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 1-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea (mental process) without significantly more. The claim(s) recite(s) a mental process of calculating a calorie burn based on the measured carbon dioxide and calculate a calorie intake based on the variation in the body fat of the user and the calorie burn amount of the user and output user-customized healthcare information. This judicial exception is not integrated into a practical application because at least one sensor is used as an extra-solution activity of data gathering and a memory and processor are generically recited computer elements which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer.
Moreover, the above-identified abstract idea is not integrated into a practical application because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer (e.g., at least one processor and memory as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, 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. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because These claims require the additional elements of: at least one sensor, a memory, and at least one processor.
The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Per Applicant’s specification, published paragraphs [0162] and [0204] describe the at least one sensor; published paragraph [0212] describes the processor; and published paragraph [0239] describes the memory and all generically described without structure or detailed drawings and thus, admit that such computer components are well understood, routine and conventional.
Accordingly, in light of Applicant’s specification, the claimed term at least one sensor, a memory, and at least one processor 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 at least one sensor, a memory, and at least one processor. 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 1-15 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.
For at least the above reasons, the electronic device/method of Claims 1-15 are directed to applying an abstract idea (e.g., mental process or certain method of organizing human activity) on a general purpose computer without (i) improving the performance of the computer itself (as in McRO, Bascom and Enfish), or (ii) providing a technical solution to a problem in a technical field (as in DDR). In other words, none of Claims 1-15 provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
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 and 8 (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 1-15 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).
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, 2, 7-9, 14 and 15, is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee (KR102197102) in view of Elia et al (US Publication 2020/0222286).
Referring to Claims 1, 8 and 15, Lee teaches an electronic device/method and non-transitory computer readable medium comprising: at least one sensor (e.g. Paragraph [0050] discloses a carbon dioxide measuring sensor 121b); a memory storing one or more instructions (e.g. Paragraph [0031] and [0032] discloses databases); at least one processor, comprising processing circuitry, wherein at least one processor, individually and/or collectively, is configured to execute the one or more instructions and to control the electronic device to: measure, using the at least one sensor, an amount of carbon dioxide generated by a user and a variation in body fat of the user (e.g. Paragraphs [0044]-[0048]), and output user-customized healthcare information, based on the variation in the body fat of the user, the calorie burn amount of the user, and the calorie intake amount of the user (e.g. Paragraphs [0028] and [0086]). However, Lee does not explicitly disclose calculating a calorie burn amount of the user, based on the amount of carbon dioxide generated by the user, calculate a calorie intake amount of the user, based on the variation in the body fat of the user and the calorie burn amount of the user. Elia et al teaches that it is known to use calculating a calorie burn amount of the user, based on the amount of carbon dioxide generated by the user, calculate a calorie intake amount of the user, based on the variation in the body fat of the user and the calorie burn amount of the user as set forth in Paragraph [0128] to provide improved adjustment in intake of food requirements of the patient. 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 Lee, with calculating a calorie burn amount of the user, based on the amount of carbon dioxide generated by the user, calculate a calorie intake amount of the user, based on the variation in the body fat of the user and the calorie burn amount of the user as taught by Elia et al, since such a modification would provide the predictable results of improved adjustment in intake of food requirements of the patient.
Referring to Claims 2 and 9, Lee in view of Elia et al teaches the claimed invention, except wherein at least one processor, individually and/or collectively, is configured to: measure a metabolic rate of the user according to the user-customized healthcare information, store feedback information including the metabolic rate of the user, and output user-customized healthcare information, based on the feedback information.
Elia et al teaches that it is known to use at least one processor, individually and/or collectively, is configured to: measure a metabolic rate of the user according to the user-customized healthcare information, store feedback information including the metabolic rate of the user, and output user-customized healthcare information, based on the feedback information as set forth in Paragraphs [0126]-[0128] to provide improved adjustment in intake of food requirements of the patient. 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 Lee, with at least one processor, individually and/or collectively, is configured to: measure a metabolic rate of the user according to the user-customized healthcare information, store feedback information including the metabolic rate of the user, and output user-customized healthcare information, based on the feedback information as taught by Elia et al, since such a modification would provide the predictable results of improved adjustment in intake of food requirements of the patient.
Referring to Claims 7 and 14, Lee in view of Elia et al teaches the e claimed invention, wherein at least one processor, individually and/or collectively, is configured to: calculate a heart rate of the user required to reach a maximum amount of oxygen consumed by the user per unit time, and output the user-customized healthcare information, based on the heart rate of the user (e.g. Paragraphs [0037] and [0041]).
Claim(s) 3-5 and 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee (KR102197102) in view of Elia et al (US Publication 2020/0222286) as applied above, and further in view of Hilbig et al (US Publication 2019/0246974).
Referring to Claims 3 and 10, Lee in view of Elia et al teaches the claimed invention, except wherein at least one processor, individually and/or collectively, is configured to: identify, using the at least one sensor, whether a state of the user is a sleeping state, and apply a weight to the measured amount of carbon dioxide based on the state of the user being a sleeping state. Hilbig et al teaches that it is known to use identifying, using the at least one sensor, whether a state of the user is a sleeping state, and apply a weight to the measured amount of carbon dioxide based on the state of the user being a sleeping state as set forth in Paragraphs [0056], [0058] and [0060] to provide improved versatility by determining the sleep efficiency of the subject. 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 Lee, with identifying, using the at least one sensor, whether a state of the user is a sleeping state, and apply a weight to the measured amount of carbon dioxide based on the state of the user being a sleeping state as taught by Hilbig et al, since such a modification would provide the predictable results of improved versatility by determining the sleep efficiency of the subject.
Referring to Claims 4 and 11, Lee in view of Elia et al and Hilbig et al teaches the claimed invention, wherein at least one processor, individually and/or collectively, is configured to: identify whether the amount of carbon dioxide is above a target range, determine the state of the user as being a sleeping state based on the amount of carbon dioxide being above the target range, and provide an alarm to the user according to a sleeping stage of the user (e.g. Paragraphs [0028], [0050], and [0086] and Element 121b and Hilbig et al Paragraphs [0056], [0058] and [0060]).
Claim(s) 6 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee (KR102197102) in view of Elia et al (US Publication 2020/0222286) as applied above, and further in view of Laporte Uribe (US Publication 2016/353710).
Referring to Claims 6 and 13, Lee in view of Elia et al teaches the claimed invention, wherein at least one processor, individually and/or collectively, is configured to: extract data from biosensors including carbon dioxide (e.g. Paragraph [0050] and Element 121b) and identify a warning when the level exceeds a threshold range, and output, to the user, a metabolic state of the user according carbon dioxide levels (e.g. Paragraphs [0028] and [0086]). However, Lee does not explicitly disclose a relationship between carbon dioxide and pH level in the user’s blood. Laporte Uribe teaches that it is known to a device which monitors nutrition in an animal and use the measured concentration of dissolved carbon dioxide is correlated with at least one respective pH value as set forth in Paragraph [0009] and to generate specific warnings when the pH does not exceed a threshold (e.g. Paragraph [0023]) to provide improved identification of nutritional diseases. 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 Lee, with the measured concentration of dissolved carbon dioxide is correlated with at least one respective pH value and to generate specific warnings when the pH does not exceed a threshold as taught by Laporte Uribe, since such a modification would provide the predictable results of improved identification of nutritional diseases.
Allowable Subject Matter
Claims 5 and 12 are rejected under 101 as identified above. However regarding prior art, claims 5 and 12 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. De St. Amatus et al (US Publication 2024/0398341) discloses the energy expenditure in humans and air-breathing animals can be calculated from the amount of carbon dioxide produced per unit time and the calorific values. Johnson et al (US Publication 2024/0342556) discloses measuring metabolic usage via a carbon dioxide sensor.
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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/William J Levicky/Primary Examiner, Art Unit 3796
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