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 11 and 14-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim recites the step of detecting an event based in part on the temperature data collected.
The limitation of detecting an event, as drafted, is a process that, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components. That is, other than reciting “a processor”, the claims are direct to concepts relating to organizing information in a way that can be performed mentally or analogous to human mental work and nothing in the claim element precludes the steps from practically being performed in the mind. For example, but for the processor, communications interface and output language, “detecting” in the context of this claim encompasses the user visually analyzing the data. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea.
This judicial exception is not integrated into a practical application. In particular, the claim recites the additional elements of a first and second temperature sensors. These sensors involve mere data gathering and amount to insignificant extra-solutional activity, specifically pre-solutional activity. Additionally, the processor and antenna are recited at a high-level of generality such that it amounts no more than mere instructions to apply the exception using generic computer components. Accordingly, these additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. Similarly the dependent claims do not include additional elements that amount to significantly more. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept and well-understood, routine and conventional activity is not sufficient to amount to significantly more than the abstract idea itself. The claim is not patent eligible.
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 13 and 16 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. It is unclear how these events are determined from just the temperature information. The specification states the device can identify eating and then other events related to the eating but it is unclear how these other metrics are determined from just the temperature data.
Claim 18 is 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. It is unclear if the computer system or processor detects the event or if it just reviews a display of an event.
Claim 8-10 contains the trademark/trade name Bluetooth. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a wireless protocol and, accordingly, the identification/description is indefinite.
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) 1-7,11-16 and 18-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over LeBoeuf et al. US 2014/0323829 in view of Prasad et al. US 2019/0222914.
Regarding claim 1, 18 and 19, LeBoeuf discloses a wearable device comprising:
a first temperature sensor configured to be positioned to detect an external ear temperature at an ear ([¶133] the sensor 1514 is attached to the ear lobe. [¶67-68] the physiological sensor can be a temperature sensor);
a second temperature sensor configured to hang below the ear to detect an ambient temperature ([FIG.15][¶132] section 1511 hangs below the ear and contains sensors including a temperature sensor);
a controller coupled to the first temperature sensor and the second temperature sensor ([¶66] signal processor 103 processes the sensor signals); and
an antenna coupled to the controller, wherein the controller and the antenna are configured to communicate data indicative of the external ear temperature and the ambient temperature ([¶72] the device has an antenna for transmission of data)
reviewing an event displayed by the computer system, the event detected based on the data ([¶94] the device can detect stress and nail biting behavior).
LeBoeuf does not specifically disclose that the second sensor is configured to dangle below the ear. Prasad teaches a similar ear mounted physiological sensing device ([¶7,22]) where the temperature sensor dangles from the ear ([¶32,33]). Therefore, it would have been obvious to one of ordinary skill in the art prior to the time of filing to combine the device of LeBoeuf with the teachings of Prasad in order to provide a function ear phone and sensor device while maintain the aesthetics of jewelry ([abstract]).
Regarding claim 2, LeBoeuf discloses the first temperature sensor is positioned on, or embedded in, an auricle of the ear, and wherein the external ear temperature is correlated to a corporeal temperature of a user of the wearable device ([FIG.15][¶133] the sensor 1514 is attached to the ear lobe. [¶67-68] the physiological sensor can be a temperature sensor for body temperature).
Regarding claim 3, LeBoeuf discloses the first temperature sensor is positioned on, or embedded in, an earlobe of the ear ([FIG.15][¶133] the sensor 1514 is attached to the ear lobe. [¶67-68] the physiological sensor can be a temperature sensor).
Regarding claim 4, LeBoeuf discloses the first temperature sensor is positioned outside an ear canal of the ear ([FIG.15]).
Regarding claim 5, Prasad teaches the first temperature sensor, the second temperature sensor, the controller, and the antenna are packaged into an earring wearable on the ear ([¶32,33,36] the components are all housed in the earring device).
Regarding claim 6, LeBoeuf discloses the earring further comprises a power source; and the first temperature sensor, the second temperature sensor, and the controller are configured to be powered by the power source ([¶66,74] an on board power source provides power to the device).
Regarding claim 7, LeBoeuf discloses the controller is configured to implement power cycling ([¶136] the sensors can be pinged to give readouts rather than transmit continuously).
Regarding claim 11, LeBeouf discloses the antenna and the controller are configured to communicate the data to a computing system ([¶6,76] the device wirelessly communicates with another system), and wherein the computing system is configured to detect an event based in part on the external ear temperature and the ambient temperature ([¶94,103] the remote device can process the data for trends and events or diagnosis can be made).
Regarding claim 12, LeBoeuf discloses the earring is manufactured using a flexible printed circuit board (FPCB), and wherein: the first temperature sensor is embedded in or on a first portion of the earring; the second temperature sensor is embedded in or on a second dangling portion of the earring; and the FPCB allows the second dangling portion of the earring to move as a user of the earring moves their head or body ([¶130] the device uses a flexible circuit board with the sensors 1306 on it).
Regarding claim 13, 16 and 20, LeBoeuf discloses the event comprises eating, exercising, stress, excitement, meditating, praying, sleeping, ovulation, vasomotor symptoms (VMS), hypothyroidism, sepsis, hypoglycemia, malnutrition, adrenal insufficiency, extensive burns, an infection, hyperthyroidism, an autoimmune disease, malignant hyperthermia, an endocrine disorder, or combinations thereof ([¶94] the device can detect stress and nail biting behavior).
Regarding claim 14, LeBoeuf discloses a computing system comprising:
a processor ([¶66] signal processor 103 processes the sensor signals);
at least one computer readable media coupled to the processor, the computer readable media encoded with instructions which, when executed by the processor, cause the computing system to perform operations comprising:
receive data indicative of an external ear temperature from a wearable device positioned on an ear of a user ([¶133] the sensor 1514 is attached to the ear lobe. [¶67-68] the physiological sensor can be a temperature sensor for body temperature);
receive data indicative of an ambient temperature from the wearable device ([FIG.15][¶132] section 1511 hangs below the ear and contains sensors including a temperature sensor. Environmental sensor for ambient condition detection); and
detect an event based on the data indicative of the external ear temperature and the data indicative of the ambient temperature [¶94,103] signal processor or the remote device can process the data for trends and events or diagnosis can be made.
Regarding claim 15, LeBoeuf discloses a display ([FIG.3][¶85]); and
the computing system performs further operations comprising:
display, on the display, the event, instructions to a user, the external ear temperature, the ambient temperature, a first graph of the external ear temperature over time, a second graph of the ambient temperature over time, or combinations thereof ([¶85,97] device can display readings and stress indications).
Claim(s) 8-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over LeBoeuf et al. US 2014/0323829 in view of Prasad et al. US 20190222914 further in view of Lamego et al. US 2020/0060555.
Regarding claim 8, LeBoeuf discloses the device can communicate in Bluetooth protocols but does not disclose the controller and the antenna are configured to communicate the data using Bluetooth advertising packets. Lamego teaches a similar monitoring device that uses Bluetooth low energy or BLE which transmits in the advertising packet format ([¶53,137]). Therefore, it would have been obvious to one of ordinary skill in the art prior to the time of filing to combine the device of LeBoeuf with the teachings of Lamego in order to use less power and increase monitoring time by using less battery power ([¶64]).
Regarding claim 9, Lamego teaches using BLE which transmits as recite in the claim with a time interval between a first data packet of the data and a second data packet of the data; and the time interval causes a voltage of the power source to recover prior to a transmission of the second data packet ([¶53,64,137]).
Regarding claim 10, Lamego teaches at least one of the first or second data packets further comprises an energy level information of the power source, a name of the earring, or combinations thereof ([¶189] energy level information is transmitted).
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over LeBoeuf et al. US 2014/0323829 in view of Prasad et al. US 20190222914 further in view of Zhang et al. US 2024/0023891.
Regarding claim 17, LeBoeuf discloses the device makes determinations and diagnoses based on the data but does not disclose the instructions comprise a machine learning model or heuristics for the detection of the event. Zhang teaches a similar earring physiological monitoring device that uses machine learning ([¶36,41,73,76] the device uses a machine learning model to analyze the physiologic data including temperature data). Therefore, it would have been obvious to one of ordinary skill in the art prior to the time of filing to combine the device of LeBoeuf with the teachings of Zhang in order to improve response speed ([¶53]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL ANTHONY CATINA whose telephone number is (571)270-5951. The examiner can normally be reached 10-6pm.
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, Robert Chen can be reached at 5712723672. 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.
/MICHAEL A CATINA/Examiner, Art Unit 3791 /TSE CHEN/Supervisory Patent Examiner, Art Unit 3791
Prosecution Insights