DETAILED ACTION
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 .
Response to Arguments
Applicant’s arguments, see pg. 6, filed 06/17/2026, with respect to the double patenting rejection of claims 1-20 have been fully considered. Applicant has agreed to file a terminal disclaimer upon indication of allowability of at least one independent claim (see pg. 6). Since no terminal disclaimer was included with the response filed 06/17/2026, the double patenting rejection has been modified in view of the current claim amendments.
Applicant’s arguments, see pg. 8, filed 06/17/2026, with respect to the 35 USC 102/103 rejection, specifically relating to Shen disclosing evaluating metabolic fitness have been fully considered but are not persuasive. The examiner agrees that Shen discloses evaluating an individual’s physical fitness (see [0068]). Applicant argues that metabolic fitness (as claimed in instant application) is different from physical fitness. The examiner disagrees. Shen discloses in [0027] (emphasis added):
Lactate clearance rates may be representative of an individual's fitness level. Faster clearance following an intense bout of exercise may indicate that whole body lactate utilization is improved, which may be one indicator of an individual's physical fitness. Since blood lactate levels represent a balance of production and clearance, an improved lactate clearance rate may either reduce lactate for a given exertion level, or enable a greater sustainable glycolytic contribution to exercise before the onset of fatigue, which may be characterized by unsustainable lactate levels. If several exercise events (intervals) are being conducted, one may measure the time it takes from the start of one or more of the intervals to achieve intermediate peak lactate values, thus indicating the changes occurring in the rates of overall lactate production and metabolic utilization.
Shen teaches that lactate thresholds can be analyzed to provide an indicator of physical fitness. Metabolic fitness can be broadly defined as the efficiency of an individual’s metabolism. Shen is focused on analyzing lactate thresholds and lactate clearance rates, as in the instant application. Therefore, Shen’s “physical fitness” is equivalent to the instant application’s “metabolic fitness”, since both relate to lactate thresholds and clearance.
Applicant’s arguments, see pg. 7-10, with respect to the 35 USC 102 and 103 rejections of claims 1-20, have been fully considered. The amendments to independent claim 1 to include the added limitations overcomes the rejection detailed in the non-final filed 03/17/2026. Since independent claim 1 was amended to include new limitations, new grounds of rejection are warranted for independent claim 1 and dependent claims 2-4, 7-9, 11-12, 14-17, 19-23. See prior art rejections below.
Claim Objections
Claim 1 is objected to because of the following informalities: “memories” (line 7) should be changed to “non-transitory computer storage memories”. 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 21-22 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.
The term “rapidly” in claims 21-22 is a relative term which renders the claim indefinite. The term “rapidly” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear how large the rate of change should be to be become sufficiently “rapidly positive”.
The term “near zero” in claims 21-22 is a relative term which renders the claim indefinite. The term “near zero” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what values would be considered to be “near zero”; for example, less than one, less than 10, etc.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-4, 7-9, 11-12, 14-17, 19-23 are rejected under 35 U.S.C 101 because the claimed invention is directed to non-statutory subject matter of abstract ideas under the mental processes grouping, without significantly more.
The framework for establishing a prima facie case of lack of subject matter eligibility requires that the Examiner determine: (1) Does the claim fall within the four categories of patent eligible subject matter; (2a) Prong 1: Does the claim recite an abstract idea, law of nature, or natural phenomenon and (2a) Prong 2: Does the claim recite additional elements that integrate the judicial exception into a practical application; and (2b) Does the claim recite additional elements that amount of significantly more than the judicial exception.
Step (1)
The claimed invention in claims 1-4, 7-9, 11-12, 14-17, 19-23 are directed to a system, and thus, the claims all fall under one of the four patent eligible categories.
Step (2a) Prong 1 (Judicial Exception)
Regarding claims 1-4, 7-9, 11-12, 14-17, 19-23, the recited steps are directed towards mental processes of performing concepts in a human mind or by a human using a pen and paper (See MPEP 2106.04(a)(2) subsection (III)).
Independent claim 1 recites:
determine at least one of an exercise intensity or a time in the first exercise session at which the host reaches a lactate threshold meeting predefined criteria;
correlate one or more of the exercise intensity, the time, or the lactate threshold of the lactate measurements with a metabolic fitness level for the host, wherein the correlating is based on a relationship among two or more of the exercise intensity, the time, and the lactate threshold; and
classify the host according to the metabolic fitness level based on the correlation.
Under the broadest reasonable interpretation, these limitations require determining an exercise intensity/time when a lactate threshold is reached, correlating this with a host’s metabolic fitness level, and classifying the host based on the correlation. These limitations are processes that, as drafted, cover that which can be wholly performed in a person’s mind via a series of mental observations and judgements. In particular, a person can determine how metabolically fit a person is by observing the lactate threshold timing/corresponding exercise intensity. These are data gathering and processing steps (determine, correlate, classify) that reflect mental processes.
Accordingly, claim 1 is directed to a judicial exception including one or more abstract ideas, specifically mental processes.
Independent claims 1 recite the corresponding apparatus associated with the system/method, including a continuous analyte sensor, sensor electronics module, memory, and processor. Under the broadest reasonable interpretation, these claims also recite a judicial exception including one or more abstract ideas under the mental processes bucket.
The additional limitations in dependent claims 2-4, 7-9, 11-12, 14-17, 19-23 (see below) comprise additional abstract ideas and/or further limit the abstract ideas of claim 1:
Claim 2: electrodes on continuous analyte sensor
Claim 3: lactate sensor
Claim 4: optimization of exercise session
Claim 7: types of non-analyte data to classify host
Claim 8: types of input received from host
Claim 9: determine exercise parameters based on classification
Claim 11: adjusting intensity/duration based on analyte
Claim 12: effectiveness of exercise based on analyte/classification
Claim 14: instruct the host to exercise
Claim 15: host manually adjusts parameters
Claim 16: types of exercise parameters
Claim 17: adjust parameters after monitoring analyte during exercise
Claim 19: effectiveness based on caloric burn/energy expenditure
Claim 20: optimize based on effectiveness
Claims 21 and 22: lactate threshold determination
Claim 23: transmit signal to machine
Step (2a) Prong 2 (Integration into a Practical Application)
This part of the eligibility analysis evaluates whether the claim as a whole integrates the recited judicial exception into a practical application of the exception. This evaluation is performed by (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (2) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. MPEP 2106.04(d).
For claims 1-4, 7-9, 11-12, 14-17, 19-23, the judicial exception is not integrated into a practical application.
Regarding claim 1, the additional element of generating a fist set of analyte measurements amounts to recitation of a generic sensor. Under the broadest reasonable interpretation, these elements are nothing more than the pre-solution activity of mere data gathering using generic components.
Regarding claim 1, the additional elements of a sensor electronics module, memory, and processor amounts to recitation of a generic computer. This additional element merely defines the field of use of the current claim. This additional element does not practically integrate the judicial exception because this element does not provide improvements to the functioning of a computer or to any the technical field under MPEP 2106.05(a). Furthermore, when the claims, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it is still in the mental processes grouping unless the claim limitation cannot practically be performed in the mind. Likewise, performance of a claim limitation using generic computer components does not preclude the claim limitation from being in the mental processes grouping.
Step (2b) (Inventive Concept)
The claims also do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the judicial exception into a practical application, the additional elements of a continuous analyte sensor, sensor electronics module, memory, and processor in the field of analyte monitoring are well-understood, routine and conventional activities previously known in the industry as indicated in the following reference:
Miller et al. (US Pre-Grant Publication 2022/0068473) teaches a conventional continuous analyte sensor (see [0098]).
Weinert et al. (US Pre-Grant Publication 2009/0006133) teaches a conventional processor and memory (see [0036]) and conventional circuitry (see [0035]).
Accordingly, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Claims 1-4, 7-9, 11-12, 14-17, 19-23 are thus rejected under 35 USC 101 for reciting patent-ineligible subject matter- abstract ideas.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-4, 7-9, 11-12, 14-17, 19-23 of this application are patentably indistinct from claims 1-20 of Application No. 18/636,210. Pursuant to 37 CFR 1.78(f), when two or more applications filed by the same applicant or assignee contain patentably indistinct claims, elimination of such claims from all but one application may be required in the absence of good and sufficient reason for their retention during pendency in more than one application. Applicant is required to either cancel the patentably indistinct claims from all but one application or maintain a clear line of demarcation between the applications. See MPEP § 822.
Claim 1 is provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 6 of copending Application No. 18/636,210 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other (see below). This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
18/636,224 (instant application)
18/636,210 (copending reference application)
Claim 1: A monitoring system, comprising: a continuous analyte sensor configured to generate a first set of analyte measurements associated with lactate levels of a host during a first exercise session, wherein the first set of analyte measurements include lactate measurements;
a sensor electronics module coupled to the continuous analyte sensor and configured to receive and process the first set of analyte measurements;
one or more memories comprising executable instructions; and
one or more processors in data communication with the one or more memories and configured to execute the executable instructions to:
determine at least one of an exercise intensity or a time in the first exercise session at which the host reaches a lactate threshold meeting predefined criteria;
correlate one or more of the exercise intensity, the time, or the lactate threshold of the lactate measurements with a metabolic fitness level for the host, wherein the correlating is based on a relationship among two or more of the exercise intensity, the time, and the lactate threshold; and
classify the host according to the metabolic fitness level based on the correlation.
Claim 6: The monitoring system of claim 5, wherein the classifying the host as a metabolically unfit host based on the first set of analyte measurements comprises correlating the lactate trough of the first set of analyte measurements with an exercise parameter to classify the host as the metabolically unfit host.
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.
Claims 1, 3-4, 7-9, 12, 14-15, and 19-22 are rejected under 35 U.S.C. 103 as being unpatentable over Simpson et al. (US Pre-Grant Publication 2016/0324463), hereinafter ‘Simpson’, in view of Shen et al. (US Pre-Grant Publication 2022/0125354), hereinafter ‘Shen’.
Regarding claim 1, Simpson teaches a monitoring system (Figs. 45-47), comprising:
a continuous analyte sensor (continuous analyte sensor 700, Figs. 54-57) configured to generate a first set of analyte measurements associated with lactate levels of a host during a first exercise session (lactate sensor 656, Fig. 53), wherein the first set of analyte measurements include lactate measurements ([0418], monitoring individual's metabolic status during exercise);
a sensor electronics module ([0486], sensor electronics) coupled to the continuous analyte sensor and configured to receive and process the first set of analyte measurements ([0380], transmitter 526 transmits data/other signals);
one or more memories comprising executable instructions ([0186], computer readable memory); and
one or more processors ([0555], processors, [0186], application/app 27, Fig. 2) in data communication with the one or more memories and configured to execute the executable instructions to:
determine at least one of an exercise intensity or a time in the first exercise session at which the host reaches a lactate threshold meeting predefined criteria (Fig. 49, lactate threshold 553, power output axis); and
correlate one or more of the exercise intensity, the time, or the lactate threshold of the lactate measurements with a metabolic fitness level for the host, wherein the correlating is based on a relationship among two or more of the exercise intensity, the time, and the lactate threshold ([0385], the more fit a user is the higher the workout intensity must be before reaching lactate threshold).
Simpson does not specifically teach classifying the host based on the correlation.
Shen teaches a lactate sensing system (Fig. 2A), further comprising processors configured to:
classify the host according to the metabolic fitness level based on the correlation ([0068], variance of lactate levels representative of physical fitness, Fig. 5).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Simpson to incorporate the teachings of Shen to include host classification. Doing so would allow for the measurement of a host’s lactate clearance, which can be used to indicate physical fitness, as recognized by Shen [0068].
Regarding claim 3, Simpson and Shen teach the system of claim 1. Simpson teaches the system further comprising:
the continuous analyte sensor comprises a continuous lactate sensor ([0418], lactate sensor 656, Fig. 53).
Regarding claim 4, Simpson and Shen teach the system of claim 3. Simpson teaches the system further comprising:
wherein the one or more processors are further configured to:
optimize an exercise session for the host based on the classification of the host ([0010], optimize sports/fitness training).
Regarding claim 7, Simpson and Shen teach the system according to claim 1. Simpson teaches the system further comprising:
wherein the classifying the host is further based on non-analyte data obtained from a non-analyte sensor during the trial exercise session ([0039], monitoring other user data/activity data),
wherein the non-analyte data includes accelerometer data, heart rate data, heart rate variability data, oxygen saturation data, blood pressure data, or body temperature data ([0039], monitoring other user data/activity data from an accelerometer, heart rate monitor, or with the purpose of optimizing cardiovascular health) ([0185], body temperature).
Regarding claim 8, Simpson and Shen teach the system according to claim 4. Simpson teaches the system further comprising:
wherein the input received from the host (program selection 502, Fig. 45) includes self-classification information, health goals of the host, exercise goals of the host, or historical exercise data of the host ([0370], program selection is associated with a goal) ([0394], previously determined lactate curves).
Regarding claim 9, Simpson and Shen teach the system according to claim 4. Simpson teaches the system further comprising:
wherein optimizing an exercise session for the host comprises:
determining exercise parameters for the exercise session based on the classification of the host ([0372], provide initial guidance to the user about how to achieve selected program, Fig. 45).
Regarding claim 12, Simpson and Shen teach the system according to claim 1. Simpson teaches the system further comprising:
wherein the one or more processors are further configured to provide an indication of an effectiveness of an exercise session to the host, according to one or more of a set of analyte measurements for the exercise session and the classification of the host ([0527], effectiveness of diets/exercise based on sensor data).
Regarding claim 14, Simpson and Shen teach the system according to claim 4. Simpson teaches the system further comprising:
wherein optimizing an exercise session for the host comprises:
determining exercise parameters for an exercise session based on the classification of the host ([0372], provide initial guidance to the user about how to achieve selected program, Fig. 45) or the first set of analyte measurements obtained during the trial exercise session ([0394], evaluate program lactate results to move user closer to goal);
and instructing the host to exercise according to the determined exercise parameters ([0372], provide initial guidance to the user about how to achieve selected program, Fig. 45).
Regarding claim 15, Simpson and Shen teach the system according to claim 14. Simpson teaches the system further comprising:
wherein instructing the host to exercise according to the determined exercise parameters comprises the host manually adjusting a current exercise parameter to reach the determined exercise parameters ([0419], user instructed to work out at an intensity, Fig. 52).
Regarding claim 19, Simpson and Shen teach the system according to claim 12. Simpson teaches the system further comprising:
wherein the effectiveness of the exercise session is determined based on a caloric burn and an overall energy expenditure following the exercise session ([0430-0431], energy expended, caloric consumption/burn rate).
Regarding claim 20, Simpson and Shen teach the system according to claim 12. Simpson teaches the system further comprising:
wherein the one or more processors are further configured to:
optimize a future exercise session based on the effectiveness of the exercise session ([0394], results evaluated and program modified to move user closer to goal).
Regarding claim 21, Simpson and Shen teach the system according to claim 1. Simpson teaches the system further comprising:
wherein the predefined criteria comprise that the lactate threshold is reached at a point in time at which a lactate rate of change of the lactate measurements becomes rapidly positive following a period during which the lactate rate of change is near zero (Fig. 49, blood lactate curve 554 is flat then slope sharply increases after lactate threshold 553 is reached).
Regarding claim 22, Simpson and Shen teach the system according to claim 1. Simpson teaches the system further comprising:
wherein the predefined criteria comprise identifying the lactate threshold based on a transition from a period during which a lactate rate of change of the lactate measurements is near zero to a point at which the lactate rate of change becomes rapidly positive (Fig. 49, blood lactate curve 554 is flat then slope sharply increases after lactate threshold 553 is reached, transition is between aerobic threshold 551 and lactic threshold 553).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Simpson et al. (US Pre-Grant Publication 2016/0324463) in view of Shen et al. (US Pre-Grant Publication 2022/0125354), further in view of Avula et al. (US Pre-Grant Publication 2022/0296867), hereinafter ‘Avula’.
Regarding claim 2, Simpson and Shen teach the system of claim 1. Simpson teaches the system further comprising:
wherein the continuous analyte sensor comprises:
a substrate ([0487], first layer 712, Figs. 54-57),
a working electrode disposed on the substrate ([0487], working electrode disposed on first layer 712, Figs. 54-57),
a reference electrode disposed on the substrate ([0489], third layer 714 has reference electrode, Figs. 55-57).
Simpson does not teach that the first set of analyte measurements is based on a potential difference between the working and reference electrodes.
Avula teaches an analyte sensor (Figs. 2A-2C), further comprising:
wherein the first set of analyte measurements generated by the continuous analyte sensor correspond to an electromotive force at least in part based on a potential difference generated between the working electrode and the reference electrode ([0177], working electrode 38 measures electronic current).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Simpson and Shen to incorporate the teachings of Avula to include analyte measurements based on a potential difference between working/reference electrodes. Doing so would allow for an electrochemical reaction to provide information about the analyte concentration, as recognized by Avula [0177].
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Simpson et al. (US Pre-Grant Publication 2016/0324463) in view of Shen et al. (US Pre-Grant Publication 2022/0125354), further in view of Sivaraj (US Patent No. 9,737,761), hereinafter ‘Sivaraj’.
Regarding claim 11, Simpson and Shen tech the system of claim 4, but do not specifically teach adjusting the intensity/duration of an exercise session based on a second analyte measurement.
Sivaraj teaches a system for adaptive fitness testing (col. 1, ll. 15-18), further comprising:
wherein optimizing the exercise session further comprises:
adjusting the intensity or duration of an exercise session based on a second set of analyte measurements for the host according to the classification (col. 6, ll. 1-4, keep blood glucose levels within safe limits by manipulating the duration/intensity of each interval).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Simpson and Shen to incorporate the teachings of Sivaraj to include adjusting the intensity/duration of an exercise session based on a second analyte measurement. Doing so would ensure it is safe for users with diabetes or cardiovascular disease to exercise, as recognized by Sivaraj (col. 5, ll. 67-col. 6, ll. 1).
Claims 16 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Simpson et al. (US Pre-Grant Publication 2016/0324463) in view of Shen et al. (US Pre-Grant Publication 2022/0125354), further in view of Smith (US Pre-Grant Publication 2019/0192906), hereinafter ‘Smith’.
Regarding claim 16, Simpson and Shen teach the system according to claim 15, but do not teach the limitations of claim 16.
Smith teaches an adaptive training system (Fig. 8A), further comprising:
wherein the exercise parameters comprise speed, incline, resistance, repetitions, or weight ([0020], speed, resistance, incline, weight, repetitions).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Simpson and Shen to incorporate the teachings of Smith to include various types of exercise parameters for exercise optimization. Doing so would allow for the measurement of power output and generation of a training program, as recognized by Smith [0013].
Regarding claim 23, Simpson and Shen teach the system according to claim 14, but do not teach transmitting an electronic signal to an exercise machine to cause the exercise machine to operate based on the determined exercise parameters.
Smith teaches an adaptive training system (Fig. 8A), further comprising:
wherein instructing the host to exercise according to the determined exercise parameters comprises transmitting an electronic signal to an exercise machine to cause the exercise machine to operate based on the determined exercise parameters ([0086], automatically control functionality of workout machine, step 806, Fig. 8A).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Simpson and Shen to incorporate the teachings of Smith to include causing an exercise machine to operate based on parameters. Doing so would allow for the automatic adjustment of the training program based on the user’s fitness, as recognized by Smith [0007].
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Simpson et al. (US Pre-Grant Publication 2016/0324463) in view of Shen et al. (US Pre-Grant Publication 2022/0125354), further in view of Vilermo et al. (US Pre-Grant Publication 2016/0174891), hereinafter ‘Vilermo’.
Regarding claim 17, Simpson and Shen teach the system of claim 14, but do not specifically teach monitoring a second set of analyte measurements of the host during the exercise session after providing the determined exercise parameters and adjusting the determined exercise parameters based on the second set of analyte measurements.
Vilermo teaches an apparatus for receiving lactate levels and determining adjusted characteristics of physical exercise (abstract), further comprising:
wherein optimizing the exercise session further comprises:
monitoring a second set of analyte measurements of the host during the exercise session after providing the determined exercise parameters (measured lactate level 610, Fig. 6); and
adjusting the determined exercise parameters based on the second set of analyte measurements ([0137], feedback to increase or decrease lactate level, [0123]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Simpson and Shen to incorporate the teachings of Vilermo to include adjusting exercise parameters based on analyte measurements. Doing so would allow for the system to automatically update to fit the user’s target for the exercise session, as recognized by Vilermo [0123].
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.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Huang (US Pre-Grant Publication 2015/0208970) teaches a system for lactate measurement and training adjustment.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH L OKONAK whose telephone number is (571)272-1594. The examiner can normally be reached Monday-Friday 8-5.
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, Benjamin Klein can be reached at (571) 270-5213. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/E.L.O./
Examiner, Art Unit 3792
/SHIRLEY X JIAN/Primary Examiner, Art Unit 3792
August 21, 2026
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