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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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: “heart beat component extraction unit wherein a heartbeat component extraction is modified…”, “heartbeat peak extraction unit wherein a heartbeat peak extraction is modified”, “heart rate calculation unit wherein a heart rate calculation is modified…” in claim 1 and dependents thereof.
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.
Claims 1-7 and 11 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 claims are generally narrative and indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with grammatical and idiomatic errors.
Claim 1, and all dependent claims thereof, recites the limitation “wherein a heartbeat component extraction is modified by a heartbeat component extraction program loaded on a computer, wherein said modified heartbeat component extraction by calculating a spectrogram S or a band-pass filter result B extracts a frequency component… .” It is entirely unclear what “wherein a heartbeat component extraction is modified…” is meant to convey. It is not clear if “a heartbeat component extraction” is an action (i.e. an active step of extracting a heartbeat component, where the performance of the step is somehow modified) or it is meant to refer to the result of an extraction (i.e. an extracted heartbeat component, where the extracted heartbeat component is somehow modified). The meaning of “modified” is also unclear in this context. There is no description of what the modification might be. Additionally, “wherein said modified heartbeat component extraction by calculating a spectrogram S or a band-pass filter result B extracts a frequency component” simply does not make sense. It appears that there may be missing or extra words that significantly impact the clarity of this limitation. Applicant should amend the claims to clearly convey the structure being claimed, the functions of that structure (e.g. whether “a heartbeat component extraction” is meant to be an action or a result), and a clear recitation of what the modification to the extraction is.
Claim 1, and all dependent claims thereof, recites the limitation “a heartbeat peak extraction unit, wherein a heartbeat peak extraction is modified by a heartbeat peak extraction program loaded on a computer, wherein said modified heartbeat peak extraction extracts an amplitude peak from the frequency component… .” It is entirely unclear what “wherein a heartbeat peak extraction is modified…” is meant to convey. It is not clear if “a heartbeat peak extraction” is an action (i.e. an active step of extracting a heartbeat peak, where the performance of the step is somehow modified) or it is meant to refer to the result of an extraction (i.e. an extracted heartbeat peak, where the extracted heartbeat peak is somehow modified). The meaning of “modified” is also unclear in this context. There is no description of what the modification might be. It is also unclear what “said modified heartbeat peak extraction extracts…” is supposed to mean. How does an extraction extract something? Is this an indication that “heartbeat peak extraction” is meant to represent an action of extracting a heartbeat peak? Applicant should amend the claims to clearly convey the structure being claimed, the functions of that structure (e.g. whether “a heartbeat peak extraction” is meant to be an action or a result), and a clear recitation of what the modification to the extraction is.
Claim 1, and all dependent claims thereof, recites the limitation “a heart rate calculation unit, wherein a heart rate calculation is modified by a heart rate calculation program loaded on a computer, wherein said modified heart rate calculation calculates a heart rate… .” It is entirely unclear what “wherein a heart rate calculation is modified…” is meant to convey. It is not clear if “a heart rate calculation” is an action (i.e. an active step of calculating a heart rate, where the performance of the step is somehow modified) or it is meant to refer to the result of an calculation (i.e. a calculated heart rate, where the calculated heart rate is somehow modified). The meaning of “modified” is also unclear in this context. There is no description of what the modification might be. Applicant should amend the claims to clearly convey the structure being claimed, the functions of that structure (e.g. whether “a heart rate calculation” is meant to be an action or a result), and a clear recitation of what the modification to the calculation is.
Claim 2 recites the limitation “wherein the heartbeat component extraction unit extracts the frequency component caused by the micro vibration of the heartbeat…including a plurality of characteristic micro vibrations in one heartbeat.” Claim 1, from which claim 2 depends, sets forth “a frequency component caused by a micro vibration of heartbeat”, “the micro vibration of the heartbeat”, and “one characteristic micro vibration out of a plurality of characteristic micro vibrations in one heartbeat”. It is unclear which, if any, of the recitations of “micro vibration” found throughout claims 1 and 2 refer to the same element (the same “micro vibration”) or how many “micro vibrations” are present. Applicant should amend the claims to clearly convey 1) the relationship between a heartbeat and a “micro vibration” and 2) whether or not any of the various “micro vibrations” refer to the same element, and which are distinct. This should also be applied to any additional claims referring to “micro vibrations” such as claim 3.
Claim 3, and all dependent claims thereof, recites the limitation “wherein the heartbeat peak extraction unit extracts a maximum amplitude peak of the amplitude peaks from the frequency component caused by the micro vibration of the heartbeat in a predefined peak detection time window.” First, claim 1 from which claim 3 depends sets forth the extraction of a single amplitude peak (“a heartbeat peak extraction unit that extracts an amplitude peak”). Since “amplitude peak” is used both as a singular and a plural to, apparently, refer to the same element it is unclear whether there must be one or more than one amplitude peak identified. It is further unclear whether “a predefined peak detection time window” is the same as or distinct from either the “predefined heartbeat observation time window” or the “predetermined time” as set forth in claim 1. Applicant should amend the claim to clearly convey how many separate time windows are in use, as well as how many amplitude peaks must be detected in order to perform the functions of the claimed device.
Claim 4 recites the limitation “the heartbeat peak extraction unit moves the predefined peak detection time windows W0, W1, W2, and W3 so as to extract the maximum amplitude peak in a time domain excluding vicinities of both ends of the predefined peak detection time window.” First, based on the limitations of claims 1 and 3 it appears that the extraction of the amplitude peaks is performed on the “frequency component” (i.e. in the frequency domain). It is unclear what it means to “extract the maximum amplitude peak in a time domain” as compared to extracting the maximum amplitude peak of amplitude peaks extracted from a frequency component as set forth in claim 3. For example, it is unclear if two (maximum) amplitude peaks are extracted – one in the frequency domain and one from the time domain signal – or if this is meant to convey that the maximum frequency amplitude peak is identified from among frequency amplitude peaks that are obtained over a period of time. Second, the meaning of the phrase “so as to extract the maximum amplitude peak in a time domain excluding vicinities of both ends of the predefined peak detection time windows” is unclear. It is not clear what “vicinities of both ends of the predefined peak detection time windows” is meant to refer to, or how moving the time windows excludes the “vicinities of both ends.” For the purposes of further examination, this claim will be interpreted to mean that a maximum of the amplitude peaks acquired across a period of time is identified and that a sliding time window is used.
Claim 6 recites the limitation “wherein the heart rate calculation unit calculates an average heart rate with increasing a weight of a time interval of the amplitude peaks as an amplitude value of the amplitude peak increases.” The phrasing of this limitation makes the meaning very difficult to parse. For example, it is not clear what it means to calculate an average heart rate “with increasing a weight of a time interval.” Does this mean that weighting is applied to each acquired time interval? Or that a weight of a time interval is changed over time? For the purposes of further examination, this claim will be interpreted to mean that each time window has a weight proportional to the value of its amplitude peak.
Claim 7 recites the limitation “wherein the heart rate calculation unit calculates a heart rate based on clustering of two-dimensional data constituted of a time interval of the amplitude peaks and a weight of the time interval with increasing the weight of the time interval of the amplitude peaks as an amplitude value of the amplitude peak increases.” It is extremely difficult to parse the language of this claim. It is not clear what “with increasing the weight of the time interval” is meant to convey. It is not clear what “two-dimensional data constituted of a time interval…and a weight of the time interval with increasing the weight of the time interval” is supposed to be. The disclosure repeats this language substantially verbatim, which does not clarify anything, however the disclosure also indicates that this function is in reference to figure 20 which shows clustering data points in a two-dimensional space where the abscissa and ordinate correspond to the heartbeat time interval and the weight of the time interval proportional to its amplitude peak (respectively). For the purposes of further examination, this interpretation will be applied.
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.
Claim(s) 1-5 and 11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Masuda et al. (JP 2017006540, Jan. 12, 2017)
Regarding claims 1-5 and 11, as best understood based on limitations which are indefinite: Masuda discloses the limitations of claims 1-5 in at least paragraphs [0025]-[0044] and figure 9, corresponding to steps S900-S910, where extracting a frequency component from multiple heartbeats which each correspond to a time window is equivalent to extracting a frequency component from multiple time windows ([0030] - “ a heartbeat which beats every beat”); where the frequency components are extracted based on a spectrogram (power spectrum) and a bandpass filter ([0028], [0030]); heartbeat peaks and a heartbeat peak with a maximum amplitude are extracted where each feature point corresponds to a heartbeat and each heartbeat has an associated time window ([0029], [0031]-[0035]), and the heart rate is calculated as an interval between the extracted feature points (where “feature points” are also peaks as shown in fig. 7, [0036]-[0037]).
Allowable Subject Matter
Claims 6 and 7 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Response to Arguments
Rejection of claim 11 under 35 U.S.C. §101 is withdrawn in light of the amendment to the claim.
Applicant’s arguments with respect to interpretation of claim limitations under 35 U.S.C. §112(f), filed 01/15/2026, have been fully considered but are not persuasive.
Applicant alleges that the amendments to claims 1, 2-7, and 11 “are clear and definite, and include claims’ limitations that can no longer be interpreted as a limitation under 35 U.S.C. §112(f).”
Examiner respectfully disagrees. The amendments to these claims, particularly claim 1, does not recite a structure for the various claimed units. Rather the amendment inserts a series of actions following the claimed units (where it is not even clear if the actions are performed by the units or not). For example, “a heartbeat component extraction unit, wherein a heartbeat component extraction is modified by a heartbeat component extraction program loaded on a computer” is not a structural definition of the heartbeat component extraction unit, rather it is a description of an action (“wherein a heartbeat component extraction is modified by a heartbeat component extraction program loaded on a computer”). Examiner respectfully suggests that, if Applicant wishes to avoid interpretation under 35 U.S.C. §112(f), Applicant should amend the claims to clearly recite the structure associated with each unit. For example, if the units are embodied by programmed processors, Applicant could amend the claims to recite --a processor configured to-- followed by the desired function.
Applicant’s arguments with respect to rejection of claims 1-7 and 11 under 35 U.S.C. §112(b), filed 01/15/2026, have been fully considered but are not persuasive.
With respect to certain rejections previously presented, the amendments to the claims resolved some issues but did not resolve all issues and, in some cases, introduced new issues. Examiner notes that several rejections in the previous Office Action were provided with instructions as to how to amend the claims to overcome the rejections of record. In the cases where the claims were amended, updated rejections have been provided above.
Regarding claim 1, Applicant argues that “multiple” amplitude peaks must be extracted to calculate a heart rate.
Examiner notes that this statement contradicts the language in the claim.
Regarding claim 2, Applicant argues that “micro vibrations” throughout claims 1-2 refer to the same element.
Examiner respectfully disagrees and asserts that this cannot be true. Claim 1 recites, explicitly: “a micro vibration of a heartbeat”, “the micro vibration of the heartbeat”, “one characteristic micro vibration out of a plurality of characteristic micro vibrations in one heartbeat.” These cannot all refer to the same element because 1) the quantities do not agree (e.g. “a micro vibration” is singular and “a plurality of characteristic micro vibrations” is plural) and 2) Applicant refers to them differently (e.g. “a micro vibration” and “one characteristic micro vibration”). Applicant is reminded that neither the arguments nor the disclosure is read into the claims and the claims must contain clear and definite language. If Applicant intends this interpretation, the claim should be amended to reflect the definition provided by Applicant.
Regarding claim 3, Applicant argues that “One maximum amplitude peak” is extracted from “more than one amplitude peaks.” However, the claim language does not reflect this. Applicant is reminded that neither the arguments nor the disclosure is read into the claims and the claims must contain clear and definite language. If Applicant intends this interpretation, the claim should be amended to reflect the definition provided by Applicant.
Regarding claim 4, Applicant argues that claim 4 is clearly described in figures 10, 12 and corresponding paragraphs.
Examiner respectfully notes that while the disclosure might contain a description of what Applicant intended the claim to convey, the language of the claim itself must be clear and definite. Applicant is reminded that neither the arguments nor the disclosure is read into the claims and the claims must contain clear and definite language. It is not sufficient to have indefinite claim language and merely state in the arguments that the claim corresponds to a certain figure.
Regarding claim 6, Applicant argues that “With increasing a weight of a time interval” means that “weighting is applied to each acquired time interval.”
Applicant is reminded that neither the arguments nor the disclosure is read into the claims and the claims must contain clear and definite language. If Applicant intends this interpretation, the claim should be amended to reflect the definition provided by Applicant.
Regarding claim 7, Applicant argues that claim 7 is clearly described in figure 20.
Applicant is reminded that neither the arguments nor the disclosure is read into the claims and the claims must contain clear and definite language. It is not sufficient to have indefinite claim language and merely state in the arguments that the claim corresponds to a certain figure.
Examiner respectfully suggests that, in order to provide proper examination, Applicant conduct a thorough review of the claims and obtain a human translation to the English language from one of ordinary skill in the art.
Applicant’s arguments with respect to prior art rejection of all pending claims, filed 01/15/2026, have been fully considered but are moot in view of the updated grounds of rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Ding et al. (US 2024/0180494 A1, Jun. 6, 2024) discloses identifying a heart rate using time-frequency analysis from a radar signal.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CAROLYN A PEHLKE whose telephone number is (571)270-3484. The examiner can normally be reached 9:00am - 5:00pm (Central Time), Monday - Friday.
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/CAROLYN A PEHLKE/Primary Examiner, Art Unit 3799