I. ACKNOWLEDGEMENT
This Office Action addresses U.S. Application No. 18/689739 (“’739 Application” or “instant application”). Based upon a review of the instant application, the actual filing date of the instant application is March 6, 2024.
II. STATUS OF CLAIMS
Claims 1-8 were filed with the application. The preliminary amendment of 3/5/2024 cancelled claims 1-8 and added claims 9-26. Therefore, as of the date of this Office Action, the status of the claims is:
a. Claims 9-26 (“Pending Claims”).
b. Claims 9-26 are examined (“Examined Claims”)
III. PRIORITY AND CONTINUING DATA
The ‘739 application is a national stage entry of PCT/JP2021/039058 filed 10/22/2021.
IV. REJECTIONS UNDER 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 9-26 are rejected under 35 USC 101 because the claimed invention is directed to an abstract idea without significantly more (See MPEP 2106.04(a)).
Using claim 15 as a representative claim , the claim includes the limitations:
Measuring a heart rate of a target subject
Measuring an acceleration of the target subject
Calculating an exercise intensity of the target subject based on the acceleration of the subject and
Determining whether the target subject has a fever based on the heart rate of the target subject and the exercise intensity of the target subject.
The first step in the 101 analysis, step 1 in MPEP 2106, is whether the claimed invention is in one of the 4 statutory classes of invention. Here, the claim is drawn to a method, which is one of the 4 statutory classes of invention. Hence, step 1 is satisfied.
The next step in the analysis, step 2A prong one, is whether the claim is directed to judicial exception, i.e. a law of nature, a natural phenomenon, or an abstract idea. Here, the calculating and determining steps comprise a judicial exception, which is a mental process that can be performed using a pencil and paper. Furthermore, the exception includes a calculation, which is a mathematical step classifying requires comparison to a threshold, which is a mathematical process. Both mental processes and mathematical processes are recognized as judicial exceptions that recite an abstract idea. See MPEP 2164
In Step 2A, prong two of the analysis, the claim is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application.
There are two additional elements in the claims, the two measurement steps. Both steps are data-gathering steps, which are insignificant pre-solution activity. Therefore, the additional elements and steps do not integrate the claim into a practical application. As such, the answer to step 2A, prong 2, is no.
The final step of the analysis, step 2B, where the claim is evaluated to determine whether the recited additional elements amount to significantly more than the judicial exception. Here, the additional steps and structure are simply well-understood, routine, and conventional processing steps and structure. Hence, the step does not recite an inventive concept.
As such, claim 15 is directed to an abstract idea and is not patent eligible.
Claims 16-20 all either add data gathering or mathematical steps, which do not integrate the exception into a practical application. As such, those claims are also drawn to an abstract idea and are not patent eligible.
Claim 9 and its dependent claims 10-14 add structure for performing the method. However, the structure (heart rate measurement device, acceleration measurement device, a memory storage, processor) is all recited at a high level of generality and therefore also do not integrate the exception into a practical application.
Claims 21-26 are rejected for the reasons given above.
V. ALLOWABLE SUBJECT MATTER
Claims 9-26 would be allowable if the rejection under 35 USC 101 were overcome.
Claims 9-26 define over the art of record in that none of the art determines a fever from the heart rate and the exercise intensity, as claimed.
Van Den Heuvel US PG PUB 2014, which corresponds to JP 2014-517758 cited on the international search report, determines a fever from the heart rate and a peripheral signal, but that signal is not exercise intensity. No other art teaches the claimed invention. As such, the claims define over the art of record.
VI. CONCLUSION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT L NASSER whose telephone number is (571)272-4731. The examiner can normally be reached M-F 8-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander Kosowski can be reached at (571) 272-3744. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT L NASSER/ Primary Examiner, Art Unit 3992
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