are not enough to qualify as significantly more than the abstract idea. As discussed above with respect to the integration of the abstract idea into a practical application, providing a (Providing a periodic biofeedback function) is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data). Further, a heart rate sensor arranged to measure heart beats for providing heart rate data is considered data gathering. It is noted that the first and second electrodes are recited at a high level of generality.
The additional elements that were considered insignificant extra solution activity have been re-analyzed and do not amount to anything more than what is well-understood, routine and conventional when considered individually and in combination with evidence provided. Specifically:
a heart rate sensor arranged to measure heart beats for providing heart rate data is well understood, routine, and conventional (i.e., receiving data MPEP 2106.05(d)(II)).
A data processing system is well-understood routine and conventional (i.e., gathering data/statistics MPEP 2106.05(d)(II)).
Providing a periodic biofeedback function is considered to be well-understood, routine, and conventional (i.e., presenting data MPEP 2106.05(d)(II)).
A breathing pacer providing feedback that is visual, audio, haptic or a combination is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data) is insignificant extra-solution activity (i.e., presenting data MPEP 2106.05(d)(II)).
Claim 26 is thus consider to be directed to an abstract idea without significantly more.
Claims 27-33 and 37-42 depend from claim 26. The type of data analyzed as stated in claims 27-33 and 37-38 is considered extra solution activity. The devices utilized to collect and process the data as stated in claims 40-42 are stated at a high level of generality in applicant’s specification and are merely used as a tool to carry out the data gathering. Thus, the dependent claim do not change the overall analysis that claims 27-42 are also directed to an abstract idea.
Claims 43-44
Independent claim 43 contains limitations similar to claim 26 and are similarly rejected as patent ineligible subject matter. Dependent claim 44 is directed to a system containing limitations similar to that for claim 26 and further includes a processor with memory. Analyzing the processor and memory of claim 44 under step 2a, prong 1, the processor and memory are recited at a high level of generality and merely use the computer elements (the processor and memory) as a tool. When analyzed under step 2a, prong 2, the processor and memory perform generic computer functions like storing and processing data. Further, when the analysis is extended to step 2b, the processor and memory are considered to use the computer elements as tools, MPEP 2106.05(d)(II). Thus, claim 44 is also considered to be patent ineligible subject matter.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REX R HOLMES whose telephone number is (571)272-8827. The examiner can normally be reached Monday-Thursday 7:00AM-5:30PM.
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/REX R HOLMES/Primary Examiner, Art Unit 3796