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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) a mental process of detecting a change in electric field indicating a body is present. This judicial exception is not integrated into a practical application because a computing device with at least one electrode is part of the pre-solution activity of data gathering and the computing device is a generically recited computer element. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the at least one electrode is well-understood, routine and conventional. The examiner notes that an electrode is a conductive material through which electric current passes. Paragraph [0057] of the instant disclosure indicates the electrode is implements as an electrocardiogram sensor. Therefore, the electrode is capable of sensing an electric field and a heart rate and it is the computing device that performs analyzes the information from the electrodes in a differing manner. The instant disclosure also discloses the computing device as a smartphone.
Accordingly, in light of Applicant’s specification, the claimed term electrode and computing device is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process. Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the computing device. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1-20 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1, 13, and 18 (and their dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. As such, the above-identified additional elements, when viewed as whole, do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1-20 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Accordingly, Claims 1-20 are not patent eligible and rejected under 35 U.S.C. 101 as being directed to abstract ideas implemented on a generic computer in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al.
Claims 18-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because claim 18-20 characterize the invention as a “computer-readable medium comprising instructions”. A broadest reasonable interpretation of this language typically covers forms of non-transitory tangible media and transitory propagating signals per se, which are not patentable under 35 U.S.C. 101. Claims that cover both statutory and non-statutory embodiments under the broadest reasonable interpretation of the claims when read in light of the specification and in view of one skilled in the art, embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter. The claim is considered to be broad enough to cover a transitory propagating signal that carries a programmed instruction set. Furthermore, even when the claim is directed to one of the four statutory categories of invention, the claim must not be wholly directed to subject matter encompassing a judicially recognized exception without a particular practical application. In the instant case, in addition to failing to fall within one of the four statutory categories of invention, the claim recites only instructions, i.e. an algorithm that is not limited to a particular practical application. It is suggested to add “non-transitory” to the claim.
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.
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(s) 1-9, 11-13, and 15-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lawrence (US Publication 2019/0223813) in view of Alessi et al (US Publication 2023/0023062).
Referring to Claims 1, 13 and 18, Lawrence teaches a device/method/computer-readable storage medium performed by a computing device, the method comprising: passively sensing, during a first time and a touch event (e.g. Figure 7, Element 704 and Paragraph [0066] discloses detect user touch event based on changes in capacitance); detecting from the change in the electric field that a body is present within a proximity range from the computing device (e.g. Figure 7, Element 704 and Paragraph [0066]); and measuring, during a second time and using the at least one electrode, a heart rate from a human appendage placed over a portion of the computing device that includes the at least one electrode (e.g. Figure 7, Element 706 and Paragraph [0068] discloses the touch event represents triggering the electrodes to sense the users ECG). However, Lawrence does not explicitly disclose using at least one electrode of the computing device, an electric field that exists within an external environment; detecting, based on the passive sensing, a change in the electric field. Alessi et al teaches that it is known to use two electrodes to detect environmental changes generated by a use which causes the activation of a one or more functionalities as set forth in Paragraphs [0006] and [0024] to provide a simple substitution of one proximity detecting mechanism for another which improves ease of operation by using the same electrodes for switching and activating ECG sensing. It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the system/method as taught by Lawrence, with using at least one electrode of the computing device, an electric field that exists within an external environment; detecting, based on the passive sensing, a change in the electric field as taught by Alessi et al, since such a modification would provide the predictable results of a simple substitution of one proximity detecting mechanism for another which improves ease of operation by using the same electrodes for switching and activating ECG sensing.
Referring to Claim 2, Lawrence in view of Alessi et al teaches the method of claim 1, wherein the at least one electrode is part of an electrocardiogram sensor of the computing device (e.g. Figure 1, Electrodes 140 and 148).
Referring to Claims 3 and 19, Lawrence in view of Alessi et al teaches the claimed invention, further comprising: operating the computing device in a low-power state prior to the detecting that the body is present (e.g. Figure 7, Element 706 and Paragraph [0068]); operating the computing device in a high-power state responsive to the detecting that the body is present (e.g. Figure 7, Element 706 and Paragraph [0068]).
Referring to Claims 4 and 20, Lawrence in view of Alessi et al teaches the claimed invention, further comprising: detecting, based on the passive sensing and during a third time, a second change in the electric field (e.g. Figure 7, Element 720); determining, based on the detecting of the second change during the third time, that the body is outside of the proximity range (e.g. Figure 7, Element 722); and operating the computing device in the low-power state responsive to the determining that the body is outside of the proximity range (e.g. Figure 7, Element 704).
Referring to Claim 5, Lawrence in view of Alessi et al teaches the method of claim 1, except further comprising: determining, using at least one motion sensor of the computing device, that the computing device is substantially stationary, wherein the determining that the body is within the proximity range is based on the detecting of the change in the electric field and is based on the determining that the computing device is substantially stationary.
Alessi et al teaches that it is known to use at least one motion sensor of the computing device, that the computing device is substantially stationary, wherein the determining that the body is within the proximity range is based on the detecting of the change in the electric field and is based on the determining that the computing device is substantially stationary as set forth in Figure 2, Element 20 and Paragraph [0079] to provide improve accuracy of the determining when to activate the ECG detection. It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the method as taught by Lawrence, with at least one motion sensor of the computing device, that the computing device is substantially stationary, wherein the determining that the body is within the proximity range is based on the detecting of the change in the electric field and is based on the determining that the computing device is substantially stationary as taught by Alessi et al, since such a modification would provide the predictable results of improve accuracy of the determining when to activate the ECG detection.
Referring to Claim 6, Lawrence in view of Alessi et al teaches the method of claim 1, wherein: the passive sensing comprises: generating, by the at least one electrode, a first charge value representing an intensity of the electric field at a first time interval; and generating, by the at least one electrode, a second charge value representing the intensity of the electric field at a second time interval; and the detecting the change in the electric field comprises detecting the change in the electric field based on a comparison of the first charge value with the second charge value (e.g. Alessi et al Paragraphs [0006] and [0024]).
Referring to Claim 7, Lawrence in view of Alessi et al teaches the method of claim 6, further comprising: determining a distance between the body and the computing device based on the second charge value (e.g. Alessi et al Paragraphs [0006] and [0024]).
Referring to Claim 8, Lawrence in view of Alessi et al teaches the method of claim 1, wherein: the passive sensing comprises: generating, by a first electrode of the at least one electrode, a third charge value representing an intensity of the electric field at a third time interval; and generating, by a second electrode of the at least one electrode, a fourth charge value representing the intensity of the electric field at a fourth time interval; and the detecting the change in the electric field comprises detecting the change in the electric field based on a comparison of the third charge value with the fourth charge value (e.g. Alessi et al Paragraphs [0006] and [0024]).
Referring to Claim 9, Lawrence in view of Alessi et al teaches the method of claim 1,wherein: the at least one electrode is positioned on a first side of the computing device (e.g. Figure 5, Element 140); a second side of the computing device that is opposite the first side is oriented towards the body (e.g. Figure 5, Element 148).
Referring to Claim 11, Lawrence in view of Alessi et al teaches the method of claim 1,further comprising: detecting a presence of an electrical wire based on the passive sensing (e.g. Alessi et al Paragraphs [0006] and [0024]).
Referring to Claim 12, Lawrence in view of Alessi et al teaches the method of claim 1,wherein the passive sensing comprises passively sensing the electric field without emitting energy within the external environment via the at least one electrode (e.g. Alessi et al Paragraph [0024]).
Referring to Claim 15, Lawrence in view of Alessi et al teaches the device of claim 13, further comprising an electrocardiogram sensor, the electrocardiogram sensor including the at least one electrode (e.g. Paragraph [0068]).
Referring to Claim 16, Lawrence in view of Alessi et al teaches the device of claim 13,wherein the at least one electrode comprises at least two electrodes (e.g. Figure 5, Elements 140 and 148).
Referring to Claim 17, Lawrence in view of Alessi et al teaches the device of claim 13, wherein the at least one electrode is configured to operate in a continuous manner while the device is powered on (e.g. Figure 7).
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lawrence (US Publication 2019/0223813) in view of Alessi et al (US Publication 2023/0023062) as applied above, and further in view of Chang et al (US Publication 2019/0283247).
Referring to Claim 10, Lawrence in view of Alessi et al teaches the method of claim 1,except wherein: the body is associated with a sleeping person; the method further comprises: detecting a motion of the person based on the change in the electric field; estimating a quality of the person's sleep based on the detecting of the motion.
Chang et al teaches that it is known to use the body is associated with a sleeping person; the method further comprises: detecting a motion of the person based on the change in the electric field; estimating a quality of the person's sleep based on the detecting of the motion as set forth in Paragraph [0197] to provide improved sleep detection without tethering the individual to wired sensors or directly changing the sleeping conditions. It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the method as taught by Lawrence, with detecting a motion of the person based on the change in the electric field; estimating a quality of the person's sleep based on the detecting of the motion as taught by Chang et al, since such a modification would provide the predictable results of improved sleep detection without tethering the individual to wired sensors or directly changing the sleeping conditions.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lawrence (US Publication 2019/0223813) in view of Alessi et al (US Publication 2023/0023062) as applied above, and further in view of Yang et al (US Patent 11,311,197).
Referring to Claim 14, Lawrence in view of Alessi et al teaches the device of claim 13, except wherein: the device comprises a button that is positioned on one side of the device; the at least one electrode is integrated within the button.
Yang et al teaches that it is known to use electrodes with key switches as set forth in Column 12 lines 39-50 to provide improved location of the electrodes which makes them easier to identify and allows for identification of contact with the electrode. It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the system as taught by Lawrence, with the device comprises a button that is positioned on one side of the device; the at least one electrode is integrated within the button as taught by Yang et al, since such a modification would provide the predictable results of improved location of the electrodes which makes them easier to identify and allows for identification of contact with the electrode.
Conclusion
Song et al (US Publication 2013/0005303) discloses a proximity sensor where the ECG sensor starts to generate an ECG signal through the ECG electrode when the proximity of an object is detected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to William J Levicky whose telephone number is (571)270-3983. The examiner can normally be reached Monday-Thursday 8AM-5PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Hamaoui can be reached at (571)270-5625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/William J Levicky/Primary Examiner, Art Unit 3796
