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 .
Drawings
The drawings are objected to because the size and line weight is insufficient for understanding the text of the drawings. All of the lines and text are required to be solid unless otherwise clearly dashed. The current drawings appear to have insufficient resolution. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 1-17 are objected to because of the following informalities:
In claim 1, “VO2max” is written with a numerical ‘0’ instead of a capital letter ‘O’.
In claims 1-17, the claims use the British-English spelling “characterise”, “characterised,” and “characterising,” which should be corrected to American-English “characterize”, “characterized”, and “characterizing”.
In claim 10, the claim uses an initialism without defining the term: “BLE”. Applicant should define initialisms in the claims.
In claim 14, the claim uses the British-English spelling of “analysing” which should be corrected to American-English “analyzing”.
Appropriate correction is required.
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.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim limitation “means for calculating” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. In claim 1, for example, it’s unclear whether the means for calculating is an algorithmic structure, or if a processor or microcontroller alone is the structural means for calculating as disclosed Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claims 1-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, the limitation “allowing measuring and characterising the fitness condition of a user in activity” renders the claims indefinite because it’s not clear if the following claim body is an intended use of the portable device. To correct this indefiniteness, Applicant should consider amending this claim to “configured to measure and characterize the fitness condition of a user in activity”.
Regarding claim 1, the limitation “accuracy equivalent to that of laboratory equipment” is a relative term which renders the claim indefinite. The term “accuracy equivalent to that of laboratory equipment” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. There appears to be no evidence of record as to what is considered the accuracy of any laboratory equipment or which laboratory equipment is referred to by the claim. For the purpose of examination, this is interpreted broadly, and appears to be an intended result with no patentable weight.
Regarding claim 1, the limitation “several omnidirectional microphones” renders the claims indefinite because it is not clear how many microphones are required by the claim. For the purposes of examination, “several” will be interpreted as “a plurality.”
Regarding claims 5 and 8, the phrase "for example" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claims 9-10, the limitations added are included in a list with multiple commas and instances of “and/or” which render the metes and bounds of the claims indefinite. It’s not clear which elements are required and which are recited in the alternative. For the purposes of Examination, all such limitations will be considered in the alternative.
Regarding claims 1-17, limitations referring to “it” appear to be directed to the portable device as whole, however, use of “it” renders the claims indefinite as “it” lacks antecedent basis. There is no indication as to which claim element is considered “it” and “it” is nonspecifically referenced throughout the claims. Applicant should amend to replace “it” with specific references to either “the portable device” or other intended claim elements.
Regarding claims 1-17, the claims are generally narrative and indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with grammatical and idiomatic errors. Although the Examiner reviewed these claims to identify errors, Applicant’s cooperation is requested in identifying any additional errors due to lack of sufficient antecedent basis or other clarity.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 6 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 6 fails to further limit claim 1, comprising only elements already claimed in claim 1. Claim 1 includes “several omnidirectional microphones” and claim 6 includes “at least one microphone”. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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.
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.
Claim(s) 1-8, 10-12, 14, and 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stamatopoulos et al. (U.S. Patent Application Publication No. 2019/0192047) hereinafter referred toa s Stamatopoulos; in view of Toman et al. (U.S. Patent Application Publication No. 2009/0299742) hereinafter referred to as Toman.
Regarding claim 1, Stamatopoulos teaches a portable device (¶¶[0092-0093], Fig. 2) allowing measuring and characterizing the fitness condition of a user in activity, characterized in that it includes:
at least one sensor measuring the respiratory rate (¶[0201] breath intensity and breath rate from respiratory audio signal, microphone sensors) and at least one second sensor measuring parameters of the activity of the user (¶[0219] other sensors collecting data during activity and exercise, such as heart rate, blood oxygen levels, blood pressure, power output, and speed);
means for calculating, with an accuracy equivalent to that of laboratory equipment (this is interpreted broadly, and appears to be an intended result with no patentable weight), synthetic parameters that characterize the fitness including the VO2max (¶[0193], ¶[0204] ventilatory oxygen maximums) and for real-time (¶[0143]) and accurate detection of the ventilatory thresholds VT1, VT2, through measurement of the respiratory rate (¶[0091]);
means for characterizing the activity of the user (¶[0248], ¶¶[0250-0252]);
an interface for interaction with said user (¶[0256] graphical user interface);
in that it includes a microphone (¶[0257]), with signal processing to create a directional microphone (Fig. 4, ¶[0267]), which allows placing the device away from the mouth/nose (this is an intended use, and the device of Stamatopoulos is capable of this use).
Stamatopoulos does not teach several omnidirectional microphones, placed in an array according to the beamforming technique, with signal processing to create a directional microphone, which allows placing the device away from the mouth/nose; and in that it includes redundant sensors to make the measurements more reliable.
Attention is brought to the Toman reference, which teaches several omnidirectional microphones (¶[0164]), placed in an array according to the beamforming technique (¶[0169]), with signal processing to create a directional microphone (¶[0180], ¶[0196]), which allows placing the device away from the mouth/nose (¶[0307], this is otherwise intended use, and the device of Tomas is capable of this use); and in that it includes redundant sensors to make the measurements more reliable (¶[0318] multiple microphones allow for detection of uncorrelated noise).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the microphone system of Stamatopoulos to include a microphone array and beamforming signal processing, as taught by Tomas, because it improves detection of desired audio signal in an otherwise noisy environment (Tomas ¶¶[0007-0008]).
Regarding claim 2, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it is autonomous (¶[0204]).
Regarding claim 3, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it includes means for connecting to another device (¶[0082]) of the smartphone (¶[0092]), smartwatch or digital tablet type (¶[0255]), which are connected to a "Cloud" (¶[0255], ¶[0455]).
Regarding claim 4, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it includes means for directly connecting to a "Cloud" (¶[0255], ¶[0455]).
Regarding claim 5, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it includes means for association with an accessory, allowing clipping it or fastening it or integrating it into a piece of equipment, such as for example an earphone, a headphone or a headband, or inserting it into a piece of equipment (¶[0093]).
Regarding claim 6, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it includes at least one microphone (¶[0257]).
Regarding claim 7, Stamatopoulos as modified teaches the device according to claim 1.
Tomas further teaches characterized in that the at least one microphone is unidirectional (¶[0164]).
Regarding claim 8, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it implements an algorithm for detecting audio rhythms (Fig. 16, ¶¶[0125-0126]) or an artificial intelligence algorithm (¶[0280]), for example a deep learning algorithm (¶[0279]), of the microphone(s) in order to extract therefrom the respiratory rate and its intensity in a manner adapted to the activity, resistant to artefacts, in a noisy environment (Fig. 16, ¶¶[0195-0196]).
Regarding claim 10, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it includes a microcontroller (¶[0079]) and/or an artificial intelligence processor for loT devices (¶[0082], ¶[0455]), a memory (¶[0074]), a BLE or other transmission mode module (¶[0289]), a battery (¶[0284]), one or more LED(s), a multifunction button (¶[0099]), for activation, recording, transmitting and deleting the records, reset, or a plurality of buttons, a loudspeaker (¶[0266]), a buzzer and/or vibrator, as well as other components of an loT system (any internet connected item (¶[0083]).
Regarding claim 11, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it further includes a body parameter sensor and/or an environment parameter sensor (¶[0219], and ¶¶[0244-0250]).
Regarding claim 12, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it produces improved and adapted training instructions (¶[0254] optimized cueing and coaching) based on the perception of the effort and/or the ventilatory threshold (¶¶[0253-0254]).
Regarding claim 14, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos further teaches characterized in that it further includes means for analyzing and characterizing the breath and/or the cough via an artificial intelligence module (¶[0294]).
Regarding claim 16, Stamatopoulos as modified teaches a system including a device according to claim 1.
Stamatopoulos further teaches a device of the smartphone (¶[0092]), smartwatch or digital tablet type (¶[0255]), and a cloud-based server (¶[0255], ¶[0455]).
Regarding claim 17, Stamatopoulos as modified teaches the system according to claim 16.
Stamatopoulos further teaches characterized in that it further includes another device coupled with the device (¶[0087]).
Claim(s) 9, 13, and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stamatopoulos and Tomas as applied to claim 1 above, and further in view of Lee et al. (U.S. Patent Application Publication No. 2018/0103874) hereinafter referred to as Lee.
Regarding claim 9, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos as modified does not teach an inertial platform, which includes a 3D accelerometer sensor, and a 3D gyroscope and/or a magnetometer and/or a barometer and/or a satellite positioning system.
Attention is brought to the Lee reference, which teaches an inertial platform (¶[0097] inertial measurement unit), which includes a 3D accelerometer sensor (¶[0096]), and a 3D gyroscope (¶[0097]) and/or a magnetometer (¶[0098]).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the respiratory monitoring system of Stamatopoulos as modified to include an inertial measurement unit, as taught by Lee, because they improve accuracy of activity and orientation detection of the patient (Lee ¶[0072]).
Regarding claim 13, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos does not teach means for detecting an alert.
Attention is brought to the Lee reference, which teaches means for detecting an alert (¶[0179]).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the respiratory monitoring system of Stamatopoulos as modified to include an alert detection, as taught by Lee, because it allows appropriate assistance to be given to patients at risk (Lee ¶[0181]).
Regarding claim 15, Stamatopoulos as modified teaches the device according to claim 1.
Stamatopoulos does not teach means for preventing the risk of fall and for performing exercises based on the feedback by training and monitoring a defective marker.
Attention is brought to the Lee reference, which teaches means for preventing the risk of fall (¶[0181]) and for performing exercises based on the feedback by training and monitoring a defective marker (¶[0193]).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the respiratory monitoring system of Stamatopoulos as modified to include fall risk management, as taught by Lee, because it allows appropriate assistance to be given to patients at risk (Lee ¶[0181]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
U.S. Patent Application Publication No. 2011/0288431 to Alshaer teaches determining breathing parameters from a microphone detecting breath sounds.
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/AMANDA L STEINBERG/ Examiner, Art Unit 3792