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 .
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 1–20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 7, 8, 9, 11, 12, 14, 16, and 18 of U.S. Patent No. 11,495,110. Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 1, 2, 4, 5, 6, and 7 are anticipated by the corresponding patented claims, and instant claim 3 and instant claims 8 through 20 would have been obvious over the corresponding patented claims, as set forth below.
Patented claim 1 recites each limitation of instant claim 1, and further recites the user impacting the ground, accelerometers rather than sensors, a plurality of quick alternating changes in acceleration rather than one or more, a medical emergency event rather than a medical event, and contacting via one or more transceivers a medical emergency responder to request a medical emergency service rather than contacting a third party to request a service. Patented claim 1 thus recites a species falling wholly within the scope of instant claim 1. Instant claim 2 is anticipated by patented claim 1, which recites that the kinetic action is indicated by "one or more accelerometers." Instant claim 3 recites that the one or more sensors further comprise at least one of a magnetometer, a gyroscope, a global positioning system, or a barometer, and patented claim 3 recites that the sensor data comprises geolocation data, differing from instant claim 3 in reciting the data obtained rather than the sensor obtaining it; obtaining that geolocation data necessarily requires a location-determining element, and it would have been obvious to one of ordinary skill in the art to employ a global positioning system for that purpose, a global positioning system being the conventional and predictable means of obtaining geolocation data in a portable monitoring device, and instant claim 3 being satisfied by any single recited alternative. Instant claim 4 is anticipated by patented claim 7, which recites that the model of kinetic actions comprises a sequential-action model. Instant claim 5 is anticipated by patented claim 14, which recites a medical emergency event selected from a heart attack, a stroke, and a high-velocity impact, each of which falls within the list recited in instant claim 5, a high-velocity impact being a species of an impact. Instant claim 6 is anticipated by patented claim 16, which recites the kinetic action as the user falling to the ground and remaining motionless, taken with patented claim 12, which recites that remaining motionless includes remaining motionless for at least a predetermined period of time. Instant claim 7 is anticipated by patented claim 1, which recites the user impacting the ground, taken with patented claim 11, which recites impacting the ground with a specified impact force, a specified impact force being a predetermined force.
Instant claims 8 and 15 recite, respectively, a system and a non-transitory computer readable storage medium performing the operations recited in instant claim 1 and in patented claims 1 and 18. The claims differ in that instant claims 8 and 15 recite one or more non-transitory computer-readable media storing the computing instructions executed by the one or more processors. It would have been obvious to one of ordinary skill in the art to store the instructions for the patented computer-implemented method on such media, a memory storing executable instructions being a necessary and conventional component of any programmed device performing the recited operations. Instant claims 9, 10, 11, 12, 13, and 14 recite the limitations of instant claims 2, 3, 4, 5, 6, and 7, respectively; instant claims 16, 17, 18, and 19 recite the limitations of instant claims 2, 3, 4, and 5, respectively; and instant claim 20 recites in the alternative the limitations of instant claims 6 and 7, either of which alone satisfies the claim. These claims are not patentably distinct from the patented claims for the reasons set forth above.
Claims 1, 2, 4, 6, 7, 8, 9, 11, 13, 14, 15, 16, 18, and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 7, 8, 10, 11, 13, 15, 19, 20, 22, and 23 of U.S. Patent No. 11,495,112. Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons set forth below.
Patented claim 1 recites determining via sensor data from one or more sensors that a user has experienced a kinetic action in a form of the user falling, the kinetic action being indicated by one or more accelerometers measuring a plurality of alternating changes in acceleration; determining whether the kinetic action is indicative of a medical event based at least in part upon a model of one or more kinetic actions; and, upon that determination and upon evaluation of a user response to an alert indication, contacting one or more medical responders to request one or more medical services for the user. Instant claim 1 recites the same method more broadly, reciting sensors rather than accelerometers, one or more alternating changes rather than a plurality, a third party rather than a medical responder, a service rather than a medical service, and omitting the alert indication and response evaluation steps. The claims differ further in that instant claim 1 recites the user falling to a ground, whereas patented claim 1 recites the user falling. Patented claim 3 recites analyzing the sensor data to determine the kinetic action in a form of the user impacting a ground, and patented claim 8 recites a sequential-action model comprising the user falling to a ground, the user impacting the ground, and the user remaining motionless. It would have been obvious to one of ordinary skill in the art that the falling recited in patented claim 1 is a fall to a ground, that being the ordinary and expected terminus of a fall and being expressly so recited in patented claims 3 and 8. Instant claim 2 is anticipated by patented claim 1, which recites that the kinetic action is indicated by "one or more accelerometers." Instant claim 4 is anticipated by patented claim 7, which recites that the model comprises a sequential-action model representative of a sequence of kinetic actions. Instant claim 6 is anticipated by patented claim 11, which recites that the kinetic action of remaining motionless includes remaining motionless for at least a predetermined period of time, taken with patented claim 8, which recites that sequence as the user falling to a ground, impacting the ground, and remaining motionless. Instant claim 7 is anticipated by patented claim 10, which recites that the kinetic action of impacting the ground includes impacting the ground with a specified impact force, a specified impact force being a predetermined force.
Instant claims 8, 9, 11, 13, and 14 recite a system comprising one or more processors and one or more non-transitory computer-readable media storing computing instructions performing the operations recited in instant claim 1 and in patented claims 1 and 13. It would have been obvious to one of ordinary skill in the art to implement the patented method and the patented computer-readable medium as a system comprising the processors executing those instructions and the media storing them, such a system being the necessary and conventional apparatus for performing the recited operations. Instant claim 15 recites a non-transitory computer readable storage medium storing computing instructions that, when executed by one or more processors, cause the processors to perform the operations recited in instant claim 1, and is not patentably distinct from patented claim 13, which recites a non-transitory computer-readable medium storing instructions causing one or more processors to perform those operations, for the reasons set forth above with respect to instant claim 1. Instant claims 9, 11, 13, and 14 recite the limitations of instant claims 2, 4, 6, and 7, respectively; instant claims 16, 18, and 20 recite the limitations of instant claims 2, 4, and 6 and 7, respectively, instant claim 20 reciting those limitations in the alternative such that either alone satisfies the claim; and these claims are not patentably distinct from patented claims 15, 19, 20, 22, and 23 for the reasons set forth above.
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 recites "a form of a kinetic action comprising the user falling to a ground." The scope of this limitation is indeterminate, in that it is unclear whether "a form of" imparts any limitation beyond the kinetic action itself, and whether the subsequently recited "the kinetic action" refers to the kinetic action or to its "form." Claims 8 and 15 are rejected for the same reasons, reciting substantially the same language. Claims 2–7, 9–14, and 16–20 are rejected under 35 U.S.C. 112(b) by virtue of their dependency from claims 1, 8, and 15, respectively. For purposes of examination, claims 1–20 have been examined as best understood in view of the indefiniteness noted above.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1–20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Carlton-Foss (US 2008/0129518 A1).
Regarding claim 1, Carlton-Foss discloses a computer-implemented method comprising: processing sensor data, using one or more processors, to determine if a user has experienced a form of a kinetic action comprising the user falling to a ground (Carlton-Foss discloses three-axis accelerometer 40/128 output is digitized and conditioned and streamed to analytical subsystem 34 on microcontroller 120, which determines the magnitude and direction of acceleration ([0063], [0100]–[0101]) and evaluates Condition B (descent, reading below threshold α; [0054], [0069]), Condition C (negative G's "signify the hitting of a hard object, such as the floor"; [0055]), and Condition D (motionlessness; [0067], [0075]) to determine that the user has fallen to the ground ([0049], [0128], [0130])), wherein the kinetic action is indicated by one or more sensors measuring one or more alternating changes in acceleration (Carlton-Foss discloses the accelerometer reading drops below 1 G during the descent and, "During impact the movement changes direction substantially in the reverse direction" ([0101]); Condition C requires acceleration vectors "within π/2 radians of directly opposite" those before impact, followed by return toward 1 G ([0055]); the body "impact or bounce off" surfaces producing "one or more short accelerations" ([0071]); the monitored limb "is thrust in approximately the reverse direction by the impact" ([0072]); and a complex fall is "broken into multiple parts, each with lower acceleration upon impact" ([0130]).);
comparing, via the one or more processors, the kinetic action of the user with a model of kinetic actions to determine whether the kinetic action is indicative of a medical event (Carlton-Foss discloses comparators 76, 78, 86 compare the acceleration datastream against stored parameters α, β, λ, τ ([0056]–[0059], [0099]) of a "stored parametrized data structure of the events characteristic of a fall," the analysis device using "the at least one stored model to analyze and compare the sensor data" ([0020]–[0022], [0083]); the fall so identified is a medical event, as a fall "may provoke an acute medical crisis" ([0004]) and the user is thereby determined "likely to be unconscious or significantly injured" ([0132]) (see also Applicant's claim 5, reciting that the medical event may be "an impact").); and
upon determining that the kinetic action is indicative of the medical event, contacting a third party to request a service for the user (Carlton-Foss discloses upon Condition D being met the device "initiates a call for help" ([0132]) to call center 84/106, caregivers, or 911 ([0059], [0093], [0110]), each a third party ([0082], [0095]), the alert being sent "to one or more triage points for care response" with the user's location reported ([0025], [0107]).).
Regarding claim 2, Carlton-Foss discloses the computer-implemented method of claim 1, wherein the one or more sensors comprise at least one or more accelerometers (Carlton-Foss discloses the sensor system 30 "include multiple and varied sensors including an accelerometer 40 and an impact detector 42" ([0045]), and "the wearable device has an accelerometer and an impact detector as sensors" ([0013]). The analytical subsystem 34 "takes as input the data from the accelerometer 40" ([0084]). Accelerometer 128 "is preferably a 3-axis accelerometer to allow for the detection regardless of the orientation of the wearable fall detection monitor device 22" ([0100]), and microcontroller 120 "examines the input from all three axes of the accelerometer" ([0101]). Carlton-Foss further discloses that impact detector 42 is itself "an accelerometer" ([0047]), such that the device may comprise a plurality of accelerometers.).
Regarding claim 3, Carlton-Foss discloses the computer-implemented method of claim 2, wherein the one or more sensors further comprise at least one of: a magnetometer; a gyroscope; a global positioning system; or barometer (Carlton-Foss discloses locator 188, wherein "the locator 188 is a global positioning system (GPS) device" ([0107]), and wherein "the worn hub is a cell phone with a GPS, so that the coordinates can be read from the cell phone and transmitted" ([0107]). Carlton-Foss further discloses the embodiment of FIG. 9, in which wearable fall detection monitor device 190 includes both "at least one sensor 30 to monitor the person wearing the wearable fall detection monitor device 190" and "a locator 188 which is, for example, a GPS device" ([0108]), such that the device's sensors comprise an accelerometer ([0045], [0100]) together with a global positioning system.).
Regarding claim 4, Carlton-Foss discloses the computer-implemented method of claim 1, wherein the model of kinetic actions comprises a sequential action model (Applicant defines a sequential-action model as one represented by a sequential pattern of kinetic actions, exemplified as an individual falling, making an impact, and then remaining generally motionless (Applicant's PGPUB spec., [0026]). Carlton-Foss discloses that same ordered pattern: a fall report is generated when "a sequence of logical conditions is satisfied" ([0007]), and the device responds to "a sequence of algorithmically determined events" ([0126]) comprising descent (Condition B), ground impact (Condition C), and motionlessness (Condition D). The ordering is enforced by the algorithm of FIG. 4, in which Condition C is evaluated at comparator 78 only after Condition B evaluates TRUE, and Condition D is evaluated at comparator 86 only after Condition C evaluates TRUE, with failure at any stage returning the algorithm to reset 80 ([0056], [0058]–[0059]). Carlton-Foss expressly characterizes this ordered pattern as the "event sequence" of a fall ([0127]–[0132], FIG. 12).).
Regarding claim 5, Carlton-Foss discloses the computer-implemented method of claim 1, wherein the medical event comprises at least one of: a heart attack, a stroke, a diabetic episode, a drug overdose, an anaphylactic shock, an epileptic seizure, or an impact (Carlton-Foss discloses that the detected event is an impact. Carlton-Foss discloses that Condition C is satisfied by negative G's "sensed to signify the hitting of a hard object, such as the floor" ([0055]), the impact being detected by accelerometer 40 and, optionally, by impact detector 42 ([0047], [0084], [0130]). Carlton-Foss discloses that the user "exhibits movement that the wearable fall detection monitor 22 determines to be characteristic of the wearer completing a fall, typically an impact" ([0130]), and that such impact may be "very high and the damage considerable, leading to shattering of even a healthy hip" ([0130]). Carlton-Foss further discloses that such an event is a medical event, in that "A fall may provoke an acute medical crisis" ([0004]) and the user is determined "likely to be unconscious or significantly injured" ([0132]).).
Regarding claim 6, Carlton-Foss discloses the computer-implemented method of claim 1, wherein the form of kinetic action further comprises the user remaining motionless for at least a predetermined period of time after falling to the ground (Carlton-Foss discloses after the descent (Condition B) and the ground impact (Condition C), the algorithm evaluates Condition D — "a period of substantial motionlessness" ([0067]) in which accelerometer readings remain closely bounded around 1 G "for the set period of time for region D" ([0059]; FIGS. 3–4), whereupon "the fall detection system's 20 final logical condition changes to TRUE" ([0132]). That period is predetermined: Carlton-Foss discloses "the adjustable period of time, τ, which has a default value such as 15 seconds" ([0080]), stored with the other threshold parameters in microcontroller 120 prior to operation ([0099]). The motionlessness follows the fall to the ground, as Condition D is reached only after Condition C — negative G's signifying "the hitting of a hard object, such as the floor" — evaluates TRUE ([0055], [0059]).).
Regarding claim 7, Carlton-Foss discloses the computer-implemented method of claim 1, wherein the user falling to the ground comprises the user impacting the ground with a predetermined force (Applicant states that "the force of an impact corresponds with a change in velocity over an impact period (e.g., the period of deceleration)" (Applicant's PGPUB spec., [0048]). Carlton-Foss detects the ground impact on that basis, Condition C being satisfied by negative G's "sensed to signify the hitting of a hard object, such as the floor" ([0055]), a fall to a hard surface producing "rapid deceleration, high negative acceleration" ([0071]). The force is predetermined: Condition C is evaluated against stored threshold β, which "has a default value of -0.5 G" ([0079]), stored in microcontroller 120 prior to operation ([0099]), and set as a function of impact force — "The value set for β reflects several factors, including a judgment as to the degree of impact that would reasonably yield significant damage to the user" ([0080]).).
Regarding claim 8, Carlton-Foss discloses a system comprising one or more processors and one or more non-transitory computer-readable media storing computing instructions that, when run on the processors, cause them to perform operations. Carlton-Foss discloses microcontroller 120, "the central component of the fall monitor device 22," having "sufficient main memory to support the software algorithm and data management that are central to the identification of falls" ([0098]), wherein "The algorithm which is symbolically shown in FIG. 4 is stored in the program register of the microcontroller 120" together with the threshold parameters governing Conditions B, C, and D ([0099]); see also [0008] ("microelectronics, embedded processors running...algorithms"). The operations recited in claim 8 are the steps recited in claim 1, and are disclosed by Carlton-Foss for the reasons set forth in the rejection of claim 1 above. Claims 9, 10, 11, 12, 13, and 14 recite the limitations of claims 2, 3, 4, 5, 6, and 7, respectively, and are rejected for the reasons set forth in the rejections of those claims above.
Regarding claim 15, Carlton-Foss discloses a non-transitory computer readable storage medium storing computing instructions that, when executed by one or more processors, cause the processors to perform operations. Carlton-Foss discloses microcontroller 120 having "sufficient main memory to support the software algorithm and data management that are central to the identification of falls, as well as optionally sufficient volatile or non-volatile memory" ([0098]), wherein "The algorithm which is symbolically shown in FIG. 4 is stored in the program register of the microcontroller 120" together with the threshold parameters governing Conditions B, C, and D ([0099]). Carlton-Foss further discloses that the fall-detection functions are "controlled in software running on the microcontroller" ([0115]), and discloses non-transitory storage media including non-volatile memory, portable flash memory, and mini-SD media ([0086], [0098]). The operations recited in claim 15 are the steps recited in claim 1, and are disclosed by Carlton-Foss for the reasons set forth in the rejection of claim 1 above. Regarding claims 16–19, these claims recite the limitations of claims 2, 3, 4, and 5, respectively, and are rejected for the reasons set forth in the rejections of those claims above.
Regarding claim 20, Carlton-Foss discloses the non-transitory computer readable storage medium of claim 15, wherein at least one of: the form of kinetic action further comprises the user remaining motionless for at least a predetermined period of time after falling to the ground (Carlton-Foss discloses the user remaining motionless for at least a predetermined period of time after falling to the ground for the reasons set forth in the rejection of claim 6 above); or the user falling to the ground comprises the user impacting the ground with a predetermined force (Carlton-Foss discloses the user impacting the ground with a predetermined force for the reasons set forth in the rejection of claim 7 above.).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAJSHEED O BLACK-CHILDRESS whose telephone number is (571)270-7838. The examiner can normally be reached M to F, 10am to 5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Quan-Zhen Wang can be reached at (571) 272-3114. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RAJSHEED O BLACK-CHILDRESS/ Examiner, Art Unit 2685
Prosecution Insights