DETAILED ACTION
This office action is in response to the communication received on 01/02/2026 concerning application no. 19/212,316 filed on 10/01/2025.
Claims 1-20 are pending.
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 .
Response to Arguments
Applicant's arguments filed 01/02/2026 have been fully considered but they are not persuasive.
Regarding the 101 rejection, Applicant argues that the “without radar transmission mode changes” is a technical solution and not a pre-solution insignificant activity. Applicant alleges that the method of data gathering is non-conventional and addresses a hardware problem of competing demands between activity tracking and vital sign monitoring. Additionally, Applicant argues that claims are consistent with the guidelines as it provides an improvement to hardware resource allocation.
Examiner respectfully disagrees. MPEP 716.01(c) establishes “Arguments presented by the applicant cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965) and In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984).” Allegations of the improvement to the hardware resource allegation are without support. Additionally, the use of a radar transmission mode without change is routine, well-known, and conventional. It is typical of systems to be able to concurrently operate activity tracking and vital sign monitoring together and have ongoing radar transmission. Generally, the norm of operation is real-time processing of a radar that is continuously acquiring information. References like Moshe et al. (PGPUB No. US 2021/0141082) teach that the scanning can be continuous and the radar scan signals can be processed in real time (Paragraphs 0055-61). Such processing yields assessment of sleep, vital signs, and movement of the subject (Paragraphs 0198 and 0208). Given that real time processing and scanning is known, the method of data gathering is conventions and a pre-solution insignificant activity. Applicant’s remarks about latency, data gaps, and power inefficiency are unpersuasive as the claims do not establish any of these metrics.
Examiner respectfully maintains the rejection. Applicant is reminded that claims 2, 9-10, 12, and 20 are not rejected under 35 U.S.C. 101.
Applicant's arguments filed 01/02/2026 have been fully considered but they are not persuasive.
Regarding the double patenting, Applicant argues “Because the claims are still pending and subject to further change, Applicant respectfully requests that the double patenting rejection be held in abeyance until it is the last remaining rejection and that it be reconsidered when the claims are otherwise allowable.”
Examiner respectfully disagrees. The claims are still subject to the double patenting and are not allowable. Terminal disclaimer must be filed to address the double patenting issue.
Examiner maintains the rejection.
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 1-20 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.
Claim 1 is indefinite for the following reasons:
Recites “the processing system, without radar transmission mode changes, configured to”. This claim element is indefinite. This claim element is indefinite. It would be unclear to one with ordinary skill in the art if this element is positively recited or not. That is, it is unclear if the claim is establishing a constant mode operation. The claim establishes that the radar operation is according to the radar sensor.
Applicant is encouraged to provide consistent and clear language.
Claim 1 is indefinite for the following reasons:
Recites “the processing system, without radar transmission mode changes, configured to”. This claim element is indefinite. This claim element is indefinite. It would be unclear to one with ordinary skill in the art if this element is positively recited or not. That is, it is unclear if the claim is establishing a constant mode operation. The claim establishes that the radar operation is according to the radar sensor.
Applicant is encouraged to provide consistent and clear language.
Claim 11 is indefinite for the following reasons:
Recites “wherein no radar transmission mode changes are required to perform the user activity recognition and the vital sign detection”. This claim element is indefinite. This claim element is indefinite. It would be unclear to one with ordinary skill in the art if this element is positively recited or not. That is, it is unclear if the claim is establishing a constant mode operation.
Applicant is encouraged to provide consistent and clear language.
Claims that are not discussed above but are cited to be rejected under 35 U.S.C. 112(b) are also rejected because they inherit the indefiniteness of the claims they respectively depend upon.
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, 3-8, 11, and 13-19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 1 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a smart device and therefore, is an apparatus.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “perform a first set of operations on the radar data stream to perform user activity recognition; and perform a second set of operations on the radar data stream to perform vital sign detection”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to the analysis of radar data to assess user activity recognition and viral sign detection. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim recites the following additional elements: “a housing; a radar sensor, housed by the housing, configured to operate in a burst mode in which the radar sensor transmits a plurality of bursts of radar chirps, the radar sensor configured to: receives reflections of the plurality of bursts of radar chirps, and outputs a radar data stream based on the reflections of the plurality of bursts of radar chirps; and a processing system, housed by the housing and in communication with the radar sensor, comprising one or more processors, the processing system, without radar transmission mode changes, configured to”. The collection of radar data without a mode change is a data gathering step that is a form of a pre-solution insignificant activity. The use of a housing and a processor does not integrate the judicial exception into a practical application as it is merely used to perform the judicial exception.
These additional elements, taken individually or in combination, merely amount to insignificant pre/post-solution activities and do not integrate the judicial exception into a practical application. This claim is therefore directed to an abstract idea.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim. In light of the above, claim 1 is ineligible.
Claim 3 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a smart device and therefore, is an apparatus.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein the user activity recognition is gesture detection”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to recognition of gestures. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 3 is ineligible.
Claim 4 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a smart device and therefore, is an apparatus.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein the second set of operations comprises instructions to convert the radar data stream to a virtual continuous mode radar data stream”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to the conversion of radar data. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 4 is ineligible.
Claim 5 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a smart device and therefore, is an apparatus.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein the virtual continuous mode radar data stream comprises a plurality of virtual reflections of radar chirps spaced equally in time”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to the conversion of radar data. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 5 is ineligible.
Claim 6 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a smart device and therefore, is an apparatus.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “create a virtual reflection of a radar chirp based on multiple radar chirps of a burst of the plurality of bursts, wherein the virtual reflection of the radar chirp is part of the plurality of virtual reflections of radar chirps spaced equally in time”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to the conversion of radar data. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim recites the following additional elements: “wherein the instructions to convert the radar data stream to the virtual continuous mode radar data stream comprises instructions that cause the processing system to”. The use of a processor does not integrate the judicial exception into a practical application as it is merely used to perform the judicial exception.
These additional elements, taken individually or in combination, merely amount to insignificant pre/post-solution activities and do not integrate the judicial exception into a practical application. This claim is therefore directed to an abstract idea.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim. In light of the above, claim 6 is ineligible.
Claim 7 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a smart device and therefore, is an apparatus.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “sampling a plurality of samples of each radar chirp of the multiple chirps of the burst; averaging each sample of the plurality of samples with corresponding samples from the other chirps of the multiple chirps of the burst to create a plurality of averaged samples; and assembling the averaged samples to create the virtual reflection of the radar chirp”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to data processing via sampling, averaging, and compiling data. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim recites the following additional elements: “wherein in creating the virtual reflection of the radar chirp based on multiple radar chirps of the burst of the plurality of bursts, the processing system is configured to perform an averaging process, the averaging process comprising”. The use of a processor does not integrate the judicial exception into a practical application as it is merely used to perform the judicial exception.
These additional elements, taken individually or in combination, merely amount to insignificant pre/post-solution activities and do not integrate the judicial exception into a practical application. This claim is therefore directed to an abstract idea.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim. In light of the above, claim 7 is ineligible.
Claim 8 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a smart device and therefore, is an apparatus.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein the user activity recognition is performed while the vital sign detection is being performed”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to user activity recognition and vital sign detection. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 8 is ineligible.
Claim 11 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a method and therefore, is a method.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “performing, by the processing system, a first set of operations on the radar data stream to perform user activity recognition; and performing, by the processing system, a second set of operations on the radar data stream to perform vital sign detection”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to the analysis of radar data to assess user activity recognition and viral sign detection. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim recites the following additional elements: “emitting radar chirps, by a radar sensor operating in a burst mode, such that the radar sensor emits a plurality of bursts of radar chirps; outputting, by the radar sensor, a burst mode radar data stream that is based on reflections of the radar chirps of the plurality of bursts or the radar chirps; receiving, by a processing system, the burst mode radar data stream from the radar sensor; wherein no radar transmission mode changes are required to perform the user activity recognition and the vital sign detection”. The collection of radar data without a mode change is a data gathering step that is a form of a pre-solution insignificant activity. The use of a processor does not integrate the judicial exception into a practical application as it is merely used to perform the judicial exception.
These additional elements, taken individually or in combination, merely amount to insignificant pre/post-solution activities and do not integrate the judicial exception into a practical application. This claim is therefore directed to an abstract idea.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim. In light of the above, claim 11 is ineligible.
Claim 13 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a method and therefore, is a method.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein performing the second set of operations comprises converting, by the processing system, the burst mode radar data stream to a virtual continuous mode radar data stream”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to the conversion of radar data. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 13 is ineligible.
Claim 14 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a method and therefore, is a method.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein the virtual continuous mode radar data stream is comprised of a plurality of virtual reflections of radar chirps spaced equally in time”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to the conversion of radar data. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 14 is ineligible.
Claim 15 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a method and therefore, is a method.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein converting the burst mode radar data stream to the virtual continuous mode radar data stream comprises: creating a virtual reflection of a radar chirp based on multiple radar chirps of a burst of the plurality of bursts, wherein the virtual reflection of the radar chirp is part of the plurality of virtual reflections of radar chirps spaced equally in time”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to the conversion of radar data. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 15 is ineligible.
Claim 16 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a method and therefore, is a method.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein creating the virtual reflection of the radar chirp based on the multiple radar chirps of the burst of the plurality of bursts comprises: sampling a plurality of samples of each radar chirp of multiple chirps of the burst; averaging each sample of the plurality of samples with corresponding samples from the other chirps of the multiple chirps of the burst to create a plurality of averaged samples; and assembling the averaged samples to create the virtual reflection of the radar chirp”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to data processing via sampling, averaging, and compiling data. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 16 is ineligible.
Claim 17 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a method and therefore, is a method.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein the contactless human interaction is a gesture”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to recognition of a gesture. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 17 is ineligible.
Claim 18 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a method and therefore, is a method.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein the contactless human interaction is presence detection”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to recognition of a presence. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 18 is ineligible.
Claim 19 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Statutory Category: Yes - The claims recite a method and therefore, is a method.
Step 2A, Prong 1, Judicial Exception: Yes - The claim recites the limitation “wherein the vital sign detection comprises sleep monitoring of the user”.
This limitation, as drafted, is a process step that, under its broadest reasonable interpretation, covers the performance of the limitation in the mind as it is regarding a concept relating to sleep assessment. That is, nothing in the claim element precludes the step from practically being performed in the mind and/or being performed with the aid of a pen and paper. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No - The claim does not contain additional elements. Therefore, the claim does not integrate the judicial exception into a practical application.
Step 2B, Inventive Concept: No Similar to Step 2A Prong 2, the claim does not contain additional elements. For these reasons, there is no inventive concept in the claim. In light of the above, claim 19 is ineligible.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-19 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,329,506. Although the claims at issue are not identical, they are not patentably distinct from each other because they are anticipated.
Regarding claim 1, Claim 1 of U.S. Patent No. 12,329,506 teaches a smart device, comprising:
a housing; a radar sensor, housed by the housing, configured to operate in a burst mode in which the radar sensor transmits a plurality of bursts of radar chirps, the radar sensor configured to: receives reflections of the plurality of bursts of radar chirps, and outputs a radar data stream based on the reflections of the plurality of bursts of radar chirps; and a processing system, housed by the housing and in communication with the radar sensor, comprising one or more processors, the processing system, without radar transmission mode changes, configured to: perform a first set of operations on the radar data stream to perform user activity recognition; and perform a second set of operations on the radar data stream to perform vital sign detection (Claim 1 recites: A contactless health monitoring device, comprising: a housing; a radar sensor, housed by the housing, configured to operate in a burst mode in which the radar sensor emits a plurality of bursts of radar chirps, wherein: a first amount of time elapsing between adjacent radar chirps of a burst of the plurality of bursts of radar chirps is smaller than a second amount of time elapsing between adjacent bursts of the plurality of bursts of radar chirps; and the radar sensor outputs a burst mode radar data stream that is based on received reflections of the radar chirps of the plurality of bursts of radar chirps; a processing system, housed by the housing, comprising one or more processors, that is in communication with the radar sensor, the processing system configured to: receive the burst mode radar data stream from the radar sensor; analyze the burst mode radar data stream to identify a contactless human interaction; convert the burst mode radar data stream to a virtual continuous mode radar data stream; and perform health monitoring of a user using the virtual continuous mode radar data stream).
Regarding claim 2, U.S. Patent No. 12,329,506 teaches the smart device in claim 1, as discussed above.
Claim 1 of U.S. Patent No. 12,329,506 further teaches a smart device, wherein:
a first amount of time elapsing between adjacent radar chirps of a burst of the plurality of bursts of radar chirps is smaller than a second amount of time elapsing between adjacent bursts of the plurality of bursts of radar chirps (Claim 1 recites: a radar sensor, housed by the housing, configured to operate in a burst mode in which the radar sensor emits a plurality of bursts of radar chirps, wherein: a first amount of time elapsing between adjacent radar chirps of a burst of the plurality of bursts of radar chirps is smaller than a second amount of time elapsing between adjacent bursts of the plurality of bursts of radar chirps).
Regarding claim 3, U.S. Patent No. 12,329,506 teaches the smart device in claim 1, as discussed above.
Claim 7 of U.S. Patent No. 12,329,506 further teaches a smart device, wherein the user activity recognition is gesture detection (Claim 7 recites: The contactless health monitoring device of claim 1, wherein the contactless human interaction is a gesture).
Regarding claim 4, U.S. Patent No. 12,329,506 teaches the smart device in claim 1, as discussed above.
Claim 1 of U.S. Patent No. 12,329,506 further teaches a smart device, wherein the second set of operations comprises instructions to convert the radar data stream to a virtual continuous mode radar data stream (Claim 1 recites: convert the burst mode radar data stream to a virtual continuous mode radar data stream; and perform health monitoring of a user using the virtual continuous mode radar data stream).
Regarding claim 5, U.S. Patent No. 12,329,506 teaches the smart device in claim 4, as discussed above.
Claim 2 of U.S. Patent No. 12,329,506 further teaches a smart device, wherein the virtual continuous mode radar data stream comprises a plurality of virtual reflections of radar chirps spaced equally in time (Claim 2 recites: The contactless health monitoring device of claim 1, wherein the virtual continuous mode radar data stream comprises a plurality of virtual reflections of radar chirps spaced equally in time).
Regarding claim 6, U.S. Patent No. 12,329,506 teaches the smart device in claim 5, as discussed above.
Claim 3 of U.S. Patent No. 12,329,506 further teaches a smart device, wherein the instructions to convert the radar data stream to the virtual continuous mode radar data stream comprises instructions that cause the processing system to: create a virtual reflection of a radar chirp based on the multiple radar chirps of a burst of the plurality of bursts, wherein the virtual reflection of the radar chirp is part of the plurality of virtual reflections of radar chirps spaced equally in time (Claim 6 recites: The contactless health monitoring device of claim 2, wherein the processing system being configured to convert the burst mode radar data stream to the virtual continuous mode radar data stream comprises the processing system being configured to: create a virtual reflection of a radar chirp based on the multiple radar chirps of a burst of the plurality of bursts, wherein the virtual reflection of the radar chirp is part of the plurality of virtual reflections of radar chirps spaced equally in time).
Regarding claim 7, U.S. Patent No. 12,329,506 teaches the smart device in claim 6, as discussed above.
Claim 4 of U.S. Patent No. 12,329,506 further teaches a smart device, wherein in creating the virtual reflection of the radar chirp based on multiple radar chirps of the burst of the plurality of bursts, the processing system is configured to perform an averaging process, the averaging process comprising: sampling a plurality of samples of each radar chirp of the multiple chirps of the burst; averaging each sample of the plurality of samples with corresponding samples from the other chirps of the multiple chirps of the burst to create a plurality of averaged samples; and assembling the averaged samples to create the virtual reflection of the radar chirp (Claim 4 recites: The contactless health monitoring device of claim 3, wherein the processing system being configured to create the virtual reflection of the radar chirp based on the multiple radar chirps of the burst of the plurality of bursts comprises the processing system being configured to perform an averaging process, comprising: sampling a plurality of samples of each radar chirp of the multiple chirps of the burst; averaging each sample of the plurality of samples with corresponding samples from the other chirps of the multiple chirps of the burst to create a plurality of averaged samples; and assembling the averaged samples to create the virtual reflection of the radar chirp).
Regarding claim 8, U.S. Patent No. 12,329,506 teaches the smart device in claim 7, as discussed above.
Claim 5 of U.S. Patent No. 12,329,506 further teaches a smart device, wherein the user activity recognition is performed while detection of the vital sign detection is being performed (Claim 5 recites: The contactless health monitoring device of claim 4, wherein the contactless human interaction is detected while health monitoring is being performed).
Regarding claim 9, U.S. Patent No. 12,329,506 teaches the smart device in claim 1, as discussed above.
Claim 6 of U.S. Patent No. 12,329,506 further teaches a smart device, wherein the radar sensor outputs RF having a frequency between 45 GHz and 80 GHz (Claim 6 recites: The contactless health monitoring device of claim 1, wherein the radar sensor outputs frequency-modulated continuous wave (FMCW) radar having a frequency between 57-64 GHz and a peak EIRP of less than 20 dBm).
Regarding claim 10, U.S. Patent No. 12,329,506 teaches the smart device in claim 1, as discussed above.
Claim 6 of U.S. Patent No. 12,329,506 further teaches a smart device, wherein the radar sensor outputs RF having a peak equivalent isotopically radiated power (EIRP) of less than 20 dBm (Claim 6 recites: The contactless health monitoring device of claim 1, wherein the radar sensor outputs frequency-modulated continuous wave (FMCW) radar having a frequency between 57-64 GHz and a peak EIRP of less than 20 dBm).
Regarding claim 11, Claim 14 of U.S. Patent No. 12,329,506 teaches a method for monitoring for contactless human interactions and monitoring health using a single radar modulation mode, the method comprising: emitting radar chirps, by a radar sensor operating in a burst mode, such that the radar sensor emits a plurality of bursts of radar chirps; outputting, by the radar sensor, a burst mode radar data stream that is based on reflections of the radar chirps of the plurality of bursts or the radar chirps; receiving, by a processing system, the burst mode radar data stream from the radar sensor; performing, by the processing system, a first set of operations on the radar data stream to perform user activity recognition; and performing, by the processing system, a second set of operations on the radar data stream to perform vital sign detection, wherein no radar transmission mode changes are required to perform the user activity recognition and the vital sign detection (Claim 14 recites: A method for monitoring for contactless human interactions and monitoring health using a single radar modulation mode, the method comprising: emitting radar chirps, by a radar sensor operating in a burst mode, such that the radar sensor emits a plurality of bursts of radar chirps, wherein: a first amount of time elapsing between subsequent radar chirps of a burst of the plurality of bursts of radar chirps is smaller than a second amount of time elapsing between subsequent bursts of the plurality of bursts of radar chirps; and the radar sensor outputs a burst mode radar data stream that is based on reflections of the radar chirps of the plurality of bursts or radar chirps; receiving, by a processing system, the burst mode radar data stream from the radar sensor; analyzing, by the processing system, the burst mode radar data stream for a contactless human interaction; converting, by the processing system, the burst mode radar data stream to a virtual continuous mode radar data stream; and performing, by the processing system, health monitoring of a user using the virtual continuous mode radar data stream).
Regarding claim 12, U.S. Patent No. 12,329,506 teaches the method in claim 11, as discussed above.
Claim 14 of U.S. Patent No. 12,329,506 further teaches a method, wherein a first amount of time elapsing between subsequent radar chirps of a burst of the plurality of bursts of radar chirps is smaller than a second amount of time elapsing between subsequent bursts of the plurality of bursts of radar chirps (Claim 14 recites: emitting radar chirps, by a radar sensor operating in a burst mode, such that the radar sensor emits a plurality of bursts of radar chirps, wherein: a first amount of time elapsing between subsequent radar chirps of a burst of the plurality of bursts of radar chirps is smaller than a second amount of time elapsing between subsequent bursts of the plurality of bursts of radar chirps; and the radar sensor outputs a burst mode radar data stream that is based on reflections of the radar chirps of the plurality of bursts or radar chirps).
Regarding claim 13, U.S. Patent No. 12,329,506 teaches the method in claim 11, as discussed above.
Claim 13 of U.S. Patent No. 12,329,506 further teaches a method, wherein performing the second set of operations comprises converting, by the processing system, the burst mode radar data stream to a virtual continuous mode radar data stream (Claim 13 recites: converting, by the processing system, the burst mode radar data stream to a virtual continuous mode radar data stream; and performing, by the processing system, health monitoring of a user using the virtual continuous mode radar data stream).
Regarding claim 14, U.S. Patent No. 12,329,506 teaches the method in claim 13, as discussed above.
Claim 15 of U.S. Patent No. 12,329,506 further teaches a method, wherein the virtual continuous mode radar data stream is comprised of a plurality of virtual reflections of radar chirps spaced equally in time (Claim 15 recites: The method for monitoring for contactless human interactions and monitoring health using the single radar modulation mode of claim 14, wherein the virtual continuous mode radar data stream is comprised of a plurality of virtual reflections of radar chirps spaced equally in time).
Regarding claim 15, U.S. Patent No. 12,329,506 teaches the method in claim 14, as discussed above.
Claim 16 of U.S. Patent No. 12,329,506 further teaches a method, wherein converting the burst mode radar data stream to the virtual continuous mode radar data stream comprises: creating a virtual reflection of a radar chirp based on multiple radar chirps of a burst of the plurality of bursts, wherein the virtual reflection of the radar chirp is part of the plurality of virtual reflections of radar chirps spaced equally in time (Claim 16 recites: The method for monitoring for contactless human interactions and monitoring health using the single radar modulation mode of claim 15, wherein converting the burst mode radar data stream to the virtual continuous mode radar data stream comprises: creating a virtual reflection of a radar chirp based on the multiple radar chirps of a burst of the plurality of bursts, wherein the virtual reflection of the radar chirp is part of the plurality of virtual reflections of radar chirps spaced equally in time).
Regarding claim 16, U.S. Patent No. 12,329,506 teaches the method in claim 15, as discussed above.
Claim 17 of U.S. Patent No. 12,329,506 further teaches a method, wherein creating the virtual reflection of the radar chirp based on the multiple radar chirps of the burst of the plurality of bursts comprises: sampling a plurality of samples of each radar chirp of multiple chirps of the burst; averaging each sample of the plurality of samples with corresponding samples from the other chirps of the multiple chirps of the burst to create a plurality of averaged samples; and assembling the averaged samples to create the virtual reflection of the radar chirp (Claim 17 recites: The method for monitoring for contactless human interactions and monitoring health using the single radar modulation mode of claim 16, wherein creating the virtual reflection of the radar chirp based on the multiple radar chirps of the burst of the plurality of bursts comprises: sampling a plurality of samples of each radar chirp of the multiple chirps of the burst; averaging each sample of the plurality of samples with corresponding samples from the other chirps of the multiple chirps of the burst to create a plurality of averaged samples; and assembling the averaged samples to create the virtual reflection of the radar chirp).
Regarding claim 17, U.S. Patent No. 12,329,506 teaches the method in claim 11, as discussed above.
Claim 18 of U.S. Patent No. 12,329,506 further teaches a method, wherein the contactless human interaction is a gesture (Claim 18 recites: The method for monitoring for contactless human interactions and monitoring health using the single radar modulation mode of claim 17, wherein the contactless human interaction is a gesture).
Regarding claim 18, U.S. Patent No. 12,329,506 teaches the method in claim 11, as discussed above.
Claim 19 of U.S. Patent No. 12,329,506 further teaches a method, wherein the contactless human interaction is presence detection (Claim 19 recites: The method for monitoring for contactless human interactions and monitoring health using the single radar modulation mode of claim 17, wherein the contactless human interaction is presence detection).
Regarding claim 19, U.S. Patent No. 12,329,506 teaches the method in claim 11, as discussed above.
Claim 20 of U.S. Patent No. 12,329,506 further teaches a method, wherein the vital sign detection comprises sleep monitoring of the user (Claim 20 recites: The method for monitoring for contactless human interactions and monitoring health using the single radar modulation mode of claim 17, wherein the health monitoring comprises sleep monitoring of the user).
Claim 20 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-20 of U.S. Patent No. 12,329,506 in view of Weitnauer et al. (PGPUB No. US 2014/0378809).
Regarding claim 20, modified U.S. Patent No. 12,329,506 teaches the method in claim 11, as discussed above.
However, the method claims of U.S. Patent No. 12,329,506 is silent regarding a method, wherein emitting the radar chirps comprises outputting RF having a peak equivalent isotopically radiated power (EIRP) of less than 20 dBm.
In an analogous imaging field of endeavor, regarding RF transmission, Weitnauer teaches a method, wherein emitting the radar chirps comprises outputting RF having a peak equivalent isotopically radiated power (EIRP) of less than 20 dBm (Paragraph 0025 teaches operation -41.3 dBm).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to modify U.S. Patent No. 12,329,506 with Weitnauer’s teaching of EIRP less than 20 dBm. This modified method would allow the user to have an IR-UWB radar that can be used without contacting the subject and can be used at relatively low power, suitable for continuous monitoring (Paragraph 0003 of Weitnauer). Furthermore, the modification may allow more accurately discerning a plurality of elements from the heart rate harmonic set (Paragraph 0048 of Weitnauer).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Lakkis et al. (PGPUB No. US 2011/0295102): Teaches the interpolation of chirp burst data from a radar system.
Moshe et al. (PGPUB No. US 2021/0141082): Teaches the interpolation of chirp burst data from a radar system.
Ha et al. (US Patent No. 12,303,236): Teaches the interpolation of chirp burst data from a radar system.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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