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 .
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
The following title is suggested: “Non-wearable sensor and system thereof”.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: ballistocardiograph sensing means in claim 3 which is the ferroelectret sensor, see ¶12.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claim 1-4 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. It is unclear if the device claimed is the embodiment in the specification where the monitor is worn during the day and then placed under the mattress or the stationary embodiment in the specification where the wearable component and the mattress sensor are different components. The terms stationary, non-contact and non-wearable would seem to best fit the stationary embodiment but the specification also calls the wearable chest sensor non-wearable which makes the interpretation and scope unclear. Additionally, there is a lack of antecedent basis for “the sensor” at the end of claim 1 and it is not clear if this refers to the ferroelectret sensor or the entire nonwearable ssensor.
Claim 2 is 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 claim recites that the sensor dimension is 50 x 60 mm but it is not clear if this refers to the ferroelectret sensor or the whole non-wearable sensor including the housing.
Claim 3 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. It is unclear whether the ballistocardiograph sensing means is an additional component to the non-wearable sensor as it is described in the specification as the ferroelectret sensor already claimed in claim 1.
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.
Claim(s) 1 and 3 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schmeink et al. US 2011/0046434.
Regarding claim 1, Schmeink discloses a non-wearable sensor for stationary monitoring for being placed during nighttime under a mattress for non-contact, non-wearable nighttime monitoring, the non-wearable sensor comprising:
an enclosure ([¶36] monitor 120),
an integrated ferroelectret sensor fitted to an outside of the enclosure to increase a sensitivity of the sensor ([¶36] sensor 122 is an ferroelectret foil).
Regarding claim 3, Schmeink discloses the sensor further comprising a ballistocardiograph sensing means for detecting heart rate and breathing rate ([¶37] the ferroelectret foil senses the impact created by the movement of the heart which is a ballistocradiogram).
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.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schmeink.
Regarding claim 2, Schmeink does not specifically disclose a sensor dimension of 50 x 60 mm. However, at the time the invention was filed, it would have been an obvious matter of design choice to a person of ordinary skill in the art to size the sensor as claimed because Applicant has not disclosed that 50 x 60 mm sizing provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected Schmeink, and applicant' s invention, to perform equally well with either the ferroelectret foil taught by Schmeink or the claimed sensor dimensions because both sensors would perform the same function of sensing heart movement with a small inconspicuous sensor equally well considering the typical size of an adult and mattress.
Therefore, it would have been prima facie obvious to modify Schmeink to obtain the invention as specified in the claim because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schmeink in view of Brauers et al. WO 2008/096307 A1.
Regarding claim 4, Schmeink does not disclose the sensor further comprising a rechargeable battery. Brauers teaches a similar foil based sensor system for use with a mattress that has rechargeable batteries ([pg. 7]). Therefore, it would have been obvious to one of ordinary skill in the art prior to the time of filing to combine the device of Schmeink with the rechargeable batteries of Brauers in order to have a backup power source ([pg. 7]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Rantala US 2009/0312612.
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/MICHAEL A CATINA/Examiner, Art Unit 3791 /TSE W CHEN/Supervisory Patent Examiner, Art Unit 3791