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 .
Response to Arguments
Regarding the arguments against the rejection of claims under 35 USC 101, the Examiner respectfully disagrees. Applicant argues that the claims do not recite an abstract idea in that the amendments more accurately characterize the claims as being directed to the technical process of separating overlapping ingestion signals from concurrent physiological signals detected by the same set of sensors, which practically cannot be performed in the human mind. Examiner asserts that under broadest reasonable interpretation, the separation of signals can be done in the human mind, as the separation can be an identification or determination of which signals are to be separated from the concurrent user data. There is no indication in the claim of a highly technical process or algorithm, as the separation is merely done by a processor without specific technical steps for the data separation. See updated rejection below.
Applicant further argues that the amendments add a specific technical operation that improves the functioning of the headphone system itself by enabling the same set of sensors to detect concurrent physiological signals while also extracting clean ingestion signals for jaw health analysis, thereby integrating the abstract idea into a practical application. Examiner further asserts that as noted previously, there is no indication of a specific technical operation for the detection of the concurrent physiological signals. There is no indication to a particular modification and improvement to the headphone systems themselves, as the processes for the separation and determinations for jaw health (which are a part of the abstract idea) are merely done by a “processor” without specific technical steps. As noted in the rejection below at Step 2A Prong 2, the use for the sensors in the system is only for data gathering steps for the abstract idea and do not demonstrate a technology improvement.
Applicant further argues that the amendments recite significantly more than the judicial exception since none of the cited references disclose a method that separates overlapping ingestion signals from concurrent physiological signals detected by the same sensors. Examiner further asserts that as noted in the rejection below at Step 2A Prong 1, the separation of the data recites part of the abstract idea, and the use of the sensors are determined as extra solution activity. As noted in the Applicant’s specification at [0021], the sensors are used merely for the data gathering step, and the retrieval of the data for the system to further analyze recites well understood, routine, and conventional activity as further described in Step 2B below. Further, it should also be noted that the use of a cited reference is not the only resource to use when making the determination of well understood, routine, and conventional activity under Step 2B, see MPEP 2106.05(d)(I), specifically “Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d 1307, 1317; 120 USPQ2d 1353, 1359 (Fed. Cir. 2016) ("The written description is particularly useful in determining what is well-known or conventional").”
Regarding the arguments against the rejection of claims under 35 USC 102, Examiner agrees and therefore this rejection is withdrawn.
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 1-20 are rejected under 35 USC 101 because the claimed invention is directed to an abstract idea without significantly more.
It is appropriate for the Examiner to determine whether a claim satisfies the criteria for subject matter eligibility by evaluating the claim in accordance to the Subject Matter Eligibility Test as recited in the following Steps: 1, 2A, and 2B, see MPEP 2106(III.).
Patent Subject Matter Eligibility Test: Step 1:
First, the Examiner is to establish whether the claim falls within any statutory category including a process, a machine, manufacture, or composition of matter, see MPEP 2106.03(II.) and MPEP 2106.03(I).
Claims 11-20 are related to a system, and claims 1-10 are also related to a method (i.e., a process). Accordingly, these claims are all within at least one of the four statutory categories.
Patent Subject Matter Eligibility Test: Step 2A- Prong One:
Step 2A of the Subject Matter Eligibility Test demonstrates whether a clam is directed to a judicial exception, see MPEP 2106.04(I.). Step 2A is a two-prong inquiry, where Prong One establishes the judicial exception. Regarding Prong One of Step 2A, the claim limitations are to be analyzed to determine whether, under their broadest reasonable interpretation, they “recite” a judicial exception or in other words whether a judicial exception is “set forth” or “described” in the claims. An “abstract idea” judicial exception is subject matter that falls within at least one of the following groupings: a) mathematical concepts, b) certain methods of organizing human activity, and/or c) mental processes, see MPEP 2106.04(II.)(A.)(1.) and 2106.04(a)(2).
Representative independent claim 11 includes limitations that recite at least one abstract idea as underlined in the following limitations. Specifically, independent claim 11 recites:
A jaw health system comprising:
a first headphone device including a first set of sensors; and
a second headphone device including a second set of sensors;
wherein the first headphone device and the second headphone device each include a processor and a memory to store instructions that, when executed by the processor, cause the system to perform operations that include:
receiving, by the processor, first-side user data generated by the first set of sensors in the first headphone device and second-side user data generated by the second set of sensors in the second headphone device related to an ingestion process, wherein the ingestion process includes at least a first bite and a first chew within the first bite;
separating, by the processor, the first-side user data and the second-side user data related to the ingestion process from concurrent user data related to concurrent systems, the first-side user data and the second-side user data related to the ingestion process and the concurrent user data related to the concurrent systems being generated by the first set of sensors and the second set of sensors of the first headphone device and the second headphone device, respectively;
determining, by the processor, i) a first number of chews within the first bite detected by the first set of sensors, and ii) a second number of chews within the first bite detected by the second set of sensors; and
generating, by the processor, an imbalance metric based on a comparison of the first number of chews and the second number of chews.
The Examiner submits that the foregoing underlined limitations constitute a “mental process”, as the following abstract limitations are related to observations and analysis that can be practically performed in the human mind:
“separating” the first-side user data and the second-side user data related to the ingestion process from concurrent user data related to concurrent systems, the first-side user data and the second-side user data related to the ingestion process and the concurrent user data related to the concurrent systems, which recite abstract limitations of observations and analysis of the first and second user data and the concurrent user data; determinations can be made to separate the user data from the concurrent user data
“determining” a first number of chews within the first bite detected by the first set of sensors, which is an abstract limitation of observation and analysis of the first sensor data for determining the number of chews,
“determining” a second number of chews within the first bite detected by the second set of sensors, which is an abstract limitation of observation and analysis of the second sensor data for determining the number of chews,
“generating” an imbalance metric based on a comparison of the first number of chews and the second number of chews, which is an abstract limitation of analysis of the previous abstract steps for determining the imbalance metric.
Accordingly, the claim recites the steps for generating an imbalance metric that can practically be performed in the human mind.
The abstract idea recited in claim 1 is similar to that of claim 11.
Any limitations not identified above as part of the abstract idea are deemed “additional elements” (i.e., processor) and will be discussed in further detail below.
Accordingly, the claim as a whole recites at least one abstract idea.
Furthermore, dependent claims further define the at least one abstract idea, and thus fails to make the abstract idea any less abstract as noted below:
Claims 3 and 13 recite further abstract limitations of weighting the data of the first and second side user data generated by the sensors and an activity threshold of the user, further describing the abstract idea. Claims 4 and 14 recite further abstract limitations of weighting the user data from the first and second sets of sensors based on a mode of operation of the headphone devices, further describing the abstract idea. Claims 5 and 15 recite further abstract limitations of weighting the user data from the first and second sets of sensors based on playback volume threshold of the headphone devices, further describing the abstract idea. Claims 6 and 16 recite further abstract limitations of weighting the user data from the first and second sets of sensors based on ambient noise threshold of the headphone devices, further describing the abstract idea. Claims 8 and 18 recite further detail of describing the concurrent user data that is analyzed as being at least one of a heart rate data, pulse rate data, respiratory data, and breathing sound, further describing the abstract idea. Claims 9 and 19 recite further abstract limitations of analyzing the user side data to determine a toughness of a substance chewed during the ingestion process, generating a toughness metric based on a threshold, further describing the abstract idea.
Patent Subject Matter Eligibility Test: Step 2A- Prong Two:
Regarding Prong Two of Step 2A, it must be determined whether the claim as a whole integrates the abstract idea into a practical application. It must be determined whether any additional elements in the claim beyond the abstract idea integrates the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception. The courts have indicated that additional elements merely using a computer to implement an abstract idea, adding insignificant extra solution activity, or generally linking use of a judicial exception to a particular technological environment or field of use do not integrate a judicial exceptions into a “practical application,” see MPEP 2106.04(II.)(A.)(2.) and 2106.04(d)(I.).
In the present case of claim 11, the additional limitations beyond the above-noted at least one abstract idea are as follows (where the bolded portions are the “additional limitations” while the underlined portions continue to represent the at least one “abstract idea”):
A jaw health system comprising:
a first headphone device including a first set of sensors; and
a second headphone device including a second set of sensors;
wherein the first headphone device and the second headphone device each include a processor and a memory to store instructions that, when executed by the processor, cause the system to perform operations that include (amounts to nothing more than an instruction to apply the abstract idea using a generic computer as noted below, see MPEP 2106.05(f)):
receiving, by the processor, first-side user data generated by the first set of sensors in the first headphone device and second-side user data generated by the second set of sensors in the second headphone device related to an ingestion process, wherein the ingestion process includes at least a first bite and a first chew within the first bite (merely data gathering steps as noted below, see MPEP 2106.05(g) and Versata Dev. Group, Inc. v. SAP Am., Inc.;
separating, by the processor, the first-side user data and the second-side user data related to the ingestion process from concurrent user data related to concurrent systems, the first-side user data and the second-side user data related to the ingestion process and the concurrent user data related to the concurrent systems being generated by the first set of sensors and the second set of sensors of the first headphone device and the second headphone device, respectively;
determining, by the processor (amounts to nothing more than an instruction to apply the abstract idea using a generic computer as noted below, see MPEP 2106.05(f)), i) a first number of chews within the first bite detected by the first set of sensors, and ii) a second number of chews within the first bite detected by the second set of sensors; and
generating, by the processor, an imbalance metric based on a comparison of the first number of chews and the second number of chews.
For the following reasons, the Examiner submits that the above identified additional limitations do not integrate the above-noted at least one abstract idea into a practical application.
Regarding the additional limitations of the overall jaw health system, wherein the first headphone device and the second headphone device each include a processor and a memory to store instructions that, when executed by the processor, cause the system to perform operations and the use of the processors, the Examiner submits that these limitations amount to nothing more than an instruction to apply the abstract idea using a generic computer and generic computing components (see MPEP § 2106.05(f)). [0013-0014] of the Applicant’s Specification recites the overall generic computing system with processors and memory. The additional elements recite the use of generic computing components with a non-specific implementation to carry out steps of the abstract idea without showing an improvement to technology, computers or other technical fields, and thus recites mere instructions to implement the abstract idea on a computer.
Claim 1 recites similar additional elements and are analyzed in a similar manner as claim 11.
Regarding the additional limitations of a first headphone device including a first set of sensors, a second headphone device including a second set of sensors, receiving, by the processor, first-side user data generated by the first set of sensors in the first headphone device and second-side user data generated by the second set of sensors in the second headphone device related to an ingestion process, wherein the ingestion process includes at least a first bite and a first chew within the first bite and where the concurrent user data is generated by the first set of sensors and the second set of sensors of the first headphone device and the second headphone device, respectively, these are merely pre-solution activities. The Examiner submits that this additional limitation merely adds insignificant extra-solution activity of collecting data to the at least one abstract idea in a manner that does not meaningfully limit the at least one abstract idea (see MPEP § 2106.05(g)). [0016, 0017] of the Applicant’s Specification recites the use of the headphones with sets of sensors. [0023] recites the sensors being used to gather and receive data of the ingestion process and chewing. [0031] recites the data being gathered from sensors for the concurrent data. The use of the sensors to gather data are used to perform actions for the system including data gathering for the abstract idea, and thus recites insignificant pre-solution activities.
Claim 1 recites similar additional elements and are analyzed in a similar manner as claim 11.
Taken alone, the additional elements do not integrate the at least one abstract idea into a practical application.
Looking at the additional limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. For instance, there is no indication that the additional elements, when considered as a whole, reflect an improvement in the functioning of a computer or an improvement to another technology or technical field, apply or use the above-noted judicial exception to generate an imbalance metric, implement/use the above-noted judicial exception with a particular machine or manufacture that is integral to the claim, effect a transformation or reduction of a particular article to a different state or thing, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is not more than a drafting effort designed to monopolize the exception, see MPEP 2106.04(d), 2106.05(a), 2106.05(b).
The remaining dependent claim limitations not addressed above fail to integrate the abstract idea into a practical application as set below:
Claims 2 and 12 recite further additional elements describing the first and second set of sensors, however these devices are used merely for the insignificant pre solution activity. Claims 7 and 17 recite further additional elements of sending data from the sensors to a companion device, and where processing of data occurs on the companion device that is connected to the headphone devices; these limitations amount to nothing more than an instruction to apply the abstract idea using a generic computer and generic computing components. Claims 9 and 19 recite further additional element of providing a notification to the user based on the toughness metric, where a frequency of the notification occurs based on a user profile, however the recitation of the output of part of the abstract idea recites insignificant post solution activity. Claims 10 and 20 recite further additional element of providing a notification to the user based on the imbalance metric, where a frequency of the notification occurs based on a user profile, however the recitation of the output of part of the abstract idea recites insignificant post solution activity.
Thus, taken alone and in ordered combination, the additional elements do not integrate the at least one abstract idea into a practical application.
Patent Subject Matter Eligibility Test: Step 2B:
Regarding Step 2B of the Subject Matter Eligibility Test, the independent claims do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for the same reasons to those discussed above with respect to determining that the claim does not integrate the abstract idea into a practical application, see MPEP 2106.05(II.). Further, it may need to be established, when determining whether a claim recites significantly more than a judicial exception, that the additional elements recite well understood, routine, and conventional activities, see MPEP 2106.05(d).
Regarding the additional limitations of the overall jaw health system, wherein the first headphone device and the second headphone device each include a processor and a memory to store instructions that, when executed by the processor, cause the system to perform operations and the use of the processors, the Examiner submits that these limitations amount to nothing more than an instruction to apply the abstract idea using a generic computer and generic computing components (see MPEP § 2106.05(f)). [0013-0014] of the Applicant’s Specification recites the overall generic computing system with processors and memory. The additional elements recite the use of generic computing components with a non-specific implementation to carry out steps of the abstract idea without showing an improvement to technology, computers or other technical fields, and thus recites mere instructions to implement the abstract idea on a computer and does not recite significantly more than the judicial exception.
Claim 1 recites similar additional elements and are analyzed in a similar manner as claim 11.
Regarding the additional limitations of a first headphone device including a first set of sensors, a second headphone device including a second set of sensors, receiving, by the processor, first-side user data generated by the first set of sensors in the first headphone device and second-side user data generated by the second set of sensors in the second headphone device related to an ingestion process, wherein the ingestion process includes at least a first bite and a first chew within the first bite and where the concurrent user data is generated by the first set of sensors and the second set of sensors of the first headphone device and the second headphone device, respectively, these are merely pre-solution activities. The Examiner submits that this additional limitation merely adds insignificant extra-solution activity of collecting data to the at least one abstract idea in a manner that does not meaningfully limit the at least one abstract idea (see MPEP § 2106.05(g) and MPEP § 2106.05(d)(II), specifically “storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93”). [0016, 0017] of the Applicant’s Specification recites the use of the headphones with sets of sensors. [0023] recites the sensors being used to gather and receive data of the ingestion process and chewing. [0031] recites the data being gathered from sensors for the concurrent data. The use of the sensors to gather data are used to perform actions for the system including data gathering for the abstract idea, and thus recites insignificant pre-solution activities and does not recite significantly more than the judicial exception. The recitation of storing and retrieving the user data generated by the sensors for the system as described in [0021] recites well understood, routine, and conventional activity.
Claim 1 recites similar additional elements and are analyzed in a similar manner as claim 11.
The dependent claims do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exceptions for the same reasons to those discussed above with respect to determining that the dependent claims do not integrate the at least one abstract idea into a practical application.
For the reasons stated, the claims fail the Subject Matter Eligibility Test and therefore claims 1-20 are rejected under 35 USC 101 as being directed to non-statutory subject matter.
The previously cited references have been considered as relevant, however have not been used in the above rejection:
CN 107280641 B to Liu et al. teaches of a system using sensors on either ear to detect chewing activity for a user.
US-20170270820-A1 to Ashby teaches of wearable sensors on the user to track the chew numbers when eating to generate feedback to the user.
US-20170303828-A1 to Seki et al. teaches of an earphone device for tracking chewing using light and audio sensors.
US-20180242908-A1 to Sazonov et al. teaches of a food intake monitor wearable around the ear of the user to detect a change in air pressure from mandible movement.
NPL “A wearable earpad sensor for chewing monitoring” to Amft teaches of a wearable ear sensor for monitor chewing to track vibrations of chewing using sound analysis.
These references do not teach aspects of the current invention including but not limited to: “separating, by the processor, the first-side user data and the second-side user data related to the ingestion process from concurrent user data related to concurrent systems, the first-side user data and the second-side user data related to the ingestion process and the concurrent user data related to the concurrent systems being generated by the first set of sensors and the second set of sensors of the first headphone device and the second headphone device, respectively; determining, by the processor, i) a first number of chews within the first bite based on the first-side user data generated by the first set of sensors, and ii) a second number of chews within the first bite based on the second-side user data generated by the second set of sensors”
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/CONSTANTINE SIOZOPOULOS/
Primary Examiner
Art Unit 3686
