Ex Parte HEATH

Patent Trials and Appeals Board

Jun 4, 2019

13572094 - (D) (P.T.A.B. Jun. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/572,094 08/10/2012
78102 7590
Nixon Peabody LLP
799 9th Street, NW
Washington, DC 20001
06/06/2019
FIRST NAMED INVENTOR
Chester HEATH
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
077261-0000SOUSPT 6622
EXAMINER
PORTILLO, JAIRO H
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
06/06/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
nppatent@nixonpeabody.com
ipairlink@nixonpeabody.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHESTER HEATH
Appeal2018-003788
Application 13/572,094
Technology Center 3700
Before EDWARD A. BROWN, BRETT C. MARTIN, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner's
decision, as set forth in the Final Office Action dated October 6, 2016
("Final Act."), rejecting claims 1, 3-8, and 10-15. 2 We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Quantum Group, Inc. is identified as the real party in interest. Appeal Br.
3.
2 Claims 2, 9, and 16-19 have been cancelled. Appeal Br. (Claims App.).
Appeal2018-003788
Application 13/572,094
CLAIMED SUBJECT MATTER
Appellant's disclosure "relates to the field of monitoring physiological
functions in general, and in particular to analysis and interpretation of the
waveforms obtained in physiological measurements." Spec. ,r 2.
Claims 1 and 8 are independent claims. Claim 1 is illustrative and
reads:
1. A method of diagnosis, comprising:
sampling, via a carbon dioxide sensing sensor, a breathing
of a patient[;]
receiving, from the carbon dioxide sensing sensor at a data
receiver, a sensor output corresponding to a breathing of a
patient, the sensor output indicating an amount of carbon dioxide
in the breathing of the patient during the sampling;
transmitting, via the data receiver and over a data
communications network, the sensor output to a signal converter
which outputs a processed digital signal to a processor
comprising a digitized version of the output signal;
from the processed digital signal and via a processor,
obtaining a periodic waveform corresponding to a pattern of the
breathing of the patient, wherein the periodic waveform is
indicative of a carbon dioxide concentration in air expired by the
patient;
transmitting the periodic waveform from the processor to
a visual user display interface;
analyzing the periodic waveform at the processor in order
to obtain a set of data that reflects the carbon dioxide
concentration in the expired air, the set of data comprising even
harmonics and odd harmonica present in the periodic waveform;
detecting, via the processor, a presence of a potential
adverse respiratory event in the patient based on by performing
at least one data analysis with the set of data, the at least one data
analysis comprising:
determining if a number of the even harmonics in
the set of data exceeds a pre-defined threshold, and
upon determining that a number of the even
harmonics in the set of data exceeds a pre-defined threshold[,]
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identifying the presence of the potential adverse respiratory
event; and
upon detecting the presence of the potential adverse
respiratory event in the patient based on the set of data,
generating, via the processor, control signals for a transducer to
produce an audible alert signal that indicates the presence of a
potential adverse respiratory event in the patient.
Appeal Br. 15-16 (Claims App.).
REJECTI0N3
Claims 1, 3-8, and 10-154 are rejected under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter.
ANALYSIS
Section 101 states, "[ w ]hoever 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." 35 U.S.C. § 101. However, the
Supreme Court has "long held that this provision contains an important
implicit exception: [l]aws of nature, natural phenomena, and abstract ideas
are not patentable." E.g., Alice Corp. v. CLS Banklnt'l, 573 U.S. 208,216
(2014).
3 The objection to claim 1 and the rejection of claims 1, 3-8, and 10-15
under 35 U.S.C. § 112, second paragraph, have been withdrawn responsive
to Appellant's reply filed on January 6, 2017. See Adv. Act. (Feb. 24, 2017
(Cont. Sheet)); Final Act. 2-3.
4 The Appeal Brief indicates incorrectly that claims 1 and 3-15 are pending.
Appeal Br. 3, 6. Claim 9 has been cancelled. See Appeal Br. 19 (Claims
App.).
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In issues involving subject matter eligibility, our inquiry focuses on
whether the claims satisfy the Supreme Court's two-step framework,
described in Mayo and Alice. Id. at 216-18 ( citing Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75-77 (2012)). This
framework considers, in the first step, whether the claim at issue is "directed
to" one of those ineligible concepts. Id. If not, the claim satisfies § 101. Id.
If the claim is "directed to" one of those ineligible concepts, we proceed to
the second step, where we "consider the elements of each claim both
individually and 'as an ordered combination' to determine whether the
additional elements 'transform the nature of the claim' into a patent-eligible
application." Id. (quoting Mayo, 566 U.S. at 79). The Supreme Court
characterizes the second step as "a search for an 'inventive concept' - i.e.,
an element or combination of elements that is 'sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself."' Id. (quoting Mayo, 566 U.S. at 72-73)
(alteration in original). "[M]erely requir[ing] generic computer
implementation[] fail[ s] to transform that abstract idea into a patent-eligible
invention." Id. at 221.
On January 7, 2019, the PTO issued revised guidance on the
application of§ 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (hereinafter "2019 Guidance"). The 2019
Guidance includes steps 2A and 2B. Under Step 2A, Prong One, of that
guidance, we first look to whether the claim recites any judicial exceptions,
including certain groupings of abstract ideas (i.e., mathematical concepts,
certain methods of organizing human activity such as a fundamental
economic practice, or mental processes).
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If a claim recites a judicial exception, we proceed to Step 2A, Prong
Two, in which we determine if the claim recites additional elements that
integrate the judicial exception into a practical application (see MPEP
§ 2106.05(a}-(c), (e}-(h)).
Only if a claim recites a judicial exception and fails to integrate that
exception into a practical application, do we proceed to Step 2B of the
guidance. At Step 2B, we determine if the claim adds a specific limitation
beyond the judicial exception that is not "well-understood, routine,
conventional" in the field (see MPEP § 2106.05(d)); or simply appends well-
understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
See 2019 Guidance.
Claim Grouping
Appellant presents specific argument only for claim 1. Appeal Br. 7-
12. For claim 8, Appellant relies on the same argument as presented for
claim 1 (Id. at 12-13), and relies solely on the dependency of claims 3-7 and
10-15 from claim 1 or 8 (id. at 13). Accordingly, we decide the appeal of
this rejection based on claim 1, with claims 3-8 and 10-15 standing or
falling with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
Step 1 - Statutory Category
Claim 1 recites a method of diagnosis comprising steps, and,
therefore, is a process. See Appeal Br. 15-16 (Claims App.).
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Step 2A, Prong One - Recitation of Judicial Exception
Examiner's Findings and Appellant's Contentions
Applying the first step of the Alice analysis, the Examiner determines
that claim 1 is directed to an abstract idea. Final Act. 3. In particular, the
Examiner determines that claim 1 is directed to analyzing the periodic
waveform corresponding to a pattern of breathing of a patient, and detecting
a presence of a potentially adverse respiratory event based on the set of data
from the periodic waveform, wherein the analysis comprises determining
that a number of even harmonics in the set of data exceeds a predefined
threshold to thereby identify the presence of a potentially adverse respiratory
event, which the Examiner states is "an abstract idea of itself." Id.
Appellant contends, inter alia, that claim 1 is not directed to an
abstract idea based on the court's decision in McRO, Inc. v. Bandai Namco
Games Amer. Inc., 837 F.3d 1299 (Fed. Cir. 2016). Appeal Br. 8-10.
According to Appellant, the court determined that the computer was not
used to perform an existing human process, but rather, to perform a different
process. Id. at 8. The claimed process used a different set of rules from
humans, and the incorporation of the rules in the method was not an
automation of a human process, but instead, was an improvement in the
existing technology. Id. Appellant contends that, like in McRO, its
computer-implemented method is not an automation of a human process, but
is a different process altogether. Appeal Br. 8.
Appellant asserts,
the invention in claim 1 does not involve any type of visual
recognition process. Rather, [it] involves a novel process in
which the waveform is analyzed to determine odd and even
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harmonics in the waveform and determining that an adverse
event has occurred based on this analysis.
Id. at 9 ( emphasis added). Appellant also asserts,
like the process of McRO, the method of claim 1 is clearly not
the use of a computer to perform an existing human process.
Rather, claim 1 recite[ s] systems and methods incorporating a
novel algorithm, not performed by humans, which results in an
improvement in existing capnogram monitoring technology.
Id. ( emphasis added).
Our Review
We agree with the Examiner that claim 1 recites an abstract idea. In
fact, claim 1 recites several abstract ideas. Claim 1 recites "analyzing the
periodic waveform ... in order to obtain a set of data that reflects the carbon
dioxide concentration in the expired air" ("analyzing limitation"). Id. at 15
(Claims App.) ( emphasis added). This limitation involves the concept of
evaluating information that can be performed in the human mind. Under the
2019 Guidance, this concept falls within the "mental processes" grouping.
See 84 Fed. Reg. 52.
Claim 1 further recites the step of "detecting ... a presence of a
potential adverse respiratory event in the patient based on by performing at
least one data analysis with the set of data." Appeal Br. 15 (Claims App.)
( emphasis added). Claim 1 recites that "the at least one data analysis"
comprises "determining if a number of the even harmonics in the set of data
exceeds a pre-defined threshold" ("determining limitation"), and, "upon
determining that a number of the even harmonics in the set of data exceeds a
pre-defined threshold[,] identifying the presence of the potential adverse
respiratory event" ("identifying limitation"). Id. ( emphasis added). The
determining limitation involves a mathematical relationship, mathematical
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formula or equation, or mathematical calculation. Under the 2019 Guidance,
these concepts fall within the "mathematical concepts" grouping. 5 See 84
Fed. Reg. 52. The determining limitation also involves the concept of
evaluating information that can be performed in the human mind. Under the
2019 Guidance, such concepts fall within the "mental processes" grouping.
See id. Additionally, the identifying limitation involves the concept of an
observation, evaluation, or judgment that can be performed in the human
mind, which falls within the "mental processes" grouping. See id.
Because we conclude claim 1 recites these abstract ideas, we proceed
to Prong Two of Step 2A.
Step 2A, Prong Two - Practical Application of Judicial Exception
In Prong Two, we next determine whether the recited judicial
exception is integrated into a practical application of that exception by: (a)
identifying whether there are any additional elements recited in the claim
beyond the judicial exception; and (b) evaluating those additional elements
individually and in combination to determine whether they integrate the
exception into a practical application. This evaluation requires an additional
element or a combination of additional elements in the claim to apply, rely
on, or use the judicial exception in a manner that imposes a meaningful limit
on the judicial exception, such that the claim is more than a drafting effort
designed to monopolize the exception. If the recited judicial exception is
5 We note that Appellant acknowledges "claim 1 may involve ...
mathematical operations," and seems to also acknowledge that claim 1
recites "a mathematical formula." See Appeal Br. 10.
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integrated into a practical application, the claim is not "directed to" the
judicial exception.
In response to Appellant's arguments based on McRO, the Examiner
submits that McRO did not hold that any process that is not an automation of
a human process is thereby an improvement of the operation of the
underlying computer or an improvement in existing technology. Ans. 4.
The Examiner states, "Appellant characterizes the existing technology as
only being directed to visual inspection when analyzing capnography
signals. However, the existing technology of analysis of capnograms and
determination of condition or disease also includes computers analyzing
capnograms and determination of condition or diseases." Id. ( emphasis
added).
The Examiner also states:
Thus, while Appellant's capnography analysis method
may speak to visual inspection, it has not been shown that it is
an improvement with respect to the existing technology of other
automated carbon dioxide analyzers. The Examiner notes that
the Appellant failed to provide arguments showing that their
algorithm utilizing even and odd harmonics provides any
particular improvement or solution over other automated
capnography analyses, where the state of the prior art is
demonstrated in part by the listing of patent publications in the
field, presented above.
Id. at 5 ( emphasis added).
Regarding Appellant's disclosure, Figure 1 is described as showing a
capnogram (graph) for a healthy patient. See Spec. ,r 23. The Specification
describes that the waveform of graph 100 in Figure 1 is symmetric and
mimics a square or rectangular waveform containing only odd harmonics.
Id. ,r 34, 44. In contrast, Appellant's Figure 2 is described as showing a
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capnogram for an unhealthy patient. Id. ,r 24. The Specification describes
that the waveform of graph 200 in Figure 2 is not symmetric and partially
resembles a sawtooth waveform, which contains even harmonics. Id. ,r,r 35,
44. Paragraph 44 of the Specification also indicates that graph 200 may
include both a sawtooth component and a square wave component, as shown
in Fig. 5.
As described, each of graphs 100, 200 of Figures 1 and 2 may be
considered examples of the process, which obtains a periodic waveform
indicative of CO2 concentration in exhaled air. Spec. ,r 42. The
Specification describes that it is known in the art to visually evaluate and
interpret capnograms, "typically ... by qualitative pattern recognition." Id.
,r 5. As described, "a capnogram is visually compared to a set of abnormal
capnograms, with a corresponding different diagnosis for each abnormal
shape." Id. However, the Specification does not describe, and Appellant
does not otherwise explain, the "shape" of these capnograms. For example,
the Specification does not describe, and Appellant has not otherwise
explained, whether these capnograms have a shape like that shown in Figure
1 or 2. Nor does the Specification describe how such persons visually
compare such capnograms. That is, the Specification does not describe what
particular aspects in the "capnogram shape" are visually evaluated and
interpreted by such persons. In this regard, Appellant does not appear to
argue that healthcare providers cannot visually observe the presence of any
"even harmonics" or "odd harmonics" in the capnograms. For example,
Appellant does not address whether a healthcare provider would understand
that a capnogram shape as shown in Figure 1 contains only odd integer
harmonics, whereas a capnogram shape as shown in Figure 2 contains even
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harmonics. Consequently, Appellant does not show persuasively that the
claimed invention does not automate a "human process" persons were
already performing in visually evaluating and interpreting capnograms.
Claim 1 calls for "analyzing the periodic waveform at the processor"
to determine the number of even harmonics in the set of data, and comparing
this number to "a pre-defined threshold." See Appeal Br. 15 (Claims App.).
We note paragraph 45 of the Specification describes that the pre-defined
threshold ("known value") "can be as low as zero such that the detection of
any even harmonics would exceed the relevant threshold." Accordingly, if
the claimed pre-defined threshold value is zero, detecting even one even
harmonic would exceed the threshold. Appellant does not show
persuasively that healthcare providers did not, or were unable to, observe
visually the presence of any "even harmonics" in capnograms.
Further, the Examiner determines that capnography analysis is not
limited to visual inspection, such as that described in Appellant's
Specification. Ans. 5. Rather, the Examiner cites several references as
evidence to show that automated capnography analyses is also known. 6 Id.
at 5---6. Appellant contends that none of these cited references "refer[ s] to
the particular claimed solution of analyzing odd harmonics and even
harmonics or looking at sawtooth or square waveforms to identify the
presence of a potential adverse respiratory event." Reply Br. 5. Appellant
also contends that the periodic waveform "creates the ability to analyze even
6 The cited references are: Colman (2011/0040713 Al, published Feb. 17,
2011), Kraus (US 2004/0236240 Al, published Nov. 25, 2004), Baker (US
2008/0072905 Al, published Mar. 27, 2008), and Reisfeld (US
2008/0300500 Al, published Dec. 4, 2008).
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harmonics and odd harmonics present in the periodic waveform [sic] is a
fundamental change in how contemporary methods analyzed carbon dioxide
emissions of a patient." Id. at 3. According to Appellant, "[t]his specific
improvement allows new analysis into (1) whether the even harmonics are
above a pre-determined threshold ... , (2) whether the even and odd
harmonics are out of phase ... , (3) what the cumulative probability
distribution of the waveform is ... , and (4) components of the waveform
such as a sawtooth wave component or a square wave component." Id. at 3-
4. Appellant states, "[t]here is a specific improvement claimed which allows
an improvement in computers as tools to analyze and display carbon dioxide
emissions." Id. at 4.
These contentions are unpersuasive for several reasons. First, claim 1
does not recite limitations of "looking at sawtooth or square waveforms" or
any one of points (2}-(4). Accordingly, Appellant's argument premised on
these unclaimed limitations does not persuade of any purported "specific
improvement."
Second, as to Appellant's contention that its purported specific
improvement "allows analysis into ( 1) whether the even harmonics are
above a pre-determined threshold," as noted above, if the claimed pre-
defined threshold value is zero, detecting any even harmonic would exceed
the threshold value. Appellant does not show persuasively that determining
that a waveform includes one even harmonic provides an improvement in
the use of computers as tools to analyze and display CO2 emissions. As
discussed above, the Specification describes that graph 200 in Figure 2
shows a waveform containing even harmonics, whereas graph 100 in Figure
1 shows a waveform that does not. Even if the references cited by the
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Examiner do not "refer to ... analyzing odd harmonics and even harmonics
or looking at sawtooth or square waveforms to identify the presence of a
potential adverse respiratory event" by use of a computer, as Appellant
appears to contend (Reply Br. 5), this does not persuade us that determining
the presence of just one even harmonic in the waveform provides an
improvement in the functioning of the processor itself, or in a technical field.
As for other limitations recited in claim 1, the "sampling" and
"receiving" steps merely recite collecting data and transmitting the collected
data that can be analyzed, and, therefore, the sampling and receiving steps
are insignificant extra-solution activity. See Appeal Br. 15 (Claims App.);
84 Fed. Reg. 55 n.31. Further, the final limitation of claim 1 recites "upon
detecting the presence of the potential adverse respiratory event in the
patient based on the set of data, generating, via the processor, control signals
for a transducer to produce an audible alert signal that indicates the
presence of a potential adverse respiratory event in the patient." Appeal Br.
16 ( Claims App.) ( emphasis added). We determine that producing an
audible alert signal is merely "post-solution activity." See 84 Fed. Reg. 55
n.31. Accordingly, we determine that these limitations do not render the
claimed method patent-eligible.
Because we conclude that the additional elements in claim 1 fail to
integrate the judicial exception into a practical application, we proceed to
Step 2B of the analysis to determine whether the claim recites an "inventive
concept."
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Step 2B - Inventive Concept
As to the second step of the Alice analysis, the Examiner determines
that claim 1 does not recite additional elements that are sufficient to amount
to significantly more than the abstract idea itself, and thus, the additional
elements do not transform the abstract idea into a patent eligible application
of the abstract idea. Final Act. 3--4. According to the Examiner, the
structural elements recited in claim 1 (i.e., carbon dioxide sensing sensor,
data receiver, signal converter, processor, visual user display interface,
transducer) perform generic computer functions and are well-understood,
routine, and known in the industry. Id. at 4; see also Appeal Br. 15-16
( Claims App.).
Appellant contends that claim 1 provides an improvement over the
existing technology that amounts to more than the alleged abstract idea.
Appeal Br. 12. Appellant contends that the decision in In re Abele, 684 F.2d
902 (CCPA 1982), "is instructive as to how an algorithm can result in an
improvement in an existing technology, and thus how a claim as a whole can
amount to significantly more than a recited judicial exception." Id. at 10.
Appellant also contends that, even ignoring Abele, the claim results in an
improvement over the existing technology, and thus, amounts to more than
the alleged abstract idea. Id. at 12.
These contentions are unpersuasive. In Diamond v. Diehr, 450 U.S.
175, 192 (1981), the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Id. at 176. Consistent with Diehr, claim 1 is
directed to a statutory category (i.e., a process). We are not persuaded,
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however, that claim 1 recites an "algorithm" that provides an improvement
to the functioning of a computer or in a technical field.
First, Appellant does not identify which particular limitations in claim
1 recite the algorithm.
Second, to the extent Appellant is contending that the claimed
algorithm is what results in an improvement in an existing technology, and
thus, claim 1 amounts to significantly more than the judicial exception due
to the recitation of the "algorithm," we are not persuaded. As to Appellant's
contention that "claim 1 recite[s] systems and methods incorporating a
novel algorithm, not performed by humans, which results in an improvement
in existing capnogram monitoring technology" (Appeal Br. 9), to the extent
Appellant is contending that claim 1 is patent eligible because it recites a
"novel algorithm," we note that "[t]he 'novelty' of ... the ... [claim] itself,
is of no relevance in determining whether the subject matter of a claim falls
within the§ 101 categories of possibly patentable subject matter." See
Diehr, 450 U.S. at 188-89.
As discussed above, "the at least one data analysis" comprises a
determining limitation and an identifying limitation involving mathematical
concepts and mental processes, that is, abstract ideas. We understand that
Appellant considers these limitations to be at least part of its algorithm.
However, the pertinent issue is whether any additional elements recited in
claim 1 (i.e., those in addition to the claim elements reciting an abstract idea)
are sufficient to amount to significantly more than the abstract idea itself.
This issue is explained by the Federal Circuit, as follows:
It has been clear since Alice that a claimed invention's use of the
ineligible concept to which it is directed cannot supply the
inventive concept that renders the invention "significantly more"
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than that ineligible concept. In Alice, the Supreme Court held
that claims directed to a computer-implemented scheme for
mitigating settlement risks claimed a patent-ineligible abstract
idea. 134 S.Ct. at 2352, 2355-56. Some of the claims at issue
covered computer systems configured to mitigate risks through
various financial transactions. Id. After determining that those
claims were directed to the abstract idea of intermediated
settlement, the Court considered whether the recitation of a
generic computer added "significantly more" to the claims. Id.
at 2357. Critically, the Court did not consider whether it was
well-understood, routine, and conventional to execute the
claimed intermediated settlement method on a generic computer.
Instead, the Court only assessed whether the claim limitations
other than the invention's use of the ineligible concept to which
it was directed were well-understood, routine and conventional.
Id. at 2359---60.
BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290 (2018) (emphases
added).
Other than the limitations in claim 1 that recite an abstract idea, the
"sampling" and "receiving" steps are insignificant extra-solution activity, the
two "transmitting" steps merely recite transmitting data between
components, and the final limitation is merely "post-solution activity."
Accordingly, these limitations do not render the claimed method patent
eligible. Further, the Examiner determines that the structural elements
recited in claim 1 perform generic computer functions and are well-
understood, routine, and known in the industry. Final Act. 4. Appellant
does not apprise us of any error in this position. The application of an
abstract idea using generic computer components does not transform the
claim into a patent-eligible application of the abstract idea.
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Appellant contends:
The inventive step of analyzing the capnography signals as
provided for in the claims constitutes an improvement because it
is a particularly advanced and specific solution allowing
comparison of the waveform of a healthy patient against the
waveform of a patient suffering from a breathing obstruction.
The carbon dioxide expulsion rate of the patient suffering from a
breathing obstruction can be compared against the healthy
patient's waveform in order to see how the suffering patient's
airways are cleared or expand over the breathing cycle [0035-
36]. The odd integer harmonics of a healthy patient can be
compared by use of a waveform to the waveform of a suffering
patient. [0045]. Use of this waveform allows analysis to see
whether the suffering patient's waveform contains only sawtooth
wave components (even integer harmonics) or both sawtooth
wave components and square wave components (odd and even
integer harmonics). [0045].
Reply Br. 5---6 ( emphases added). However, claim 1 does not recite
comparing "odd integer harmonics of a healthy patient ... by use of a
waveform to the waveform of a suffering patient." Instead, claim 1 recites
"determining if a number of the even harmonics in the set of data exceeds a
pre-defined threshold." Appeal Br. 15 (Claims App.) (emphasis added).
And, claim 1 recites "analyzing the periodic waveform at the processor in
order to obtain a set of data that reflects the carbon dioxide concentration in
the expired air, the set of data comprising even harmonics and odd
harmonica present in the periodic waveform." Id. (emphasis added). As
claim 1 does not recite that the waveform contains only even integer
harmonics or both even and odd integer harmonics, but requires the
waveform to contain both even and odd integer harmonics, Appellant's
contention is not commensurate with the claim language.
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For these reasons, Appellant does not apprise us of error in the
Examiner's conclusion that claim 1 recites an abstract idea and fails to recite
an inventive concept that transforms the claim into a patent-eligible
application of the abstract idea. Thus, we sustain the rejection of claim 1 as
not being directed to patent-eligible subject matter under 35 U.S.C. § 101.
Claims 3-8, and 10-15 fall with claim 1.
DECISION
The rejection 1, 3-8, and 10-15 under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 3 7 C.F .R. § 1.13 6( a)( 1 )(iv).
AFFIRMED
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