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 01/19/2024 and 02/26/2024. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 1 objected to because of the following informalities: the phrase “whether” in line 11 should be amended to read –when--. Appropriate correction is required.
Claim 1 is objected to because of the following informalities: the phrase “maximise” in line 8 should be amended to read –maximize--. Appropriate correction is required.
Claim 1 is objected to because of the following informalities: the phrase “maximises” in line 15 should be amended to read –maximizes--. Appropriate correction is required.
Claim 15 objected to because of the following informalities: the phrase “an inlet through” in line 2 should be amended to read –an inlet configured to receive--. Appropriate correction is required.
Claim 15 is objected to because of the following informalities: the phrase “an outlet through” in line 3 should be amended to read –an outlet configured to exit--. Appropriate correction is required.
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 1-13 and 15-21 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 1 recite limitations “fitness value” and “fitness function” these limitations are not defined by the claims, which renders the claims indefinite. One with ordinary skill in the art would not be able to know what parameter or type of value the claimed “fitness” refers to. The scope of the claim remains indeterminate because of the claimed “fitness value” and “fitness function”.
Claim 1 recites the limitation "the variation" in line 20. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation "the specific value" in line2. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation "the output" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 recites the limitation "the first outlet" in line 4. There is insufficient antecedent basis for this limitation in the claim.
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 16-20 are 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. Claims 16-20 depends on cancelled independent claim 14, thus, claims 16-20 are not examined and should be cancelled. 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 § 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 1-13 and 21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
STEP 1: claim 1, recites a series of steps or acts to design *a breath sampling device. Thus, the claims are directed to a process, which is one of the statutory categories of invention.
STEP 2A PRONG ONE: The claim(s) recite(s) specific limitations/method steps of: identifying a plurality of parameters of the device; selecting values of the plurality of parameters which maximize a global fitness value by; calculating fitness values for multiple parameter values, wherein the fitness value for each parameter value is indicative of whether a design having the parameter value is suitable; combining the calculated fitness values for each of the plurality of parameters to obtain multiple global fitness values; and selecting a calculated fitness value for each of plurality of parameters which maximizes the global fitness value; and outputting the parameter values of the plurality of parameters which have the selected calculated fitness value.
These limitations recite a mathematical concept, which is an Abstract Idea.
STEP 2A PRONG TWO: This judicial exception is not integrated into a practical application because the claim(s) recite the combination of additional elements/method steps of: wherein each fitness value is calculated by defining a fitness function for each of the identified plurality of parameters, wherein the fitness function describes the variation in the fitness value between 0 and 1 as a function of the parameter, where 0 indicates a completely unacceptable design and 1 indicates a completely acceptable design; and using the defined fitness function to calculate the fitness value for the multiple parameter values of each of identified plurality of parameters. Accordingly, this additional element/step does not integrate the abstract idea into a practical application because the claim limitations fail to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception.
STEP 2B: The claim(s) does/do not include additional structural elements that are sufficient to amount to significantly more than the judicial exception because the claims recite additional elements, such as, wherein each fitness value is calculated by defining a fitness function for each of the identified plurality of parameters, wherein the fitness function describes the variation in the fitness value between 0 and 1 as a function of the parameter, where 0 indicates a completely unacceptable design and 1 indicates a completely acceptable design; and using the defined fitness function to calculate the fitness value for the multiple parameter values of each of identified plurality of parameters, but do(es) not include additional elements that are sufficient to amount to significantly more than the judicial exception because these structural elements are generically claimed to enable the collection of data by performing the basic functions of: (i) receiving, processing, and providing/displaying data, and (ii) automating mental tasks. The courts have recognized these functions to be well‐understood, routine, and conventional functions when claimed in a merely generic manner. Merely adding hardware that performs “‘well understood, routine, conventional activities’ previously known to the industry” will not make claims patent-eligible (In re TLI Communications LLC). As such, the recitation of these additional limitations in claims 2-13 and 21 does not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment and represent insignificant extra-solution activity. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as a sensor and use of a processor does not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)). Thus, the claimed invention does not amount to significantly more than the Abstract Idea.
When viewed alone or in combination, the limitations of claims 1-13 and 21 merely instruct the practitioner to implement the concept of collecting data with routine, conventional activity specified at a high level of generality in a particular technological environment. The inventive concept cannot be furnished by the abstract idea; instead, the application must provide something inventive, beyond mere “well-understood, routine, conventional activity” (Genetic Technologies Limited v. Merial L.L.C.). The additional elements of independent claims when viewed alone or as whole, do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea and does not amount to significantly more than the abstract idea itself. In other words, this claim merely applies an abstract idea to a computer and does not (i) improve the performance of the computer itself (as in McRO, Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
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.
Claim(s) 15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Allsworth et al (US 2017/0303823).
As to claim 15, Allsworth teaches a breath sampling device (sampling device 10, par.123-125, fig.2) comprising:
an inlet (mask 30, par.125-126, fig.2) through which exhaled breath is received in the device;
an outlet (outlet of pump 28 that exhaust exhaled breath to the ambient air surrounding device 10, par.129 and par.147) through which exhaled breath exits the device;
a housing (housing of device 10, par.123-126, as best seen in fig.2) connected between the inlet and the first outlet and through which a substantial portion of the exhaled breath passes; and
a sorbent material (sorbent tubes 20 having sorbent material, par.125) housed in the housing, wherein the sorbent material extends across a cross-section of the housing (sorbent tubes are extending across the vertical cross-section of the housing of device 10, as best seen in fig.2B).
Claim(s) 15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ahmad et al (US 2017/0119280).
As to claim 15, Ahamd teaches a breath sampling device (device 4 in fog.1 and/or device in fig.2, abstract, and par.209-214) comprising:
an inlet (mouth piece 10 and/or 20, par.82 and par.209-214, fig.1-2) through which exhaled breath is received in the device;
an outlet (outlet of apparatus 4, par.82, and exit or exhaust conduit is disposed at an end of a reaction cavity to direct fluids out of the reaction cavity and externally of the housing, par.219, fig.2) through which exhaled breath exits the device;
a housing (housing of apparatus 4 that connected between mouth piece 10/20 and outlet/exhaust and the end of the housing, par.209-2019, fig.1 and 2) connected between the inlet and the first outlet and through which a substantial portion of the exhaled breath passes (as best seen in fig.1-2); and
a sorbent material (porous material that collects exhaled breath for analysis, first flow path comprising a porous disk and beads with affinity for the analyte, par.36, par.93) housed in the housing, wherein the sorbent material extends across a cross-section of the housing.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAY A ABOUELELA whose telephone number is (571)270-7917. The examiner can normally be reached 8-5.
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/MAY A ABOUELELA/Primary Examiner, Art Unit 3791