DETAILED ACTION
Claims 38-56 are hereby under examination.
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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10/09/2023 is being considered by the examiner.
Claim Objections
The claims are objected to because they include reference characters which are not enclosed within parentheses.
Reference characters corresponding to elements recited in the detailed description of the drawings and used in conjunction with the recitation of the same element or group of elements in the claims should be enclosed within parentheses so as to avoid confusion with other numbers or characters which may appear in the claims. See MPEP § 608.01(m).
Instances occur in at least claims 38, 39, 42, 43, 44, 45, 47, 48, 50, 52, and 55 regarding the claimed elements of a cumulative difference, the amplitude, a mean of the periodic biofeedback function, the periodic biofeedback function, a sinusoidal function, the angular frequency, a mean value, and a skewed sinusoidal function.
Claims 38-40, 42, 43, 50, and 55 are objected to because of the following informalities:
Regarding claim 38, line 12 recites “a health monitoring session”, however it appears it should read --the health monitoring session-- (emphasis added).
Regarding claim 38, line 19 recites “calculating performed”, however it appears it should read --the calculating performed-- (emphasis added).
Regarding claim 38, line 35 recites “determine (E) a resonance score”, however it appears (E) should be deleted or adjusted to avoid confusion with claim 38, line 34.
Regarding claim 39, line 2 recites “a health monitoring session”, however it appears it should read --the health monitoring session-- (emphasis added).
Regarding claim 40, line 2 recites “a health monitoring session”, however it appears it should read --the health monitoring session-- (emphasis added).
Regarding claim 42, line 2 recites “a health monitoring session”, however it appears it should read --the health monitoring session-- (emphasis added).
Regarding claim 42, line 26 recites “one or more time”, however it appears it should read --one or more times-- (emphasis added).
Regarding claim 42, line 28 recites “F)”, however it appears it should read --(F)-- (emphasis added).
Regarding claim 43, line 2 recites “a health monitoring session”, however it appears it should read --the health monitoring session-- (emphasis added).
Regarding claim 43, line 9 recites “at a increased”, however it appears it should read --at an increased-- (emphasis added).
Regarding claim 43, line 21 recites “at a increased”, however it appears it should read --at an increased-- (emphasis added).
Regarding claim 43, line 25 recites “one or more time”, however it appears it should read --one or more times-- (emphasis added).
Regarding claim 50, line 5 recites “and:”, however it appears it should read --and,-- (emphasis added).
Regarding claim 55, line 14 recites “calculating performed”, however it appears it should read --the calculating performed-- (emphasis added).
Claim Interpretation - 35 USC § 112(f)
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 limitation(s) uses 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 limitation(s) is/are:
Claim 38: The claim limitation “a breathing pacer configured to time breathing events …” has been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses a generic placeholder “breathing pacer” coupled with functional language “configured to time breathing events …” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier that has a known structural meaning before the phrase “breathing pacer”.
Claim 55: The claim limitation “timing breathing events to the person with a breathing pacer …” has been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses a generic placeholder “breathing pacer” coupled with functional language “timing breathing events to the person …” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier that has a known structural meaning before the phrase “breathing pacer”.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation:
“Breathing pacer may comprise digital electronics, analogue electronics, memory or memories, power unit like a battery, ASICs, FPGAs, digital busses, microcontrollers and microprocessors to arrange its various operations. The breathing pacer may also comprise one or more input devices like a keyboard, a microphone or a touch screen display, and output devices light a LED, a display, a loudspeaker or a haptic device like a linear resonant actuator …”), or equivalents thereof, as described on page 19 of the disclosure filed on 10/09/2023.
“Breathing pacer may comprise digital electronics, analogue electronics, memory or memories, power unit like a battery, ASICs, FPGAs, digital busses, microcontrollers and microprocessors to arrange its various operations. The breathing pacer may also comprise one or more input devices like a keyboard, a microphone or a touch screen display, and output devices light a LED, a display, a loudspeaker or a haptic device like a linear resonant actuator …”), or equivalents thereof, as described on page 19 of the disclosure filed on 10/09/2023.
If applicant does not intend to have this/these limitation(s) 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 it/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 limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 38-56 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Analysis of independent claims 38 and 55:
Step 1 of the subject matter eligibility test (see MPEP 2106.03).
Claim 38 is directed to a system, which describes one of the four statutory categories of patentable subject matter, i.e., a machine. Claim 55 is directed to a method, which describes one of the four statutory categories of patentable subject matter, i.e., a process. Therefore, further consideration is necessary.
Step 2A of the subject matter eligibility test (see MPEP 2106.04).
Prong One: Claim 38 and claim 55 recite an abstract idea. In particular, the claims recite the following:
Analyze the heart rate measurement data … calculate instantaneous heart rate data comprising heart rate of each measured heartbeat;
Determine a resonance score based on an amplitude of the periodic biofeedback function and from the cumulative difference within each of the time windows.
These elements recited in claim 38 and claim 55 are drawn to an abstract idea since (1) they involve mathematical concepts in the form of mathematical relationships, mathematical formulas or equations, and/or mathematical calculations; and/or (2) they involve a mental process that can be practically performed in the human mind including observation, evaluation, judgment, and opinion and using pen and paper.
Analyzing heart rate measurement data and calculating instantaneous heart rate data comprising heart rate of each measured heartbeat is drawn to a mental process that can be practically performed in the human mind with the aid of pen and paper. For example, a person with ordinary skill in the art could reasonably view heart rate data on a piece of paper, such as an ECG signal or a PPG signal, and determine a heart rate. Additionally, calculating instantaneous heart rate data comprising heart rate of each measured heartbeat is drawn to mathematical calculations. Calculating an heart rate, for example from an ECG signal or a PPG signal, involves mathematical calculations. There is nothing in the claims to suggest an undue level of complexity in the analyzing step.
Determining a resonance score based on an amplitude and a cumulative difference is drawn to a mental process that can be practically performed in the human mind with the aid of pen and paper. For example, a person with ordinary skill in the art could reasonably determine a score based on amplitude data over time and a cumulative difference over time. Additionally, determining a score is drawn to mathematical calculations. Determining a score involves mathematical calculations. There is nothing to suggest an undue level of complexity in the determining step.
Prong Two: Claims 38 and 55 do not recite additional elements that integrate the exception into a practical application. Therefore, the claims are “directed to” the abstract idea. The additional elements merely:
Recite the words “apply it” or an equivalent with the judicial exception, or include instructions to implement the abstract idea on a computer, or merely use the computer as a tool to perform the abstract idea (e.g., “a data processing system …”), and
Add insignificant extra-solution activity (the pre-solution activity of: using generic data-gathering components (e.g. “a heart rate sensor …”, “a breathing pacer …”, “provide a periodic biofeedback function …”).
As a whole, the additional elements merely serve to gather information to be used by the abstract idea, while generically implementing it on a computer. There is no practical application because the abstract idea is not applied, relied on, or used in a meaningful way. The processing performed remains in the abstract realm, i.e., the result is not used for a treatment. No improvement to the technology is evident. Therefore, the additional elements, alone or in combination, do not integrate the abstract idea into a practical application.
Per the Berkheimer requirement, the additional elements are well-understood, routine, and conventional. For example, “a heart rate sensor …” and “a breathing pacer …” are well-understood, routine, and conventional, as disclosed by the instant specification (pages 18-19).
Further, “a data processing system” does not qualify as significantly more because this limitation is 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’l, 110 USPQ2d 1976 (2014)).
Step 2B of the subject matter eligibility test (see MPEP 2106.05).
Claims 38 and 55 do not include additional elements, alone or in combination, that are sufficient to amount to significantly more than the judicial exception (i.e., an inventive concept) for the same reasons as described above. E.g., all elements are directed to pre-solution and extra solution activities, which merely facilitate the abstract idea.
In view of the above, the additional elements individually do not integrate the exception into a practical application and 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 taking 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.
Analysis of the dependent claims:
Claims 39-54 and 56 depend from the independent claim. The dependent claims merely further define the abstract idea and are, therefore, directed to an abstract idea for similar reasons: they merely
Further describe the abstract idea (claim 40, claim 42, claim 43, claim 44, claim 45, claim 46, claim 47, claim 48, claim 54),
Further describe the pre-solution activity (or the structure used for such activity) (claim 41, claim 42, claim 43, claim 44, claim 45, claim 46, claim 47, claim 48, claim 51),
Further describe the computer implementation (claim 39, claim 50, claim 52, claim 53), and
Further describe the post-solution activity (claim 49) (recited at a high level of generality).
Further, “a data processing system”, “software means”, and “a processor-readable medium storing instructions” does not qualify as significantly more because this limitation is 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’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Taken alone or in combination, the additional elements do not integrate the judicial exception into a practical application at least because the abstract idea is not applied, relied on, or used in a meaningful way. The additional elements do not add anything significantly more than the abstract idea. The collective functions of the additional elements merely provide computer/electronic implementation and processing, and no additional elements beyond those of the abstract idea. 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 improves the functioning of a computer, output device, improves technology other than the technical field of the claimed invention, etc. Therefore, the claims are rejected as being directed to non-statutory subjection matter. Claims 38-56 are rejected.
Prior Art Analysis
The closest prior art made of record includes: Fuerst et al. (US 20180220957 A1), hereinafter referred to as Fuerst, Vardas et al. (US 20180289285 A1), hereinafter referred to as Vardas ‘285, Vardas et al. (US 20220175309 A1), hereinafter referred to as Vardas ‘309, and Vaschillo et al. (US 5997482 A), hereinafter referred to as Vaschillo.
Fuerst teaches a system for monitoring health of a person during a health monitoring session (s) (Abstract, Fig. 6, Fig. 7, para. [0004]), wherein the system comprises: a heart rate sensor arranged to measure heart beats of the person for providing heart rate measurement data (Fig. 7, para. [0054]), a breathing pacer configured to time breathing events to the person with a breathing rate sequence comprising different breathing rates (Fig. 1, Fig. 6, Fig. 8A, para. [0046-0047]), the health monitoring session (s) comprising a time window sequence (wn), the time window sequence (wn) comprising time windows (w1, w2), such that each of the different breathing rates of the breathing rate sequence timed by the breathing pacer is associated with associated time window (w1, w2) of the time window sequence (wn) (Fig. 1, Fig. 6, Fig. 8A, para. [0046-0047]), the system comprises: a data processing system configured, during a health monitoring session (s) (para. [0206]), to receive (A) the heart rate measurement data from the heart rate sensor (Fig. 7, para. [0054]), arrange (B) the breathing pacer to time the breathing events to the person in each of the different breathing rates (Fig. 1, Fig. 6, Fig. 8A, para. [0046-0047]), analyse (C) the heart rate measurement data such that in the analysis, the data processing system is configured to: calculate (C1) instantaneous heart rate data comprising heart rate of each measured heartbeat, calculating performed over each of the time windows (w1, w2) in the health monitoring session (s), each of the time windows (w1, w2) comprising a timepoint (t1, t2), the instantaneous heart rate data being calculated based on the heart rate measurement data received from the heart rate sensor (Fig. 1, para. [0036-0037], para. [0047], para. [0054]).
Vardas ‘285 teaches a system for monitoring health of a person during a health monitoring session (s) (Abstract, Fig. 3, para. [0024-0025]), wherein the system comprises: a heart rate sensor arranged to measure heart beats of the person for providing heart rate measurement data (Fig. 3, element 305, para. [0035]), a breathing pacer configured to time breathing events to the person with a breathing rate sequence comprising different breathing rates (Fig. 3, Fig. 4, Fig. 5, Fig. 6, para. [0045-0046]), the health monitoring session (s) comprising a time window sequence (wn), the time window sequence (wn) comprising time windows (w1, w2), such that each of the different breathing rates of the breathing rate sequence timed by the breathing pacer is associated with associated time window (w1, w2) of the time window sequence (wn) (Fig. 1B, para. [0045-0046]), the system comprises: a data processing system configured, during a health monitoring session (s) (Fig. 3, Fig. 4, para. [0036]), to receive (A) the heart rate measurement data from the heart rate sensor (para. [0036]), arrange (B) the breathing pacer to time the breathing events to the person in each of the different breathing rates (para. [0045-0046]), analyse (C) the heart rate measurement data such that in the analysis, the data processing system is configured to: calculate (C1) instantaneous heart rate data comprising heart rate of each measured heartbeat, calculating performed over each of the time windows (w1, w2) in the health monitoring session (s), each of the time windows (w1, w2) comprising a timepoint (t1, t2), the instantaneous heart rate data being calculated based on the heart rate measurement data received from the heart rate sensor (Fig. 1B, para. [0209]).
Vardas ‘309 teaches a system for monitoring health of a person during a health monitoring session (s) (Abstract, Fig. 9), wherein the system comprises: a heart rate sensor arranged to measure heart beats of the person for providing heart rate measurement data (Fig. 9, element 910, para. [0083], para. [0084], para. [0106]), a breathing pacer configured to time breathing events to the person with a breathing rate sequence comprising different breathing rates (Fig. 9, element 915, para. [0083-0084], para. [0107-0114]), the health monitoring session (s) comprising a time window sequence (wn), the time window sequence (wn) comprising time windows (w1, w2), such that each of the different breathing rates of the breathing rate sequence timed by the breathing pacer is associated with associated time window (w1, w2) of the time window sequence (wn) (para. [0083]), the system comprises: a data processing system (Fig. 9, element 915, para. [0107-0114]) configured, during a health monitoring session (s), to receive (A) the heart rate measurement data from the heart rate sensor (Fig. 1, element 110, para. [0083], Fig. 2, element 210, para. [0084]), arrange (B) the breathing pacer to time the breathing events to the person in each of the different breathing rates (Fig. 1, element 120, para. [0083-0084]), analyse (C) the heart rate measurement data such that in the analysis, the data processing system is configured to: calculate (C1) instantaneous heart rate data comprising heart rate of each measured heartbeat, calculating performed over each of the time windows (w1, w2) in the health monitoring session (s), each of the time windows (w1, w2) comprising a timepoint (t1, t2), the instantaneous heart rate data being calculated based on the heart rate measurement data received from the heart rate sensor (Fig. 1, element 110, para. [0069], para. [0083], Fig. 2, element 210, para. [0084]).
Vaschillo teaches a system for monitoring health of a person during a health monitoring session (s) (Abstract, Fig. 1, col. 1, line 6-13), wherein the system comprises: a heart rate sensor arranged to measure heart beats of the person for providing heart rate measurement data (Fig. 1, col. 5, lies 57-64), a data processing system configured, during a health monitoring session (s), to receive (A) the heart rate measurement data from the heart rate sensor (Fig. 1, col. 5, lies 57-64), analyse (C) the heart rate measurement data such that in the analysis, the data processing system is configured to: calculate (C1) instantaneous heart rate data comprising heart rate of each measured heartbeat, calculating performed over each of the time windows (w1, w2) in the health monitoring session (s), each of the time windows (w1, w2) comprising a timepoint (t1, t2), the instantaneous heart rate data being calculated based on the heart rate measurement data received from the heart rate sensor (Fig. 1, col. 5, lies 57-64).
Performing analysis on the measured instantaneous heart measurements and breathing rates is well known as taught by the cited prior art, for example by determining a stress level, determining an ideal respiration rate based on an optimal vagal tone, and fitting a reference sinusoidal function to determine an optimum breathing frequency. However, the prior art made of record does not reasonably disclose, teach, or suggest, “provide (C2) a periodic biofeedback function comprising parameters and a cumulative difference E relative to the instantaneous heart rate data, the parameters of the periodic biofeedback function comprising an amplitude (A), fit (C3) the periodic biofeedback function into the instantaneous heart rate data within each of the time windows (w1, w2) to determine the parameters of the periodic biofeedback function at each of the timepoints (t1, t2), and the cumulative difference (E) at each of the timepoints (t1, t2); and determine (E) a resonance score based on the amplitude (A) of the periodic biofeedback function and from the cumulative difference E within each of the time windows (w1, w2)”.
Conclusion
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/K.W.K./Examiner, Art Unit 3791
/JASON M SIMS/Supervisory Patent Examiner, Art Unit 3791