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 § 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.
Claims 1, 2, 9, 10 - 12, 14 - 18, and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Messerschmidt (US 20140051939 A1 - cited by Applicant).
In regard to claims 1, 2, 9, 10 - 12, and 14 - 18, Messerschmidt discloses a method and device for determining a physiological metric by transmitting a known acoustic input or acoustic transmit signal provided by a left and right earphone (FIG. 1, components 102 & 104) via speakers (FIG. 6C, components 611 & 613) within the ear and receiving a version of the acoustic transmit signal via microphones (FIG. 6C, components 612 & 614) with one or more waveform characteristics modified due to propagation in the ear canal, where passing blood pulses cause changes in the profile of the sound reflected by the walls of the sealed ear canal (paragraph [0046]). Messerschmidt further discloses that a processor (paragraph [0030]; FIG. 4) is used to determine a physiological parameter, such as pulse arrival time, pulse velocity, or central aortic blood pressure, that is correlated with the acoustic changes to the acoustic transmit signal and the system determines and outputs a blood pressure measurement (paragraph [0047]) based on the acoustic transmit signal and acoustic receive signal alone. The device comprises a left and right earphone (FIG. 6C, component 104 & 102) where each earphone or earbud comprises a speaker (FIG. 6C, components 613 & 611) and microphone (FIG. 6C, component 614 & 612) positioned proximate to an ear of the user (paragraph [0045]) and each earphone at least partially seals the ear of the user (paragraph [0036]; FIG. 6C, components 102 & 104). The at least one microphone of the earphones acts as a transducer and converts audio signals into electrical signals that are then analyzed by the processing system (paragraph [0045]). Messerschmidt additionally discloses that the acoustic transmit signal comprises any type of sound, including sound tones within human audible frequency range which encompasses the audible frequency range of 20 Hz to 20 KHz where audible content, such as music that the user is listening to, is transmitted simultaneously with the acoustic transmit signal (paragraph [0046]). The method further includes performing a calibration process (FIG. 3A, component 302) that identifies at least one acoustic frequency which is converted into a blood pressure measurement by defining a relationship between pressure transducer measurements and acoustic frequency measurements and transmitting the known acoustic transmit signal to the user (paragraph [0079]).
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.
Claims 3 & 13 are rejected under 35 U.S.C. 103 as being unpatentable over Messerschmidt (US 20140051939 A1 - cited by Applicant) as applied to claims 1 & 12 above, and further in view of Lesso (US 20190012446 A1).
In regard to claims 3 and 13, Messerschmidt discloses the invention of claims 1 and 12. While Messerschmidt further discloses that filtering configured to remove undesirable signal components such as noise (paragraph [0071]) and additionally that the earphones are noise-reduction headphones (paragraph [0042]) they do not specify that the system performs active noise cancellation using the at least one microphone.
However, Lesso teaches an earphone that includes one or more speakers (FIG. 1a, component 22) positioned to generate an acoustic transmit signal in the ear canal (FIG. 1a, component 12b) and one or more microphones (FIG. 1a, component 24; paragraph [0023]) where the earphone performs active noise cancellation by detecting a noise with the microphone (FIG. 1 a, component 24) and generating a signal with the speaker (FIG. 1a, component 22) that has the same amplitude but opposite phase as the noise (paragraph [0024]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the method and system disclosed by Messerschmidt with the teaching of Lesso that an earphone can perform active noise cancellation using the at least one microphone because Messerschmidt already discusses the removal of noise signals and reducing noise to a user with the earphone and Lesso further teaches that active noise cancellation reduces the amount of noise experienced by the user of the earphone (Lesso paragraph [0024]) such that modification of Messerschmidt with the teachings of Lesso would be considered combining prior art elements according to known methods to yield the predictable result of reducing noise experienced by a user when using the earphones.
Claims 4 & 19 are rejected under 35 U.S.C. 103 as being unpatentable over Messerschmidt (US 20140051939 A1 - cited by Applicant) as applied to claims 1 & 12 above, and further in view of Lesso 2021 (US 20210186350 A1 - Cited as WO 2021123720 A1 by Applicant) in view of McMahon (US 20210275056 A1)
In regard to claims 4 and 19, Messerschmidt discloses the invention of claim 1 and 12. Messerschmidt further discloses that the method comprises transmitting the acoustic transmit signal which comprises multiple frequencies where the acoustic transmit signal comprises any type of sound such as music, spoken word, and/or acoustic waveform (paragraph [0046]). While Messerschmidt discuses determining at least one physiological metric (paragraphs [0045] - [0047]), they do not specify that the physiological metric is determined based on an autocorrelation association with one of the multiple frequencies of the acoustic receive signal having a highest peak-to-average ratio compared to autocorrelations of other ones of the multiple frequencies of the acoustic receive signal.
However, Lesso 2021 teaches a physiological metric detection system using an earphone (FIG. 1, component 12; paragraph [0125]) that emits an acoustic transmit signal through the ear canal using a speaker (paragraph [0163]; FIG. 4, component 30) that includes sounds such as speech or music and a transducer or microphone (FIG. 4, component 18; paragraph [0164]) that detects both the sound output by the speaker and sounds modulated by the wearer’s heartbeat. Lesso 2021 further teaches that heart rate can be determined based on an autocorrelation where peaks corresponding to frequencies and heights below a specified range are filtered out (paragraphs [0043] - [0044]).
It would have been obvious to one of ordinary skill in the art to have modified the method and device disclosed by Messerschmidt with the teachings of Lesso 2021 which include processing an acoustic transmit and receive signal using an autocorrelation to determine a physiological metric because Messerschmidt already discusses determining a variety of physiological metrics by processing acoustic transmit and receive signals measured using a microphone and additionally discusses measuring heart rate using other sensors included in the earphones (paragraph [0068]), such that modifying Messerschmidt with the teaching of Lesso 2021 would be considered combining prior art elements according to known methods to yield the predictable result of measuring physiological parameters using acoustic signals.
While Messerschmidt discloses determining at least one physiological metric based on the acoustic receive signal and Lesso 2021 further teaches the use of an autocorrelation associated with one of the multiple frequencies, neither Messerschmidt nor Lesso 2021 discuss determining the at least one physiological metric based on the acoustic receive signal having a highest peak-to-average ratio compared to autocorrelations of other ones of the multiple frequencies of the acoustic receive signal.
However, McMahon teaches a method and system for the detection of a physiological metric from audio data where a maximal or highest peak-to-mean ratio across frequency bands is identified and compared to a threshold in order to determine if a physiological metric signal, in this case breathing frequency of a user, is detected (paragraph [0231]).
It would have been obvious to one of ordinary skill in the art to have modified the method and device disclosed by Messerschmidt as modified by Lesso 2021 with the teaching of McMahon that includes determining a highest peak-to-average ratio of a frequency signal to detect a physiological metric signal because doing so allows for the isolation of peaks related to the desired band of the physiological parameter (McMahon, paragraph [0231]).
Claims 5 - 6 are rejected under 35 U.S.C. 103 as being unpatentable over Messerschmidt (US 20140051939 A1 - cited by Applicant) as applied to claims 1 above, and further in view of Lesso 2021 (US 20210186350 A1 - Cited as WO 2021123720 A1 by Applicant).
In regard to claim 5, Messerschmidt discloses the invention of claim 1. Messerschmidt further discloses that the method comprises transmitting the acoustic transmit signal which comprises multiple frequencies where the acoustic transmit signal comprises any type of sound such as music, spoken word, and/or acoustic waveform (paragraph [0046]). While Messerschmidt discuses determining at least one physiological metric (paragraphs [0045] - [0047]), such as pulse arrival time, pulse velocity, or central aortic blood pressure from the acoustic receive signal and further discus measuring physiological metrics like heart rate using other sensors included in the earphones (paragraph [0068]), they do not specify that the at least one physiological parameter based on the acoustic receive signal comprises a heart rate of the user.
However, Lesso 2021 teaches a physiological metric detection system using an earphone (FIG. 1, component 12; paragraph [0125]) that emits an acoustic transmit signal through the ear canal using a speaker (paragraph [0163]; FIG. 4, component 30) that includes sounds such as speech or music and a transducer or microphone (FIG. 4, component 18; paragraph [0164]) that detects both the sound output by the speaker and sounds modulated by the wearer’s heartbeat. Lesso 2021 further teaches that heart rate of the user is determined by receiving the acoustic receive signal from the microphone or sensor, calculating an autocorrelation, and estimating a heart rate of the user from at least one peak in the autocorrelation (paragraphs [0082] - [0086]).
It would have been obvious to one of ordinary skill in the art to have modified the system and method disclosed by Messerschmidt with the teaching of Lesso 2021 that heart rate can be determined based on the acoustic receive signal (paragraphs [0082] - [0086]) because Messerschmidt already discusses measuring a variety of physiological parameters using acoustic signals measured using a microphone and additionally discusses measuring heart rate using other sensors included in the earphones (paragraph [0068]), such that modifying Messerschmidt with the teaching of Lesso 2021 would be considered combining prior art elements according to known methods to yield the predictable result of measuring physiological parameters using acoustic signals.
In regard to claim 6, Messerschmidt as modified discloses the invention of claim 5. Lesso 2021 further teaches that the acoustic receive signal, which is a mixture of the acoustic transmit signal and the user’s heart beat (paragraph [0164]), is demodulated by mixing or subtracting the known acoustic transmit signal from the acoustic receive signal to generate a mixed signal (paragraph [0166]) and is further processed and denoised (FIG. 5, components 70, 72, 74; paragraphs [0176] - [0179]). The mixed signal is then filtered using a low-pass filter (FIG. 5, component 76; paragraph [0180]) and an autocorrelation is generated (paragraph [0183]; FIG. 5, component 82) and used to determine the heart rate (paragraphs [0189] and [0192] based on the period of the autocorrelation (paragraph [0189]; see “pulse period”).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Messerschmidt (US 20140051939 A1 - cited by Applicant) in view of Lesso 2021 (US 20210186350 A1 - Cited as WO 2021123720 A1 by Applicant) as applied to claim 6 above, and further and further in view of Swami (WO 2015076916 A1 - cited by Applicant).
In regard to claim 7, Messerschmidt as modified discloses the invention of claim 6. While Lesso 2021 teaches generating an autocorrelation and determining a period of a filtered signal to determine the heart rate of a user (paragraphs [0189] - [0192]), they do not specify the application of a curve-fitting function to the filtered signal prior to generating the autocorrelation or subtracting the fitted curve from the filtered signal to generate a modified filtered signal.
However, Swamy teaches a method of removing artifacts from signals representative of a physiological parameter of a user (Abstract) where the signals are received by an acquisition system (FIG. 1, component 102; paragraph [0005]) where the signals are processed using a polynomial fitting technique (FIG. 1, component 158; paragraph [0027]) to remove motion artifacts from the signal and generate a modified signal. Swamy additionally teaches that the signal can be filtered (FIG. 1, component 156) prior to removing motion artifacts using the polynomial fitting technique. Although the teaching of Swamy are directed towards determining a respiration rate and removing cardiac artifacts from the signal using a filtering process prior to using the polynomial fitting technique, one of ordinary skill in the art would recognize that the same processing techniques could be applied to the system and method disclosed by Messerschmidt as modified which is also directed towards measuring a signal representative of a physiological metric, such as blood pulse information or heart rate as taught by Lesso 2021, removing noise from a measured signal, and determining the physiological metric.
It would have been obvious to one of ordinary skill prior to the effective filing date of the claimed invention to have modified Messerschmidt as modified with the teaching of Swami that a polynomial or curve fitting function can be applied to a filtered signal and subtracted or removed from the filtered signal to generate a modified filtered signal and further processed to estimate a physiological metric because doing so allows for the removal of motion artifact data and improve the accuracy of the measurement of the physiological parameter (Swami, paragraph [0002]).
Claims 5 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Messerschmidt (US 20140051939 A1 - cited by Applicant) as applied to claims 1 above, and further in view of Read (US 20190022348 A1 - Cited by Applicant).
In regard to claims 5 and 8, Messerschmidt discloses the invention of claim 1. Messerschmidt further discloses that the method comprises transmitting the acoustic transmit signal which comprises multiple frequencies where the acoustic transmit signal comprises any type of sound such as music, spoken word, and/or acoustic waveform (paragraph [0046]). While Messerschmidt discuses determining at least one physiological metric (paragraphs [0045] - [0047]), such as pulse arrival time, pulse velocity, or central aortic blood pressure, they do not specify that the at least one physiological parameter based on the acoustic receive signal comprises a heart rate of the user.
However, Read teaches a detection system using earphones (FIG. 1, component 100; paragraph [0018]) that emits an acoustic transmit signal through the ear canal using a speaker (FIG. 1, component 110) that includes sounds such as entrainment sounds (paragraph [0019]) and a microphone (FIG. 1, component 106; paragraph [0019]) that detects the acoustic receive signal comprised of the entrainment sounds and additionally heartbeat and respiration sounds (paragraph [0020]). Read further teaches that heart rate and respiration rate are determined based on the acoustic receive signal (paragraphs [0021] & [0023]).
It would have been obvious to one of ordinary skill in the art to have modified the system and method disclosed by Messerschmidt with the teaching of Read that heart rate can be determined based on the acoustic receive signal (paragraph [0023]) because Messerschmidt already discusses measuring a variety of physiological parameters using acoustic signals measured using a microphone and additionally discusses measuring heart rate using ECG sensors included in the earphones (paragraph [0068]), such that modifying Messerschmidt with the teaching of Read would be considered combining prior art elements according to known methods to yield the predictable result of measuring physiological parameters using acoustic signals.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Messerschmidt (US 20140051939 A1 - cited by Applicant) as applied to claims 1 above, and further in view of Thiruvenkatanathan (US 20200190971 A1).
In regard to claim 20, Messerschmidt discloses the system of claim 12. Messerschmidt additionally discloses a calibration process (FIG. 3A, component 302) that identifies at least one acoustic frequency which is converted into a blood pressure measurement by defining a relationship between pressure transducer measurements and acoustic frequency measurements and transmitting the known acoustic transmit signal to the user (paragraph [0079]) and the transmitting of the acoustic transmit signal using a speaker (FIG. 6C, components 611 & 613). While Messerschmidt discusses calibration to identify at least one acoustic frequency, they do not specify that the at least one acoustic frequency is associated with an autocorrelation that is greater than a predetermined threshold.
However, Thiruvenkatanathan teaches a system and method for calibrating a monitoring system that measures acoustic signals (paragraph [0005]) and includes a calibration process for the extraction of frequency signals that includes comparing frequency domain features, including a spectral autocorrelation function (paragraph [0042]), to a threshold value to determine if a signal of interest has occurred (paragraph [0040]).
It would have been obvious to one of ordinary skill in the art to have modified the device disclosed by Messerschmidt with the teachings of Thiruvenkatanathan that a signal of interest can be identified during a calibration process that includes comparing an autocorrelation function to a threshold value, because Messerschmidt already discusses a calibration method that includes comparing frequency signals to other measurements such that modifying Messerschmidt with the teaching of Thiruvenkatanathan would be considered combining prior art elements according to known methods to yield the predictable result of calibrating an acoustic sensing device.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SIENNA CHRISTINE PYLE whose telephone number is (703)756-5798. The examiner can normally be reached 8 am - 5:30 pm M - T; Off first Fridays; 8 am - 4 pm second Fridays.
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, Charles Marmor, II can be reached at (571) 272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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.
/ERIC F WINAKUR/Primary Examiner, Art Unit 3791
/S.C.P./Examiner, Art Unit 3791
Prosecution Insights