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 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.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed on April 22, 2026, after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on March 23, 2026 has been entered.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3 and 8-10 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Babashan et al. (U.S. Patent Pub. 2009/0054751, hereinafter Babashan).
Regarding claim 1, Babashan discloses a wearable device (wrist mounted heart rate monitor 100, Figs. 2-3, including microcontroller 20 and heart rate transducer 30, Fig. 1; ¶ 65) comprising a sensor (heart rate transducer 30) and a processor (microcontroller 20), wherein the processor (20) 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);
set a target range of a heart rate related with exercise intensity information (e.g., a desired heart rate between sixty and seventy percent of a base heart rate number “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 (the resting heart rate acquired by the transducer 30 being used by the microcontroller 20 in combination with the user’s input age and gender “to calculate the various heart rate ranges desired during exercise for the person using the present device 100, in accordance with the Karvonen formula,” ¶ 69; see ¶¶ 57-59 and Fig. 13);
obtain, via the sensor, a second heart rate of the user (i.e., a heart rate while exercising, see ¶ 8);
determine whether the second heart rate of the user is in the target range of the heart rate related with the exercise intensity information (¶ 61-63);
in a 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 (e.g., a red color display feedback when the second heart rate is between seventy and eighty percent of the base rate, or a yellow color display feedback when the second heart rate is between eighty and ninety percent of the base rate, ¶ 63);
in a 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 (e.g., a blue color display feedback when the second heart rate is between fifty and sixty percent of the base rate, ¶ 62); and
in a 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 second heart rate is within the target range (e.g., a green color display feedback when the second heart rate is between sixty and seventy percent of the base rate, ¶ 62).
Regarding claim 2, Babashan further discloses the exercise intensity information comprises heart rate information of the user (¶ 51).
Regarding claim 3, Babashan further discloses the processor (20, Fig. 1) is further configured to control a display (color display field 110) to display the exercise intensity information (by displaying the color feedback, ¶ 66).
Regarding claim 8, Babashan discloses an operating method of a wearable device (wrist mounted heart rate monitor 100, Figs. 2-3, including microcontroller 20 and heart rate transducer 30, Fig. 1; ¶ 65) comprising:
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);
setting a target range of a heart rate related with exercise intensity information (e.g., a desired heart rate between sixty and seventy percent of a base heart rate number “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 (the resting heart rate acquired by the transducer 30 being used by the microcontroller 20 in combination with the user’s input age and gender “to calculate the various heart rate ranges desired during exercise for the person using the present device 100, in accordance with the Karvonen formula,” ¶ 69; see ¶¶ 57-59 and Fig. 13);
obtaining, via the sensor, a second heart rate of the user (i.e., a heart rate while exercising, see ¶ 8);
determining whether the second heart rate of the user is in the target range of the heart rate related with the exercise intensity information (¶ 61-63);
providing, in a 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 (e.g., a red color display feedback when the second heart rate is between seventy and eighty percent of the base rate, or a yellow color display feedback when the second heart rate is between eighty and ninety percent of the base rate, ¶ 63);
providing, in a 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 (e.g., a blue color display feedback when the second heart rate is between fifty and sixty percent of the base rate, ¶ 62); and
providing, in a 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 second heart rate is within the target range (e.g., a green color display feedback when the second heart rate is between sixty and seventy percent of the base rate, ¶ 62).
Regarding claim 9, Babashan further discloses the exercise intensity information comprises heart rate information of the user (¶ 51).
Regarding claim 10, Babashan further discloses displaying the exercise intensity information (by displaying the color feedback on a color display field 110, ¶ 66).
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 4, 12, 15, and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Babashan.
Regarding claims 4 and 12, Babashan teaches the claimed invention substantially as claimed, as set forth above for claims 1 and 8, respectively. Babashan further teaches that the feedback may be tactile feedback (to “communicate the findings to the user using … touch (vibration),” ¶ 76). This is understood to be an advantageous modification “for use by those who are color blind, have weak eyesight or suffer from disabilities” or “by athletes, such as swimmers.” Babashan ¶ 86. While Babashan does not explicitly describe different first and second tactile feedback when the second heart rate is respectively greater than or lower than the target range, one of ordinary skill in the art would immediately understand that Babashan is concerned with providing different user-distinguishable feedback when the user’s heart rate is greater than or less than the target range, similar to the different color feedback when the findings of the heart rate monitor are communicated visually, as discussed above. 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 Babashan by providing the first feedback as first tactile feedback and the second feedback as second tactile feedback different from the first tactile feedback, in order to communicate the findings of the heart rate monitor to a user who is visually impaired or to an athlete while swimming (in which case visual feedback would be impractical).
Regarding claims 15 and 17, Babashan discloses a wearable device (wrist mounted heart rate monitor 100, Figs. 2-3, including microcontroller 20 and heart rate transducer 30, Fig. 1; ¶ 65) comprising a sensor (heart rate transducer 30) and a processor (microcontroller 20), wherein the processor (20) is configured to:
obtain, via the sensor (30), a first heart rate (“resting heart rate,” ¶ 59) of a user (“The device may automatically detect the person’s resting heart rate when the device is worn while the user is at rest,” ¶ 69);
set a target range of a heart rate related with exercise intensity information (e.g., a desired heart rate between sixty and seventy percent of a base heart rate number “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 (the resting heart rate acquired by the transducer 30 being used by the microcontroller 20 in combination with the user’s input age and gender “to calculate the various heart rate ranges desired during exercise for the person using the present device 100, in accordance with the Karvonen formula,” ¶ 69; see ¶¶ 57-59 and Fig. 13);
obtain, via the sensor, a second heart rate of the user (i.e., a heart rate while exercising, see ¶ 8);
determine whether the second heart rate of the user is in the target range of the heart rate related with the exercise intensity information (¶ 61-63);
provide a first feedback to notify that the second heart rate is greater than the target range in response to the second heart rate being determined to be greater than the target range (e.g., a red color display feedback when the second heart rate is between seventy and eighty percent of the base rate, or a yellow color display feedback when the second heart rate is between eighty and ninety percent of the base rate, ¶ 63) (claim 17);
provide a second feedback that is different from the first feedback to notify that the second heart rate is less than the target range in response to the second heart rate being determined to be less than the target range (e.g., a blue color display feedback when the second heart rate is between fifty and sixty percent of the base rate, ¶ 62) (claim 17); and
provide a feedback to notify that the second heart rate is within the target range in response to the second heart rate being determined to be in the target range (e.g., a green color display feedback when the second heart rate is between sixty and seventy percent of the base rate, ¶ 62).
Babashan further teaches that the feedback may be tactile feedback (to “communicate the findings to the user using … touch (vibration),” ¶ 76). This is understood to be an advantageous modification “for use by those who are color blind, have weak eyesight or suffer from disabilities” or “by athletes, such as swimmers.” Babashan ¶ 86. While Babashan does not explicitly describe different first and second tactile feedback when the second heart rate is respectively greater than or lower than the target range, one of ordinary skill in the art would immediately understand that Babashan is concerned with providing different user-distinguishable feedback when the user’s heart rate is greater than or less than the target range, similar to the different color feedback when the findings of the heart rate monitor are communicated visually, as discussed above. 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 Babashan by providing the first feedback as first tactile feedback and the second feedback as second tactile feedback different from the first tactile feedback, in order to communicate the findings of the heart rate monitor to a user who is visually impaired or to an athlete while swimming (in which case visual feedback would be impractical).
Regarding claim 18, the modified Babashan teaches the claimed invention substantially as claimed, as set forth above for claim 15. Babashan further discloses the exercise intensity information comprises heart rate information of the user (¶ 51).
Regarding claim 19, the modified Babashan teaches the claimed invention substantially as claimed, as set forth above for claim 15. Babashan further discloses the processor (20, Fig. 1) is further configured to control a display (color display field 110) to display the exercise intensity information (by displaying the color feedback, ¶ 66). When modifying Babashan to include tactile feedback as discussed above, it would have been obvious to one of ordinary skill in the art to keep the display for providing the visual feedback as a supplemental mode of communication.
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; 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 hear rate and setting the target based on the first hear 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. 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), 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, and provide feedback (different from the first and second feedback) to notify that the second heart rate is in the target range, 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 ‘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; 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. 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, as set forth in the rejections under 35 U.S.C. 103 above. 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 sensor1 and the “controller” of the ‘883 patent claims corresponds to the claimed processor). ‘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”). ‘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, as set forth in the rejections under 35 U.S.C. 103 above. 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 with respect to claims 1-4, 8-10, 12, 15, and 17-19 have been considered but are moot because the new ground of rejection, set forth above in response to Applicant’s amendment, does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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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 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.”
Prosecution Insights