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 .
Reissue Applications
For reissue applications filed on or after September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the current provisions.
Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceeding in which Patent No. 11,894,122 (hereinafter the ‘122 patent) is or was involved. These proceedings would include any trial before the Patent Trial and Appeal Board, interferences, reissues, reexaminations, supplemental examinations, and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is material to patentability of the claims under consideration in this reissue application.
These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
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.
Claims 1-4, 8-10, 12, 15, and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Shimomura et al. (JP 2007075201 A, hereinafter Shimomura) in view of Babashan et al. (U.S. Patent Pub. 2009/0054751, hereinafter Babashan).
Regarding claim 1, Shimomura discloses a wearable device (wristwatch-type device 50, Fig. 10, ¶ 59) comprising:
a sensor (52, ¶ 61); and
a processor (CPU 56) configured to:
set a target range of a heart rate related with exercise intensity information, wherein a minimum value of the target range and a maximum value of the target range are determined based on a first reference heart rate (“setting a heart rate within a range not less than the reference heart rate and not more than an upper limit value as the target exercise amount index,” ¶ 59);
obtain, via the sensor (52), a second heart rate of the user (¶ 61);
determine whether the second heart rate of the user is in the target range of the heart rate related with the exercise intensity information (“within a range not less than the reference heart rate and not more than an upper limit value as the target exercise amount index,” ¶ 59; see also ¶ 63),
in a first case that the second heart rate is determined to be greater than the target range, provide a first feedback to notify that the second heart rate is greater than the target range (“When the detected heart rate is larger than the upper limit value of the target exercise amount index …, the notification means 58 makes a beep sound at an interval longer than the reference interval … and a down arrow mark 43 as shown in Fig. 5C is blinked on the display unit 59,” ¶ 65),
in a second case that the second heart rate is determined to be less than the target range, provide a second feedback that is different from the first feedback to notify that the second heart rate is less than the target range (“When the detected heart rate is less than the lower limit value of the target exercise amount index range … the notification means 58 makes a beep sound at an interval shorter than the reference interval … and an upward arrow mark 42 as shown in Fig. 5B is blinked on the display unit,” ¶ 64), and
in a third case that the second heart rate is determined to be within the target range, provide a third feedback that is different from the first feedback and the second feedback to notify that the exercise intensity information is within the target range (“when the detected heart rate is within … a target exercise amount index range …, by causing the notification means 58 to emit a beep sound at a predetermined reference interval, a ‘momentum maintenance request notification’ is performed and … the double arrow mark 41 is blinked,” ¶ 63, Fig. 5a),
wherein the processor is further configured to:
provide the first feedback in the first case based on the second heart rate being any value greater than the target range (see ¶ 65, cited above); and
provide the second feedback in the second case based on the second heart rate being any value less than the target range (see ¶ 64, cited above).
Shimomura does not teach obtaining, via the sensor, a first heart rate of the user wearing the wearable device as the first reference heart rate. However, Babashan teaches a similar wearable device (wrist mounted heart rate monitor 100, Figs. 2-3, ¶ 65) comprising a sensor (heart rate transducer 30) and a processor (microcontroller 20), wherein the processor is configured to obtain, via the sensor (30), a first heart rate (“resting heart rate,” ¶ 59) of a user wearing the wearable device (“The device may automatically detect the person’s resting heart rate when the device is worn while the user is at rest,” ¶ 69), and set a target range of a heart rate related with exercise intensity information (e.g., a desired heart rate “to indicate a desired level of performance,” ¶ 62), wherein a minimum value of the target range and a maximum value of the target range are determined based on the first heart rate of the user obtained by the sensor (e.g., using “the Karvonen formula, which determines a target heart rate by subtracting the exercising person’s age and resting heart rate from e.g. 200 (for men) or 226 (for women). The target range is between 50 and 85 percent of the target heart rate, plus the resting heart rate,” ¶ 10; see also ¶ 53). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Shimomura by configuring the processor to obtain, via the sensor, a first heart rate of the user wearing the wearable device and to determine the minimum and maximum values of the target range of the heart rate based on the first heart rate of the user obtained by the sensor, as taught by Babashan, in order to personalize the target range to the individual’s physiology by factoring in the user’s resting heart rate.
Regarding claim 2, the modified Shimomura teaches the claimed invention substantially as claimed, as set forth above for claim 1. Shimomura further discloses the exercise intensity information comprises heart rate information of the user (¶¶ 59-62).
Regarding claim 3, the modified Shimomura teaches the claimed invention substantially as claimed, as set forth above for claim 1. Shimomura further discloses the processor (56) is further configured to control a display (59, Fig. 10b; see Figs. 5a-c) to display the exercise intensity information (by showing the heart rate and a double arrow, upward arrow, or downward arrow as shown in Figs. 5a-c and described in ¶¶ 63-65).
Regarding claim 4, the modified Shimomura teaches the claimed invention substantially as claimed, as set forth above for claim 1. Shimomura further discloses the first feedback comprises a first tactile feedback (via the notification unit 58 as “a vibration unit that vibrates the main body … and may be notified in combination with the sound notification or by a pattern or tempo that vibrates the main body alone,” ¶ 341) and the second feedback comprises a second tactile feedback that is different from the first tactile feedback (i.e., a different “pattern or tempo,” analogous to the different intervals described with respect to the sound notifications at ¶¶ 63-65). In the examiner’s opinion, one of ordinary skill in the art would have immediately envisioned that the “pattern or tempo” of the tactile feedback described in ¶ 34 of Shimomura would be different for the first and second feedback (i.e., “in accordance with a predetermined rule that can be understood by the user,” ¶ 34), in the same way that the interval of the sound feedback is different for the first and second feedback as described in ¶¶ 34 and 63-65. If there is any doubt regarding the examiner’s interpretation of Shimomura as disclosing that the second tactile feedback is different from the first, then it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the invention of Shimomura by configuring the second tactile feedback to be different from the first tactile feedback (e.g., in a different “pattern or tempo,” ¶ 34), “in accordance with a predetermined rule than can be understood by the user” (¶ 34), so that the user can readily distinguish the tactile feedback to understand the instructions to increase or decrease exercise as necessary to maintain aerobic exercise (¶¶ 6-7, 34, 64-65).
Regarding claim 8, Shimomura discloses an operating method of a wearable device (wristwatch-type device 50, Fig. 10, ¶ 59) comprising:
setting a target range of a heart rate related with exercise intensity information, wherein a minimum value of the target range and a maximum value of the target range are determined based on a first reference heart rate (“setting a heart rate within a range not less than the reference heart rate and not more than an upper limit value as the target exercise amount index,” ¶ 59);
obtaining, via a sensor (52), a second heart rate of the user (¶ 61);
determining whether the second heart rate of the user is in the target range of the heart rate related with the exercise intensity information (“within a range not less than the reference heart rate and not more than an upper limit value as the target exercise amount index,” ¶ 59; see also ¶ 63),
providing, in a first case that the second heart rate is determined to be greater than the target range, a first feedback to notify that the second heart rate is greater than the target range (“When the detected heart rate is larger than the upper limit value of the target exercise amount index …, the notification means 58 makes a beep sound at an interval longer than the reference interval … and a down arrow mark 43 as shown in Fig. 5C is blinked on the display unit 59,” ¶ 65), wherein the first feedback is provided in the first case based on the second heart rate being any value greater than the target range (see ¶ 65);
providing, in a second case that the second heart rate is determined to be less than the target range, a second feedback that is different from the first feedback to notify that the second heart rate is less than the target range (“When the detected heart rate is less than the lower limit value of the target exercise amount index range … the notification means 58 makes a beep sound at an interval shorter than the reference interval … and an upward arrow mark 42 as shown in Fig. 5B is blinked on the display unit,” ¶ 64), wherein the second feedback is provided in the second case based on the second heart rate being any value less than the target range (see ¶ 64); and
providing, in a third case that the second heart rate is determined to be within the target range, a third feedback that is different from the first feedback and the second feedback to notify that the exercise intensity information is within the target range (“when the detected heart rate is within … a target exercise amount index range …, by causing the notification means 58 to emit a beep sound at a predetermined reference interval, a ‘momentum maintenance request notification’ is performed and … the double arrow mark 41 is blinked,” ¶ 63, Fig. 5a).
Shimomura does not teach obtaining, via the sensor, a first heart rate of the user wearing the wearable device as the first reference heart rate. However, Babashan teaches a similar method of operating a wearable device (wrist mounted heart rate monitor 100, Figs. 2-3, ¶ 65) comprising the steps of obtaining, via a sensor (heart rate transducer 30), a first heart rate (“resting heart rate,” ¶ 59) of a user wearing the wearable device (“The device may automatically detect the person’s resting heart rate when the device is worn while the user is at rest,” ¶ 69), and setting a target range of a heart rate related with exercise intensity information (e.g., a desired heart rate “to indicate a desired level of performance,” ¶ 62), wherein a minimum value of the target range and a maximum value of the target range are determined based on the first heart rate of the user obtained by the sensor (e.g., using “the Karvonen formula, which determines a target heart rate by subtracting the exercising person’s age and resting heart rate from e.g. 200 (for men) or 226 (for women). The target range is between 50 and 85 percent of the target heart rate, plus the resting heart rate,” ¶ 10; see also ¶ 53). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Shimomura to include the step of obtaining, via the sensor, a first heart rate of the user wearing the wearable device and determining the minimum and maximum values of the target range of the heart rate based on the first heart rate of the user obtained by the sensor, as taught by Babashan, in order to personalize the target range to the individual’s physiology by factoring in the user’s resting heart rate.
Regarding claim 9, the modified Shimomura teaches the claimed invention substantially as claimed, as set forth above for claim 8. Shimomura further discloses the exercise intensity information comprises heart rate information of the user (¶¶ 59-62).
Regarding claim 10, the modified Shimomura teaches the claimed invention substantially as claimed, as set forth above for claim 8. Shimomura further discloses displaying the exercise intensity information (via display 59, Fig. 10b, by showing the heart rate and a double arrow, upward arrow, or downward arrow as shown in Figs. 5a-c and described in ¶¶ 63-65).
Regarding claim 12, the modified Shimomura teaches the claimed invention substantially as claimed, as set forth above for claim 8. Shimomura further discloses the first feedback is a first tactile feedback (i.e., a “decrease request notification,” ¶¶ 34, 65, provided as a pattern or tempo of vibration, ¶ 34), and the second feedback is a second tactile feedback that is different from the first tactile feedback (i.e., an “increase request notification,” ¶¶ 34, 64, provided as a different pattern or tempo of vibration, analogous to the different intervals described with respect to the sound notifications at ¶¶ 63-65). In the examiner’s opinion, one of ordinary skill in the art would have immediately envisioned that the “pattern or tempo” of the tactile feedback described in ¶ 34 of Shimomura would be different for the first and second feedback (i.e., “in accordance with a predetermined rule that can be understood by the user,” ¶ 34), in the same way that the interval of the sound feedback is different for the first and second feedback as described in ¶¶ 34 and 63-65. If there is any doubt regarding the examiner’s interpretation of Shimomura as disclosing that the second tactile feedback is different from the first, then it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Shimomura by configuring the second tactile feedback to be different from the first tactile feedback (e.g., in a different “pattern or tempo,” ¶ 34), “in accordance with a predetermined rule than can be understood by the user” (¶ 34), so that the user can readily distinguish the tactile feedback to understand the instructions to increase or decrease exercise as necessary to maintain aerobic exercise (¶¶ 6-7, 34, 64-65).
Regarding claim 15, Shimomura discloses a wearable device (wristwatch-type device 50, Fig. 10, ¶ 59) comprising:
a sensor (52, ¶ 61); and
a processor (CPU 56) configured to:
set a target range of a heart rate related with exercise intensity information, wherein a minimum value of the target range and a maximum value of the target range are determined based on a first reference heart rate (“setting a heart rate within a range not less than the reference heart rate and not more than an upper limit value as the target exercise amount index,” ¶ 59);
obtain, via the sensor (52), a second heart rate of the user (¶ 61);
determine whether the second heart rate of the user is in the target range set on the wearable device (“within a range not less than the reference heart rate and not more than an upper limit value as the target exercise amount index,” ¶ 59; see also ¶ 63),
provide at least one tactile feedback (“by a pattern or tempo that vibrates the main body,” ¶ 34; as an “increase request notification,” ¶ 64, or a “decrease request notification,” ¶ 65) to notify that the second heart rate is out of the target range in response to the second heart rate being determined to be less than or greater than the target range (¶¶ 64-65), and
provide a feedback to notify that the second heart rate is in the target range in response to the second heart rate being determined to be within the target range (“when the detected heart rate is within … a target exercise amount index range …, by causing the notification means 58 to emit a beep sound at a predetermined reference interval, a ‘momentum maintenance request notification’ is performed and … the double arrow mark 41 is blinked,” ¶ 63, Fig. 5a),
wherein the processor is further configured to:
provide a first tactile feedback (¶ 34) in response to the second heart rate being determined to be greater than the target range (¶ 65), wherein the first tactile feedback is provided based on the second heart rate being any value greater than the target range (¶ 65).
Shimomura does not teach obtaining, via the sensor, a first heart rate of the user wearing the wearable device as the first reference heart rate. However, Babashan teaches a similar wearable device (wrist mounted heart rate monitor 100, Figs. 2-3, ¶ 65) comprising a sensor (heart rate transducer 30) and a processor (microcontroller 20), wherein the processor is configured to obtain, via the sensor (30), a first heart rate (“resting heart rate,” ¶ 59) of a user wearing the wearable device (“The device may automatically detect the person’s resting heart rate when the device is worn while the user is at rest,” ¶ 69), and set a target range of a heart rate related with exercise intensity information (e.g., a desired heart rate “to indicate a desired level of performance,” ¶ 62), wherein a minimum value of the target range and a maximum value of the target range are determined based on the first heart rate of the user obtained by the sensor (e.g., using “the Karvonen formula, which determines a target heart rate by subtracting the exercising person’s age and resting heart rate from e.g. 200 (for men) or 226 (for women). The target range is between 50 and 85 percent of the target heart rate, plus the resting heart rate,” ¶ 10; see also ¶ 53). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Shimomura by configuring the processor to obtain, via the sensor, a first heart rate of the user wearing the wearable device and to determine the minimum and maximum values of the target range of the heart rate based on the first heart rate of the user obtained by the sensor, as taught by Babashan, in order to personalize the target range to the individual’s physiology by factoring in the user’s resting heart rate.
Regarding claim 17, the modified Shimomura teaches the claimed invention substantially as claimed, as set forth above for claim 15. Shimomura further discloses the processor is configured to provide a second tactile feedback that is different from the first tactile feedback (i.e., an “increase request notification,” ¶¶ 34, 64, provided as a different pattern or tempo of vibration, analogous to the different intervals described with respect to the sound notifications at ¶¶ 63-65) in response to the second heart rate being determined to be less than the target range (¶¶ 34, 64), wherein the second tactile feedback is provided based on the second heart rate being any value less than the target range (¶ 64). In the examiner’s opinion, one of ordinary skill in the art would have immediately envisioned that the “pattern or tempo” of the tactile feedback described in ¶ 34 of Shimomura would be different for the first and second feedback (i.e., “in accordance with a predetermined rule that can be understood by the user,” ¶ 34), in the same way that the interval of the sound feedback is different for the first and second feedback as described in ¶¶ 34 and 63-65. If there is any doubt regarding the examiner’s interpretation of Shimomura as disclosing that the second tactile feedback is different from the first, then it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the invention of Shimomura by configuring the second tactile feedback to be different from the first tactile feedback (e.g., in a different “pattern or tempo,” ¶ 34), “in accordance with a predetermined rule than can be understood by the user” (¶ 34), so that the user can readily distinguish the tactile feedback to understand the instructions to increase or decrease exercise as necessary to maintain aerobic exercise (¶¶ 6-7, 34, 64-65).
Regarding claim 18, the modified Shimomura teaches the claimed invention substantially as claimed, as set forth above for claim 15. Shimomura further discloses the exercise intensity information comprises heart rate information of the user (¶¶ 59-62).
Regarding claim 19, the modified Shimomura teaches the claimed invention substantially as claimed, as set forth above for claim 15. Shimomura further discloses the processor (56) is further configured to control a display (59, Fig. 10b; see Figs. 5a-c) to display the exercise intensity information (by showing the heart rate and a double arrow, upward arrow, or downward arrow as shown in Figs. 5a-c and described in ¶¶ 63-65).
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 8-10 and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-11, and 15-19 of U.S. Patent No. 11,250,940 (hereinafter the ‘940 patent) in view of Babashan.
Regarding claim 8, ‘940 claims 1 and 11 recite the step of “acquiring exercise intensity information of a user” which generically corresponds to the claim 8 limitation of obtaining a heart rate of the user; determining whether the information is greater than or less than a target, which is understood to include any value greater than or less than the target; and outputting first and second different feedback when the information is greater than or less than the target. The ‘940 patent claims do not specifically define the exercise intensity information as a heart rate of the user or specify the steps for setting the target (i.e., the steps of obtaining a first heart rate and setting the target based on the first heart rate), and the ‘940 patent claims are silent with respect to providing third feedback different from the first and second feedback when the second heart rate is within the target range. However, Babashan teaches a method of operating a similar wearable device, including these same method steps, as discussed above in the rejection of claim 8 under 35 U.S.C. 103; see ¶ 62 of Babashan disclosing the different third feedback. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the ‘940 patent claims by obtaining first and second heart rates as the exercise intensity information, setting the target range based on the first heart rate, and providing third feedback different from the first and second feedback when the second heart rate is within the target range, as taught by Babashan, in order to encourage the user to maintain a target level of intensity that is appropriate for their individual fitness level.
Regarding claim 9, Babashan teaches the exercise intensity information comprising heart rate information of the user, as discussed above.
The limitations of claim 10 are described in ‘940 patent claims 6-8 and 16-17.
The limitations of claim 12 are described in ‘940 patent claims 1, 5, 9-11, 15, and 18-19.
Claims 1-4, 8-10, 12, 15, and 17-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 10-13, 17-18, and 21 of U.S. Patent No. 10,524,729 (hereinafter the ‘729 patent) in view of Babashan.
Regarding independent claims 1 and 15, ‘729 patent claims 1, 3, and 11-13 recite an exercise feedback provision apparatus substantially corresponding to the claimed wearable device (where the “acquirer” of the ‘729 patent claims corresponds to the claimed sensor, and the “controller” of the ‘729 patent claims corresponds to the claimed processor, where the “greater than” and “less than” limitations are understood to include any value greater than and any value less than), except that the ‘729 patent claims do not specify how the predetermined range is determined by the controller/processor and do not explicitly recite the controller/processor being configured to provide feedback to notify that the second heart rate is within the target range. However, Babashan teaches a similar wearable device, including a processor configured to obtain a first heart rate, set the target range based on the first heart rate, as discussed above in the rejection of claims 1 and 15 under 35 U.S.C. 103, and to provide feedback (different from the first and second feedback) to notify that the second heart rate is in the target range (see ¶ 62). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the ‘729 patent claims by configuring the processor to determine the predetermined range by obtaining a first heart rate and setting the target range based on the first heart rate, and to provide third feedback different from the first and second feedback to notify that the second heart rate is within the target range, as taught by Babashan, in order to encourage the user to maintain a target level of intensity that is appropriate for their individual fitness level.
Regarding independent claim 8, ‘729 patent claim 18 recites the steps of “acquiring exercise intensity information of a user” which generically corresponds to the claim 8 limitation of obtaining a heart rate of the user; determining whether the information is greater than or less than a target, which is understood to include any value greater than and any value less than the target; and outputting first and second different feedback when the information is greater than or less than the target. The ‘729 patent claims do not specify the steps for setting the target (i.e., the steps of obtaining a first hear rate and setting the target based on the first hear rate), and the ‘729 patent claims are silent with respect to providing third feedback different from the first and second feedback when the second heart rate is within the target range. However, Babashan teaches a method of operating a similar wearable device, including these same method steps, as discussed above in the rejection of claim 8 under 35 U.S.C. 103; see ¶ 62 of Babashan disclosing the different third feedback. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the ‘729 patent claims by obtaining first and second heart rates as the exercise intensity information, setting the target range based on the first heart rate, and providing third feedback different from the first and second feedback when the second heart rate is within the target range, as taught by Babashan, in order to encourage the user to maintain a target level of intensity that is appropriate for their individual fitness level.
The limitations of claims 2, 9, and 18 are recited in ‘729 patent claims 3 and 13.
Regarding claims 3, 10, and 19, the ‘729 patent claims do not explicitly describe displaying the exercise intensity information. However, this feature is taught by Babashan (see ¶ 66). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the invention of the ‘729 patent claims by configuring the controller/processor to control a display to display the exercise intensity information, as taught by Babashan, in order to supplement the tactile feedback with visual feedback.
The limitations of claims 4, 12, and 17 are recited in ‘729 patent claims 10, 17, and 21.
Claims 1-4, 8-10, 12, 15, and 17-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 10, 15-16 and 19-20 of U.S. Patent No. 9,473,883 (hereinafter the ‘883 patent) in view of Babashan.
Regarding claims 1 and 15, ‘883 patent claims 1, 10, and 19 each recite an exercise provision apparatus substantially corresponding to the claimed wearable device (where the “acquirer” of the ‘883 patent claims corresponds to the claimed sensor2 and the “controller” of the ‘883 patent claims corresponds to the claimed processor, and where the “greater than” and “less than” limitations are understood to include any value greater than and any value less than the predetermined target range). ‘883 patent claims 2, 10, and 19 each further recite feedback in response to the exercise intensity information being within the predetermined range (see col. 15:51-53, 16:24-32, and 18:2-3), which corresponds to the feedback to notify that the exercise intensity information is in the recited range as recited in reissue claims 1 and 15. ‘883 patent claims 3 and 20 recite the exercise intensity information being heart rate. The ‘883 patent claims are silent with respect to the manner of setting the predetermined target range. However, Babashan teaches a similar wearable device, including a processor configured to obtain a first heart rate and set the target range based on the first heart rate, as discussed above in the rejection of claims 1 and 15 under 35 U.S.C. 103. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the ‘883 patent claims by configuring the processor to determine the predetermined range by obtaining a first heart rate and setting the target range based on the first heart rate, as taught by Babashan, in order to encourage the user to maintain a target level of intensity that is appropriate for their individual fitness level.
Regarding independent claim 8, ‘883 patent claim 15 recites substantially all of the claimed method steps (where “acquiring current exercise intensity information comprising either one or both of user biometric information and user movement information” in ‘883 patent claim 15 corresponds to the claim 8 limitation “measuring a biometric signal,” and where the “greater than” and “less than” limitations are understood to include any value greater than and any value less than the predetermined target range). ‘883 patent claim 16 further recites “outputting a second tactile feedback based on a second pattern in response to the exercise intensity information being in the predetermined range,” which corresponds to the feedback to notify that the exercise intensity information is in the recited range as recited in reissue claim 8. The ‘883 patent claims are silent with respect to the manner of setting the predetermined target range. However, Babashan teaches a similar method of operating a wearable device, including obtaining a first heart rate and setting the target range based on the first heart rate, as discussed above in the rejection of claim 8 under 35 U.S.C. 103. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the ‘883 patent claims by obtaining a first heart rate and setting the target range based on the first heart rate, as taught by Babashan, in order to encourage the user to maintain a target level of intensity that is appropriate for their individual fitness level.
The limitations of claims 2, 9, and 18 are recited in ‘883 patent claim 3.
Regarding claims 3, 10, and 19, the ‘883 patent claims do not explicitly describe displaying the exercise intensity information. However, this feature is taught by Babashan (see ¶ 66). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the invention of the ‘883 patent claims by configuring the controller/processor to control a display to display the exercise intensity information, as taught by Babashan, in order to supplement the tactile feedback with specific heart rate information.
The limitations of claims 4, 12, and 17 are recited in ‘883 patent claims 1, 10, and 15.
Response to Arguments
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The features which Applicant argues to be missing from Babashan are taught by Shimomura, as set forth above in response to Applicant’s amendment. In response to Applicant’s argument that it would not have been obvious to modify Babashan to include the newly claimed limitations, the examiner notes that the rejection is based on modifying Shimomura to include the personalized target heart rate range determination taught by Babashan.
Conclusion
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.
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/Laura Davison/Reexamination Specialist, Art Unit 3993
Conferees:
/SARAH B MCPARTLIN/Reexamination Specialist, Art Unit 3993
/EILEEN D LILLIS/SPRS, Art Unit 3993
1 The examiner notes that the notification unit 58 in Fig. 10 corresponds to the notification means 8 in Fig. 1 which is discussed in greater detail in ¶ 34. See ¶ 59 (“The first digit number of the reference number shown in FIGS. 10A and 10B represents the number of the corresponding component of the aerobic maintenance device 1 of the first embodiment.”). Thus, the detailed discussion of the notification unit 8 in ¶ 34 is clearly understood to apply equally to the notification unit 58 of Fig. 10.
2 While ‘883 patent claim 19 does not explicitly recite a sensor, a sensor is implied by the claimed functions of the controller to verify exercise intensity “based on an analysis of the exercise intensity” and of the feedback provider to output feedback “in response to the user exercise intensity.”
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