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 .
Election/Restrictions
In the Restriction Requirement mailed on December 10, 2025 ("Restriction Requirement"), the Examiner required restriction to one of the following inventions under 35 U.S.C. 121:
I. Claims 1-8, drawn to a wearable device worn in an ear of a user, classified in A61B5/6817
II. Claims 9-14, drawn to a method of authenticating a user based on biofeedback and environmental information, classified in G06F21/32.
III. Claims 15-20, drawn to a non-transitory computer readable medium including one or more processors that control a system based on biofeedback and environmental information, classified in H04W12/60.
Applicant's election with traverse of Invention III, claims 15-20, in the reply filed on February 2, 2026 ("Reply"), is acknowledged. The traversal is on the ground(s) that each of Inventions I, II, and III involve biofeedback determined from biometric information collected from a biometric sensor and an environmental condition determined from environmental information collected from an environmental sensor of an ear wearable device such that the three inventions encompass substantially overlapping scope without requiring different fields of search and thus do not impose a serious search or examination burden. Applicant also takes the position that search references found in relation to one invention "may shed light" on limitations from the other inventions. The Examiner disagrees that the restriction issued on December 10, 2025 is improper.
Initially, the Examiner repeats the reasons for restriction set forth on pages 2-4 of the Restriction requirement.
In relation to Applicant's position that the three inventions encompass substantially overlapping scope without requiring different fields of search and thus do not impose a serious search or examination burden, the Examiner disagrees. Not only do each of independent claims 1, 9, and 15 of inventions I, II, and III include limitations other than those mentioned above by Applicant, but the dependent claims of inventions I, II, and III also include limitations other than those mentioned above by Applicant, which would require different classifications and term queries to search each of the respective inventions leading to a serious search or examination burden to search all three inventions in the present application.
Furthermore, the Examiner is unaware of any controlling authority requiring a restriction requirement to be withdrawn when search references found in relation to one invention may generally "shed light" on limitations from the other inventions, especially when the inventions each include various other limitations not found in the other limitations that would require different search queries and classifications to search each of the respective inventions.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-14 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. Applicant timely traversed the restriction (election) requirement in the Reply.
Specification
The disclosure is objected to because of the following informalities: In [0001], the first line, it appears that "continuation" should be changed to --continuation-in-part-- consistent with the ADS filed March 5, 2024, and the filing receipt dated April 16, 2024.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 15-17 and 20 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by U.S. Patent App. Pub. No. 2015/0073907 to Purves et al. ("Purves"):
Regarding claim 15, Purves discloses a non-transitory computer readable medium storing instructions operable to cause one or more processors ([0381] and Figure 44 discuss/illustrate memory storing instructions and processor(s)) to perform operations comprising:
receiving biometric information collected from a biometric sensor of a wearable device ([0063]-[0064] and Figure 1b discuss/illustrate biometric sensor(s) of wearable device collecting biometric information (e.g., heart rate, brain activity, eye patterns, etc.) of the user) worn in an ear of a user ([0061] discloses how the wearable device can be placed into the wearer's ears);
receiving environmental information collected from an environmental sensor of the wearable device ([0063]-[0064] and Figure 1b discuss/illustrate environmental sensor(s) of wearable device collecting environmental information (e.g., temperature, humidity, location, etc.) of the user); and
controlling a system, via the wearable device, based on biofeedback determined from the biometric information and an environmental condition determined from the environmental information ([0069]-[0072] discusses controlling a merchant system to take one or more actions (e.g., increase AC output, transmit coupon for drink, inform merchant agent to help at cash register, etc.) based on biometric information (e.g., biometric values exceeding some threshold or behaving in a particular pattern ("biofeedback") and environmental information (e.g., temperature/humidity rising to a particular level ("environmental condition") from the wearable device).
Regarding claim 16, Purves discloses the non-transitory computer readable medium storing instructions of claim 15, further including wherein controlling the system includes retrieving search results (Figures 1C-2, 1C-3 and [0074]-[0076] illustrate/discuss searching for and pushing relevant offers ("search results") to the wearable device based on biological reactions ("biofeedback") sensed by the sensors and user location at particular stores and/or in particular sections of a store (which is determined by GPS sensor and is an "environmental condition")).
Regarding claim 17, Purves discloses the non-transitory computer readable medium storing instructions of claim 15, further including wherein controlling the system includes performing a mobile commerce transaction ([0337] and [0339] discuss facilitating a purchase order transmission ("mobile commerce transaction") based on GPS location/environmental context of the user (e.g., in store, doctor's office, etc. which is an "environmental condition") and biometric information of the user to confirm authenticity of the user (which is "biofeedback")).
Regarding claim 20, Purves discloses the non-transitory computer readable medium storing instructions of claim 15, further including authenticating the user, before controlling the system, based on the biofeedback and the environmental condition correlating with a multimodal profile ([0077] discloses authenticating the user based on submitted biological information matching the record of the wallet holder ("biofeedback" which would be determined based on biometric sensor(s) as noted previously) and the transaction originating from a particular location ("environmental condition" which would be determined based on a GPS location/sensor as noted previously) for fraud prevention as part of a mobile wallet payment, where the authentication would occur before "controlling the system" to approve the mobile wallet payment, and where the location and biological information of the user to which the sensed location and biological information is compared amounts to a "multimodal profile" because it is a collection of information associated with the user that facilitates authentication/authorization of the user).
Claims 15 and 18 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by U.S. Patent App. Pub. No. 2017/0119314 to Just et al. ("Just"):
Regarding claim 15, Just discloses a non-transitory computer readable medium storing instructions operable to cause one or more processors to perform operations (memory 208 including algorithm/instructions and processor(s) 204 in wearable system 200 of Figure 20 and [0155]) comprising:
receiving biometric information collected from a biometric sensor ([0155]-[0176] and Figure 20 discuss/illustrate biometric/physiological sensors 202 collecting biometric/physiological signals ) of a wearable device worn in an ear of a user ([0157] discloses how the wearable system can be embedded in an earbud/headset);
receiving environmental information collected from an environmental sensor of the wearable device ([0155], [0157], [0172]-[0175] disclose how the wearable can include environmental sensors 202 collecting environmental information); and
controlling a system, via the wearable device, based on biofeedback determined from the biometric information and an environmental condition determined from the environmental information ([0175] discloses how wearable system 200 can analyze biometric sensor data such as vital signs (biofeedback) and light exposure from light exposure sensor 202 (environmental condition determined from environmental information) and then trigger (control) one or more lights/lighting systems to realize the subject's optimum light exposure).
Regarding claim 18, Just discloses the non-transitory computer readable medium storing instructions of claim 15, further including wherein controlling the system includes sending a command to at least one of turn on a light or open a garage door ([0175] discusses triggering lights/lighting systems (turning them on)).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2015/0073907 to Purves et al. ("Purves") in view of U.S. Patent App. Pub. No. 2009/0010456 to Goldstein et al. ("Goldstein"):
Regarding claim 19, Purves discloses the non-transitory computer readable medium storing instructions of claim 15, further including correlating a voice of the user, picked up by the environmental sensor ([0061], [0277], [0304], [0323] disclose how a microphone (another "environmental sensor") of the wearable device can detect the user's voice to facilitate voice control), …
However, Purves appears to be silent regarding such voice of the user being correlated with bone conduction of the user picked up by the biometric sensor.
Nevertheless, Goldstein teaches (Figures 1-2, [0007]-[0008], [0031]-[0033], [0037], [0049]-[0051]) that it was known in the voice recognition and control art to correlate/mix a voice of the user picked up by an ambient sound (environmental) microphone 111 with internal sound waves generated via bone conduction captured by an ear canal microphone 123 (biometric sensor) to advantageously isolate the user's voice from one or more other voices in the user's proximity thereby facilitating voice control of one or more systems ([0003]-[0005]).
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 correlated the voice of the user picked up by the environmental system in the system of Purves with bone conduction of the user picked up by the biometric sensor as taught by Goldstein to advantageously isolate the user's voice from one or more other voices in the user's proximity thereby facilitating voice control of one or more systems. A person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention and there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. Id.
Statement Regarding Subject-Matter Eligibility
When currently pending claims 15-20 are considered in view of the 2019 Revised Patent Subject Matter Eligibility Guidance (which collectively includes the guidance in the January 7, 2019 Federal Register notice and the October 2019 update issued by the USPTO as now incorporated into the MPEP, and as supported by relevant case law), the claims are patent eligible under 35 USC 101.
For instance, while some of the limitations of independent claim 15 may be based on mathematical concepts, the mathematical concepts are not recited in the claims. Further, independent claim 15 does not recite a mental process because the steps are not practically performable in the human mind (e.g., in relation to receiving biometric/environmental information from an ear wearable device and controlling a system via the wearable device based on an environmental condition from the environmental information and biofeedback from the biometric information from independent claim 15). Finally, the independent claim 15 does not recite any method of organizing human activity such as a fundamental economic concept or managing interactions between people such as social activities, teaching, or following rules or instructions. Thus, the claim is eligible because it does not recite a judicial exception.
Even if generally receiving biometric/environmental information and controlling a system recited an abstract idea, use of the ear wearable device to collect the biometric/environmental information and control the system amounts to application/use of a "particular machine" under MPEP 2106.05(b) such that it provides a "practical application" of or "significantly more" than the abstract idea.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHON A. SZUMNY whose telephone number is (303) 297-4376. The examiner can normally be reached Monday-Friday 7-5.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jason Dunham, can be reached at 571-272-8109. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JONATHON A. SZUMNY/ Primary Examiner, Art Unit 3686