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
Claims 1 and 11 are objected to because of the following informalities.
• Claim 1, line 2, “the device” should read “the portable smart device”.
• Claim 11, line 3, “the device” should read “the portable smart device”.
Appropriate correction is required.
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.
Step 1: Does the claimed invention fall inside one of the four statutory categories (process, machine, manufacture, or composition of matter)? Yes for claims 1-20. Claims 1-10 are drawn to a portable smart device for loop gain detection and breath training (i.e., a manufacture). Claims 11-20 are drawn to a method for loop gain detection and breath training (i.e., a process).
Step 2A - Prong One: Do the claims recite a judicial exception (an abstract idea enumerated in the 2019 PEG, a law of nature, or a natural phenomenon)? Yes, for claims 1-20.
Claim 1 recites:
A portable smart device, comprising: a sensor coupled to the device, the sensor configured to sense a physiological parameter of a user;
and a processor configured to: perform a breath training session to determine breathing loop gain in an awake state by instructing the user to breathe in a specified manner, receive physiological data from the sensor, the physiological data representing the sensed physiological parameter of the user, and determine a value of the loop gain based on the physiological data from the sensor.
These steps amount to a form of mental process and organizing human activity (i.e., an abstract idea) because a human can conduct a breath training session where a user is instructed to breathe in a specified manner, a human can collect physiological data (i.e., measurements that can monitor both the mental and physical status) of a user, and a human can calculate loop gain for a user. “One example of instructions for a sufferer to execute a sequence of forced breath holds is: Step 1: Breathe normally for 3 minutes. … Step 2: Breathe normally, then when prompted hold the breath after exhaling until the first clear urge to breathe is felt … Step 3: Breathe normally for approximately five minutes, until prompted to hold the breath after breathing out. … Step 4: From normal breathing, when prompted, gradually slow down until breathing is as slow as comfortable … Step 5: From slow breathing, exhale, hold the breath until a strong need to breathe is felt … Step 6: Repeat steps 3,4,5 … and Step 7: Breathe normally for 3 minutes to relax” [0054].
Independent claim 11 describes steps that are similar to steps of claim 1 (and therefore recite limitations that fall within this subject matter of grouping abstract ideas), and these claims are therefore determined to recite an abstract idea under the same analysis. Dependent claims 2-10 and 12-20 are directed towards mini-tasks (determining heart rate and blood oxygen saturation, tracking loop gain changes, classifying the user, etc.) for a portable smart device for loop gain detection and breath training. Each claim amounts to a form of collecting, generating, and analyzing information, and therefore falls within the scope of a method for organizing human activity, (i.e., an abstract idea). As such, the Examiner concludes that claims 2-10 and 12-20 recite an abstract idea.
Step 2A – Prong Two: Do the claims recite additional elements that integrate the exception into a practical application of the exception? No
In prong two of step 2A, an evaluation is made whether a claim recites any additional element, or combination of additional elements, that integrate the exception into a practical application of that exception. An “additional element” is an element that is recited in the claim in addition to (beyond) the judicial exception (i.e., an element/limitation that sets forth an abstract idea is not an additional element). The phrase “integration into a practical application” is defined as requiring an additional element or a combination of additional elements in the claim to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that it is more than a drafting effort designed to monopolize the exception.
The requirement to execute the claimed steps/functions using a processor (independent claims 1 and 11 and dependent claims 2-10 and 12-20) is equivalent to adding the words “apply it” on a generic computer and/or mere instructions to implement the abstract idea on a generic computer.
Similarly, the limitations of processors (independent claims 1 and 11 and dependent claims 2-10 and 12-20) are recited at a high level of generality and amount to no more than mere instructions to apply the exception using generic computer components. These limitations do not impose any meaningful limits on practicing the abstract idea, and therefore do not integrate the abstract idea into a practical application (see MPEP 2106.05(f)).
Use of a computer, processor, memory or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367, 115 USPQ2d 1636, 1639 (Fed. Cir. 2015) (See MPEP 2106.05(f)).
Further, the additional limitations beyond the abstract idea identified above, serve merely to generally link the use of the judicial exception to a particular technological environment or field of use. Specifically, they serve to limit the application of the abstract idea to a computerized environment (e.g., identifying and displaying, etc.) performed by a computing device, processor, and memory, etc. This reasoning was demonstrated in Intellectual Ventures I LLC v. Capital One Bank (Fed. Cir. 2015), where the court determined "an abstract idea does not become nonabstract by limiting the invention to a particular field of use or technological environment, such as the Internet [or] a computer"). These limitations do not impose any meaningful limits on practicing the abstract idea, and therefore do not integrate the abstract idea into a practical application (see MPEP 2106.05(h)).
Dependent claims 2-10 and 12-20 fail to include any additional elements. In other words, each of the limitations/elements recited in respective dependent claims are further part of the abstract idea as identified by the Examiner for each respective independent claim (i.e., they are part of the abstract idea recited in each respective claim). The Examiner has therefore determined that the additional elements, or combination of additional elements, do not integrate the abstract idea into a practical application. Accordingly, the claims are directed to an abstract idea.
Step 2B: Does the claim as a whole amount to significantly more than the judicial exception? i.e., Are there any additional elements (features/limitations/step) recited in the claim beyond the abstract idea? No
In step 2B, the claims are analyzed to determine whether any additional element, or combination of additional elements, are sufficient to ensure that the claims amount to significantly more than the judicial exception. This analysis is also termed a search for an “inventive concept.” An “inventive concept” is furnished by an element or combination of elements that is recited in the claim in addition to (beyond) the judicial exception, and is sufficient to ensure that the claim as a whole amount to significantly more than the judicial exception itself. Alice Corp., 573 U.S. at 27-18, 110 USPQ2d at 1981 (citing Mayo, 566 U.S. at 72-73, 101 USPQ2d at 1966).
As discussed above in “Step 2A – Prong Two”, the identified additional elements in independent claims 1 and 11 and dependent claims 2-10 and 12-20 are equivalent to adding the words “apply it” on a generic computer, and/or generally link the use of the judicial exception to a particular technological environment or field of use. Therefore, the claims as a whole do not amount to significantly more than the judicial exception itself.
Viewing the additional limitations in combination also shows that they fail to ensure the claims amount to significantly more than the abstract idea. When considered as an ordered combination, the additional components of the claims add nothing that is not already present when considered separately, and thus simply append the abstract idea with words equivalent to “apply it” on a generic computer and/or mere instructions to implement the abstract idea on a generic computer or/and append the abstract idea with insignificant extra solution activity associated with the implementation of the judicial exception, (e.g., mere data gathering, post-solution activity) and/or simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.
Dependent claims 2-10 and 12-20 fail to include any additional elements. In other words, each of the limitations/elements recited in respective independent claims are further part of the abstract idea as identified by the Examiner for each respective dependent claim (i.e. they are part of the abstract idea recited in each respective claim). The Examiner has therefore determined that no additional element, or combination of additional claims elements are sufficient to ensure the claims amount to significantly more than the abstract idea identified above. Therefore, claims 1-20 are not eligible subject matter under 35 USC 101.
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.
(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.
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.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being unpatentable under US 20230337937 A1 (“Barlow”).
In regards to claim 1, Barlow discloses
A portable ([0114], “the present technology is a portable ... device”) smart device, comprising ([0364], “the ... system ... may comprise features considered to be “smart” features, such as the ability to interact with the user”): a sensor coupled to the device, the sensor configured to sense a physiological parameter of a user ([0095], “the ... transducers may comprise ... a heart rate sensor ... a blood pressure sensor ... a temperature sensor” Examiner notes that physiological parameters include heart rate, blood pressure, and temperature.);
and a processor configured to ([0367], “the … system … comprises a processor”): perform a breath training session to ([0568], “the … system … may be configured to operate in a breath training mode”) determine breathing loop gain ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller is used to determine, estimate, and measure breathing loop gain.) in an awake state ([0078], “the … system is configured to detect that the user is awake”) by instructing the user to breathe in a specified manner ([0506], “the … system … may be configured to operate in a breath training mode … to assist the user to breathe in a manner conducive to relaxation, meditation, sleeping or the like”), receive physiological data from the sensor, the physiological data representing the sensed physiological parameter of the user ([0368], “The processor … may … interface with the communication module … to send and receive data to … sensors”), and determine a value of the loop gain based on the physiological data from the sensor ([0355], “Larger values of gain … can result in positive feedback … Smaller values of gain … may permit some … untreated … sleep apnea.”).
In regards to claim 2, Barlow discloses
wherein the sensor is at least one of a heart rate sensor or a blood oxygen saturation sensor ([0095], “the … transducers may comprise … a heart rate sensor; … an oxygen saturation sensor”).
In regards to claim 3, Barlow discloses
wherein the processor is further configured to guide the breath training session by instructing the user to breathe in a specified manner by performing breath holds and rhythmic breathing patterns intended to ([0506], “the … system … may be configured to operate in a breath training mode … to assist the user to breathe in a manner conducive to relaxation, meditation, sleeping or the like”) reduce the loop gain ([0355], “the gain may vary”).
In regards to claim 4, Barlow discloses
wherein the processor is further configured to track changes in ([0368], “Actions described herein as being steps performed by the … system … (such as actions, determinations, identifications, comparisons, optimisations, operations, among others) are to be understood to be steps performed in … by a processor”) the loop gain over time ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller is used to determine, estimate, and measure breathing loop gain.).
In regards to claim 5, Barlow discloses
wherein the processor is further configured to determine ([0368], “Actions described herein as being steps performed by the … system … (such as actions, determinations, identifications, comparisons, optimisations, operations, among others) are to be understood to be steps performed in … by a processor”) a value of the loop gain based on a phenotype classification of the user ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller can determine breathing loop gain based on the phenotypic classification of a user.).
In regards to claim 6, Barlow discloses
wherein the sensor is integrated directly into the portable smart device ([0067], “the … system may comprise an ECG sensor; … a heart rate sensor; … an oxygen saturation sensor; … a blood pressure sensor” Examiner notes that comprise can mean directly integrated into.).
In regards to claim 7, Barlow discloses
wherein the sensor is external to and in communication with the portable smart device ([0233], “External transducers may be in the form of non- contact sensors such as a Doppler radar movement sensor that transmit or transfer data”).
In regards to claim 8, Barlow discloses
wherein the processor is further configured to ([0367], “the … system … comprises a processor”) instruct the user to perform breathing exercises for the determination ([0506], “the … system … may be configured to operate in a breath training mode … to assist the user to breathe in a manner conducive to relaxation, meditation, sleeping or the like”) of the loop gain ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller is used to determine, estimate, and measure breathing loop gain.).
In regards to claim 9, Barlow discloses
wherein the processor is further configured to ([0367], “the … system … comprises a processor”) perform a classification by classifying the user as having a high loop gain based on the determined value of the loop gain and previously determined physiological data ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller can determine breathing loop gain based on classification of a user.).
In regards to claim 10, Barlow discloses
wherein the processor is further configured to ([0367], “the … system … comprises a processor”) tailor breath training exercises specifically to ([0568], “the … system … may be configured to operate in a breath training mode”) reduce the high loop gain, the tailoring based on the classification of the user and the determined value of the loop gain ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller can determine breathing loop gain based on the phenotypic classification of a user.).
In regards to claim 11, Barlow discloses
A method for determining breathing loop gain in an awake state using a portable smart device, the method comprising ([0078], “the … system is configured to detect that the user is awake”): sensing a physiological parameter of a user with a sensor coupled to the device ([0095], “the ... transducers may comprise ... a heart rate sensor ... a blood pressure sensor ... a temperature sensor” Examiner notes that physiological parameters include heart rate, blood pressure, and temperature.);
performing a breath training session to instruct the user to breathe in a specified manner ([0506], “the … system … may be configured to operate in a breath training mode … to assist the user to breathe in a manner conducive to relaxation, meditation, sleeping or the like”);
receiving physiological data from the sensor, the physiological data representing the sensed physiological parameter of the user ([0368], “The processor … may … interface with the communication module … to send and receive data to … sensors”);
and determining a value of the loop gain based on the physiological data from the sensor ([0355], “Larger values of gain … can result in positive feedback … Smaller values of gain … may permit some … untreated … sleep apnea.”).
In regards to claim 12, Barlow discloses
wherein the sensing step involves using at least one of a heart rate sensor or a blood oxygen saturation sensor ([0095], “the … transducers may comprise … a heart rate sensor; … an oxygen saturation sensor”).
In regards to claim 13, Barlow discloses
further comprising guiding the breath training session by instructing the user to breathe in a specified manner by performing breath holds and rhythmic breathing patterns intended to ([0506], “the … system … may be configured to operate in a breath training mode … to assist the user to breathe in a manner conducive to relaxation, meditation, sleeping or the like”) reduce the loop gain ([0355], “the gain may vary”).
In regards to claim 14, Barlow discloses
further comprising tracking changes in the loop gain over time ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller is used to determine, estimate, and measure breathing loop gain.).
In regards to claim 15, Barlow discloses
further comprising determining a value of the loop gain based on a phenotype classification of the user ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller can determine breathing loop gain based on the phenotypic classification of a user.).
In regards to claim 16, Barlow discloses
wherein the sensor is integrated directly into the portable smart device ([0067], “the … system may comprise an ECG sensor; … a heart rate sensor; … an oxygen saturation sensor; … a blood pressure sensor” Examiner notes that comprise can mean directly integrated into.).
In regards to claim 17, Barlow discloses
wherein the sensor is external to and in communication with the portable smart device ([0233], “External transducers may be in the form of non- contact sensors such as a Doppler radar movement sensor that transmit or transfer data”).
In regards to claim 18, Barlow discloses
further comprising instructing the user to perform breathing exercises for the determination ([0506], “the … system … may be configured to operate in a breath training mode … to assist the user to breathe in a manner conducive to relaxation, meditation, sleeping or the like”) of the loop gain ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller is used to determine, estimate, and measure breathing loop gain.).
In regards to claim 19, Barlow discloses
further comprising performing a classification by classifying the user as having a high loop gain based on the determined value of the loop gain and previously determined physiological data ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller can determine breathing loop gain based on classification of a user.).
In regards to claim 20, Barlow discloses
further comprising tailoring breath training exercises specifically to ([0568], “the … system … may be configured to operate in a breath training mode”) reduce the high loop gain, the tailoring based on the classification of the user and the determined value of the loop gain ([0354-0355], “the therapy parameter ... algorithm ... applies a ... Proportional-Integral (PI) control ... where G is the gain of the PI control” Examiner notes that a proportional-integral controller can determine breathing loop gain based on the phenotypic classification of a user.).
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Lisa Antoine whose telephone number is (571)272-4252 and whose email address is lantoine@uspto.gov. The examiner can normally be reached Monday - Thursday 7:30 am - 5:30 pm CT. 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, Xuan Thai can be reached on (571) 272-7147. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
Publication Information
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.
/LISA H ANTOINE/Examiner, Art Unit 3715
/XUAN M THAI/Supervisory Patent Examiner, Art Unit 3715