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 .
Status of Claims
This action is in reply to the application filed on 04/23/2025.
Claims 1-10 are currently pending and have been examined.
Claim Objections
Claim 3 is objected to because of the following informalities: Claim 3 as currently written reads as if the user screen and the speaker receive the stream of the video or audio content. The examiner recommends the claim be rewritten as, “wherein the electronic communication device includes at least one of a user screen and a speaker, wherein the electronic communication device is configured to receive the stream of the at least one of instructional video content and instructional audio content to the electronic communication device.” Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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.
Claim 8 is 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. Claim 8 discloses, “The breathing exercise device of claim 1, further comprising at least one of … a local storage on the device.” There is lack of antecedent basis for “the device.” It is unclear if the device is directed to the breathing exercise device itself, the electronic communication device of claim 1, or the RMT device of claim 1. Based on Fig. 4 and paragraph 16 of the specification, the Examiner is interpreting the local storage on the device as being directed to a local storage of the RMT device. Appropriate correction is required.
Eligibility Under 35 U.S.C § 101
Claims 1-10 are eligible under 35 U.S.C. § 101. Claims 1-10 are directed to a system, method, or product which are one of the statutory categories of invention. (Step 1: YES). Further, claims 1-10 are not directed to a judicial exception and therefore, the claims of the instant application are eligible under 35 U.S.C. § 101.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-3 and 5-8 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Shiner (US PG Pub 2011/0282228 A1).
Regarding Claim 1, Shiner discloses:
A breathing exercise device, comprising:
a respiratory muscle training (RMT) device configured to communicatively connect to an electronic communication device, (Para 106 discloses the method may be implemented using the breathing device 100. The breathing device's control module 108 may be used for performing calculations based on the outputs of the aforementioned sensors. Para 152 discloses the configurable resistance of the device may be used to allow an artificial increase of airway pressure and a decrease in the differences between airway pressure and the alveolar pressure for… training of respiratory muscles, challenge testing, and detecting a peak alveolar testing for muscle strength evaluation.)
the RMT device further configured to: measure biometric data of a user; transmit the biometric data of the user to the electronic communication device; and (Para 39 discloses the apparatus comprises a housing defining a chamber having at least one of a mouthpiece, an endotracheal tube and a mask configured for allowing a user to exhale and inhale in at least one respiration cycle via the chamber, at least one sensor positioned in the chamber and configured for measuring a plurality of mechanical pulmonary properties according to the exhaling and inhaling [measure biometric data]. Para 46 discloses the apparatus further comprises a communication unit configured to forward the at least one instantaneous pulmonary measurement to a client terminal. Para 107-108 discloses the communication unit 110 is designed to communicate with a client terminal, such as a personal digital assistant (PDA), a Smartphone, a thin client, a laptop, a wrist watch, and/or any other terminal which may be used for receiving the outputs of the sensors and/or the control module. See Further: Para 169-176)
the biometric data transmitted while streaming at least one of instructional video content and instructional audio content to the electronic communication device. (Para 107-108 discloses the communication unit 110 is designed to communicate with a client terminal, such as a personal digital assistant (PDA), a Smartphone, a thin client, a laptop, a wrist watch, and/or any other terminal which may be used for receiving the outputs of the sensors and/or the control module [electronic communication device]. Para 157 discloses the MMI 106 is connected to a memory repository that stores media files with PFT instructions. A respective media file is presented to the user during the performance of the PFT, instructing her to respiration via the chamber 101 of the breathing device 100. Optionally, the instructions are provided by a client terminal which is connected to the breathing device 100 via the communication unit 110, for example as described above. The user performs the test using the presented guidance. The media file may include instruction video clips, textual data, illustrations, audio segments that simulates a breathing frequency, and the like.
Regarding Claim 2, this claim recites the limitations of Claim 1 and as to those limitations is
rejected for the same basis and reasons as disclosed above. Further, Shiner discloses:
The breathing exercise device of claim 1, wherein transmitting the biometric data of the user to the electronic communication device uses at least one of Wi-Fi, Bluetooth, and 5G communication standards. (Para 107-108 discloses the outputs of the aforementioned sensors and/or the outputs of the control module 108 may be forwarded, for example by using a communication unit 110. Optionally, the communication unit 110 comprises a short-range radio interface, such as a Bluetooth.TM. transceiver… the communication unit 110 is designed to communicate with a client terminal, such as a personal digital assistant (PDA), a Smartphone, a thin client, a laptop, a wrist watch, and/or any other terminal which may be used for receiving the outputs of the sensors and/or the control module. Such a client terminal may be used to perform the calculations and/or methods described herein and/or to present the data that is calculated by the control module 108.)
Regarding Claim 3, this claim recites the limitations of Claim 1 and as to those limitations is
rejected for the same basis and reasons as disclosed above. Further, Shiner discloses:
The breathing exercise device of claim 1, wherein the electronic communication device includes at least one of a user screen and a speaker configured to receive the stream of the at least one of instructional video content and instructional audio content to the electronic communication device. (Para 107-108 discloses the communication unit 110 is designed to communicate with a client terminal, such as a personal digital assistant (PDA), a Smartphone, a thin client, a laptop, a wrist watch, and/or any other terminal which may be used for receiving the outputs of the sensors and/or the control module. Para 157 discloses a respective media file is presented to the user during the performance of the PFT, instructing her to respiration… the instructions are provided by a client terminal which is connected to the breathing device 100 via the communication unit 110, for example as described above… the media file may include instruction video clips, textual data, illustrations, audio segments that simulates a breathing frequency, and the like.)
Examiner’s Note: One of ordinary skill in the art would reasonably determine that a client terminal such as a PDA, smartphone, laptop, and/or any other terminal used for receiving output of the sensors would contain a screen and a speaker in order to display a media file that may include instruction video clips, textual data, illustrations, or audio segments that simulates a breathing frequency.
Regarding Claim 5, this claim recites the limitations of Claim 1 and as to those limitations is
rejected for the same basis and reasons as disclosed above. Further, Shiner discloses:
The breathing exercise device of claim 1, the RMT device further comprising at least one sensor configured to measure biometric data of the user. (Para 39 discloses the apparatus comprises a housing defining a chamber having at least one of a mouthpiece, an endotracheal tube and a mask configured for allowing a user to exhale and inhale in at least one respiration cycle via the chamber, at least one sensor positioned in the chamber and configured for measuring a plurality of mechanical pulmonary properties according to the exhaling and inhaling [measure biometric data]. Para 99 discloses the breathing device 100 comprises one or more sensors for analyzing the airflow and/or pressure in the chamber. For example, as shown at 105, a pressure sensor is positioned between the shutter 104 and the mouthpiece end 103. Para 168 discloses the breathing device 100 may be used to perform one or more tests for assessing instantaneous pulmonary measurements based on instantaneous alveolar pressure and/or volume. In order to provide a more comprehensive assessment of the medical condition of the patient during the tests, the breathing may be connected, integrally or electronically, to additional biological measurement units that optionally provide instantaneous indications about respective biological parameters of the user. Optionally, the assessment of the instantaneous pulmonary measurements is adjusted according to the respective biological parameters. Para 169-176 discloses various additional biological measurement units including a pulsometer and a sphygmomanometer for measuring the heart rate and blood pressure of the user, respectively.)
Regarding Claim 6, this claim recites the limitations of Claim 5 and as to those limitations is
rejected for the same basis and reasons as disclosed above. Further, Shiner discloses:
The breathing exercise device of claim 5, the at least one sensor comprising at least one of a pressure sensor or a heart rate monitor. (Para 39 discloses the apparatus comprises a housing defining a chamber having at least one of a mouthpiece, an endotracheal tube and a mask configured for allowing a user to exhale and inhale in at least one respiration cycle via the chamber, at least one sensor positioned in the chamber and configured for measuring a plurality of mechanical pulmonary properties according to the exhaling and inhaling [measure biometric data]. Para 99 discloses the breathing device 100 comprises one or more sensors for analyzing the airflow and/or pressure in the chamber. For example, as shown at 105, a pressure sensor is positioned between the shutter 104 and the mouthpiece end 103. Para 168 discloses the breathing device 100 may be used to perform one or more tests for assessing instantaneous pulmonary measurements based on instantaneous alveolar pressure and/or volume. In order to provide a more comprehensive assessment of the medical condition of the patient during the tests, the breathing may be connected, integrally or electronically, to additional biological measurement units that optionally provide instantaneous indications about respective biological parameters of the user. Optionally, the assessment of the instantaneous pulmonary measurements is adjusted according to the respective biological parameters. Para 169-176 discloses various additional biological measurement units including a pulsometer and a sphygmomanometer for measuring the heart rate and blood pressure of the user, respectively.)
Regarding Claim 7, this claim recites the limitations of Claim 1 and as to those limitations is
rejected for the same basis and reasons as disclosed above. Further, Shiner discloses:
The breathing exercise device of claim 6, wherein the pressure sensor measures blood pressure. (Para 168-176 discloses various additional biological measurement units including a pulsometer and a sphygmomanometer for measuring the heart rate and blood pressure of the user, respectively.)
Regarding Claim 8, this claim recites the limitations of Claim 1 and as to those limitations is
rejected for the same basis and reasons as disclosed above. Further, Shiner discloses:
The breathing exercise device of claim 1, further comprising at least one of a digital storage, a local storage on the device, a communication device, a camera, and a microphone. (Para 46 discloses the apparatus further comprises a communication unit configured to forward the at least one instantaneous pulmonary measurement to a client terminal. Para 50 discloses the apparatus further comprises a memory unit configured to record the at least one instantaneous pulmonary measurement. Para 102 discloses the control module 108 may be connected to a memory (not shown) to store the measured pressure, flow rate and/or the calculations which are based thereon. Para 156-157 discloses the MMI 106 is connected to a memory repository that stores media files with PFT instructions. Para 162 discloses the MMI 106 is designed to present a feedback to the user performances. Optionally, the user is asked to repeat a test in case the test fails to qualify certain predefined criteria. Optionally, the test is recorded by video and/or audio recording units.)
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Shiner (US PG Pub 2011/0282228 A1) in view of Arkush (US PG Pub 2015/0258370 A1).
Regarding Claim 4, this claim recites the limitations of Claim 1 and as to those limitations is
rejected for the same basis and reasons as disclosed above. While Shiner discloses, “media file may include instruction video clips, textual data, illustrations, audio segments that simulates a breathing frequency, and the like,” (Shiner Para 157) and, “the MMI 106 is configured to instruct the performance of a game and/or a challenge for training the user's respiration and/or improving the user's cooperation and/or motivation to use the device by reducing intimidating aspects of the testing,” (Shiner Para 158), it does not fully disclose the following limitation that Arkush discloses:
The breathing exercise device of claim 1, wherein the at least one of instructional video content and instructional audio content includes social competition capabilities. (Para 50 teaches enabling digital social interaction by connecting other trainees and friends to be part of the training experience on a gaming system (interpreted to include audio and video interaction).) The Examiner also notes that the recited "social competition capabilities" represents non-functional, descriptive information that is also obvious in view of Shiner because the label applied to the content does not functionally affect the claim; however, Arkush has been cited for completeness.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the methods and devices for determining pulmonary measurements as taught by Shiner with breathing and respiratory muscle training method and system as taught by Arkush in order to encourage the users to continue training by providing ongoing incentives and showing progress and challenges (Arkush Para 50).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Shiner (US PG Pub 2011/0282228 A1) in view of Gwon (US PG Pub 2024/0245953).
Regarding Claim 9, this claim recites the limitations of Claim 1 and as to those limitations is
rejected for the same basis and reasons as disclosed above. While Shiner discloses, “the configurable resistance of the device may be used to allow an artificial increase of airway pressure and a decrease in the differences between airway pressure and the alveolar pressure for… training of respiratory muscles,” (Para 152), it does not fully disclose the following limitation that Gwon discloses:
The breathing exercise device of claim 1, further configured to create a tailored respiratory workout program with adaptive resistance training for the user based on the measure biometric data of the user. (Para 2 discloses the present invention relates to a portable breathing measurement and breathing exercise device which… includes a load control unit to allow customized breathing training for a user, measures the user's breathing capacity or respiratory muscle pressure (MIP, or MEP) in real-time to acquire data by applying information communication technology, guides breathing training according to calculated values considering the user's gender and age based on the acquired data, enables breathing information to be digitized through applications and world wide web to utilize the data in monitoring and diagnosis. Further, Fig. 24 and associated paragraph 116 discloses when the main filler 630 moves linearly in the opposite direction to the direction of the frame part 610, the regulator 650 is also moved in the same direction. Accordingly, the spring 660 is expanded. That is, the user's exhalation becomes harder, so the volume of breathing exercise is increased. Consequently, the rotation of the adjustment cover 620 can change the state of the spring 660, thereby regulating the user's breathing intensity.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the methods and devices for determining pulmonary measurements as taught by Shiner with portable breathing measurement and breathing exercise device as taught by Gwon in order to create a customized breathing training for a user and regulate the user’s breathing intensity (Gwon Para 2).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Shiner (US PG Pub 2011/0282228 A1) in view of Elford (WIPO 2017/160951 A1).
Regarding Claim 10, this claim recites the limitations of Claim 1 and as to those limitations is
rejected for the same basis and reasons as disclosed above. While Shiner discloses, “the MMI 106 is configured to instruct the performance of a game and/or a challenge for training the user's respiration and/or improving the user's cooperation and/or motivation to use the device by reducing intimidating aspects of the testing,” (Shiner Para 158), it does not fully disclose the following limitation that Elford discloses:
The breathing exercise device of claim 1, further configured to allow users to review their data within a context of their community and other users with similar goals. (Para 108-109 discloses the system may allow a user to "challenge" one or more other users (i.e., athletes employing embodiments of the present disclosure) to a competition regarding athletic activities… For example, when creating the challenge, the user may be presented with an option to establish a total distance that a challenge participant must run in order to win the challenge [users with similar goals]… when a participant has a sum of his or her total distance values that matches or exceeds the specified challenge distance (and is the first invitee to do so), then the system will identify that participant as the winner of the challenge. In some aspects of the present embodiment, the system may present a current progress of each challenge participant via a leaderboard interface, similar to the interface illustrated in Figures 11D and 11F. Para 135 discloses the system may generate a leaderboard that identifies various users within the community of users. In some aspects of the present disclosure, the information presented on the leaderboard may be associated with the identifier included in the communication transmitted during step 1202… the system may populate the leaderboard with a one or more users based on performance data associated with respective activities performed by the users, such as athletic activities relating to the identifier associated with the leaderboard, as described above concerning step 1204.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the methods and devices for determining pulmonary measurements as taught by Shiner with the athletic data aggregation for online communities as taught by Elford in order to use a challenge between two users can encourage improvement and athletic activity (Elford Para 13) and motivate users to exercise by using challenges (Elford Para 136).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARA J MORICE DE VARGAS whose telephone number is (703)756-4608. The examiner can normally be reached M-F 8:30-5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter H. Choi can be reached on (469)295-9171. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SARA JESSICA MORICE DE VARGAS/Examiner, Art Unit 3681
/PETER H CHOI/Supervisory Patent Examiner, Art Unit 3681
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