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 Objections
Claims 3 and 30 are objected to because of the following informalities: The amended claim set includes two identical recitations of claim 3; only one should be included in any further communications. The formatting/indentations of claim 30, lines 3 – 14 appear reversed, in that items b) and c) should be aligned with item a) and items i. – v. should be indented further than items c). Appropriate correction is required.
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 – 11, 30 – 33, 35, and 54 – 57 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. With regard to the independent claims 1, 30, and 54, each claim ends by indicating the steps may be “performed in any order of sequence”; however, each claim includes steps that clearly require information from another step (“mapping the…”; “based on…”; “using…”) rendering it unclear how the detail of “any order of sequence” is to be interpreted, since information to perform any of claim 1, step b), d), or e), for example, would not be available if performed prior to claim 1, step a), c), or d), respectively.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 55 and 56 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The claims depend from a claim directed to executable instructions on a computer readable medium, but do not recite details consistent with the base claim. Instead, they set forth method steps regarding sensor elements. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claim(s) 1 – 8, 10, 11, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by DE 102012219128.
Examiner notes that Applicant has cited the foreign language prior art document on the IDS filed 06/09/2026, as well as a Search Report prepared by EPO that indicated the German reference met the corresponding claims. Examiner hereby adopts the conclusions regarding the teachings found in the German language document, as provided in the Search Report:
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638
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Examiner notes that the summary generally aligns with the details of claims 1 – 8, 10 and 11 as well as the corresponding system claims 30 – 33. The report additionally refers to Figure 5, paragraphs [0017] and [0047], claim 11 in the discussion of the dependent claims.
Further, one would recognize that in implementing the method/system using computer processors, a computer readable medium storing the instructions, of claims 54 – 57 would also be present.
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) 9 and 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over DE 102012219128 as applied to claims 1 and 30 above. The prior art teaches all of the features of the claimed invention except for providing the particular duration. However, without a showing of unexpected results or criticality, it would have been within the skill level of the art to perform routine experimentation to determine an appropriate length of time for this results-effective variable. Further, the reference provides a framework for analyzing the breathing event, as discussed above, but does not particularly indicate use of machine learning for implementing the assessment. However, it was generally known in the art that an analysis could be adapted to a machine learning implementation, and without a showing of criticality or unexpected results it would have been within the skill level of the art to make such a modification.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Bradley et al. (USPN 11,751,817 – Figures 6A, 6B), Abeyratne et al. (USPGPub 2015/0073306 – Figure 2), and Stamatopoulos et al. (USPGPub 2019/0083001 – Figure 14) teach systems and methods for assessing respiratory events through evaluation of sound/audio data.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC FRANK WINAKUR whose telephone number is (571)272-4736. The examiner can normally be reached Mon-Fri 9 am - 6 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chuck 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.
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/ERIC F WINAKUR/Primary Examiner, Art Unit 3791
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