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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a method of calculating an intake of milk without significantly more. The claim(s) recite(s) the step of calculating an intake, in terms of volume, mass, or energy, from a flow rate of milk through a cross-sectional area of an infant’s esophagus, characterized in transmitting light from light sources through the esophagus, receiving the transmitted light at photosensors, and, based on the light received, determining the intake by estimating the flow rate by means of absorption spectroscopy. This judicial exception is not integrated into a practical application because the steps generally link the use of the judicial exception to a particular technological environment, performing well-understood, routine and conventional activities previously known to the industry, specified at a high level of generality, and recite the concepts of gathering and evaluating data, performing mathematical calculations which can be performed as a mental step or on pen and paper. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the steps are well-understood, routine and conventional activities recited at a high level of generality and perform the functions of a photosensor that would be needed to apply the abstract idea via a sensor. Merely using generic components alone to perform the above identified basic functions to practice or apply the judicial exception does not constitute a meaningful limitation that would amount to significantly more than the judicial exception.
Claims 2-20 are dependent on claim 1 and include all the limitations of claim 1. Therefore, claims 2-20 recite the same abstract idea of gathering and evaluating data, and performing mathematical calculations which can be performed as a mental step or on pen and paper. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the steps recite additional data gathering, mathematical operations, or generic components that are well-understood, routine and conventional activities previously known to the industry, recited at a high level of generality amounting to no more than the judicial exception. Merely using generic components alone to perform the above identified basic functions to practice or apply the judicial exception does not constitute a meaningful limitation that would amount to significantly more than the judicial exception.
Claim 12 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claim recites computer program, which can encompass computer software or signal per se and does not constitute a statutory process, machine, manufacture, or a composition of matter.
Claim 13 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claim recites a data carrier signal and does not constitute a statutory process, machine, manufacture, or a composition of matter.
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 3-8, 14-16 and 19-20 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 respect to claims 3-8, 14-16 and 19-20, the scope of the claim is unclear. The claims fail to recite any gerund or active method steps.
Claims 9-11 and 17-18 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.
Claim limitation “means adapted to” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The disclosure is devoid of any structure that performs the function in the claim. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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 9-13 and 17-18 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 recite improper dependent form to claim 1. The claims recite subject matter outside the scope of the method of claim 1. The claims recite subject matter without further limiting the steps set forth in the method. Claim 13 recites improper dependent form to claim 12. 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) 9-11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Snipelisky (US 2021/0244292).
Snipelisky discloses a collar (120; Fig. 1) comprising: light sources (150A; Fig. 1), photosensors (150B; Fig. 1), and means adapted to execute a method (220; Fig. 2).
With respect to claim 10, Snipelisky discloses wherein the light sources and the photosensors are semiconductor diodes ([0014]).
With respect to claim 11, Snipelisky discloses wherein the light sources are laser diodes ([0014]).
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) 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Snipelisky (US 2021/0244292) in view of Connor (US 2018/0042513).
Snipelisky discloses the subject matter substantially as claimed except for wherein the collar is opaque to ambient light. However, Connor teaches in the same field of endeavor wherein the collar is opaque ([0404]; opaque energy barrier; [0471]). Therefore, it would have been obvious to one of ordinary skill in the art to have provided Snipelisky with an opaque collar as taught by Connor to provide an opaque energy barrier and as a substitution of one material for another is well within the skill level of one of ordinary skill in the art.
Snipelisky discloses the subject matter substantially as claimed except wherein at least one of the light sources is diametrically opposed to at least one of the photosensors. However, Connor teaches in the same field of endeavor a wearable device comprising at least one light source (1305; Fig. 13) diametrically opposed to at least one photosensor (1308; Fig. 13). Therefore, it would have been obvious to one of ordinary skill in the art to have provided Snipelisky with at least one light source diametrically opposed to at least one photosensor as taught by Connor as a duplication and rearrangement of parts is well within the skill level of one of ordinary skill in the art (see MPEP 2144.04(VI)(B and C).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER LUONG whose telephone number is (571)270-1609. The examiner can normally be reached M-F 9-6.
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, Anhtuan T Nguyen can be reached at (571)272-4963. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PETER LUONG/Primary Examiner, Art Unit 3797
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