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.
No claim elements are interpreted under 112(f).
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 1-7 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more.
Claim 1 recites:
“obtaining biometric information,”
“in the case that a communication failure occurs, indicating a data gap during a period of the communication failure,”
“filling the data gap during a period from a time point when the communication failure is resolved is resolved to one advertisement which arrives after the communication failure is resolved.”
Under the first of the two-prong inquiry of step 2A for evaluating 101, this limitation is considered a mental process because the steps as claimed may be performed in the user’s mind or using pen and paper.
For example, “obtaining biometric information” can simply be reading an output of biometric information. “Indicating a data gap during a period of the communication failure” can simply be mentally noting or with pen on a paper output a mental or written indication of the data gap during a time period of the communication failure, when it occurs. “Filling the data gap during a period from a time point when the communication failure is resolved to one advertisement which arrives after the communication failure is resolved” can simply be mentally calculating data or noting with pen and paper data filled data during the time period when the communication failure is resolved to the time of one advertisement, which arrives after the communication failure is resolved.
It is also noted that since the limitations “in the case” are conditional, said claim only requires steps “obtaining biometric information in response to an advertisement transmitted by a sensor transmitter” and “generating the biometric information as output.”
Under the second of the two-prong inquiry of step 2A, this judicial exception is not integrated into a practical application because there are no limitations that indicate improvements to the functioning of a computer or to the technology/technical field; effecting a particular treatment or prophylaxis for a disease/condition; applying the judicial exception with a particular machine (the control unit and sensor are recited with such generality that they are not considered a particular machine); effecting a transformation or reduction of a particular article to a different state/thing; applying the judicial exception in a meaningful way beyond generally linking to a particular technological environment.
Since the second of the two-prong inquiry of step 2A is not satisfied, the claims are then evaluated under step 2B.
Under step 2B for evaluating 101, the claim(s) does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the step of “generating the biometric information as output” merely constitutes an extrasolution activity step of communicating the biometric information and does not place meaningful limits upon the abstract idea.
The limitation “in response to an advertisement transmitted by a sensor transmitter” also merely describes a timing of the “obtaining biometric information” mental process as relative to typical data gathering step of an advertisement transmitted by a sensor transmitter, wherein advertisement is transmitted by a sensor transmitter in a well-known, routine, and conventional way in the art. Additionally, the sensor transmitter is recited with a high level of generality that it merely constitutes a well-known, routine, and conventional structure and function that does not elevate it to the level of significantly more. Thus, this limitation does not place meaningful limits upon the abstract idea of “obtaining biometric information.”
Further, the limitations “in the case that a communication failure occurs” and “if the communication failure is resolved” indicate conditional situations that may or may not occur and thus also do not place meaningful limits upon the abstract idea.
Lastly, the limitations “from a time point when the communication failure is resolved to one advertisement which arrives after the communication failure is resolved” refers to a timing of the mental concept as it related to the data gathering or extrasolution activity step of advertisement of the sensor transmitter, as mentioned above. The time frame in which the mental process of “indicating the data gap” or “filling the gap” occurs does not place meaningful limits upon the abstract idea.
It is noted that the step of “obtaining biometric information” may also be interpreted as well-known, routine, and conventional extrasolution activity as it is recited with a high level of generality that does not indicate any specific function or structure required for it.
Claims 2-7 do not provide a practical application of the above abstract ideas and do not further add significantly more because the dependent claims merely add more details to the context and timing of the abstract idea, which does not amount to significantly more.
Claims 4-7 recite a terminal for storing biometric information stored in the sensor transmitter; however, the terminal is recited with a high level of generality and thus does not add significantly more as any particular type of terminal other than which is well-known, routine, and conventional structure and function in the art.
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 4-7 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.
In regard to Claim 4, it is unclear exactly which instance of the biometric information output is referred to by “last output biometric information” and if this refers to the step introduced in Claim 1.
As a result, Claims 4 and 7 are indefinite because the recitation of “the filling of the data gap comprises sequentially outputting the biometric information stored in the terminal after the last output biometric information” makes it unclear which output constitutes the missed data vs. not missed data and when it is presented relative to the other biometric information outputs.
Claims 5-6 are rejected by virtue of dependence upon Claim 4 as it makes the steps subsequently unclear and thus indefinite. The claims should be clarified accordingly.
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 1-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Reihman et al (US Pub No. 20170124350 – cited by applicant).
In regard to Claim 1, Reihman et al disclose a method of outputting blood glucose data, the method comprising:
obtaining biometric information – “data communication 4160 during which the connected display device can request and receive desired information (e.g., analyte data, control information, identification information, backfill data, private data (which may be associated with a data manifest and/or encryption information), instruction(s), and/or the like) from the analyte sensor system 101” (0131)
in response to an advertisement transmitted by a sensor transmitter 104, best seen in Figure 1 – “To establish a data connection with the analyte sensor system 101, the display device 110-113 may listen continuously until an advertisement signal transmitted by the transceiver 104 of the analyte sensor system 101 is received” (0129);
generating the biometric information as output, i.e. on display device 110-113, best seen in Figure 1 – “analyte values are displayed on a display device 110-113” (0054, 0053);
in the case that a communication failure occurs – “Jane may be asleep and while sleeping she may miss data capture for a given period of time during the night due to for example Jane covering the sensor transmitter with her body” (0033) or from other loss of a wireless link between the receiver and sensor transmitter (0042), also see step 410 of Figure 4 (0070),
indicating a data gap during a period of the communication failure, which is shown on the device – “Jane may want to see the gap(s) or a highlight (or other graphic indication) that graphically indicates that the data is clearly backfill data associated with at least one gap in the transmission of the sensor data” (0033, 0037); and
if the communication failure is resolved at 410, best seen in Figure 4 – “When the link becomes available again (and/or there is no error or malfunction preventing the transmitter from sending sensor data to the receiver)” (0071),
filling the data gap 420 during a period from a time point when the communication failure is resolved, which occurs after step 410, best seen in Figure 4 – “the transmitter 104 may reinitiate transmission of sensor data to the receiver 112. To that end, a determination may be made by at least one of the sensor 102/transmitter 104 and/or the receiver 112 regarding whether a backfill mode is enabled (yes at 410, and 412)” (0071)
to one advertisement which arrives after the communication failure is resolved – “when another wireless session and data session allow for data transfer, the analyte sensor system 101 may send at 4160/4260 (“send data”) to the receiver, such as display device 110-113, the backfill data as well as non-backfill data. Moreover, the backfill data may be sent as noted above (e.g., as a user definable option… send non-backfill data transmission before backfill data transmission) (0132), wherein the non-backfill data transmission would occur from one advertisement which arrives after the communication failure is resolved because it is current.
2. The method according to claim 1, wherein the filling of the data gap comprises outputting biometric information stored in the sensor transmitter 104 during the communication failure – “backfill data represents sensor data that has supposed to be transmitted at a certain time but has not, so the unsent sensor data is stored and then later sent as backfill data” (0048)
to fill the data gap after the communication failure is resolved at step 412 and 415 and 420, best seen in Figure 4 (0071, 0075).
3. The method according to claim 1, wherein the filling of the data gap comprises outputting biometric information stored in the sensor transmitter 104, i.e. backfill data, during the communication failure to fill the data gap at an advertisement which arrives first after the communication failure is resolved, i.e. non-backfill data is sent before backfill data – “when another wireless session and data session allow for data transfer, the analyte sensor system 101 may send at 4160/4260 (“send data”) to the receiver, such as display device 110-113, the backfill data as well as non-backfill data. Moreover, the backfill data may be sent as noted above (e.g., as a user definable option… send non-backfill data transmission before backfill data transmission) (0132).
4. The method according to claim 1, further comprising: storing biometric information stored in the sensor transmitter 104 in a terminal 112, best seen in Figure 1 – “backfill data may always be sent to the receiver 112” (0072),
wherein the filling of the data gap comprises sequentially outputting biometric information stored in the terminal after last output biometric information, i.e. non-backfill data is sent before backfill data – “may be configured to request non-backfill data transmission before backfill data transmission” (0072).
5. The method according to claim 4, wherein the indicating of the data gap comprises, in the case that the communication failure occurs, outputting the data gap while the biometric information stored in the terminal exists, i.e. automatic backfill of the data – “492A, the receiver 112 may automatically receive backfill data and generate a view including a plot of sensor data, such as CGM sensor data, for display at the receiver's user interface” (0078).
6. The method according to claim 4, wherein the filling of the data gap comprises, if the communication failure is resolved at step 410, best seen in Figure 4,
outputting the biometric information stored in the terminal 112 again following the last output biometric information – “backfill data may always be sent to the receiver 112… may be configured to request non-backfill data transmission before backfill data transmission” (0072).
7. The method according to claim 5, wherein the filling of the data gap comprises, after sequentially outputting the biometric information stored in the terminal 112 after the last output biometric information (0078), waiting for advertisement at 4220, best seen in Figure 12 (0133-0136).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Huong Q NGUYEN whose telephone number is (571)272-8340. The examiner can normally be reached 10 am - 6 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Robertson can be reached at (571)272-5001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/H.Q.N/Examiner, Art Unit 3791
/JENNIFER ROBERTSON/Supervisory Patent Examiner, Art Unit 3791
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