DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The action is in response to the application filed on 10/26/2023. Claims 1-13 are pending and examined below.
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.
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:
“a timing unit”, which is configured to determine time-of-flights of photons of each of the optical pulses within a temporal measurement range after an output of each of the optical pulses which is claimed in claim 1.
“a data processing unit”, which is configured to estimate a physiological state at at least one unique depth range within the tissue… which is claimed in claim 1.
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 timing unit” is described in paragraphs [0032], [0034], [0047] of the PGPub US20240197215 A1 as being electrical circuit and a plurality of time to digital converters.
“a data processing unit” is described in paragraphs [0046]-[0048], [0067] of the PGPub US20240197215 A1 as one or more processors.
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 Objections
Claim 1 is objected to because of the following informalities:
Regarding claim 1, the claim limitation “…a semiconductor optic radiation source, which is configured to output repeatedly infrared pulses of toward the tissue…” should be changed to “…a semiconductor optic radiation source, which is configured to output repeatedly infrared pulses .
Appropriate correction is required.
Claim Rejections - 35 USC § 101
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1 and 8 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Regarding claim 1, the claim limitation “An optoelectronic apparatus for measuring organic tissue, wherein the optoelectronic apparatus, which is attached with the organic tissue, comprises:” should be changed to “ An optoelectronic apparatus for measuring organic tissue, wherein the optoelectronic apparatus, configured to be attached with the organic tissue, comprises:”
Regarding claim 8, the claim limitation “wherein the optoelectronic apparatus comprises a muscle measurement device, which is attached to a muscular area of a body” should be changed to “ wherein the optoelectronic apparatus comprises a muscle measurement device, which is configured to be attached to a muscular area of a body”
Claim Rejections - 35 USC § 102
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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-8, 10-13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 20190239753 A1 (cited in IDS; hereinafter referred to as “Wentz”)
Regarding claims 1 and 11, Wentz, a photon detection array for sampling a physical sample, teaches an optoelectronic apparatus/method for measuring organic tissue, wherein the optoelectronic apparatus, which is attached with the organic tissue (abstract; paragraph [0012]), comprises:
a semiconductor optic radiation source (128; paragraph [0046]; Figures 1A-B), which is configured to output repeatedly infrared pulses of toward the tissue (“Specific wavelength may be in a diffusive range including without limitation the diffusive range of 300-1300 nanometers or may extend to 1600 nanometers”; paragraph [0046]; Figures 1A-B);
an array of single-photon avalanche diodes (“Photons that are back reflected and/or reemitted may be detected with a suitable sensitive detector or detector array such as array“; paragraphs [0046]; can use avalanche photodiodes and SPADs (single photon avalanche detectors); paragraph [0049]), which is directed toward the tissue and which is configured to detect photons of the optical pulses that have interacted with the tissue (“By precisely gating the particular time of flight window, it may be feasible to measure the blood oxygenation level at a specific point in tissue or distance from specific point“; paragraph [0048]);
a timing unit, which is configured to determine time-of-flights of photons of each of the optical pulses within a temporal measurement range after an output of each of the optical pulses (“SPADs may be used with precise time gating, such as time-correlated single photon counting (TCSPC), to measure optical signals originating from a specific depth in sample, including measurement of time-varying signals”, “a time-to-amplitude converter (TAC) may be initialized and TAC started as soon as light source sends out a pulse. TAC may increment voltage amplitude at a constant rate in time, until a signal from the SPAD, captured using a comparator or constant fraction discriminator (CFD) to obtain the time of avalanche current crossing a threshold, representing the time that a photon arrives at the SPAD (to within the jitter of the SPAD and comparator), stops the TAC; the voltage of the TAC may be held at this level and digitized using an analog to digital converter (ADC)”; paragraph [0050]);
a data processing unit, which is configured to estimate a physiological state at at least one unique depth range within the tissue using detected photons that have interacted with the tissue inside at least one time window shorter than the temporal measurement range, where each of the at least one time window is configured to correspond to a unique depth range within the tissue, the estimation being based on at least one of the following: a number of the detections within each of the at least one time window and a distribution of the detections of a plurality of time windows (paragraphs [0048], [0050], [0059]).
Regarding claim 2, Wentz teaches wherein each of the single-photon avalanche diodes is configured to detect a single photon of each of the optical pulses that is scattered from the tissue toward the array (paragraph [0050]).
Regarding claims 3 and 12, Wentz teaches wherein the array of single-photon avalanche diodes is configured to detect at least one of the following: a number of detections of at least one wavelength dominantly absorbed by blood with deoxidized hemoglobin and a number of detections of at least one wavelength dominantly absorbed by blood with oxidized hemoglobin (paragraph [0048], [0052]); and
the data processing unit is configured to estimate the physiological state related to lactic acid based on at least one of the following:
the number of detections of the at least one wavelength dominantly absorbed by the blood with oxidized hemoglobin (paragraph [0048], [0052]), and
difference between the number of detections of the at least one wavelength dominantly absorbed by the blood with deoxidized hemoglobin and the number of detections of the at least one wavelength dominantly absorbed by the blood with oxidized hemoglobin.
Regarding claim 4 and 13, Wentz teaches wherein the data processing unit is configured to perform the estimation of the physiological state of the tissue within each of a plurality of the time windows as a function of time, and separate and determine pulsation of heart based on the estimation (paragraph [0074]).
Regarding claim 5, Wentz teaches wherein at least one of the timing circuit and data processing unit is programmable such that at least one of the temporal measurement range and the at least one time window is repeatedly adjustable (paragraph [0027], [0050]).
Regarding claim 6, Wentz teaches wherein the semiconductor optic radiation source and the array of single-photon avalanche diodes are spaced apart by a non-zero distance (as shown in Figure 1A-B).
Regarding claim 7, Wentz teaches wherein an output section of the semiconductor optic radiation source and an input section of the array of single-photon avalanche diodes are optically coaxial (as shown in Figure 1A).
Regarding claim 8, Wentz teaches wherein the optoelectronic apparatus comprises a muscle measurement device, which is attached to a muscular area of a body and comprises a radio transmitter, the semiconductor optic radiation source, the array of single-photon avalanche diodes and the timing circuit, and a separate wearable device, which comprises a radio receiver and the data processing unit; and the radio transmitter is configured to transmit information on detections to the radio receiver, which is configured to feed the information to the data processing unit for determining the physiological state of the tissue at the muscular area of the body (paragraphs [0075], [0087]; Figure 1A and 4).
Regarding claim 10, Wentz teaches wherein the data processing unit comprises one or more processors, and one or more memories including computer program code (paragraphs [0084]-[0085]); and
the one or more memories and the computer program code configured to, with the one or more processors, cause the data processing unit at least to estimate the physiological state of the tissue (paragraphs [0048], [0084]-[0085]).
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.
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.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wentz as applied to claim 8 above, and further in view of further rationale.
Regarding claim 9, Wentz does not explicitly teach wherein the separate wearable device comprises an additional semiconductor optic radiation source, and an additional array of the single-photon avalanche diodes for determining the physiological state of the tissue.
However, it would have been obvious to one having ordinary skill in the art at the time the invention effectively filed to wherein the separate wearable device comprises an additional semiconductor optic radiation source, and an additional array of the single-photon avalanche diodes for determining the physiological state of the tissue, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art.
Conclusion
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/ABID A MUSTANSIR/Examiner, Art Unit 3791