DETAILED ACTION
Applicant has elected the invention of Group II, encompassing claims 8-20, in the reply filed 04/08/2026. Thus, claims 8-20 are pending and hereby under examination.
Election/Restrictions
Claim 1-7 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 04/08/2026.
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 Objections
Claim 8 is objected to because of the following informalities:
Claim 8, line 6, “wearable device” should read “wearable article” for proper antecedent basis with line 5.
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 8-20 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.
Regarding claim 8, the claim is directed towards identifying edges on a wearable article, and tracking motion of the one or more edges on the wearable device to determine a respiration rate. However, it is unclear how the processing device identifies edges. What kind of data does the processing device receive in order to track the motion? Is there a wearable sensor or a camera providing the processing data with data to identify and process data to determine a respiration rate? For examination purposes, the processing device will be interpreted as any processor or controller. The claim will be interpreted such that video data is transmitted to the processor for the steps of identifying edges and tracking motion for respiration rate determination. Claims 9-16 are also rejected due to their dependence on claim 8.
Regarding claim 16, it is unclear if two steps of determining a respiration rate is required to meet the claim. Does claim 16 cover an alternative method of measuring respiration rate, which does not include identifying and tracking edges of a wearable article? Does the tracking deformation of the structured light happen in addition to the tracking of the edges, and two respiration rates are measured? For examination purposes, only one respiration rate will be required to meet the claim. However, Applicant should clarify the relationship between the step of tracking the edges of a wearable article to determine a respiration rate in claim 8, and the tracking deformation of structured light to determine a respiration rate in claim 16.
Regarding claims 17-20, the claims are directed towards a method for monitoring respiration. However, there is no recitation of any structure capable of performing the method. Thus, it is unclear how the method is performed. For examination purposes, the claim will be interpreted such that a processor performs the analysis from a video or images containing the pattern on an article worn over a chest area.
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 8-20 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 on a wearable article (claim 8);
track a frequency of motion of the one or more edges on the wearable device to determine a respiration rate (claim 8);
searching for edges in a pattern on an article worn over a 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 (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 on a wearable article” 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 identify one or more edges on a worn article. There is nothing to suggest an undue level of complexity in “identify one or more edges on a wearable article”.
“track a frequency of motion of the one or more edges on the wearable device 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/image 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 device to determine a respiration rate”.
“searching for edges in a pattern on an article worn over a 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/image 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 a pattern on an article worn over a 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/image data and evaluate some information about the edges. 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/image 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., “processing device” (claim 8), “computer readable data storage device" (claim 8), “wearable article” (claims 8), and “an article” (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”.
Further, "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”.
Lastly, a “wearable article” or an “article” do not qualify as significantly more because this limitation is 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 the dependent claims:
Claims 9-16 and 18-20 depend from the independent claims. Dependent claims 9-16 and 18-20 merely further define the abstract idea and are, therefore, directed to an abstract idea for similar reasons: they merely
Further describe the abstract idea (“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), and “process the data tracking deformation of the structured light on the chest area to determine a respiration rate of the patient” (claim 16)),
Further describe the pre-solution activity (“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), “a light projector that projects a structured light onto a chest area; and a camera that captures data tracking deformation of the structured light on the chest area due to expansion and contraction of a chest cavity from breathing” (claim 16), “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), “wherein the local area includes a plurality of edges in the pattern” (claim 19), and “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)).
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 8-20 are rejected as being directed to non-statutory subject matter.
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.
Claims 8-10, 12, 15, and 17-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Auerbach (US 20160235344 – cited by Applicant).
Regarding claim 8, Auerbach teaches a system for monitoring respiration, the system comprising:
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:
identify one or more edges on a wearable article (Paragraph 0044, “The thoracic cylinder and abdominal one have different mean radii which can be approximated from the image by using edge detection on the image to find the body edges, at one or more body positions. The known physical marker size can be used to convert these measurements to physical units. During runtime, the marker displacements and the angle of the camera are used to calculate tidal volumes through the model”; Fig. 6, depicting a marker assembly 601 located on fabric 603 of a subject’s clothing; Examiner notes that by identifying the markers worn by the subject, Auerbach inherently teaches identifying the edges of the worn article); and
track a frequency of motion of the one or more edges on the wearable device to determine a respiration rate (Paragraphs 0036-0037, “In the following, methods for extracting a number of respiratory properties from the video sensed markers are outlined: 1. Respiratory Rate: The respiratory rate is extracted by first extracting the dominant frequency from each marker separately and then fusing these estimates together in some way”; Paragraph 0041, “3. Inhale time, Exhale time: For each marker displacement trace, the time evolved between a peak and the following trough can be used as a measure of the inhale or exhale time, depending on the marker location”).
Regarding claim 9, Auerbach further teaches 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, Auerbach further teaches 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, Auerbach further teaches 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, Auerbach further teaches 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 teaches a method of monitoring respiration, the method comprising:
searching for edges in a pattern on an article worn over a chest area (Paragraph 0044, “The thoracic cylinder and abdominal one have different mean radii which can be approximated from the image by using edge detection on the image to find the body edges, at one or more body positions. The known physical marker size can be used to convert these measurements to physical units. During runtime, the marker displacements and the angle of the camera are used to calculate tidal volumes through the model”; Fig. 6, depicting a marker assembly 601 located on fabric 603 of a subject’s clothing; Paragraph 0038, wherein the chest movements are examined; Examiner notes that by identifying the markers worn by the subject, Auerbach inherently teaches identifying the edges of the worn article);
evaluating information content of the edges (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 an edge in the pattern for identifying 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, not all markers may be used; thus, a local area is identified within the marker); and
monitoring the respiration by tracking a motion frequency of the local area of the pattern (Paragraph 0036, “The respiratory rate is extracted by first extracting the dominant frequency from each marker separately and then fusing these estimates together in some way”; Paragraph 0111, “For each marker that is detected or tracked in a frame, its center of mass image coordinates are calculated by averaging the locations of the pixels in its cluster. The raw data of positions is processed further in order to reduce noise due to the measurement systems and subject motion. Furthermore the resulting motion can be classified as breathing or non-breathing motion”).
Regarding claim 18, Auerbach further teaches 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 (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, Auerbach further teaches wherein the local area includes a plurality of edges in the pattern (Paragraph 0100, wherein the cluster may include multiple markers; thus, the cluster includes multiple edges).
Regarding claim 20, Auerbach further teaches 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).
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.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Auerbach as applied to claim 9 above, and further in view of Dubielczyk (US 20140243648).
Regarding claim 11, Auerbach discloses that the markers may be made out of reflective material as described above, or LEDS (Paragraph 0087). However, Auerbach fails to teach 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.
However, 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 is 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 to incorporate the luminescent material of Dubielczyk in order to take measurements while in a dark environment.
Claims 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Auerbach as applied to claim 12 above, and further in view of Bresch (US 9943371 – cited by Applicant) and Zeng et. al. (“Bio-inspired sensitive and reversible mechanochromisms via strain-dependent cracks and folds” – cited by Applicant).
Regarding claims 13-14, Auerbach teaches multiple markers as described above. Auerbach discusses that markers may be LEDs that emit color for detection by the camera (Paragraph 0087). However, Auerbach fails to disclose a marker with a machine-readable label and a change in properties of a marker, wherein the change is a change in color or opacity.
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), patient-specific data (Col 9, lines 15-20). As Auerbach is 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 to incorporate the machine-readable labels as taught by Bresch to improve motion tracking and patient analysis.
Further, Zeng teaches mechanochromic devices that change transparency and/or color in response to mechanical stimuli (Page 2, paragraph 1; Fig. 4b). As Auerbach is 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 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.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Auerbach as applied to claim 8 above, and further in view of Koninklijke (EP 2380493).
Regarding claim 16, Auerbach discloses a video camera to track wearable articles on a chest to determine respiration rates, as described above. Auerbach fails to disclose a light projector that projects light onto the chest, tracking deformation of the light, and determining respiration from the light deformation.
However, Koninklijke teaches a respiratory motion detection apparatus, wherein an illuminator 3 illuminates the person 2 (Fig. 1), the camera 4 detects the illumination pattern deformation over time, and the respiration rate is calculated from the deformations (Paragraphs 0042-0044; Paragraph 0059). As Auerbach is concerned with measuring movement of patterns worn by a subject to determine a respiration rate, Koninklijke uses a similar method to determine respiration rate using light as the marker. 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 and video camera system taught by Auerbach to incorporate the illuminator system taught by Koninklijke to measure light pattern deformations to yield the predictable result of measuring respiration to one of ordinary skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NOAH MICHAEL HEALY whose telephone number is (703)756-5534. The examiner can normally be reached Monday - Friday 8:30am - 5:30pm ET.
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/NOAH M HEALY/Examiner, Art Unit 3791
/JASON M SIMS/Supervisory Patent Examiner, Art Unit 3791
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