-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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“an evaluation unit for determining information about the one or more vital parameters …” claims 1, 4, 6, 9, 10, 11, 12, 15, 16, 17, 19, 21, 23, 25, 27, 28, 29, 30 and 32 -- corresponding structure in the specification as filed is a hardware device, such as a microprocessor, a programmable computer or an electronic circuit, see page 30, lines 10-13.
“radar device for emitting first radar waves and detecting reflected radar waves caused by reflection of the first radar waves …” claim 1 -- corresponding structure in the specification as filed is a FMCW (frequency-modulated continuous wave) radar -- see page 28, lines 31-32;
“evaluation unit is configured to create a body model of the human being …” claims 7 and 26; and
“emitting first radar waves by a radar device, detecting, by the radar device …” claims 21 and 32 -- corresponding structure in the specification as filed is a FMCW (frequency-modulated continuous wave) radar -- see page 28, lines 31-32.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-32 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). In independent claims 1, 21 and 32 , two instances of the recitation “wherein the radar device is arranged, relative to the position of the human being…” amounts to inferential recitation of the human being, the scope of the claim encompasses a human being the claim recites a configuration that requires a human being present, which renders the claim non-statutory. A phrase such as -- wherein the radar device is adapted to be arranged, relative to the position of the human being -- is suggested to address the understood intent of the Applicant to avoid the 35 U.S.C 101 rejection. Claims 2, 3 and 22 recite a similar limitation and are rejected under this statute for substantially similar rationale as noted above. Claims 4-20 and 23-31 are likewise rejected, only because they include all limitations and therefore the deficiencies of claim 1 or 21.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-18, 21-29 and 32 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lepple-Wienhues US 20210137406 A1.
Regarding claims 1, 21 and 32 Lepple-Wienhues discloses a system, associated method and program for determining information about one or more vital parameters of a human being (Figs. 1-4, [0033-0035],[0067), the system comprising: a radar device (Fig. 2a “1”) for emitting first radar waves and for detecting reflected radar waves caused by reflection of the first radar waves at the human or at a human body coverage (see illustration Figs. 2a-3 and [0042] “Frequency Modulated Continuous Wave radar” is an equivalent thereof radar device, during normal operations the radar device perform the steps of emitting first radar waves and detecting reflected radar waves), and an evaluation unit for determining information about the one or a plurality of vital parameters of the human being dependent on the reflected radar waves (Fig. 1, “Analyzer Data Processor” [0067] and claims 1, 2, 9, 10 and 11 “analyzer and processing unit” is an equivalent thereof processing unit and [0060], [0064], [0067] vital parameters determined e.g., [0090] and Fig. 2a “5” pulse wave velocity, during normal operation, the “analyzer and processing unit” performs the step of determining information of the one or more vital parameters depending on the reflected waves; a computer is a well-known data processor in the art, and would comprise a non-transitory data storage medium with an associated program for executing associated method),
wherein the radar device is disposed laterally to the human relative to a position of the human such that a virtual point exists in a foot of the human and a virtual point exists in the radar device such that the virtual point in the radar device is closer to the virtual point in the foot of the human than at any virtual point in a umbilical of the human; or wherein the radar device is arranged laterally to the human relative to the position of the human such that a virtual point exists in a head of the human and that a virtual point exists in the radar device such that the virtual point in the radar device is closer to the virtual point in the head of the human than at any virtual point in the umbilical of the human (see illustration Figs. 2a-3).
Regarding claim 2, Lepple-Wienhues discloses wherein the radar device is arranged relative to the position of the human in such a way that the radar device is positioned in front of the person instead of behind the human (see illustration Figs. 2a-3).
Regarding claims 3 and 22, Lepple-Wienhues discloses wherein the radar device is arranged laterally with respect to the person relative to the position of the human, such that the radar device is arranged below the umbilical of the human and below the foot of the human, or so that the radar device is arranged above the umbilical of the person and above the head of the human (see illustration Figs. 2a-3).
Regarding claims 4-18 and 23-29, see Figs. 2a-3, [0057] and claim 1, one or more detected radar signals depending on the reflected radar waves are detected, each detected radar signal is associated with a distance step of a body region, and are used by the analyzer and processing unit to determine vital parameter associated with the corresponding body region; Figs. 2a-3 also depicts a grid that covers plurality of body regions; the detected radar regions are two, three or more as depicted in Figs. 2a-3 ([0057] “femoral artery” and “heart”, [0061] “anatomically relevant segments’, [0063] “neck region”, [0064], “face and the extremities”), a body model is created by the analyzer and processing unit ([0057] “image area containing the body” and claim 1 “spatial reconstruction of structural element”), each radar signal is assigned to precisely one body region (see Figs. 2a-3 and e.g. [0057] regarding heart and femoral artery regions of interest), two or more vital parameters are determined ([0067]), one or more vital parameter is assigned to one or more body regions and the analyzer and processing unit to determine information about said one or more vital parameter depending on reflected radar signals ([0057]); [0039] and claim 1 regarding each pixel contains information about a precise distance R and/or velocity v of said structural element towards said antenna or antenna element, and [0057] regarding arterial pulse in the femoral artery and heart region of interests, which would require selecting a distance channel associated with each region of interest; the analyzer and processing unit determines the information of the one or more vital parameters depending on periodic change of the detected one or more radar signals ([0040] regarding phase shift of the reflected signals and change of frequency and wavelength i.e., Doppler effect and [0089] and Fig. 2a “4” ); the radar device is a frequency-modulated continuous radar ([0042]).
Claims 1, 19-21 and 30-32 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by De Jong et al. US 20140058256 A1 (“De Jong”).
Regarding claims 1, 21 and 32 De Jong discloses a system, associated method and program for determining information about one or more vital parameters of a human being (Fig. 1, [0002],[0007], [0026-0027]), the system comprising: a radar device (“2a”, “2b” - Fig. 1) for emitting first radar waves and for detecting reflected radar waves caused by reflection of the first radar waves at the human or at a human body coverage (see illustration Fig.1, [0026-0027], and [0034] “Frequency Modulated Continuous Wave radar” is an equivalent thereof radar device, during normal operations the radar device perform the steps of emitting first radar waves and detecting reflected radar waves), and an evaluation unit for determining information about the one or a plurality of vital parameters of the human being dependent on the reflected radar waves (“processor unit 7” [0027-0028] and “computer system or control unit” [0053] is/are an equivalent thereof processing unit [0026] breathing activity and heart activity are determined depending on the reflected waves),
wherein the radar device is disposed laterally to the human relative to a position of the human such that a virtual point exists in a foot of the human and a virtual point exists in the radar device such that the virtual point in the radar device is closer to the virtual point in the foot of the human than at any virtual point in a umbilical of the human; or wherein the radar device is arranged laterally to the human relative to the position of the human such that a virtual point exists in a head of the human and that a virtual point exists in the radar device such that the virtual point in the radar device is closer to the virtual point in the head of the human than at any virtual point in the umbilical of the human (see illustration Fig. 1 radar device 2b, also note, [0058] regarding radar unit above the bed mounted to the ceiling may alternatively at another location e.g., on a wall facing the bed of the person being monitored, when placed at a wall opposite radar device “2b” facing the bed, would also meet this claim limitation).
Regarding claims 19-20 and 30-31, see discussion above, e.g., radar unit “2a” placed on a wall located opposite radar device “2b” and facing the bed would meet limitation of one or more further radar device in claims 19-20 and 30-31.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 20220346653 A1 to Teng et al. see Fig. 3, multiple radar devices 310 are frequency modulated continuous wave radars positioned on walls, ceiling or stationary object around the room ([0050]) is pertinent to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BONIFACE N NGANGA whose telephone number is (571)270-7393. The examiner can normally be reached Mon. - Thurs. 5:30 am - 4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ANNE M KOZAK can be reached at (571) 270-0552. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BONIFACE N NGANGA/ Primary Examiner, Art Unit 3797