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 .
Information Disclosure Statement
The information disclosure statement filed September 24, 2025 fails to comply with 37 CFR 1.98(a)(3)(i) because it does not include a concise explanation of the relevance, as it is presently understood by the individual designated in 37 CFR 1.56(c) most knowledgeable about the content of the information, of each reference listed that is not in the English language. It has been placed in the application file, but the information referred to therein has not been considered.
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:
all of the claim limitations using the structural modifier “unit.” Examples include all of the limitations of claims 1 and All of these limitations have functional language and are supplied with a generic placeholder that is not preceded by a structural modifier.
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.
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 § 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.
Claims 10-19 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.
Claims 10 and 16 each recite, “…a second timing identification unit configured to identify, as a second timing, a timing at which the intragastric temperature is equal to or higher than a prescribed temperature set in advance and an absolute value of the temperature change rate falls within a second prescribed change amount set in advance after the first timing…”
There are two issues with this subclause. The first is found in the phrase “falls within.” Is the time when it first starts to fall and then eventually fulfills the change amount? Or is it the moment that is fulfills the change amount? Examiner suggests amending the phrase to “falls to within” as this will specify the moment that the second time occurs.
As to the second issue, in addition to the above language, there is also the language preceding it, which states, “a first timing identification unit configured to identify, as a first timing, a timing at which the temperature change rate exceeds a first prescribed change amount set in advance and becomes negative.”
If the claim is directed to temperature change rates (i.e., dT/dt), leaving the claim as written is confusing because this rate aspect is not emphasized, leader the reading to question whether it truly applies to the rate, dT/dt. In other words, if this aspect of the claim is directed to temperature change rates, then should not “a second prescribed change amount” be instead “a second prescribed change rate amount?” The same may be said of the phrase “a first prescribed change amount,” which should be changed to “a first prescribed change rate amount.”
Claims 10-27 are rejected under 35 U.S.C. 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. The primary purpose of this requirement of definiteness of claim language is to ensure that the scope of the claims is clear so the public is informed of the boundaries of what constitutes infringement of the patent. See MPEP 2173.
As discussed above, the claims invoke 112(f) despite failure to use the word “means.” A review of the specification makes it clear that the intention is that each of the “units” found in the claims are special purpose computers that have modified a general purpose computer via program instructions.
Claims invoking 112(f) must have some structure to "avoid pure functional claiming.” Aristocrat Techs. Australia Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008). For a computer-implemented means plus function claim limitation invoking 112(f), the corresponding structure must be more than simply a general purpose computer or microprocessor because these components can be programmed to perform very different functions in very different ways. Id. The structure must include the algorithm needed to transform the general purpose computer or microprocessor into a structure that is a special purpose computer. Id. at 1338.
A rejection under § 112, second paragraph, is appropriate if the specification discloses no corresponding algorithm associated with a computer or microprocessor. Id. at 1337-38. The specification must explicitly disclose the algorithm, and simply reciting the claimed function in the specification will not be a sufficient disclosure for an algorithm. Blackboard, Inc. v. Design2Learn, Inc., 574 F.3d 1371, 1384 (stating that language that simply describes the function to be performed describes an outcome, not a means for achieving that outcome).
Because the algorithms that transform the general purpose computer into a special purpose computer are not reasonably clear based on the current record, the claims must be rejected as indefinite under 112(b). Examiner notes that such a rejection may be overcome by, where appropriate, stating that it is a processor that comprises the claimed units having the particular configuration/function claimed herein.
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 16-21 rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claimed subject matter is directed to software per se, which is not one of the four categories of statutory subject matter. See MPEP 2106.03(I).
Allowable Subject Matter
Claims 10-21 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, and 35 U.S.C. 101, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
The closest references found during Examiner’s search of the prior art were US 2010/0160745 A1 to Hills et al., JP2019165705A to Shigeru et al., KR20230033068A to Ko et al., and an article entitled “Impact of Observed and Controlled Water Intake on Reticulorumen Temperature in Lactating Dairy Cattle” by Cantor et al.
Cantor teaches that the time to return to baseline is dependent on a volume of water ingested by a cow. Cantor fails to disclose any thresholds that can be used to determine first or second timing for the changes in temperature.
Hills, Shigeru, and Ko teach that deviation from a baseline temperature can show when an animal (human and bovine) drinks, but fails to disclose any thresholds related to change rate and are completely silent as to the determination of an amount of water drunk between the first timing and the second timing.
Thus, Hills, Shigeru, and Cantor, alone or in combination with one another or any other prior art reference, fail to anticipate or render obvious the inventions of claims 10-21.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Eric Messersmith whose telephone number is (571)270-7081. The examiner can normally be reached M-F, 830am-5pm.
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/ERIC J MESSERSMITH/Primary Examiner, Art Unit 3791