DETAILED ACTION
Applicant’s arguments, filed 08/05/2026, have been fully considered. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. Applicant has canceled claim 16 and added claims 21-28.
Claims 8-15 and 17-28 are the current claims hereby under examination.
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 .
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 8-15 and 17-28 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Analysis of independent claims 8 and 17:
Step 1 of the subject matter eligibility test (see MPEP 2106.03).
Claim 8 is directed to a system, which describes one of the four statutory categories of patentable subject matter, i.e., a machine. Claim 17 is directed to a computer implemented method, which describes one of the four statutory categories of patentable subject matter, i.e., a method. Therefore, further consideration is necessary regarding claims.
Step 2A of the subject matter eligibility test (see MPEP 2106.04).
Prong One: Claims 8 and 17 recite an abstract idea. In particular, the claims generally recite
the following:
identify one or more edges of the pattern on a wearable article from the video data (claim 8);
track a frequency of motion of the one or more edges on the wearable article to determine a respiration rate (claim 8);
searching for edges in the pattern on the article worn over the chest area (claim 17);
evaluating information content of the edges (claim 17);
selecting an edge in the pattern for identifying a local area of the pattern (claim 17); and
monitoring the respiration by tracking a motion frequency of the local area of the pattern in the video data (claim 17).
These elements recited in claims 8 and 17 are drawn to an abstract idea since they are directed towards mental processes – concepts performed in the human mind (including an observation, evaluation, judgment, opinion) (see MPEP § 2106.04(a)(2), subsection III).
“identify one or more edges of the pattern on a wearable article from the video data” is drawn to an abstract idea since it is a mental process that can be practically performed in the human mind, with the aid of pen and paper or a generic computer. A person of ordinary skill in the art could reasonably view video data and identify one or more edges of a pattern on a worn article. There is nothing to suggest an undue level of complexity in “identify one or more edges of the pattern on a wearable article from the video data”.
“track a frequency of motion of the one or more edges on the wearable article to determine a respiration rate” is drawn to an abstract idea since it is a mental process that can be practically performed in the human mind, with the aid of pen and paper or a generic computer. A person of ordinary skill in the art could reasonably view video data and track the motion of a worn article to determine a respiration rate. There is nothing to suggest an undue level of complexity in “track a frequency of motion of the one or more edges on the wearable article to determine a respiration rate”.
“searching for edges in the pattern on the article worn over the chest area” is drawn to an abstract idea since it is a mental process that can be practically performed in the human mind, with the aid of pen and paper or a generic computer. A person of ordinary skill in the art could reasonably view video data and search for one or more edges on a worn article. There is nothing to suggest an undue level of complexity in “searching for edges in the pattern on the article worn over the chest area”.
“evaluating information content of the edges” is drawn to an abstract idea since it is a mental process that can be practically performed in the human mind, with the aid of pen and paper or a generic computer. A person of ordinary skill in the art could reasonably view video data and evaluate information about the edges of the pattern. There is nothing to suggest an undue level of complexity in “evaluating information content of the edges”.
“selecting an edge in the pattern for identifying a local area of the pattern” is drawn to an abstract idea since it is a mental process that can be practically performed in the human mind, with the aid of pen and paper or a generic computer. A person of ordinary skill in the art could reasonably view video/image data and select one or more edges on a worn article to identify a local area of the pattern. There is nothing to suggest an undue level of complexity in “selecting an edge in the pattern for identifying a local area of the pattern”.
“monitoring the respiration by tracking a motion frequency of the local area of the pattern” is drawn to an abstract idea since it is a mental process that can be practically performed in the human mind, with the aid of pen and paper or a generic computer. A person of ordinary skill in the art could reasonably view video data and track the motion of a worn article to determine a respiration rate. There is nothing to suggest an undue level of complexity in “monitoring the respiration by tracking a motion frequency of the local area of the pattern”.
Prong Two: Claims 8 and 17 do not recite additional elements that integrate the exception into a practical application. Therefore, the claims are "directed to" the abstract idea. The additional elements merely:
Recite the words "apply it" or an equivalent with the judicial exception, or include instructions to implement the abstract idea on a computer, or merely use the computer as a tool to perform the abstract idea (e.g., “camera” (claims 8 and 17), “processing device” (claims 8 and 17), “computer readable data storage device" (claim 8), and “wearable article” (claims 8)).
Add insignificant extra-solution activity (the pre-solution activity of: using generic data gathering components (e.g., "receive the video data from the camera" (claim 8), "capturing, by a camera, video data of a wearable article worn over a chest area of a patient" (claim 17), and “receiving, by at least one processing device, the video from the camera (claim 17))).
As a whole, the additional elements merely serve to gather information to be used by the abstract idea, while generically implementing it on a computer. There is no practical application because the abstract idea is not applied, relied on, or used in a meaningful way. The processing performed remains in the abstract realm, i.e., the result is not used for a treatment. No improvement to the technology is evident. Therefore, the additional elements, alone or in combination, do not integrate the abstract idea into a practical application.
Step 2B of the subject matter eligibility test (see MPEP 2106.05).
Claims 8 and 17 do not include additional elements, alone or in combination, that are sufficient to amount to significantly more than the judicial exception (i.e., an inventive concept) for the same reasons as described above. E.g., all elements are directed to implementing the abstract ideas on generic processing components, the pre-solution activity of using generic data-gathering components, and generic post-solution activities, which merely facilitate the abstract idea.
Per the Berkheimer requirement, the additional elements are well-understood, routine, and conventional. For example, “processing device” as disclosed in the Applicant’s specification in paragraph 0036, “The at least one processing device 122 can include one or more central processing units (CPUs), digital signal processors, field-programmable gate arrays, and/or other programmable electronic circuits”. “A computer readable data storage device” as disclosed in Applicant’s specification in paragraph 0038, “Computer readable storage media includes volatile and nonvolatile, removable, and non-removable media implemented in any device configured to store information such as computer readable instructions, data structures, program modules, or other data. Computer readable storage media can include, but is not limited to, random access memory, read only memory, electrically erasable programmable read only memory, flash memory, and other memory technology, including any medium that can be used to store information that can be accessed by the monitoring system 100. The computer readable storage media is non-transitory”.
Further, a “camera” as disclosed in in Applicant’s specification paragraph 0030, “camera 114 that captures data such as video” and paragraph 0056, “the camera 114 are part of a video monitoring system such as a virtual nursing system”.
Additionally, the camera and wearable article combination does not appear to be a non-conventional arrangement. Auerbach (US 20160235344) discloses a camera taking video data of a wearable article with a pattern to determine a respiration rate (See paragraph 0024 regarding the video camera and paragraphs 0087-0010 regarding the video camera recording the markers on a wearable article of a subject’s body to determine a respiration rate). Glazer (US 10874332) also discloses a camera 22 for recording video of a wearable band 70 with a pattern of shapes 56 (see Figs. 2-4B) to track respiration rate (Fig. 5, boxes 86, 88, and 90).
As such, the processing device, the computer readable data storage device, the camera, and the wearable article do not qualify as significantly more because these limitations are simply appending well understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int'/, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well understood, routine and conventional activity previously known in the industry (see Electric PowerGroup, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int'/, 110 USPQ2d 1976 (2014); SAP Am. v. lnvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
In view of the above, the additional elements individually do not integrate the exception into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements include a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
Analysis of dependent claims 9-15 and 18-28:
Claims 12, 15, 18, 20-26 recite mental steps that may be performed in the human mind with the aid of pen and paper or a generic computer, which add to the abstract idea. The mental steps are identified as:
“track changes in the first and second markers to characterize the respiration” (claim 12);
“track changes in a relative angle between the first and second markers to determine a respiration rate” (claim 15);
“comparing a motion frequency of the edge in the pattern to a frequency range typical for human respiration to determine whether the edge is appropriate for monitoring the respiration” (claim 18);
“when a quality of the information content from the local area degrades, performing a local mask on the pattern to identify a new local area for monitoring the respiration” (claim 20);
“identify the one or more edges of the pattern by searching for edges in the pattern, evaluating information content of the edges, and selecting an edge of the pattern for identifying a local area of the pattern to be tracked” (claim 21);
“compare the frequency of motion of the local area of the pattern to a frequency range corresponding to human respiration” (claim 22);
“track motion of the plurality of edges to determine the respiration rate” (claim 23);
“identify a basepoint associated with the local area of the pattern and determine motion of the local area relative to the basepoint” (claim 24);
“identify, when a quality of information content from the local area degrades, a new local area of the pattern for monitoring respiration” (claim 25); and
“identifying, by the at least one processing device, a basepoint associated with the local area of the pattern, and determining motion of the local area relative to the basepoint” (claim 26).
Claim 27 recites steps that are mathematical concepts, which add to the abstract idea. The mathematical concepts are identified as:
“filtering, by the at least one processing device, one or more detected motion frequencies to identify a motion frequency corresponding to respiration” (claim 27).
Claims 9-14, 19, 23, and 28 recite limitation in addition to the abstract idea: they merely
Further describe the abstract idea (“the wearable article; and wherein the one or more edges are included in a pattern that is printed, sprayed, sewn, stitched, or temporarily attached to the wearable article” (claim 9), “wherein the pattern includes a reflective material for excitation and detection in the near-infrared spectrum” (claim 10), “wherein the pattern includes a luminescent material” (claim 11), “the wearable article, wherein the wearable article includes first and second markers” (claim 12), “wherein the first marker is a machine-readable label, and wherein the second marker changes properties when the wearable article deforms during respiration” (claim 13), “wherein the second marker changes at least one of color and opacity when the wearable article deforms during respiration” (claim 14), “wherein the local area includes a plurality of edges in the pattern” (claim 19), “wherein the local area of the pattern includes a plurality of edges of the pattern” (claim 23), and “wherein monitoring the respiration by tracking the motion frequency of the local area of the pattern includes monitoring respiration when the chest area of the patient is covered by clothing or a blanket” (claim 28)).
Taken alone or in combination, the additional elements do not integrate the judicial exception into a practical application at least because the abstract idea is not applied, relied on, or used in a meaningful way. The additional elements do not add anything significantly more than the abstract idea. The collective functions of the additional elements merely provide computer/electronic implementation and processing, and no additional elements beyond those of the abstract idea. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements improves the functioning of a computer, output device, improves technology other than the technical field of the claimed invention, etc. The result of the abstract idea does not cause the computing device and/or application to perform differently.
Therefore, claims 8-15 and 17-28 are rejected as being directed to non-statutory subject matter.
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.
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.
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.
Claims 8-10, 12, 15, and 17-28 are rejected under 35 U.S.C. 103 as being unpatentable over Auerbach (US 20160235344) and Glazer (US 10874332).
Regarding claim 8, Auerbach discloses a system for monitoring respiration, the system comprising:
a camera configured to capture video data of a wearable article worn over a chest area of a patient (Paragraph 0088, wherein the system includes one or more video cameras), the wearable article including a pattern having one or more edges (Fig. 6, depicting a marker assembly 601 located on fabric 603 of a subject’s clothing; Paragraph 0089, “Markers are applied either directly to the subject's body or integrated to a covering of the subject such as his clothing, his blanket, an elastic strap, or a bandage for example. The markers can be for example patches made from retro-reflective material, geometric patterns on the blanket or nightgown, or low voltage LED lights embedded or attached to clothing or patches”; Paragraph 0090, “Several markers may be incorporated together such as into an adhesive linear strip, or a 3D shape such as a dome shape consisting of scattered markers on its curved surface”; Examiner notes that the clothing, blanket, elastic strap, or bandage is mapped to the wearable article, and the retroreflective material, geometric patterns on the blanket or nightgown, or low voltage LED lights embedded or attach to clothing or patches maps to the pattern having one or more edges. As such, Auerbach teaches a wearable articles having a pattern. The pattern would necessarily have at least one edge. For example, the retroreflective material or geometric patterns would include an area of the clothing defined by its edges. As another example, the marker as LED lights would have edges defined by the outer LED lights of the LED pattern on the wearable article and/or the edge of the linear strip of LEDs);
at least one processing device (Paragraph 0027, “A computing device that is connected either wirelessly or wired to the receiver. The computing device may be remote and the connection to it may include an internet connection. As an example, some image analysis may take place on a wired connected device such as a computer board wired to the receiver. From there, a Bluetooth connection (or a connection of functionally similar technology) may connect to a gateway device that uploads the data to a cloud on the internet, or delivers it to a remote location, for further processing and storage”); and
at least one computer readable data storage device storing software instructions that, when executed by the at least one processing device (Paragraph 0027, “A computing device that is connected either wirelessly or wired to the receiver. The computing device may be remote and the connection to it may include an internet connection. As an example, some image analysis may take place on a wired connected device such as a computer board wired to the receiver. From there, a Bluetooth connection (or a connection of functionally similar technology) may connect to a gateway device that uploads the data to a cloud on the internet, or delivers it to a remote location, for further processing and storage”; Paragraph 0033, “Data storage devices, which can be located on the receiver, on a computing device or at a remote location, for storing data such as an electronic medical file. In addition, a database which includes training data for learning method parameters can be located on a computing device”), cause the at least one processing device to:
receive video data from the camera (Paragraph 0027, “The computing device may be remote and the connection to it may include an internet connection. As an example, some image analysis may take place on a wired connected device such as a computer board wired to the receiver. From there, a Bluetooth connection (or a connection of functionally similar technology) may connect to a gateway device that uploads the data to a cloud on the internet, or delivers it to a remote location, for further processing and storage);
identify one or more edges of the pattern on the wearable article from the video data (Paragraph 0100, wherein the markers are detected and tracked using video. The markers are clustered to connected components using chain clustering, which are then filtered to a priori known features of markers such as their size and/or bounding box size; Examiner interprets identifying the markers, their clusters, and the size/bounding box size as identifying one or more edges of the marker pattern. As the markers are clustered and their features are identified by their size and bounding box size, the edges would inherently be identified as well as the outline (i.e., the size and/or bounding box size) of the marker cluster is identified from the video); and
track a frequency of motion of the wearable article to determine a respiration rate (Paragraphs 0100-0111, wherein the markers are identified and clustered as above. The clusters are then tracked over the following frames, following the frequency of motion of the major detected markers. The motion can then be filtered to separate breathing from non-breathing motion).
Auerbach fails to explicitly disclose tracking a frequency of motion of the edge of the pattern on the wearable article to determine a respiration rate.
Auerbach and Glazer are in the same field of respiration monitoring. Glazer teaches a garment for monitoring respiration (Abstract). The garment includes a pattern of light and dark pigments, wherein the pattern includes shapes 56 on a band 70 (Figs. 2-4B). A camera is positioned above the user to capture video of the band 70. The pattern on the band 70 is identified and the corners are found, which Glazer defines as the meeting point of two edges, to track user motion (Col 7, lines 21-49). Glazer suggests that, alternatively or additionally, the processing algorithm may identify and track movement of the pattern, not necessarily depending on the corners, but with shapes having no clear corners or by tracking object edges (Col 7, line 63 – Col 8, line 2). The processor further averages the motion of each corner over successive frames to detect periodic motion characteristics of respiration and determine breathing rate (Col 8, lines 3-65; Fig. 5, boxes 86, 88, and 90). As Auerbach is concerned with monitoring motion of the user based on patterns with markers on a wearable garment, Glazer further uses the corners/edges of the shapes of a pattern on a wearable garment to track the motion and determine a breathing rate. The substitution of one known method of monitoring respiration using the motion of the garment as disclosed by Auerbach with the method of monitoring respiration using the motion of the corners/edges of the shapes as taught by Glazer would yield the predictable results of determining a respiration rate to one of ordinary skill in the art. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the pattern of Auerbach with the shape pattern and breathing rate determination as taught by Glazer, and the substitution would yield the predictable results of determining a respiration rate to one of ordinary skill in the art.
Regarding claim 9, the combination of Auerbach and Glazer disclose the system of claim 8. Auerbach further discloses the wearable article (Fig. 6, marker assembly 601 on fabric 603); and
wherein the one or more edges are included in a pattern that is printed, sprayed, sewn, stitched, or temporarily attached to the wearable article (Paragraph 0089, “Markers: Markers are applied either directly to the subject's body or integrated to a covering of the subject such as his clothing, his blanket, an elastic strap, or a bandage for example. The markers can be for example patches made from retro-reflective material, geometric patterns on the blanket or nightgown, or low voltage LED lights embedded or attached to clothing or patches. Each LED light can be either fixed or can flash each with its own known temporal pattern. Also, their light emitting wavelength and illumination may be specific for each LED. In order to enhance the outward facing light of these active markers, they can be embedded in retro reflective cones or other shaped contraptions made of reflective materials. Also, the illumination angle may be narrow by using a lens”).
Regarding claim 10, the combination of Auerbach and Glazer disclose the system of claim 9. Auerbach further discloses wherein the pattern includes a reflective material for excitation and detection in the near-infrared spectrum (Paragraphs 0087-0089, “One example is a CMOS camera with night-vision capabilities, i.e. one in which a filter exists to filter out the visible light and sense the near IR optical wavelengths … There may also be ambient infrared LED illumination to increase ambient light if it is low. The ambient light source may be on the camera or in a chosen spatial arrangement in the subject's vicinity … The markers can be for example patches made from retro-reflective material”; Paragraph 0090, “Several markers may be incorporated together such as into an adhesive linear strip, or a 3D shape such as a dome shape consisting of scattered markers on its curved surface. Another possibility is to design the blanket that covers the subject to include “windows” that are transparent to IR light at the locations of the markers. The blanket can be fastened to the gown or marker patches to keep the markers visible through the windows”).
Regarding claim 12, the combination of Auerbach and Glazer disclose the system of claim 8. Auerbach further discloses the wearable article, wherein the wearable article includes first and second markers (Paragraph 0022, “Similarly, different numbers of markers can be used, as will be further discussed below, which can be positioned at different locations, depending on the result that it is desired to obtain”); and
wherein the instructions, when executed by the at least one processing device, further cause the at least one processing device to:
track changes in the first and second markers to characterize the respiration (Paragraph 0038, “The estimate of the actual respiratory rate is taken as a weighted average of the dominant frequencies found from each valid marker. The weighting can be taken proportional to the amplitude of the marker motion and outliers can be iteratively removed if sufficiently far from the average rate computed using the current subset of markers”; Paragraph 0089, wherein markers are applied to the subject).
Regarding claim 15, the combination of Auerbach and Glazer disclose the system of claim 12. Auerbach further discloses wherein the instructions, when executed by the at least one processing device, further cause the at least one processing device to: track changes in a relative angle between the first and second markers to determine a respiration rate (Paragraph 0131, “Learning breathing angles on a training set of subjects using multi-LED markers and applying the learned results to real-time monitoring of subjects using 2-LED markers. These learned angles are determined for a number of subject breathing patterns and a number of marker placements on the training subjects. The relevant vector directions according to body type (to be described hereinafter), anatomical location, body positioning and breathing type (deep or shallow for example) can be used once a test subject is monitored”).
Regarding claim 17, Auerbach discloses a computer-implemented for monitoring respiration, the method comprising:
capturing, by a camera, video data of a wearable article worn over a chest area of a patient (Paragraph 0088, wherein the system includes one or more video cameras), the wearable article including a pattern having a plurality of edges (Fig. 6, depicting a marker assembly 601 located on fabric 603 of a subject’s clothing; Paragraph 0089, “Markers are applied either directly to the subject's body or integrated to a covering of the subject such as his clothing, his blanket, an elastic strap, or a bandage for example. The markers can be for example patches made from retro-reflective material, geometric patterns on the blanket or nightgown, or low voltage LED lights embedded or attached to clothing or patches”; Paragraph 0090, “Several markers may be incorporated together such as into an adhesive linear strip, or a 3D shape such as a dome shape consisting of scattered markers on its curved surface”; Examiner notes that the clothing, blanket, elastic strap, or bandage is mapped to the wearable article, and the retroreflective material, geometric patterns on the blanket or nightgown, or low voltage LED lights embedded or attach to clothing or patches maps to the pattern having one or more edges. As such, Auerbach teaches a wearable articles having a pattern. The pattern would necessarily have an edge. For example, the retroreflective material or geometric patterns would include an area of the clothing defined by its edges. As another example, the marker as LED lights would have edges defined by the outer LED lights of the LED pattern on the wearable article and/or the edge of the linear strip of LEDs);
receiving, by at least one processing device (Paragraph 0027, “A computing device that is connected either wirelessly or wired to the receiver. The computing device may be remote and the connection to it may include an internet connection. As an example, some image analysis may take place on a wired connected device such as a computer board wired to the receiver. From there, a Bluetooth connection (or a connection of functionally similar technology) may connect to a gateway device that uploads the data to a cloud on the internet, or delivers it to a remote location, for further processing and storage”), the video data from the camera (Paragraph 0027, “The computing device may be remote and the connection to it may include an internet connection. As an example, some image analysis may take place on a wired connected device such as a computer board wired to the receiver. From there, a Bluetooth connection (or a connection of functionally similar technology) may connect to a gateway device that uploads the data to a cloud on the internet, or delivers it to a remote location, for further processing and storage);
searching, by the at least one processing device and using the video data, for the pattern on the wearable article worn over the chest area (Paragraph 0100, wherein the markers are detected and tracked using video. The markers are clustered to connected components using chain clustering, which are then filtered to a priori known features of markers such as their size and/or bounding box size; Examiner interprets identifying the markers, their clusters, and the size/bounding box size as identifying one or more edges of the marker pattern. As the markers are clustered and their features are identified by their size and bounding box size, the edges would inherently be identified as well as the outline (i.e., the size and/or bounding box size) of the marker cluster is identified from the video);
evaluating, by the at least one processing device, information content of the pattern (Paragraph 0038, “The estimate of the actual respiratory rate is taken as a weighted average of the dominant frequencies found from each valid marker. The weighting can be taken proportional to the amplitude of the marker motion and outliers can be iteratively removed if sufficiently far from the average rate computed using the current subset of markers”);
selecting, by the at least one processing device, a local area of the pattern (Paragraph 0100, wherein the markers may not be always fully visible, so a marker may be composed of several disjoint clusters to create a single signature to track; Examiner notes that, since not all markers may be used, a local area is identified by the cluster to track said cluster frame to frame);
monitoring, by the at least one processing device, the respiration by tracking a motion frequency of the local area of the pattern in the video data (Paragraphs 0100-0111, wherein the markers are identified and clustered as above. The clusters are then tracked over the following frames, following the frequency of motion of the major detected markers. The motion can then be filtered to separate breathing from non-breathing motion).
Auerbach fails to explicitly disclose searching for edges in the pattern, evaluating information content of the edges, and selecting an edge in the pattern for identifying a local area of the pattern.
Auerbach and Glazer are in the same field of respiration monitoring. Glazer teaches a garment for monitoring respiration (Abstract). The garment includes a pattern of light and dark pigments, wherein the pattern includes shapes 56 on a band 70 (Figs. 2-4B). A camera is positioned above the user to capture video of the band 70. The pattern on the band 70 is identified and the corners are found, which Glazer defines as the meeting point of two edges, to track user motion (Col 7, lines 21-49). Glazer suggests that, alternatively or additionally, the processing algorithm may identify and track movement of the pattern, not necessarily depending on the corners, but with shapes having no clear corners or by tracking object edges (Col 7, line 63 – Col 8, line 2). The processor further averages the motion of each corner over successive frames to detect periodic motion characteristics of respiration and determine breathing rate (Col 8, lines 3-65; Fig. 5, boxes 86, 88, and 90). As Auerbach is concerned with monitoring motion of the user based on patterns with markers on a wearable garment, Glazer further uses the corners/edges of the shapes of a pattern on a wearable garment to track the motion and determine a breathing rate. The substitution of one known method of monitoring respiration using the motion of the garment as disclosed by Auerbach with the method of monitoring respiration using the motion of the corners/edges of the shapes as taught by Glazer would yield the predictable results of determining a respiration rate to one of ordinary skill in the art. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the pattern of Auerbach with the shape pattern and breathing rate determination as taught by Glazer, and the substitution would yield the predictable results of determining a respiration rate to one of ordinary skill in the art.
Regarding claim 18, the combination of Auerbach and Glazer disclose the method of claim 17. Auerbach further discloses comparing the motion frequency of the local area of the pattern to a frequency range typical for human respiration (Paragraph 0109, wherein, to improve sensitivity, the markers are filtered based on characteristics of their movement, such as remaining static for a long time. For only tracking breathing motion, “non-static markers with a different frequency of motion than the identified breathing markers are filtered”).
Regarding claim 19, the combination of Auerbach and Glazer disclose the method of claim 17. Auerbach further discloses wherein the local area includes a plurality of edges in the pattern (Paragraph 0089, “The markers can be for example patches made from retro-reflective material, geometric patterns on the blanket or nightgown, or low voltage LED lights embedded or attached to clothing or patches”; Paragraph 0090, “Several markers may be incorporated together such as into an adhesive linear strip, or a 3D shape such as a dome shape consisting of scattered markers on its curved surface”; Examiner notes that the clothing, blanket, elastic strap, or bandage is mapped to the wearable article, and the retroreflective material, geometric patterns on the blanket or nightgown, or low voltage LED lights embedded or attach to clothing or patches maps to the pattern having one or more edges. As such, Auerbach teaches a wearable articles having a pattern. The pattern would necessarily have an edge. For example, the retroreflective material or geometric patterns would include an area of the clothing defined by its edges. As another example, the marker as LED lights would have edges defined by the outer LED lights of the LED pattern on the wearable article and/or the edge of the linear strip of LEDs).
Regarding claim 20, the combination of Auerbach and Glazer disclose the method of claim 17. Auerbach further discloses wherein when a quality of the information content from the local area degrades, performing a local mask on the pattern to identify a new local area for monitoring the respiration (Paragraphs 0100-0109, wherein some markers do not appear in each frame (“flashing”), and an analysis is carried out to search for frames that includes markers consistently. The clusters are tracked between frames, and, if not successful, reinitializes until all detected markers can be determined in each frame).
Regarding claim 21, the combination of Auerbach and Glazer disclose the system of claim 8. Auerbach further discloses searching for the pattern (Paragraph 0100, wherein the markers are detected and tracked using video. The markers are clustered to connected components using chain clustering, which are then filtered to a priori known features of markers such as their size and/or bounding box size; Examiner interprets identifying the markers, their clusters, and the size/bounding box size as identifying one or more edges of the marker pattern. As the markers are clustered and their features are identified by their size and bounding box size, the edges would inherently be identified as well as the outline (i.e., the size and/or bounding box size) of the marker cluster is identified from the video), evaluating information content of the pattern (Paragraph 0038, “The estimate of the actual respiratory rate is taken as a weighted average of the dominant frequencies found from each valid marker. The weighting can be taken proportional to the amplitude of the marker motion and outliers can be iteratively removed if sufficiently far from the average rate computed using the current subset of markers”), and selecting a pattern for identifying a local area of the pattern to be tracked (Paragraph 0100, wherein the markers may not be always fully visible, so a marker may be composed of several disjoint clusters to create a single signature to track; Examiner notes that, since not all markers may be used, a local area is identified by the cluster to track said cluster frame to frame).
The combination of Auerbach and Glazer, as described above, further discloses tracking the identifying, evaluating, and selecting one or more edges of a pattern of shapes to determine respiration rate (Glazer: The garment includes a pattern of light and dark pigments, wherein the pattern includes shapes 56 on a band 70 (Figs. 2-4B). A camera is positioned above the user to capture video of the band 70. The pattern on the band 70 is identified and the corners are found, which Glazer defines as the meeting point of two edges, to track user motion (Col 7, lines 21-49). Glazer suggests that, alternatively or additionally, the processing algorithm may identify and track movement of the pattern, not necessarily depending on the corners, but with shapes having no clear corners or by tracking object edges (Col 7, line 63 – Col 8, line 2). The processor further averages the motion of each corner over successive frames to detect periodic motion characteristics of respiration and determine breathing rate (Col 8, lines 3-65; Fig. 5, boxes 86, 88, and 90)).
Regarding claim 22, the combination of Auerbach and Glazer disclose the system of claim 21. Auerbach further discloses comparing the frequency of motion of the local area of the pattern to a frequency range typical for human respiration (Paragraph 0109, wherein, to improve sensitivity, the markers are filtered based on characteristics of their movement, such as remaining static for a long time. For only tracking breathing motion, “non-static markers with a different frequency of motion than the identified breathing markers are filtered”).
Regarding claim 23, the combination of Auerbach and Glazer disclose the system of claim 21. Auerbach further discloses wherein the local area of the pattern includes a plurality of edges of the pattern (Fig. 6, depicting a marker assembly 601 located on fabric 603 of a subject’s clothing; Paragraph 0089, “Markers are applied either directly to the subject's body or integrated to a covering of the subject such as his clothing, his blanket, an elastic strap, or a bandage for example. The markers can be for example patches made from retro-reflective material, geometric patterns on the blanket or nightgown, or low voltage LED lights embedded or attached to clothing or patches”; Paragraph 0090, “Several markers may be incorporated together such as into an adhesive linear strip, or a 3D shape such as a dome shape consisting of scattered markers on its curved surface”; Examiner notes that the pattern would necessarily have at least two edges. For example, the retroreflective material or geometric patterns would include an area of the clothing defined by its edges. As another example, the marker as LED lights would have edges defined by the outer LED lights of the LED pattern on the wearable article and/or the edge of the linear strip of LEDs).
Glazer further discloses, as discussed above, tracking motion of the plurality of edges to determine the respiration rate (Figs. 2-4B, The pattern on the band 70 is identified and the corners are found, which Glazer defines as the meeting point of two edges, to track user motion (Col 7, lines 21-49). Glazer suggests that, alternatively or additionally, the processing algorithm may identify and track movement of the pattern, not necessarily depending on the corners, but with shapes having no clear corners or by tracking object edges (Col 7, line 63 – Col 8, line 2). The processor further averages the motion of each corner over successive frames to detect periodic motion characteristics of respiration and determine breathing rate (Col 8, lines 3-65; Fig. 5, boxes 86, 88, and 90)).
Regarding claim 24, the combination of Auerbach and Glazer disclose the system of claim 21. Auerbach further discloses identifying a basepoint associated with the local area of the pattern and determine motion of the local area relative to the basepoint (Paragraph 0105, wherein tracking is carried out relative to a reference frame. The reference frame may be defined by illumination conditions, wherein the total intensity change of a marker cluster relative to the same marker in the reference frame; Examiner interprets the marker/marker cluster to be the “basepoint” that is tracked; Paragraph 0109, Auerbach further discloses that, when one is concerned with tracking breathing motion, non-static markers with a different frequency of motion are filtered. Thus, the unfiltered “breathing markers” are identified for determining motion).
Regarding claim 25, the combination of Auerbach and Glazer disclose the system of claim 21. Auerbach further discloses identifying, when a quality of information content from the local area degrades, a new local area of the pattern for monitoring respiration (Paragraph 0100, wherein the markers may not be always fully visible, so a marker may be composed of several disjoint clusters to create a single signature to track; Paragraph 0101, if the tracing was not successful for all detected markers, the detection is reinitialized on the new current frame; Examiner interprets the reinitialization as identifying a new local area when the previous local area is not fully tracked, i.e., the quality of the local area degrades since not all markers are present).
Regarding claim 26, the combination of Auerbach and Glazer disclose the method of claim 17. Auerbach further discloses identifying, by the at least one processing device, a basepoint associated with the local area of the pattern, and determining motion of the local area relative to the basepoint (Paragraph 0105, wherein tracking is carried out relative to a reference frame. The reference frame may be defined by illumination conditions, wherein the total intensity change of a marker cluster relative to the same marker in the reference frame; Examiner interprets the marker/marker cluster to be the “basepoint” that is tracked; Paragraph 0109, Auerbach further discloses that, when one is concerned with tracking breathing motion, non-static markers with a different frequency of motion are filtered. Thus, the unfiltered “breathing markers” are identified for determining motion).
Regarding claim 27, the combination of Auerbach and Glazer disclose the method of claim 17. Auerbach further discloses filtering, by the at least one processing device, one or more detected motion frequencies to identify a motion frequency corresponding to respiration (Paragraphs 0100-0111, wherein the markers are identified and clustered as above. The clusters are then tracked over the following frames, following the frequency of motion of the major detected markers. The motion can then be filtered to separate breathing from non-breathing motion).
Regarding claim 28, the combination of Auerbach and Glazer disclose the method of claim 17. Auerbach further discloses wherein monitoring the respiration by tracking the motion frequency of the local area of the pattern includes monitoring respiration when the chest area of the patient is covered by clothing or a blanket (Paragraph 0089, “The markers can be for example patches made from retro-reflective material, geometric patterns on the blanket or nightgown, or low voltage LED lights embedded or attached to clothing or patches”; Fig. 12, the markers displayed on the chest area of the patient).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Auerbach (US 20160235344) and Glazer (US 10874332) as applied to claim 9 above, and further in view of Dubielczyk (US 20140243648).
Regarding claim 11, the combination of Auerbach and Glazer disclose the system of claim 9 above. Auerbach further discloses that the markers may be made out of reflective material as described above, or LEDS (Paragraph 0087). However, the combination fails to explicitly disclose wherein the pattern includes a luminescent material. Per Applicant’s specification (Paragraph 0061), a luminescent material is interpreted as a material containing a luminescent dye that is visible in the dark.
Auerbach, Glazer, and Dubielczyk are in the same field of wearable garments. Dubielczyk teaches a system for determining vital sign information of a subject, wherein a marker is placed on the subject (Fig. 1, marker 10/10’). The marker may contain a graphical pattern made of fluorescent or luminescent material, which is readable in a dark environment (Paragraph 0034). As Auerbach and Glazer are concerned with measuring the respiration rate of a subject on a bed, it would be beneficial to include a luminescent material to be able to take measurements in a dark environment. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Auerbach and Glazer to incorporate the luminescent material of Dubielczyk in order to take measurements while in a dark environment.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Auerbach (US 20160235344) and Glazer (US 10874332) as applied to claim 12 above, and further in view of Bresch (US 9943371).
Regarding claim 13, the combination of Auerbach and Glazer disclose the system of claim 9 above. Auerbach further discloses multiple markers as described above. Auerbach discusses that markers may be LEDs that emit color for detection by the camera (Paragraph 0087). However, the combination fails to disclose a marker with a machine-readable label.
Auerbach, Glazer, and Bresch are in the same field of respiration monitoring. Bresch teaches a system for measuring vital signs such as respiratory rate, wherein video using an imaging unit 2 is taken of a subject 100 wearing a marker 10 attached to the body (Fig. 1). The marker 10 comprises a graphical pattern 11 which includes a QR-code 17 (Fig. 2) and/or a barcode 21 (Fig. 3), which is used to identify the orientation / location of the pattern (Col 8, line 63 – Col 9, line 7) and patient-specific data (Col 9, lines 15-20). As Auerbach and Glazer are concerned with measuring respiration from subjects using markers, it would be beneficial to include a machine-readable label, such as QR-codes or barcodes as taught by Bresch, to track orientation/location and patient-specific data to improve motion tracking and overall patient data analysis. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Auerbach and Glazer to incorporate the machine-readable labels as taught by Bresch to improve motion tracking and patient analysis.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Auerbach (US 20160235344), Glazer (US 10874332), and Bresch (US 9943371) as applied to claim 13 above, and further in view of Zeng et. al. (“Bio-inspired sensitive and reversible mechanochromisms via strain-dependent cracks and folds”).
Regarding claim 14, the combination of Auerbach, Glazer, and Bresch disclose the system of claim 13 above. The combination fails to disclose wherein the second marker changes in color or opacity when the wearable article deforms during respiration.
Auerbach, Glazer, Bresch, and Zeng are in the same field of respiration monitoring. Zeng teaches mechanochromic devices that change transparency and/or color in response to mechanical stimuli (Page 2, paragraph 1; Fig. 4b). As Auerbach, Glazer, and Bresch are concerned with tracking the motion and movement of markers placed on a patient, it would be beneficial to include a mechanochromic device, such as the device taught by Zeng, as the marker(s) would necessarily change color/transparency with the inhalation/exhalation movement made by the patient. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the marker of Auerbach, Glazer, and Bresch to incorporate the mechanochromic device as taught by Zeng to track a change in color of the marker as the patient moves through inhalation and exhalation.
Response to Arguments
Applicant’s arguments, see page 6, filed 08/05/2026, with respect to the claim objections have been fully considered and are persuasive. Applicant has amended claim 8 per the suggestion of the Examiner. The objection of the claim has been withdrawn.
Applicant’s arguments, see page 6, filed 08/05/2026, with respect to the 35 U.S.C. §112(b) rejections have been fully considered and are persuasive. Applicant has amended claim 8 to recite that a camera is configured to capture video data of the wearable article having a pattern with one or more edges. The processing device receives the video to identify the edges and track motion to determine a respiration rate. Applicant has canceled claim 16, therefore this rejection is moot. Lastly, Applicant has amended claim 17 to clarify the structure capable of performing the method. The rejection of the claims has been withdrawn.
Applicant’s arguments, see pages 7-12, filed 08/05/2026, with respect to the rejection(s) of claim(s) 8-20 under 35 U.S.C. §101 have been fully considered but are not persuasive.
Applicant argues that claims 8 and 17 do not recite a process that can practically be performed in the human mind. Examiner respectfully disagrees.
The steps of capturing video data and receiving the video data from a camera are directed towards extra-solution activity using generic data gathering components. The abstract idea includes the steps of identifying one or more edges of the pattern on the wearable article from the video data, searching for edges in the pattern, evaluating information content of the edges, selecting an edge in the pattern for identifying a local area, and tracking a frequency of motion of the one or more edges. This abstract idea is directed towards mental processes as one of ordinary skill in the art would be capable of performing these steps in the human mind, with the aid of pen and paper or a generic computer. One of ordinary skill could reasonably review video data captured from generic data gathering components, i.e., the camera, and determine a respiration rate based on movement of edges of a pattern on a wearable article. The claims merely require receiving the video data from the camera, tracking/searching for an edge of a pattern, and monitoring/determining a respiration rate therefrom. Thus, the claims do recite a judicial exception as they are directed towards mental processes.
Applicant further argues that the claims are directed towards an improvement to the function of the monitoring system. Applicant alleges that the improvement is the wearable article having trackable visual features and a camera for tracking those features, as it requires less complex processing for determining respiration rate. Examiner respectfully disagrees. The wearable article is not positively recited in independent claim 8 and 17, the claims merely require capturing video from the wearable article to track one or more edges. Further, as disclosed by Auerbach and Glazer above with respect to the 101 rejection, wearable articles having trackable features and a camera for tracking those features are well-known, routine, and conventional activities. That is, this arrangement of a camera and wearable article is disclosed in the art. Thus, the claims are not directed towards an improvement.
Additionally, the improvement cannot rely solely within the judicial exception. That is, the judicial exception alone cannot provide the improvement. Applicant asserts that the improvement of the method is the way the system obtains the respiration rate through a pattern on a wearable article and corresponding camera-based edge tracking. However, the abstract idea itself is not an improvement in the technology (see MPEP 2106.05(a)).
Lastly, Applicant states that the subject matter improves the quality and reliability of respiration monitoring through filters, identifying and tracking motion with the region from a basepoint, and reducing body noise. Examiner notes that the claims do not recite reducing noise. The other examples the Applicant provides, as described above with respect to the 101 rejection, are directed towards mathematical concepts and mental processes, i.e., the abstract idea.
Further, as disclosed by Auerbach and Glazer, the arrangement of a camera tracking video of a pattern and/or edge of a wearable article is a well-known, routine, and conventional activity. As such, this type of contactless monitoring is not an improvement over the art.
Lastly, Applicant argues that the claims recite a specific combination of elements configured for camera-based respiration monitoring. As disclosed by the Applicant described above with respect to the 101 rejection, the camera is a generic data-gathering device as the camera is merely defined as a device to capture video data. Further, the combination of elements is well-known, routine, and conventional, as described above in the 101 rejection with respect to the disclosure by Auerbach and Glazer. Both Auerbach and Glazer disclose camera-based respiration monitoring systems that include a wearable article having trackable features for respiration monitoring.
Therefore, the rejection is maintained. The rejection above has been updated to reflect the amendments to the claims.
Applicant’s arguments, see pages 12-14, filed 08/05/2026, with respect to the rejection(s) of claim(s) 8-20 under 35 U.S.C. §102(a)(1) and 35 U.S.C. §103 have been fully considered and are persuasive. Examiner agrees with Applicant’s arguments that Auerbach does not teach identifying edges of a pattern on a wearable article to determine a respiration rate. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made over Auerbach in view of Glazer, as described above. The rejections above have been updated to reflect the amendments to the claims.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/NOAH M HEALY/Examiner, Art Unit 3791
/ADAM J EISEMAN/Primary Examiner, Art Unit 3791
