DETAILED ACTION
Acknowledgements
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-20 are pending.
This action is non-Final.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: “123”. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
The disclosure is objected to because of the following informalities: The specification and drawings are not in agreement, see drawing objections above.
Appropriate correction is required.
Claim Interpretation
The method claims with contingent features are not required, wherein the system with contingent features are required. See MPEP 2111.04
II. CONTINGENT LIMITATIONS
The broadest reasonable interpretation of a method (or process) claim having contingent limitations requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met. For example, assume a method claim requires step A if a first condition happens and step B if a second condition happens. If the claimed invention may be practiced without either the first or second condition happening, then neither step A or B is required by the broadest reasonable interpretation of the claim. If the claimed invention requires the first condition to occur, then the broadest reasonable interpretation of the claim requires step A. If the claimed invention requires both the first and second conditions to occur, then the broadest reasonable interpretation of the claim requires both steps A and B.
The broadest reasonable interpretation of a system (or apparatus or product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The system claim interpretation differs from a method claim interpretation because the claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed.
See Ex parte Schulhauser, Appeal 2013-007847 (PTAB April 28, 2016) for an analysis of contingent claim limitations in the context of both method claims and system claims. In Schulhauser, both method claims and system claims recited the same contingent step. When analyzing the claimed method as a whole, the PTAB determined that giving the claim its broadest reasonable interpretation, “[i]f the condition for performing a contingent step is not satisfied, the performance recited by the step need not be carried out in order for the claimed method to be performed” (quotation omitted). Schulhauser at 10. When analyzing the claimed system as a whole, the PTAB determined that “[t]he broadest reasonable interpretation of a system claim having structure that performs a function, which only needs to occur if a condition precedent is met, still requires structure for performing the function should the condition occur.” Schulhauser at 14. Therefore "[t]he Examiner did not need to present evidence of the obviousness of the [ ] method steps of claim 1 that are not required to be performed under a broadest reasonable interpretation of the claim (e.g., instances in which the electrocardiac signal data is not within the threshold electrocardiac criteria such that the condition precedent for the determining step and the remaining steps of claim 1 has not been met);" however to render the claimed system obvious, the prior art must teach the structure that performs the function of the contingent step along with the other recited claim limitations. Schulhauser at 9, 14.
Claim Objections
Claim 19 is objected to because of the following informalities: claim 19 preamble is missing a comma at the end of line 4. Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more. The claim(s) recite(s):
Claim 1
identify whether, using the at least one first sensor, a user wearing the wearable device starts exercise (mathematical process, and/or mental process)
based on the identifying that the user starts the exercise, identify, using the at least one second sensor, a time of sweating of the user (mathematical process, and/or mental process)
based on the identified time of sweating, determine a degree of sweat loss of the user (mathematical process, and/or mental process)
Claim 11
identifying, by the wearable device, whether, using the at least one first sensor, a user wearing the wearable device starts exercise (mathematical process, and/or mental process)
based on the identifying that the user starts the exercise, identifying, by the wearable device, using the at least one second sensor, a time of sweating of the user (mathematical process, and/or mental process)
based on the identified time of sweating, determining, by the wearable device, a degree of sweat loss of the user (mathematical process, and/or mental process)
Claim 19
identifying, by the wearable device, whether, using the at least one first sensor, a user wearing the wearable device starts exercise (mathematical process, and/or mental process)
based on the identifying that the user starts the exercise, identifying, by the wearable device, using the at least one second sensor, a time of sweating of the user (mathematical process, and/or mental process)
based on the identified time of sweating, determining, by the wearable device, a degree of sweat loss of the user (mathematical process, and/or mental process)
These claim limitations fall within the identified groupings of abstract ideas:
Mathematical Concepts:
mathematical relationships
mathematical formulas or equations
mathematical calculations
Mental Processes
concepts performed in the human mind (including an observation, evaluation, judgment, opinion)
This judicial exception is not integrated into a practical application because:
Under the step 2A, analysis is conducted on the additional features of the claim. Under this analysis, the additional features beyond the judicial exception are:
Claim 1
a wearable device comprising: at least one first sensor; at least one second sensor including a plurality of electrodes (structures related to data gathering)
memory storing one or more computer programs; and one or more processors communicatively coupled to the at least one first sensor, the at least one second sensor, and the memory, wherein the one or more computer programs include computer-executable instructions that, when executed by the one or more processors individually or collectively, cause the wearable device to (computer structures implemented as a tool to perform the claimed exceptions)
Claim 11
a method performed by a wearable device, the wearable device including at least one first sensor and at least one second sensor including a plurality of electrodes (structures related to data gathering)
Claim 19
one or more non-transitory computer-readable storage media storing one or more computer programs including computer-executable instructions that, when executed by one or more processors of a wearable device individually or collectively, the wearable device including at least one first sensor and at least one second sensor cause the wearable device to perform operations, the operations comprising (computer structures implemented as a tool to perform the claimed exceptions, in combination with inferenced structures where such media is located in relations to structures related to data gathering)
These features in the claim do not integrate the exception into a practical application of the exception as the additional elements in the claim do not apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is no more than a drafting effort designed to monopolize the exception.
Limitation concepts that are indicative of integration into a practical application:
Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP 2106.05(e) and Vanda Memo
Limitation concepts that are not indicative of integration into a practical application:
Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f)
Adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g)
Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h)
Under Step 2B, the claim limitations are evaluated for an inventive concept. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, when considered separately and in combination, they do not add significantly more to the exception. Analyzing the additional claim limitations individually, the additional limitation that is not directed to the abstract idea are the same as those identified above in step 2A. Such limitations related to the sensors are recognized by the courts as routine data gathering in order to input data to the mathematical algorithm/mental processes, and thus, do not add a meaningful limitation to the method as it would be routinely used by those of ordinary skill in the art in order to apply the mathematical algorithm/mental processes. In addition, these structures in wearables are well-known in the art and include forms from US 2016/0338639, US 2010/0179403, US 2017/0172484, US 2024/0366152, US 2021/0259589, US 2020/0194106, US 10,980,491, and in general are generic sensors in generic locations producing the expected data. The method does not contain any computing structures, such that the steps can all be analog/mental processing of the data gathered which further supports that the claims are directed to a judicial exception without significantly more. The computer structures cited above are claimed as performing generic computer functions routinely used in computer applications. Generic computer components recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system. The additional limitations recited in the dependent claims are directed to further generic structures of sensors and display which are known in the art cited above and provide for insignificant pre/post solution additions, and further details of the exception (A more specific abstraction is still an abstraction). Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. Therefore, analyzing the claims as an ordered combination under the Mayo/Alice analysis the features claimed are directed to patent ineligible limitations.
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.
Claims 1-9, 11-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jones et al. (Jones, US 10,980,491).
Regarding claim 1, Jones teaches a wearable device (see at least Figure 1) comprising:
at least one first sensor (see at least Figure 1, 1 sensor in array col. 5 lines 9-46);
at least one second sensor including a plurality of electrodes (see at least Figures 1 another 1 or more in the array, 15B can include one or more pads, col. 32 lines 4-10);
memory storing one or more computer programs (see at least Figure 1 160, col. 3 lines 56-59); and
one or more processors communicatively coupled to the at least one first sensor, the at least one second sensor, and the memory, wherein the one or more computer programs include computer-executable instructions that, when executed by the one or more processors individually or collectively, cause the wearable device (see at least col. 3 lines 54-65) to:
identify whether, using the at least one first sensor, a user wearing the wearable device starts exercise (see at least col. 18 lines 41-55 “In another embodiment, the correlator 1013 may also track and analyze Newtonian data of the user related to physiological or determined parameters (such as heart rate, oxygenation, skin luminosity, hydration, and the like), related to location and type of activity (such as activity levels associated with being at the gym, riding a bike, attending class, working at a desk, sleeping, or driving in traffic, and the like) and/or related to scheduling information (such as appointments on a calendar, invites received from friends, or messages related to travel and/or activity plans, and the like). Through this analysis, the electronic device 1010 may track activity data over time, intelligently and continuously (or periodically) analyze all of this information,” col. 31 line 64-65 “In one example, the processing logic can tag event using measurement information. For example, the processing logic can tag a start of an exercise period of the user when an accelerometer measures an increase in activity of the user.”),
based on the identifying that the user starts the exercise, identify, using the at least one second sensor, a time of sweating of the user (see at least Figures 16C, 17C, 17D, col. 35 lines 25-35), and
based on the identified time of sweating, determine a degree of sweat loss of the user (see at least col. 22 lines 15-28 “For example, the correlator 1013 may receive heart rate data, skin temperature, bio-impedance data, skin luminosity and hydration level data of a user. In this example, the correlator 1013 may determine a correlation between these types of physiological data and a dehydration event of the individual. For example, the physiological data could be from optical spectroscopy (skin luminosity) and/or bio-impedance data. The correlator 1013 may then determine that as the bio-impedance of an individual increases and skin luminosity decreases, a probability of a dehydration event occurring increases.” col. 26 lines 46-67 “The correlator 1013 can store the safety event and the associated safety parameters in the safety event database 1012. For example, the correlator 1013 can determine that parameters for a heat stroke event can be a skin temperature above a 100-degree temperature, blood pressure above 150 systolic, and a bio-impedance level above 15000 ohms (e.g., a dehydration level threshold).” col. 32 line 46-col. 35 line 35).
Regarding claim 2, Jones teaches wherein the one or more computer programs further include computer-executable instructions that, when executed by the one or more processors individually or collectively, cause the wearable device to, based on a change in impedance of the plurality of electrodes at a designated frequency, determine the time of sweating (trending on measured impedance determines time of sweating which is based on the natural properties of the impedance signal including magnitude and phase, see at least Figures 16C, 17C, 17D, col. 32 line 46-col. 35 line 35).
Regarding claim 3, Jones teaches wherein the one or more computer programs further include computer-executable instructions that, when executed by the one or more processors individually or collectively, cause the wearable device to, based on a change in phase value at the designated frequency, determine the time of sweating (trending on measured impedance determines time of sweating which is based on the natural properties of the impedance signal including magnitude and phase, see at least Figures 16C, 17C, 17D, col. 32 line 46-col. 35 line 35).
Regarding claim 4, Jones teaches wherein the one or more computer programs further include computer-executable instructions that, when executed by the one or more processors individually or collectively, cause the wearable device to select at least one data corresponding to the time of sweating among a plurality of pre-stored data and, based on data the selected data, determine the degree of sweat loss (appears to read on baselines and using such for determining safety conditions with the correlator, see at least col. 25 line 55- col. 26 line 67).
Regarding claim 5, Jones teaches further comprising: a display (see at least Figure 1 140), wherein the one or more computer programs further include computer-executable instructions that, when executed by the one or more processors individually or collectively, cause the wearable device to provide a designated feedback through the display when the degree of sweat loss is a designated ratio or more (see at least col. 20 lines 1-6, col. 4 lines 1-15, col/ 29 lines 19-49).
Regarding claim 6, Jones teaches wherein the one or more computer programs further include computer-executable instructions that, when executed by the one or more processors individually or collectively, cause the wearable device to, based on the time of sweating, identify information about an ambient environment where the user is positioned (see at least col. 19 line 32-47, col. 20 lines 51-64).
Regarding claim 7, Jones teaches wherein the at least one first sensor includes at least one sensor among an acceleration sensor, a photoplethysmography (PPG) sensor, a temperature sensor, or a gyro sensor (see at least col. 5 lines 9-46).
Regarding claim 8, Jones teaches wherein the one or more computer programs further include computer-executable instructions that, when executed by the one or more processors individually or collectively, cause the wearable device to, based on information about the time of sweating, identify a sweating characteristic of the user (see at least col. 22 lines 15-28 “For example, the correlator 1013 may receive heart rate data, skin temperature, bio-impedance data, skin luminosity and hydration level data of a user. In this example, the correlator 1013 may determine a correlation between these types of physiological data and a dehydration event of the individual. For example, the physiological data could be from optical spectroscopy (skin luminosity) and/or bio-impedance data. The correlator 1013 may then determine that as the bio-impedance of an individual increases and skin luminosity decreases, a probability of a dehydration event occurring increases.” col. 26 lines 46-67 “The correlator 1013 can store the safety event and the associated safety parameters in the safety event database 1012. For example, the correlator 1013 can determine that parameters for a heat stroke event can be a skin temperature above a 100-degree temperature, blood pressure above 150 systolic, and a bio-impedance level above 15000 ohms (e.g., a dehydration level threshold).” col. 32 line 46-col. 35 line 35).
Regarding claim 9, Jones teaches wherein the plurality of electrodes are electrically connected to each other (see at least Figures 15B, 10, col. 32 lines 4-10, the sensors are electrically connected via skin and wearable to the processing/power elements).
Regarding claim 11, Jones teaches a method performed by a wearable device, the wearable device including at least one first sensor and at least one second sensor including a plurality of electrodes (see at least Figures 1, 15B, col. 5 lines 9-46, col. 32 lines 4-10), the method comprising:
identifying, by the wearable device, whether, using the at least one first sensor, a user wearing the wearable device starts exercise (this method step makes a determination of whether an exercise activity has started, see at least col. 18 lines 41-55 “In another embodiment, the correlator 1013 may also track and analyze Newtonian data of the user related to physiological or determined parameters (such as heart rate, oxygenation, skin luminosity, hydration, and the like), related to location and type of activity (such as activity levels associated with being at the gym, riding a bike, attending class, working at a desk, sleeping, or driving in traffic, and the like) and/or related to scheduling information (such as appointments on a calendar, invites received from friends, or messages related to travel and/or activity plans, and the like). Through this analysis, the electronic device 1010 may track activity data over time, intelligently and continuously (or periodically) analyze all of this information,” col. 31 line 64-65 “In one example, the processing logic can tag event using measurement information. For example, the processing logic can tag a start of an exercise period of the user when an accelerometer measures an increase in activity of the user.”);
based on the identifying that the user starts the exercise, identifying, by the wearable device, using the at least one second sensor, a time of sweating of the user (this limitation is contingent on the positive affirmation which is not required, thus the method step is met by no exercise activity starting, i.e. sleeping activity); and
based on the identified time of sweating, determining, by the wearable device, a degree of sweat loss of the user (this limitation is contingent on the positive affirmation which is not required, thus the method step is met by no exercise activity starting, i.e. sleeping activity).
Regarding claims 12-16, 18 the limitations are taught by Jones as Jones teaches a display (see at least Figure 1 140), and all further limitations further limit a contingent feature and thus bear no patentable weight as the limitations are contingent on the positive affirmation which is not required; thus the method step is met by no exercise activity starting, i.e. sleeping activity.
12. The method of claim 11, further comprising: based on a change in impedance of the plurality of electrodes at a designated frequency, determining the time of sweating.
13. The method of claim 12, further comprising: based on a change in phase value at the designated frequency, determining the time of sweating.
14. The method of claim 11, further comprising: selecting at least one data corresponding to the time of sweating among a plurality of pre-stored data and determining, based on data the selected data, the degree of sweat loss.
15. The method of claim 11, wherein the wearable device further includes a display, and wherein the method further comprises providing a designated feedback through the display when the degree of sweat loss is a designated ratio or more.
16. The method of claim 11, further comprising: based on the time of sweating, identifying information about an ambient environment where the user is positioned.
18. The method of claim 11, further comprising: based on information about the time of sweating, identifying a sweating characteristic of the user.
Regarding claim 17, Jones teaches wherein the at least one first sensor includes at least one sensor among an acceleration sensor, a photoplethysmography (PPG) sensor, a temperature sensor, or a gyro sensor (see at least col. 5 lines 9-46).
Regarding claim 19, Jones teaches one or more non-transitory computer-readable storage media storing one or more computer programs including computer-executable instructions that, when executed by one or more processors of a wearable device (see at least Figure 1 160/150, col. 3 lines 54-65) individually or collectively, the wearable device including at least one first sensor and at least one second sensor cause the wearable device to perform operations (see at least Figure 1 130/120), the operations comprising:
identifying, by the wearable device, whether, using the at least one first sensor, a user wearing the wearable device starts exercise (see at least col. 18 lines 41-55 “In another embodiment, the correlator 1013 may also track and analyze Newtonian data of the user related to physiological or determined parameters (such as heart rate, oxygenation, skin luminosity, hydration, and the like), related to location and type of activity (such as activity levels associated with being at the gym, riding a bike, attending class, working at a desk, sleeping, or driving in traffic, and the like) and/or related to scheduling information (such as appointments on a calendar, invites received from friends, or messages related to travel and/or activity plans, and the like). Through this analysis, the electronic device 1010 may track activity data over time, intelligently and continuously (or periodically) analyze all of this information,” col. 31 line 64-65 “In one example, the processing logic can tag event using measurement information. For example, the processing logic can tag a start of an exercise period of the user when an accelerometer measures an increase in activity of the user.”);
based on the identifying that the user starts the exercise, identifying, by the wearable device, using the at least one second sensor, a time of sweating of the user (see at least Figures 16C, 17C, 17D, col. 35 lines 25-35); and
based on the identified time of sweating, determining, by the wearable device, a degree of sweat loss of the user (see at least col. 22 lines 15-28 “For example, the correlator 1013 may receive heart rate data, skin temperature, bio-impedance data, skin luminosity and hydration level data of a user. In this example, the correlator 1013 may determine a correlation between these types of physiological data and a dehydration event of the individual. For example, the physiological data could be from optical spectroscopy (skin luminosity) and/or bio-impedance data. The correlator 1013 may then determine that as the bio-impedance of an individual increases and skin luminosity decreases, a probability of a dehydration event occurring increases.” col. 26 lines 46-67 “The correlator 1013 can store the safety event and the associated safety parameters in the safety event database 1012. For example, the correlator 1013 can determine that parameters for a heat stroke event can be a skin temperature above a 100-degree temperature, blood pressure above 150 systolic, and a bio-impedance level above 15000 ohms (e.g., a dehydration level threshold).” col. 32 line 46-col. 35 line 35).
Regarding claim 20, Jones teaches the operations further comprising: based on a change in impedance of a plurality of electrodes at a designated frequency, determining the time of sweating (trending on measured impedance determines time of sweating which is based on the natural properties of the impedance signal including magnitude and phase, see at least Figures 16C, 17C, 17D, col. 32 line 46-col. 35 line 35).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Jones et al. (Jones, US 10,980,491) as applied to claim 2 above, and further in view of Sonner et al. (Sonner, US 2017/0172484).
Regarding claim 10, the limitations are met by Jones as the impedance measured necessarily has a designated frequency for performing such measurements, but the inclusion of wherein the designated frequency includes a frequency in a 5 kHz band is not directly taught.
Sonner teaches a related system for measuring sweat with impedance (see title and abstract), and teaches various frequencies can be used including 5kHz (se at least [0031]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine prior art elements according to known methods to yield predictable results of measuring impedance at any desired frequency known in the art in order to monitor sweat characteristics.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL R BLOCH whose telephone number is (571)270-3252. The examiner can normally be reached M-F 11-8 EST.
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/MICHAEL R BLOCH/Primary Examiner, Art Unit 3791
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