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 .
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 21-27 and 35-46 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Regarding Claim 21, the claim(s) recites “monitor, in response to determining the start of the activity, the data received from the accelerometer to detect an end of the activity; and
determine a heart rate recovery of the user based on heart rate data samples detected by a heart rate detector during a period of time after the end of the activity, wherein to determine the heart rate recovery of the user is performed in real-time.” which amounts to an abstract idea (mental process).
This judicial exception is not integrated into a practical application because:
- The claims fail to outline an improvement to the technical field.
- The claims fail to apply the judicial exception to effect a particular treatment.
- The claims fail to apply the judicial exception with a particular machine.
- The claims fail to effect a transformation or reduction of a particular article to a different state or thing.
Next, the claim as a whole is analyzed to determine whether any element or a combination of elements, integrates judicial exception into a practical application.
For this part of the 101 analysis, the following additional limitations are considered:
“detect a start of an activity by a user wearing the wearable device, based on data received from an accelerometer located in the wearable device;”
The additional elements are insufficient to amount to significantly more than the judicial exception because they seem to merely generally link the use of the judicial exception to a particular technological environment.
Moreover, the claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they pertain merely to insignificant extrasolution data gathering activities and generic postsolution activity.
Furthermore, accelerometers and heart rate detectors are general field of use and non-transitory computer-readable media and processors are generic computer elements used to perform generic computer functions and don’t add significantly more and are well-understood, routine, and previously known to the industry.
None of these limitations, considered as an ordered combination provide eligibility because the claim taken as a whole, does not amount to significantly more than the underlying abstract idea of evaluating accelerometer data to identify the occurrence of activity and identifying the proper conditions in exertion levels and time after the start of the activity to identify a recovery state, and determine a heart rate recovery at a time after the end of the activity, the determination done in real-time and does not purport to improve the functioning of the signal processing, or to improve any other technology or technical field. Use of a generic signal processing does not amount to significantly more than the abstract idea itself. Dependent claims 22-27 also do not add significantly more to the exception as they merely add details to the mental steps, add details to the extrasolution data gathering steps, add general field of use components to facilitate the extrasolution data gathering, and add mental steps.
Regarding Claim 35, the claim(s) recites “determining a heart rate recovery of the user based on heart rate data samples detected by the heart rate detector during a period of time after an end of the activity, wherein determining the heart rate recovery of the user is performed in real-time.” which amounts to an abstract idea (mental process).
This judicial exception is not integrated into a practical application because:
- The claims fail to outline an improvement to the technical field.
- The claims fail to apply the judicial exception to effect a particular treatment.
- The claims fail to apply the judicial exception with a particular machine.
- The claims fail to effect a transformation or reduction of a particular article to a different state or thing.
Next, the claim as a whole is analyzed to determine whether any element or a combination of elements, integrates judicial exception into a practical application.
For this part of the 101 analysis, the following additional limitations are considered:
“detecting, by a wearable device, a start of an activity by a user wearing the wearable device, based on data received from a heart rate detector located in the wearable device;”
The additional elements are insufficient to amount to significantly more than the judicial exception because they seem to merely generally link the use of the judicial exception to a particular technological environment.
Moreover, the claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they pertain merely to insignificant extrasolution data gathering activities and generic postsolution activity.
Furthermore, heart rate detectors are general field of use.
None of these limitations, considered as an ordered combination provide eligibility because the claim taken as a whole, does not amount to significantly more than the underlying abstract idea of evaluating heart rate data to identify the occurrence of activity and determine a heart rate recovery at a time after the end of the activity, the determination done in real-time and does not purport to improve the functioning of the signal processing, or to improve any other technology or technical field. Use of a generic signal processing does not amount to significantly more than the abstract idea itself. Dependent claims 36-40 also do not add significantly more to the exception as they merely add details to the mental steps, add details to the extrasolution data gathering steps, add general field of use components to facilitate the extrasolution data gathering, and add mental steps.
Regarding Claim 41, the claim(s) recites “determine a heart rate recovery of the user based on heart rate data samples detected by a heart rate detector during a period of time after an end of the activity, wherein to determine the heart rate recovery of the user is performed in real-time.” which amounts to an abstract idea (mental process).
This judicial exception is not integrated into a practical application because:
- The claims fail to outline an improvement to the technical field.
- The claims fail to apply the judicial exception to effect a particular treatment.
- The claims fail to apply the judicial exception with a particular machine.
- The claims fail to effect a transformation or reduction of a particular article to a different state or thing.
Next, the claim as a whole is analyzed to determine whether any element or a combination of elements, integrates judicial exception into a practical application.
For this part of the 101 analysis, the following additional limitations are considered:
“detect a start of an activity by a user wearing the wearable device, based on data received from the accelerometer;”
The additional elements are insufficient to amount to significantly more than the judicial exception because they seem to merely generally link the use of the judicial exception to a particular technological environment.
Moreover, the claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they pertain merely to insignificant extrasolution data gathering activities and generic postsolution activity.
Furthermore, accelerometers and heart rate detectors are general field of use and processors and memories are generic computer elements used to perform generic computer functions and don’t add significantly more and are well-understood, routine, and previously known to the industry.
None of these limitations, considered as an ordered combination provide eligibility because the claim taken as a whole, does not amount to significantly more than the underlying abstract idea of evaluating accelerometer data to identify the occurrence of activity and determine a heart rate recovery at a time after the end of the activity, the determination done in real-time and does not purport to improve the functioning of the signal processing, or to improve any other technology or technical field. Use of a generic signal processing does not amount to significantly more than the abstract idea itself. Dependent claims 42-46 also do not add significantly more to the exception as they merely add details to the mental steps, add details to the extrasolution data gathering steps, add general field of use components to facilitate the extrasolution data gathering, and add mental steps.
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 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) 21, 24-27, 35, and 38-40 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Russell et al (US 2011/0257542) (“Russell”) as noted in Applicant IDS dated 9/25/2024.
Regarding Claim 21, Russell teaches one or more non-transitory machine-readable storage media storing instructions that, when executed by one or more processors of a wearable device (Abstract, [0018] worn system with processor for monitoring and analyzing, where the analysis of data by the process necessitates the presence of machine-readable storage media storing instructions that enable the processor to perform the analysis), cause the one or more processors to
detect a start of an activity by a user wearing the wearable device, based on data received from an accelerometer located in the wearable device (Fig. 3a, [0018] wearable device that measures activity and posture, where the Figure explicitly teaches that the activity/posture sensors can be accelerometers within the wearable device, [0022]-[0024] exertion level monitored, can be measured by activity level, distance covered, [0030] where exertion continuing for a certain duration is a prerequisite for heart rate recovery monitoring, and can be understood as detection of a start of an activity);
monitoring, in response to determining the start of the activity, the data received from the accelerometer to detect an end of the activity ([0022], [0031] when exertion falls below a high threshold, a transition timer is started, and if the exertion falls below a low threshold before the transition timer ends, the heart rate recovery analysis continues); and
determining a heart rate recovery of the user based on heart rate data samples detected by a heart rate detector during a period of time after the end of the activity ([0033]-[0035] heart rate recovery determined as heart rate at the end of the exertion minus the resting heart rate), wherein to determine the heart rate recovery of the user is performed in real-time ([0040] the determination time of heart rate recovery is in real-time).
Regarding Claim 24, Russell teaches the one or more non-transitory machine-readable storage media of claim 21, wherein to detect the start of the activity is further based on data received from the heart rate detector ([0024] exertion level can be evaluated based on both activity level and heart rate).
Regarding Claim 25, Russell teaches the one or more non-transitory machine-readable storage media of claim 21, wherein to detect the start of the activity further comprises: to determine an activity level of the user based on the data received from the accelerometer (See Claim 21 Rejection); and to determine the start of the activity in response to determining that the activity level has exceeded an activity threshold ([0025]).
Regarding Claim 26, Russell teaches the one or more non-transitory machine-readable storage media of claim 25, wherein the activity threshold is a threshold magnitude ([0025] activity threshold is a threshold magnitude).
Regarding Claim 27, Russell teaches the one or more non-transitory machine-readable storage media of claim 25, wherein the activity threshold is a duration of sustained activity ([0030] duration of sustained activity is duration of activity above Ex-hi).
Regarding Claim 35, Russell teaches a method (Abstract, [0018] worn system with processor to follow a monitoring and analyzing method), comprising
Detecting, by a wearable device, a start of an activity by a user wearing the wearable device, based on data received from a heart rate detector located in the wearable device (Fig. 3a, [0018] wearable device that measures subject data [0022]-[0024] exertion level monitored, can be measured by activity level, distance covered, and heart rate, [0030] where exertion continuing for a certain duration is a prerequisite for heart rate recovery monitoring, and can be understood as detection of a start of an activity);
determining a heart rate recovery of the user based on heart rate data samples detected by a heart rate detector during a period of time after the end of the activity ([0032]-[0035] heart rate recovery determined as heart rate at the end of the exertion minus the resting heart rate, only determined after the end of activity if subject data reflect a low exertion state from time T3 to time T4), wherein to determine the heart rate recovery of the user is performed in real-time ([0040] the determination time of heart rate recovery is in real-time).
Regarding Claim 38, Russell teaches the method of claim 35, wherein detecting the start of the activity by the wearable device is further based on data received from an accelerometer located in the wearable device (See Claim 35 Rejection, [0024] exertion level can be evaluated based on both activity level and heart rate).
Regarding Claim 39, Russell teaches the method of claim 35, wherein detecting the start of the activity further comprises determining an activity level of the user based on the data received from the heart rate detector (See Claim 35 Rejection); and
determining the start of the activity in response to determining that the activity level has exceeded an activity threshold ([0025]).
Regarding Claim 40, Russell teaches the method of claim 39, wherein the activity threshold is a duration of sustained activity ([0030] duration of sustained activity is duration of activity above Ex-hi).
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.
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.
Claim(s) 22-23 and 36-37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Russell in view of Ternes (US 2005/0065443) as noted in Applicant IDS dated 4/28/2023.
Regarding Claim 22, while Russell teaches the one or more non-transitory machine-readable storage media of claim 21, Russell fails to teach the instructions further cause the one or more processors to display the heart rate recovery on a display of the wearable device.
However Ternes teaches a cardiac monitoring system (Abstract) comprising a wearable physiological monitor (Fig. 15, [0055] external programmer 110 with display) where the displayed data includes heart rate recovery ([0046] “Other user-programmable exercise episode parameters determine what exercise episode summary information is presented to the user (e.g., … a graphically indicated heart rate recovery rate, a textual/alphanumeric indicated heart rate recovery rate,…”).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to include a display of Ternes with the worn device of Russell as a means to conveniently present the heart rate recovery of a subject, facilitating the decision of the need for medical intervention or new exercise goals.
Regarding Claim 23, while Russell teaches the one or more non-transitory machine-readable storage media of claim 21, the instructions to alternatively cause the one or more processors to: wirelessly communicate the heart rate data samples to a smartphone ([0039] data of system may be wirelessly communicated to a smartphone to either transmit results or have smartphone perform processing); Russell fails to teach cause the one or more processors to:
wirelessly communicate the heart rate data samples to a smartphone as an additional step;
display the heart rate data samples and the heart rate recovery on a display of the smartphone.
However Ternes teaches a cardiac monitoring system (Abstract) displaying physiological data including heart rate and heart rate recovery ([0043] heart rate, [0046] “Other user-programmable exercise episode parameters determine what exercise episode summary information is presented to the user (e.g., … a graphically indicated heart rate recovery rate, a textual/alphanumeric indicated heart rate recovery rate,…”).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to include a display of the heart rate and heart rate recovery as taught by Ternes at a smartphone of Russell as a means to communicate the cardiovascular health of a subject, facilitating a decision for medical intervention or on new exercise goals.
Regarding Claim 36, while Russell teaches the method of claim 35, Russell fails to teach the method further comprising displaying the heart rate recovery on a display of the wearable device.
However Ternes teaches a cardiac monitoring system (Abstract) comprising a wearable physiological monitor (Fig. 15, [0055] external programmer 110 with display) where the displayed data includes heart rate recovery ([0046] “Other user-programmable exercise episode parameters determine what exercise episode summary information is presented to the user (e.g., … a graphically indicated heart rate recovery rate, a textual/alphanumeric indicated heart rate recovery rate,…”).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to include a display of Ternes with the worn device of Russell as a means to conveniently present the heart rate recovery of a subject, facilitating the decision of the need for medical intervention or new exercise goals.
Regarding Claim 37, while Russell teaches the method of claim 35, and Russell teaches the method alternatively comprising:
wirelessly communicating the heart rate data samples to a smartphone ([0039] data of system may be wirelessly communicated to a smartphone to either transmit results or have smartphone perform processing);
Russell fails to teach cause the one or more processors to:
wirelessly communicate the heart rate data samples to a smartphone as an additional step; and
displaying the heart rate data samples and the heart rate recovery on a display of the smartphone.
However Ternes teaches a cardiac monitoring system (Abstract) displaying physiological data including heart rate and heart rate recovery ([0043] heart rate, [0046] “Other user-programmable exercise episode parameters determine what exercise episode summary information is presented to the user (e.g., … a graphically indicated heart rate recovery rate, a textual/alphanumeric indicated heart rate recovery rate,…”).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to include a display of the heart rate and heart rate recovery as taught by Ternes at a smartphone of Russell as a means to communicate the cardiovascular health of a subject, facilitating a decision for medical intervention or on new exercise goals.
Claim(s) 41 and 44-46 is/are rejected under 35 U.S.C. 103 as being unpatentable over Russell in view of Hadley (US 2007/0249949) as noted in Applicant IDS dated 9/25/2024.
Regarding Claim 41, while Russell teaches a wearable device (Abstract, [0018] worn system with processor for monitoring and analyzing), comprising:
a processor ([0018] BioHarness comprises a processor);
an accelerometer (Fig. 3a, [0018] activity sensors noted as accelerometers in Figure);
a heart rate detector (Fig. 3a, [0018] conformable fabric heart rate sensors); and
a memory for storing data ([0018]);
the processor, causing the wearable device to:
detect a start of an activity by a user wearing the wearable device, based on data received from the accelerometer (Fig. 3a, [0018] wearable device that measures activity and posture, where the Figure explicitly teaches that the activity/posture sensors can be accelerometers within the wearable device, [0022]-[0024] exertion level monitored, can be measured by activity level, distance covered, [0030] where exertion continuing for a certain duration is a prerequisite for heart rate recovery monitoring, and can be understood as detection of a start of an activity); and
determine a heart rate recovery of the user based on heart rate data samples detected by a heart rate detector during a period of time after an end of the activity ([0033]-[0035] heart rate recovery determined as heart rate at the end of the exertion minus the resting heart rate), wherein to determine the heart rate recovery of the user is performed in real-time ([0040] the determination time of heart rate recovery is in real-time), Russell fails to teach the wearable device comprising a memory storing instructions that, when executed by the processor, cause the wearable device to perform the method steps.
However Hadley teaches a cardiac recovery analysis in response to a stress test (Fig. 1, Abstract) comprising the use of a processor and a memory storing instructions that, when executed by the processor, cause the system to perform the method steps ([0022]-[0023]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to include a memory with computer-readable instructions as taught by Hadley to instruct the processor Russell as means to communicate the necessary instructions for the processor to actuate Russell’s method, enabling the processor to perform monitoring and analysis independently.
Regarding Claim 44, Russell and Hadley teach the wearable device of claim 41, wherein to detect the start of the activity is further based on data received from the heart rate detector ([0024] exertion level can be evaluated based on both activity level and heart rate).
Regarding Claim 45, Russell and Hadley teach the wearable device of claim 41, wherein to detect the start of the activity further comprises:
to determine an activity level of the user based on the data received from the accelerometer (See Claim 41 Rejection); and
to determine the start of the activity in response to determining that the activity level has exceeded an activity threshold ([0025]).
Regarding Claim 46, Russell and Hadley teach the wearable device of claim 45, wherein the activity threshold is a duration of sustained activity.
Claim(s) 42 is/are rejected under 35 U.S.C. 103 as being unpatentable over Russell in view of Hadley and further in view of Ternes.
Regarding Claim 42, while Russell and Hadley teach the wearable device of claim 41, their combined efforts fail to teach the instructions to further cause the wearable device to display the heart rate recovery on a display of the wearable device.
However Ternes teaches a cardiac monitoring system (Abstract) comprising a wearable physiological monitor (Fig. 15, [0055] external programmer 110 with display) where the displayed data includes heart rate recovery ([0046] “Other user-programmable exercise episode parameters determine what exercise episode summary information is presented to the user (e.g., … a graphically indicated heart rate recovery rate, a textual/alphanumeric indicated heart rate recovery rate,…”).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to include a display of Ternes with the worn device of Russell as a means to conveniently present the heart rate recovery of a subject, facilitating the decision of the need for medical intervention or new exercise goals.
Claim(s) 43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Russell in view of Hadley and further in view of Nihtila (US 2004/0002634) as noted in Applicant IDS dated 9/25/2024.
Regarding Claim 43, while Russell and Hadley teach the wearable device of claim 41, Russell fails to teach wherein the heart rate detector is an optical sensor.
However Nihtila teaches a physiological fitness monitor (Abstract, [0009]-[0010]) wherein the heart rate detector is an optical sensor ([0049]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, for the heart rate detector of Russell to be an optical sensor as taught by Nihtila as the application of a known technique for heart rate sensing to a known heart sensing device ready for improvement to yield predictable results of a standardized and accurate heart rate for the determination of heart rate recovery.
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claim 21 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 15 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other because the only distinction between the claims is that the instant application describes the invention as a non-transitory machine-readable storage media, a component which would be necessitated in the functioning of the processor of U.S. Patent No. 12,042,297.
Claim 22 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 21 for the instant application.
Claim 23 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 21 for the instant application.
Claim 24 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 19 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 21 for the instant application.
Claim 25 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 20 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 21 for the instant application.
Claim 26 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 21 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 21 for the instant application.
Claim 27 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 22 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 21 for the instant application.
Claim 35 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other because the only distinction between the claims is the teaching that U.S Patent No. 12,042,297’s Claim 1 uses an accelerometer to identify the time of the end of the user activity, a point necessitated in the determination of heart rate recovery in the instant application. Thus the broader idea of determining heart rate recovery data after the end of an activity in real time is outlined in U.S. Patent No. 12,042,297.
Claim 36 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 35 for the instant application.
Claim 37 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 35 for the instant application.
Claim 38 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 4 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 35 for the instant application.
Claim 39 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 35 for the instant application.
Claim 40 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 35 for the instant application.
Claim 41 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 15 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other because the only distinction between the claims is the teaching that U.S Patent No. 12,042,297’s Claim 15 uses an accelerometer to identify the time of the end of the user activity, a point necessitated in the determination of heart rate recovery in the instant application. Thus the broader idea of determining heart rate recovery data after the end of an activity in real time is outlined in U.S. Patent No. 12,042,297.
Claim 42 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 41 for the instant application.
Claim 43 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 41 for the instant application.
Claim 44 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 19 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 41 for the instant application.
Claim 45 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 20 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 41 for the instant application.
Claim 46 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 22 of U.S. Patent No. 12,042,297. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons given for the double patenting rejection of independent claim 41 for the instant application.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2014/0039337 recites subject matter related to the determination of heart rate recovery with reference to activity sensing and heart rate.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAIRO H PORTILLO whose telephone number is (571)272-1073. The examiner can normally be reached M-F 9:00 am - 5:15 pm.
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/JAIRO H. PORTILLO/
Examiner
Art Unit 3791
/PUYA AGAHI/Primary Examiner, Art Unit 3791
Prosecution Insights