DETAILED ACTION
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 6-12, and 14-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5-8, 10-12, and 14-17 of U.S. Patent No. #12,557,993 in view of Camacho Perez et al. (US 2017/0273621).
As to claim 1, the ‘993 patent recites a frame configured to be worn on a head, sensors to collect data, a controller to process the sensor data, and the generation and presentation of biometric data (claim 1), said biometric data being respiration rate (claim 3). It does not recite the motion sensors and the derivation of respiration data from motion data. Camacho Perez teaches a frame adapted to be worn on a head (Fig. 3 – 302) and carrying a contact vibration sensor ([0023] – vibration sensor 104) which translates to data indicative of respiration rate ([0034] – vibration occurs due to resonation in response to user’s respiration). It would have been obvious to modify the ‘993 patent with Camacho Perez to allow the use of motion sensors to obtain respiration rate values, and use it as way to confirm the results obtained via another method or to use as a source of calibration.
Claims 6-12 and 14-18 are taught by various combinations of claims 1, 3, 5-8, 10-12, and 14-17 of the ‘993 patent.
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 7-9, 12, 13, and 15-20 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.
Claim 7 recites the limitation "the surface of a face", whereas claim 6, which claim 7 depends upon, recites “a surface of the head”. It is unclear whether “the surface” of a face is the same as, a subset of, or distinct from “a surface of the head”. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "that do not contact the surface of a face", whereas claim 6, which claim 8 depends upon, recites “a surface of the head”. It is unclear whether “the surface” of a face is the same as, a subset of, or distinct from “a surface of the head”. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation "the surface of the face", whereas claim 6, which claim 9 depends upon, recites “a surface of the head”. It is unclear whether “the surface” of the face is the same as, a subset of, or distinct from “a surface of the head”. There is insufficient antecedent basis for this limitation in the claim.
Claims 12 and 17 recite processing the respiration data and the thermal data to generate “biometric respiration data”. Neither the claims nor the specifications defines “biometric respiration data” or distinguishes it from “respiration data” already recited. In addition “biometric data” is merely used as a generic umbrella term for any data that is collected by the sensors, such as thermal, pulse, and respiration data ([0055]). It is unclear what this phrase means.
Claim 13 recites receiving “head motion signal indicating motion of the head from at least one head motion sensor”, whereas claim 1, which claim 13 depends upon, recites “the one or more motion sensors”. It is unclear whether the recited head motion sensor is one of “the one or more motion sensors” of claim 1 or a further, distinct, sensor. The specification treats it as distinct ([0089] – motion sensors 810 alongside signals from one or more other sensors 812, such as head motion sensors).
Claim 15 recites “receiving motion data for a face from or more” which is grammatically incomplete. It appears to omit the word “one” and has been interpreted as “receiving motion data for a face from one or more”.
Claim 19 recites “temporally aligning the signals from two or more of the motion sensors”. It is unclear what this means in the context of the same type of sensors. The specifications only provide an explanation for what it means to temporally align two sensors of a different types ([0083] – e.g. a signal from a motion sensor may show near-real-time correspondence with respiration, while a signal from a thermal sensor may temporally lag behind actual respiration). With the same type of sensor, there should be no such difference, and accordingly, it is unclear what temporally aligning them means.
Where there is a great deal of confusion and uncertainty as to the proper interpretation of the limitations of a claim, it would not be proper to reject such a claim on the basis of prior art. As stated in In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims. See MPEP 2173.06.
Claim 20 is rejected for the same reason as claim 13 above.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 3, 14, 15, and 18 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Camacho Perez (US 2017/0273621).
As to claim 1, Camacho Perez teaches a system (100) comprising: a frame configured to be worn on a head (102, 302, 312); one or more motion sensors ([0023] – vibration sensor 104) integrated in or coupled to the frame and configured to collect motion data ([0023] – sensor may be mounted on the frame); and a controller (106) comprising one or more processors (120) configured to: process the motion data collected by the one or more motion sensors to generate respiration data ([0052], [0055]); and present the respiration data ([0033]).
As to claim 3, Camacho Perez teaches the motion sensors include contact motion sensors configured to contact a surface of a face ([0024] – sensors in contact with the nose of a user).
As to claim 14, Camacho Perez teaches the system is a head-mounted device (HMD) ([0021]).
As to claim 15, Camacho Perez teaches a method, comprising: performing, by a controller (106) comprising one or more processors (120): receiving motion data for a face from [one] or more motion sensors ([0023] – vibration sensor 104) integrated in or coupled to a head-mounted device (HMD) ([0021]; [0023] – sensor mounted on a frame); processing the motion data received from the one or more motion sensors to generate respiration data ([0052], [0055]); and presenting the respiration data ([0033]).
As to claim 18, Camacho Perez teaches pre-processing one or more signals from the one or more motion sensors ([0049]); and analyzing the pre-processed one or more signals to generate the respiration data ([0062-0064]).
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.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Camacho Perez (US 2017/0273621) in view of Galea et al. (US 2016/0007921).
As to claim 2, Camacho Perez does not expressly teach that the motion sensors include accelerometers. Galea teaches a head mounted device (Fig. 1A) in which an accelerometer is used to determine motion of the head of the user ([0016]). It would have been obvious to modify Camacho Perez with the accelerometer of Galea to utilize a conventional type of motion sensors, particularly since the applicant similarly notes that accelerometers have been used for contact-based extraction of speech through bone conduction ([0004] of printed publication).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Camacho Perez (US 2017/0273621) in view of Alfini (US 2003/0236467).
As to claim 4, Camacho Perez teaches a nose mount coupled to or integrated in the frame, wherein at least one of the motion sensors is integrated in the nose mount and configured to detect motion of a nose ([0034] – sensor disposed within a nosepiece of the frame), but does not expressly teach that the nose mount is flexible.
Alfini teaches a vibration transducer configured for attachment to a subject’s nose (Abstract), the transducer being thin and flexible, and made of flexible, conformable plastic film ([0009]). It would have been obvious to modify the nosepiece-mounted sensor assembly of Camacho Perez flexible and conformable in the manner taught by Alfini to allow for better fit the particularities of each user’s nose shape, which can vary widely, such that the resulting signal sensitivity would be enhanced.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Camacho Perez (US 2017/0273621) in view of Shahmohammadi et al. (USP #10,564,717).
As to claim 5, Camacho does not expressly teach a frame comprising a light seal configured to conform to a face, wherein at least one of the motion sensors is integrated in the light seal and configured to detect motion of the face.
Shahmohammadi teaches a head-mounted display (800) having a facial interface (802) that functions as a light seal conforming to the face (col. 11 lines 38-45) and carrying face-abutting sensors within it (col. 10 lines 36-55; col. 12 lines 26-37 – detecting facial movements). It would have been obvious to modify Camacho Perez with Shahmohammadi to enable a light seal for preventing outside or ambient light, so that the user can have a better immersive experience while using the device.
Claim(s) 6, 7, 10-12, 16, and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Camacho Perez (US 2017/0273621) in view of Tzvieli et al. (US 2017/0367651).
As to claims 6 and 16, Camacho Perez teaches one or more thermal sensors ([0046] – thermocouple) integrated in or coupled to the frame or HMD and configured to collect thermal data from a surface of the head ([0044]), but fails to expressly teach that the controller is configured to process the thermal data to generate additional respiration data.
Tzvieli teaches a wearable system configured to collect thermal measurements related to respiration (Abstract) comprising a frame worn on the head ([0103]) and using temperature changes around the user’s nose and/or mouth to determine the respiration rate ([0837]). It would have been obvious to modify Camacho Perez with Tzvieli to utilize a secondary sensor system to determine respiration rate for redundancy and/or to utilize as a source of calibration.
As to claim 7, Tzvieli teaches the thermal sensors include non-contact thermal sensors that do not contact the surface of the face (Abstract) wherein the non-contact thermal sensors are integrated in diaphragms configured to align a surface of the non-contact thermal sensors approximately normal to the surface of the face ([0167] – perpendicular to the front of the face).
As to claim 10, Tzvieli teaches the thermal sensors include one or more cameras coupled to the frame ([0819]), wherein the controller is further configured to subsample ([0830] – camera being a sensor with multiple non-contact temperature sensing elements; [0085] – only a single measurement from each region of interest is made) and process data captured by the one or more cameras to estimate temperature at portions of a surface of a face captured by the one or more cameras ([0085]). It would have been obvious to modify the above combination further with the camera based thermal sensors as taught by Tzvieli to measure temperature of more regions without having to contact each region, as well as to allow for the measurement of temperature of air.
As to claim 11, Tzvieli teaches the one or more cameras include infrared cameras configured to capture views of the face’s eye region for use in gaze tracking ([0575-0576] – eye tracking module using cameras and using reflected IR signals to extract eye positions). It would have been obvious to modify the above combination further with Tzvieli to track eye movements, thus allowing for additional uses for the device.
As to claims 12 and 17, the above combination teaches the processing of both the respiration data from the motion data and the additional respiration data from the thermal data. In addition, Tzvieli additionally teaches incorporating motion data to obtain additional parameters related to respiration ([0839]).
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Camacho Perez (US 2017/0273621) and Tzvieli et al. (US 2017/0367651), and further in view of Alfini (US 2003/0236467).
As to claim 8, the above combination fails to expressly teach a flexible nose mount coupled to or integrated in the frame, wherein at least one of the thermal sensors is integrated in the nose mount and configured to detect temperature of the surface of a nose.
Alfini teaches a vibration transducer configured for attachment to a subject’s nose (Abstract), the transducer being thin and flexible, and made of flexible, conformable plastic film ([0009]). It would have been obvious to modify the nosepiece-mounted sensor assembly of Camacho Perez flexible and conformable in the manner taught by Alfini to allow for better fit the particularities of each user’s nose shape, which can vary widely, such that the resulting signal sensitivity would be enhanced.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Camacho Perez (US 2017/0273621) in view of Tzvieli et al. (US 2017/0367651), and further in view of Shahmohammadi et al. (USP #10,564,717).
As to claim 9, the above combination does not expressly teach the frame further comprises a light seal configured to conform to a face, wherein at least one of the thermal sensors is integrated in the light seal and configured to detect temperature of the surface of the face.
Shahmohammadi teaches a head-mounted display (800) having a facial interface (802) that functions as a light seal conforming to the face (col. 11 lines 38-45) and carrying face-abutting sensors within it (col. 10 lines 36-55; col. 12 lines 26-37 – detecting facial movements). It would have been obvious to modify Camacho Perez with Shahmohammadi to enable a light seal for preventing outside or ambient light, so that the user can have a better immersive experience while using the device.
Claim(s) 13 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Camacho Perez (US 2017/0273621) in view of Bocko et al. (US 2014/0200469).
As to claims 13 and 20, Camacho Perez fails to expressly teach receive a head motion signal indicating motion of the head from at least one head motion sensor, and apply a lock-in amplification technique to remove motion of the head as indicated in the head motion signal from the one or more signals received from the one or more motion sensors; and analyze the pre-processed one or more signals to generate the respiration data.
Bocko teaches a sensor system in which the system has a primary sensor and a secondary sensing circuit ([0012]), and apply a lock-in amplifying technique via a lock-in amplifier 74 to remove the noise and to correct the signals from the primary sensing circuit ([0012]). It would have been obvious to modify Camacho Perez with the lock-in amplifying technique of Bocko to remove and/or reduce the amount of noise in the signal so that the results are more accurate.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTIAN JANG whose telephone number is (571)270-3820. The examiner can normally be reached Monday-Friday (7-3:30 EST).
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CHRISTIAN JANG
Primary Examiner
Art Unit 3791
/CHRISTIAN JANG/Primary Examiner, Art Unit 3791 9/1/26
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