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 Objections
Claims 3, 5-6, 11-12, & 14-15 are objected to because of the following informalities:
In claims 3, 5-6, 11-12, & 14-15, “a respiration phase, amplitude, and frequency” should read –the respiration phase, amplitude, and frequency--.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “signal acquisition unit” and “signal processing unit” in claims 1 & 9; “light intensity optical flow detection unit” in claims 2 & 11; “judgment unit” in claims 2-3, 5-6, 11-12, & 14-15; “face RGB signal extraction unit” in claims 3 & 12; chest-and-abdomen depth signal extraction unit” in claims 5 & 14; “body volume detection unit” in claims 5 & 14; neck depth signal extraction unit” in claims 6 & 15; and “notification unit” in claims 8 & 17.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
Per [0024] of the instant specification, “signal acquisition unit” has been interpreted to be a camera.
Per [0035] of the instant specification, “notification unit” has been interpreted to be a display capable of displaying respiration phase and amplitude signals and generating warnings or recommendations.
Per Figure 3, “signal processing unit” has been interpreted to be a computer, and all remaining units have been interpreted to be modules of the signal processing unit capable of performing their claimed functions.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-8 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 recites the limitation “the respiration phase, amplitude, and frequency”. There is insufficient antecedent basis for this limitation in the claim.
Claims 2-8 depends from claim 1, and, therefore, inherit the deficiencies of their parent claim.
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.
Claims 1, 4, 7, 9, 13, & 16 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Prasad (US 2017/0169307).
Regarding claim 1, Prasad teaches an apparatus for detecting respiration, comprising:
a signal acquisition unit (video imaging device 200, [0019]) configured to continuously acquire RGB (red, green, and blue) signals of a subject (color video camera, [0019]); and
a signal processing unit (video processing system 800, [0050]) configured to receive the RGB signals and determine a respiration phase ([0036]), amplitude (Figure 3), and frequency (Figure 3) of the subject.
Regarding claim 4, Prasad teaches the apparatus as claimed in claim 1, wherein the signal acquisition unit is further configured to continuously acquire depth signals of the subject.
It is expected that a video camera captures depth information.
Regarding claim 7, Prasad teaches the apparatus as claimed in claim 1, wherein the signal acquisition unit is further configured to continuously acquire infrared signals of the subject (infrared video camera, [0019]), and the signal processing unit is configured to receive the infrared signals and use them to assist in identifying a region of the subject (region of the subject, [0021]).
Claim 9 is rejected for similar reasons to claim 1.
Claim 13 is rejected for similar reasons to claim 4.
Claim 16 is rejected for similar reasons to claim 7.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 2-3, 8, 10-12, & 17 are rejected under 35 U.S.C. 103 as being unpatentable over Prasad, as applied to claim 1, above, in view of Suehling (US 2022/0378391).
Regarding claim 2, Prasad teaches the apparatus as claimed in claim 1, wherein the signal processing unit comprises:
a light intensity optical flow detection unit (optical flow module 807, [0051]) configured to detect information on optical flow ([0051]) and a change in light intensity of an upper body of the subject (regions 103 & 104, [0021], Figure 1) according to the chest-and-abdomen RGB signal ([0021] & [0051]); and
Because data is obtained via an optical camera, any determination made using the image data would consider changes in light intensity.
a judgment unit (vector counter 808 & ratio determinator 809, [0051]) configured to determine the respiration phase, amplitude, and frequency of the subject according to the information on optical flow and the change in light intensity ([0051]).
However, Prasad fails to disclose a chest-and-abdomen RGB signal extraction unit configured to extract a chest-and-abdomen RGB signal from the RGB signals.
Suehling teaches a chest-and-abdomen RGB signal extraction unit (control unit or processing unit, [0058]) configured to extract a chest-and-abdomen RGB signal ([0062]) from the RGB signals.
It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the apparatus of Prasad to include a chest-and-abdomen RGB signal extraction unit configured to extract a chest-and-abdomen RGB signal from the RGB signals, as taught by Suehling. Automatically extracting the desired region in the image increases effectiveness of the overall process.
Regarding claim 3, Prasad teaches the apparatus as claimed in claim 1, wherein the signal processing unit comprises:
a facial skin detection unit configured to detect an RGB change in facial skin (facial region 105, [0021]) of the subject according to the face RGB signal (“Regions which move during respiration include…facial regions such as nostrils, lips, and cheeks”, [0021]); and
a judgment unit configured to determine the respiration phase, amplitude, and frequency of the subject according to the RGB change in the facial skin of the subject (“Signals associated with respiratory function can also be sensed by the video imaging device in a facial region 105”, [0021]).
However, Prasad fails to disclose a face RGB signal extraction unit configured to extract a face RGB signal from the RGB signals.
Suehling teaches a face RGB signal extraction unit (control unit or processing unit, [0058]) configured to extract a face RGB signal ([0062]) from the RGB signals.
It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the apparatus of Prasad to include a face RGB signal extraction unit configured to extract a face RGB signal from the RGB signals, as taught by Suehling. Automatically extracting the desired region in the image increases effectiveness of the overall process.
Regarding claim 8, Prasad teaches the apparatus as claimed in claim 1, wherein it further comprises a notification unit (display device 823, [0053]) configured to display respiration phase and amplitude signals ([0053] & Figure 3).
However, Prasad fails to disclose that the notification unit provides corresponding warnings or recommendations.
Suehling teaches that the notification unit provides corresponding warnings (visual or acoustic warning, [0033]) or recommendations (suggestions for action, [0033]).
It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the apparatus of Prasad such that the notification unit provides corresponding warnings or recommendations, as taught by Suehling. This provides the operator or subject with feedback in order to ensure the data captured is of the highest quality.
Regarding claim 10, Prasad teaches the medical imaging device as claimed in claim 9.
However, Prasad fails to disclose that the medical imaging device is a computed tomography (CT) machine, a magnetic resonance (MR) machine, or an X-ray machine.
Suehling teaches that the medical imaging device is a computed tomography (CT) machine (computed tomography (CT) system, [0044]), a magnetic resonance (MR) machine (magnetic resonance imaging (MRI) system, [0044]), or an X-ray machine (gantry, [0055]).
It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the medical imaging device of Prasad such that the medical imaging device is a computed tomography (CT) machine, a magnetic resonance (MR) machine, or an X-ray machine, as taught by Suehling. This gives additional functionality to the device, as a subject’s breathing can be monitored for the purpose of obtaining the highest-quality imaging data captured by the machine in which it is incorporated.
Claim 11 is rejected for similar reasons to claim 2.
Claim 12 is rejected for similar reasons to claim 3.
Claim 17 is rejected for similar reasons to claim 8.
Claims 5 & 14 are rejected under 35 U.S.C. 103 as being unpatentable over Prasad, as applied to claim 4, above, in view of Sa (US 2023/0248268).
Regarding claim 5, Prasad teaches the apparatus as claimed in claim 4.
However, Prasad fails to disclose that the signal processing unit comprises: a chest-and-abdomen depth signal extraction unit configured to extract a chest-and-abdomen depth signal from the depth signals; a body volume detection unit configured to detect a change in body volume of an upper body of the subject according to the chest-and-abdomen depth signal; and a judgment unit configured to determine the respiration phase, amplitude, and frequency of the subject according to the change in body volume of the upper body of the subject.
Sa teaches:
a chest-and-abdomen depth signal extraction unit (depth camera, [0006]) configured to extract a chest-and-abdomen depth signal from the depth signals (“The breathing pattern 404 is determined through monitoring the motion of patient’s chest and/or abdomen region 402”, [0056]);
a body volume detection unit (estimate of lung volume, [0049]) configured to detect a change in body volume of an upper body (lung volume change, [0056]) of the subject according to the chest-and-abdomen depth signal ([0056]); and
a judgment unit (image processor, [0047]) configured to determine the respiration phase (breathing phase, [0047]), amplitude (breathing pattern 404, [0047] & [0056], Figure 4), and frequency (breathing pattern 404, [0047] & [0056], Figure 4) of the subject according to the change in body volume of the upper body of the subject ([0056]).
It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the apparatus of Prasad to include: a chest-and-abdomen depth signal extraction unit configured to extract a chest-and-abdomen depth signal from the depth signals; a body volume detection unit configured to detect a change in body volume of an upper body of the subject according to the chest-and-abdomen depth signal; and a judgment unit configured to determine the respiration phase, amplitude, and frequency of the subject according to the change in body volume of the upper body of the subject, as taught by Sa. This provides an alternative method for determining the respiration phase, amplitude, and frequency.
Claim 14 is rejected for similar reasons to claim 5.
Claims 6 & 15 are rejected under 35 U.S.C. 103 as being unpatentable over Prasad, as applied to claim 4, above, in view of Tao (US 2018/0140255).
Regarding claim 6, Prasad teaches the apparatus as claimed in claim 4.
However, Prasad fails to disclose that the signal processing unit comprises: a neck depth signal extraction unit configured to extract a neck depth signal from the depth signals; a neck motion detection unit configured to detect motion of a neck of the subject according to the neck depth signal; and a judgment unit configured to determine the respiration phase, amplitude, and frequency of the subject according to the motion of the neck of the subject.
Tao teaches:
a neck depth signal extraction unit ([0044]) configured to extract a neck depth signal from the depth signals ([0044]);
a neck motion detection unit ([0044]) configured to detect motion of a neck of the subject according to the neck depth signal ([0044]); and
a judgment unit ([0044]) configured to determine the respiration phase (breathing pattern, [0044], Figure 4), amplitude (amplitude, [0031], Figure 4), and frequency (breathing frequency, [0031], Figure 4) of the subject according to the motion of the neck of the subject ([0044]).
It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the apparatus of Prasad to include: a neck depth signal extraction unit configured to extract a neck depth signal from the depth signals; a neck motion detection unit configured to detect motion of a neck of the subject according to the neck depth signal; and a judgment unit configured to determine the respiration phase, amplitude, and frequency of the subject according to the motion of the neck of the subject, as taught by Tao. This provides an alternative method for determining the respiration phase, amplitude, and frequency.
Claim 15 is rejected for similar reasons to claim 6.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADAM KOLKIN whose telephone number is (571)272-5480. The examiner can normally be reached Monday-Friday 1:00PM-10:00PM EDT.
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/ADAM D. KOLKIN/Examiner, Art Unit 3798
/KEITH M RAYMOND/Supervisory Patent Examiner, Art Unit 3798
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