Michael L. Lehrman et al.

Patent Trials and Appeals Board

Nov 4, 2019

14294024 - (D) (P.T.A.B. Nov. 4, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/294,024 06/02/2014 Michael L. Lehrman SLEP01-00022 9691
23990 7590 11/04/2019
DOCKET CLERK
P.O. DRAWER 800889
DALLAS, TX 75380
EXAMINER
AGAHI, PUYA
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
11/04/2019 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):
munckwilson@gmail.com
patents@munckwilson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL L. LEHRMAN, SHUN-YONG ZINN, and
MICHAEL D. HALLECK
____________

Appeal 2018-003859
Application 14/294,024
Technology Center 3700
____________

Before STEFAN STAICOVICI, BRETT C. MARTIN, and
RICHARD H. MARSCHALL, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE.
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision in the Final Office Action (dated July 29, 2016, hereinafter “Final
Act.”) rejecting claims 1–3, 5–9, 11, 12, 21–23, and 25–31.2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Sleep Methods, Inc. is identified as the real party in interest in
Appellant’s Appeal Brief (filed Aug. 3, 2017, hereinafter “Appeal Br.”).
Appeal Br. 2.
2 Claims 4, 10, 13–20, and 24 are canceled. See Appeal Br. 28, 31, 32,
34 (Claims App.).
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SUMMARY OF DECISION
We AFFIRM.

INVENTION
Appellant’s invention relates “to systems and methods for anticipating
the onset of an obstructive sleep apnea event.” Spec. para. 2.
Claims 1, 5, 7, 11, 21, and 25 are independent. Claim 1 is illustrative
of the claimed invention and is reproduced below (with reference indicators
added in brackets):
1. A method for detecting a general breathing event,
the method comprising:
[i] receiving a plurality of signals from at least one
sensing device;
[ii] determining a one-sided power spectral density from
the plurality of received signals;
[iii] distinguishing each received signal of the plurality of
received signals as a signal associated with a breath or a signal
associated with a background noise; and
[iv] calculating a breath signature by processing each
signal associated with a breath,
wherein distinguishing each received signal of the
plurality of received signals comprises:
[v] determining a pedestal-adjusted auxiliary
spectral density based on the one-sided power spectral
density;
[vi] integrating the pedestal-adjusted auxiliary
spectral density to obtain an auxiliary total power;
[vii] determining a filtered noise index using the
auxiliary total power;
[viii] categorizing each received signal of the
plurality of received signals as a signal associated with a
breath if the filtered noise index is greater than a
threshold; and
[ix] categorizing each received signal of the
plurality of received signals as a signal associated with a
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background noise if the filtered noise index is less than
the threshold.

REJECTION
The Examiner rejects claims 1–3, 5–9, 11, 12, 21–23, and 25–31 under
35 U.S.C. § 101 as being 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 Bank Int’l, 573 U.S. 208, 216
(2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. See Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed to.”
Id. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
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Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 679 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n. 7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. ((alteration in the original) quoting
Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer
implementation[] fail[s] to transform that abstract idea into a patent-eligible
invention.” Id.
The PTO has published revised guidance on the application of § 101.
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (hereinafter “2019 Guidance”). Under Step 2A of that
guidance, we first look to whether the claim recites:
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(1) 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); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look, in Step 2B, to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.

Claims 1, 5, 7, 11, 21, and 25
Appellant does not present arguments for the patentability of claims 5,
7, 11, 21, and 253 apart from claim 1. See Appeal Br. 11–19. Therefore, in
accordance with 37 C.F.R. § 41.37(c)(1)(iv), we select claim 1 as the
representative claim to decide the appeal of the rejection of these claims,
with claims 5, 7, 11, 21, and 25 standing or falling with claim 1.

3 Although Appellant refers to claim 26, because dependent claim 26 is
discussed in conjunction with other dependent claims (claims 6, 12, and 29–
31), for the purpose of this appeal, we view Appellant’s reference to claim 26
as a typographical error and instead refer to claim 25 (which, like claims 1, 5,
7, 11, and 21, is an independent claim). See Appeal Br. 11, 22.

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Step 1 – Statutory Category
We first determine whether claim 1 recites one or more of the
enumerated statutory classes of subject matter, i.e., process, machine,
manufacture, or composition of matter, eligible for patenting under 35
U.S.C. § 101. Independent claim 1 recites a method for detecting a general
breathing event that includes a series of steps, and, therefore, is a process.
See Appeal Br. 27 (Claims App.).

Step 2A, Prong 1 – Recitation of Judicial Exception
We next look to whether claim 1 recites any judicial exceptions,
including certain groupings of abstract ideas, i.e., mathematical concepts,
certain methods of organizing human activity, or mental processes.
In determining that claim 1 is directed to a judicial exception to patent
eligibility the Examiner determines that this claim is directed to the abstract
idea of “applying mathematical operations to conduct non-invasive
diagnosis.” Final Act. 8 (emphasis added) (citing Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371 (Fed. Cir. 2015)).
In response, Appellant asserts that the Examiner has oversimplified
the claim when determining that it is directed to an abstract idea as “[c]laim
1 as a whole is not directed simply to excluded subject matter. Appeal Br.
12, 14 (citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
2016)). According to Appellant, “[t]he Examiner describes the claims at a
high level of abstraction and untethered from the recitations of the claim
language,” which “recite[s] specific processes that use particular information
and techniques and that are specifically designed to achieve an improved
technological result.” Id. at 13.
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We agree with the Examiner that claim 1 sets forth an abstract idea.
First, in regards to the “detecting” aspect in the preamble, we note that
detection of a breathing event is a non-invasive diagnosis process that
constitutes a mental step because it involves merely making a mental
observation that a patient is undergoing a breathing event. Further, in
limitation [i], absent the use of “at least one sensing device,” the limitation
of “receiving a plurality of signals” reads on receiving (gathering) data,
which can be carried out either in the human mind (e.g., in the form of
noting an observation) or with the aid of pencil and paper. See 2019
Guidance 52 n.14; see also Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016) (“[W]e have treated collecting information,
including when limited to particular content (which does not change its
character as information), as within the realm of abstract ideas.”). Acts that
can be performed in the human mind fall within the abstract idea exception
subgrouping of mental processes. Likewise, “distinguishing” limitation [iii]
and “categorizing” limitations [viii] and [ix] involve evaluating information
that can be performed in the human mind (which can include observation,
evaluation, judgment, and/or opinion), and, thus, fall within the “mental
processes” grouping as well. See 2019 Guidance 52 n.15; see also Spec.
para. 63 (describes limitations [iii], [viii], and [ix] as evaluating (judging)
the value of the noise index with respect to a threshold). Furthermore, each
of the “determining” limitations [ii], [v], and [vii], the “calculating”
limitation [iv], and the “integrating” limitation [vi], sets forth a mathematical
concept, either expressly as “calculating” or “integrating,” or implicitly in
the use of mathematical relationships, mathematical formulas or equations,
and mathematical calculations, which all fall within the “mathematical
concepts” grouping. See 2019 Guidance 52 n.12; see also Spec. paras. 33–
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40, 54–62, and 68 (describe limitations [ii] and [iv] through [vii] as
calculations employing mathematical equations).
As such, steps [i] through [ix] of claim 1 discussed above, under their
broadest reasonable interpretation, in light of Appellant’s Specification, set
forth processes that can either be performed in the human mind or involve
mathematical calculations; such processes constitute judicial exceptions to
patent-eligible subject matter. This is true even though claim 1 recites step
[i] is performed with “at least one sensing device.” See 2019 Guidance 52
n.14 (“If a claim, under its broadest reasonable interpretation, covers
performance in the mind but for the recitation of generic computer
components, then it is still in the mental processes category unless the claim
cannot practically be performed in the mind.”); see also CyberSource Corp.
v. Retail Decisions, Inc., 654 F.3d 1366, 1373, 1375 (Fed. Cir. 2011) (“That
purely mental processes can be unpatentable, even when performed by a
computer, was precisely the holding of the Supreme Court in Gottschalk v.
Benson.”); Parker v. Flook, 437 U.S. 584, 595 (1978) (“If a claim is directed
essentially to a method of calculating, using a mathematical formula, even if
the solution is for a specific purpose, the claimed method is nonstatutory.”).
Accordingly, for the foregoing reasons, as we conclude that claim 1
sets forth an abstract idea, as noted above, we proceed to Prong 2 of Step
2A.

Step 2A, Prong 2 – Integrated Into a Practical Application
If a claim recites a judicial exception, then, in Prong 2, we 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(s); and
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(b) evaluating those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.
See 2019 Guidance 54–55. 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. See id. at 54.
Appellant contends that “[c]laim 1 is limited to a specific process
using particular information and techniques to achieve an improved
technological result.” Appeal Br. 14 (citing McRO, Inc. v. Bandai Namco
Games Amer. Inc., 837 F.3d 1299 (Fed. Cir. 2016)). According to
Appellant, “[c]laim 1 recites a specific process that uses specific data in a
manner never done before” and “includes various recitations regarding a
specific set of operations using specific data and specific devices,” and, thus,
“are not simply ‘generic functions’” and “extends the claim[] far beyond any
alleged abstract idea.” Id. at 16, 19. Thus, Appellant asserts that “[t]he
Examiner over-generalizes the additional elements of the claim[].” Id. at 15,
17 (citing Bascom Global Internet Serv., Inc. v. AT&T Mobility LLC, 827
F.3d 1341 (Fed. Cir. 2016); Ex Parte Wegman, Appeal No. 2013-008168
(PTAB Sept. 18, 2015); Ex Parte Fuller, Appeal No. 2013-000762 (PTAB
May 28, 2015).4
The preamble of claim 1 recites “[a] method for detecting a
general breathing event,” which requires “at least one sensing device,”
and, according to claim 7, a “processor in communication with the at

4 As Appellant only cites Fuller, but does not present any substantive
arguments, we do not need to address Fuller. See Appeal Br. 17–19.
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least one sensing device” to perform the abstract idea. See Appeal Br.
27, 30 (Claims App.). We, thus, agree with the Examiner that claim 1
“recite[s] obtaining data from a conventional sensor (‘at least one
sensing device’) and applying a series of mathematical steps [using a
processor] in order to analyze data in the field of breath detection.” Ans.
2.5 Limitation [i] of claim 1 recites “receiving a plurality of signals from
at least one sensing device,” which as noted above, represents a data
gathering process step, and, thus, constitutes insignificant extra-solution
activity. See 2019 Guidance 55, n.31 (citing MPEP § 2106.05(g)).
Furthermore, as discussed supra, because the limitations [ii] through [ix]
of claim 1 set forth an abstract idea, we are hard-pressed to identify any
other additional element(s) sufficient to integrate the abstract idea into a
patent-eligible practical application. Hence, other than the limitations
directed to the abstract idea or insignificant extra-solution activity,
discussed above, the invention is claimed at a very high level of
generality and is only limited in the data used in mathematical
calculations.
Although we appreciate Appellant’s position that claim 1 “recite[s]
an improved method for detecting general breathing events,” we note
that the improvement noted by Appellant is what has been determined as the
abstract idea. See Reply Br. 3.6 As noted above, claim 1 merely adds
particularity as to how information is processed in mathematical
calculations. Even though Appellant’s invention “separate[s] . . . general
breathing event[s] from background noises,” claim 1 fails to recite that

5 Examiner’s Answer, dated Dec. 28, 2017.
6 Appellant’s Reply Brief, filed Feb. 28, 2018.
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“[o]nce detected and separated, such breathing events facilitate
anticipation of obstructive apnea events” (see id. at 4), and limitations not
appearing in the claims cannot be relied upon for patentability. In re Self,
671 F.2d 1344, 1348 (CCPA 1982).
We also do not agree with Appellant’s reliance on McRO and
Bascom. In contrast to McRO, Appellant does not identify specific rules
that act in the same way as the specific rules enabling the computer in McRO
to generate the result of a sequence of animated characters. In other words,
here, we have none of the claimed specificity of technological
improvement the Federal Circuit found present in the invention of
McRO, but only different mathematical concepts for improving detection
of a breathing event, i.e., a non-invasive diagnosis, which itself is a
mental observation. Hence, the Examiner is correct that McRO does not
apply here because claim 1 does not constitute “an improvement to the
relevant technology.” Ans. 3. As to Bascom, where the claims provided
a software solution applicable to solve a problem specific to the
software-based environment of the Internet, here, claim 1 merely recites
mathematical calculations performed with data.
Finally, with respect to Appellant’s reliance on the non-
precedential PTAB decision in Wegman, we are not persuaded because
the Examiner is correct that the fact pattern presented in this case is not
the same as that presented to the panel in Wegman. See Ans. 5. Even
though we appreciate that claim 1 in Wegman includes a “calculating”
step (see Appeal Br. 18) that does not mean that Appellant’s step of
“calculating a breath signature” in limitation [iv] of instant claim 1 in
combination with the other claimed elements integrate in instant claim 1
the abstract idea into a practical application. Appellant has not adequately
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explained how the limitations of claim 1 in Wegman specifically apply to
the limitations of instant claim 1. See Appeal Br. 18–19. As such, for
the foregoing reasons, we determine that Appellant’s claim 1:
(1) does not improve the functioning of a computer or other
technology;
(2) is not applied with any particular machine;
(3) does not affect a transformation of a particular article to a different
state;
(4) does not add more than insignificant extra-solution activity; and
(5) is not applied in any meaningful way beyond generally linking the
use of the judicial exception to a particular technological environment. See
MPEP § 2106.05(a)–(c), (f), (g).
Lastly, Appellant argues that claim 1 “do[es] not preempt use of
the alleged abstract idea in all fields.” See Appeal Br. 17; Reply Br. 5.
We are not persuaded because “[w]hile preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). “Where a patent’s claims are
deemed only to disclose patent ineligible subject matter under the
Mayo[/Alice] framework, as they are in this case, preemption concerns
are fully addressed and made moot.” Id.
In conclusion, for the foregoing reasons, we are not persuaded of
error in the Examiner’s determination that claim 1 is directed to an
abstract idea, and we find that the claimed additional elements do not
integrate the abstract idea into a practical application.
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Step 2B – Well-Understood, Routine, Conventional Activity
Having determined that claim 1 recites a judicial exception, and does
not integrate that exception into a practical application, under Step 2B we
consider whether the claim adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional” in the field.
See 2019 Guidance 56.
The Examiner finds that claim 1 “do[es] not include additional
elements that are sufficient to amount to significantly more than the judicial
exception because the additional elements” of “at least one sensing device”
and a “processor” “are conventional in the art.” Final Act. 8. According to
the Examiner, the additional elements “perform[] generic computer
functions that are well-understood, routine and conventional activities,” and,
thus, “amount to no more than implementing the abstract idea with a
computerized system.” Id. at 8–9; see also Ans. 4 (“The claims are directed
towards an abstract idea implemented on a processor.”).
We appreciate Appellant’s position that “the specific operations and
elements of the claimed processes . . . constitute significantly more.” See
Appeal Br. 15; Reply Br. 6–7. However, we are not persuaded that the
Examiner erred in determining that the elements of claim 1, considering all
elements both individually and as an ordered combination, do not amount to
significantly more than the abstract idea of a mental process or a
mathematical concept. In other words, the elements of claim 1, both
individually and as an ordered combination, are not sufficient to amount to
significantly more that the abstract idea itself. As discussed supra, other
than limitations [ii] through [ix] in claim 1 that set forth an abstract idea,
limitation [i] of “receiving a plurality of signals from at least one sensing
device” represents a data gathering process step, and, thus, constitutes
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insignificant extra-solution activity. The Examiner is correct that the
process of claim 1 “takes data from a conventional sensor and utilizes a
generic processor to perform the calculation.” Ans. 4. As such, apart from
being used to perform the abstract idea itself, the generic “at least one
sensing device” and “processor” only serve to perform well-understood
functions. See FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089,
1096 (Fed. Cir. 2016) (“the use of generic computer elements like a
microprocessor or user interface do not alone transform an otherwise
abstract idea into patent-eligible subject matter.”).
In conclusion, claim 1 fails to add a specific limitation beyond the
judicial exception that is not ‘well-understood, routine, conventional” in
the field. Thus, we are not persuaded that claim 1 is directed to a specific
application designed to achieve an improved technological result, as
opposed to being directed to merely ordinary functionality of the above-
recited additional elements to apply an abstract idea, and, thus, fails to
indicate the presence of an inventive concept. Therefore, we conclude that
none of the limitations of claim 1, viewed “both individually and as an
ordered combination,” amount to significantly more than the judicial
exception in order to sufficiently transform the nature of the claims into
patent-eligible subject matter. See Alice, 134 S.Ct. at 2355 (internal
quotations omitted) (quoting Mayo, 132 S.Ct. at 1297).
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 1 under 35 U.S.C. § 101 as being directed to patent-ineligible subject
matter. Claims 5, 7, 11, 21, and 25 fall with claim 1.

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Claims 2, 8, and 22
As Appellant does not present arguments for the patentability of
claims 8 and 22 apart from claim 2, we select claim 2 as the representative
claim to decide the appeal of the rejection of these claims, with claims 8 and
22 standing or falling with claim 2. See Appeal Br. 19–20; Reply Br. 8–9.
Appellant argues that it is improper for the Examiner to “not discuss
[c]laims 2, 8, and 22 in any way in the § 101 rejection other than to state that
the dependent claims ‘are also abstract as they do nothing more than to
further define the abstract idea.’” Appeal Br. 20.
As claim 2 is dependent from claim 1, claim 2 sets forth the same
abstract idea as claim 1, discussed supra. In addition, the Examiner is
correct that claim 2 “do[es] no more than further define the abstract idea.”
See Ans. 5; see also Spec. paras. 47–49. More specifically, the limitations
of claim 2 merely represent an extension of limitation [i] in claim 1 of
“receiving a plurality of signals from at least one sensing device,” which as
discussed above, absent the use of “at least one sensing device,” reads on
receiving (gathering) data that can be carried out either in the human mind
(e.g., in the form of noting an observation) or with the aid of pencil and
paper, and, thus fall within the mental processes grouping. See Spec. paras.
47–49. Moreover, as discussed supra, the use of “at least one sensing
device” is not sufficient to amount to significantly more that the abstract
idea itself because a data gathering process merely constitutes insignificant
extra-solution activity. See 2019 Guidance 55, n.14, 31. Hence, claim 2
adds nothing beyond the abstract idea set forth in independent claim 1 from
which it depends.
As such, claim 2 fails to survive Step 2A, Prong 2, and, for the same
reasons, fails to survive Step 2B. We, thus, agree with the Examiner that
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claim 2 sets forth “an abstract idea without significantly more.” Ans. 6.
Finally, we note that Appellant merely recites the limitations of dependent
claim 2, but does not provide a substantive explanation as to why claim 2 is
directed to something significantly more than the abstract idea recited in
independent claim 1 from which it depends. See Appeal Br. 19–20.
Therefore, we sustain the rejection of claim 2 as patent-ineligible for
the same reasons as claim 1. Claims 8 and 22 fall with claim 2.

Claims 3, 9, and 23
As Appellant does not present arguments for the patentability of
claims 9 and 23 apart from claim 3, we select claim 3 as the representative
claim to decide the appeal of the rejection of these claims, with claims 9 and
23 standing or falling with claim 3. See Appeal Br. 21–22; Reply Br. 8–9.
Appellant argues that it is improper for the Examiner to “not discuss
[c]laims 3, 9, and 23 in any way in the § 101 rejection other than to state that
the dependent claims ‘are also abstract as they do nothing more than to
further define the abstract idea.’” Appeal Br. 21.
As claim 3 is dependent from claim 1, claim 3 sets forth the same
abstract idea as claim 1, discussed supra. In addition, the Examiner is
correct that claim 3 “do[es] no more than further define the abstract idea by
way of further claimed mathematical operations that have been well
established in signal processing.” See Ans. 5; see also Spec. paras. 51–55.
More specifically, the limitations of claim 3 further define “determining a
one-sided power spectral density from the plurality of received signals,”
which is merely an extension of the mathematical concept discussed above
regarding claim 1. Hence, claim 3 adds nothing beyond the abstract idea set
forth in independent claim 1 from which it depends.
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As such, claim 3 fails to survive Step 2A, Prong 2, and, for the same
reasons, fails to survive Step 2B. We agree with the Examiner that claim 3
sets forth “an abstract idea without significantly more.” Ans. 6. Appellant
merely recites the limitations of dependent claim 3, but does not provide a
substantive explanation as to why claim 3 is directed to something
significantly more than the abstract idea recited in independent claim 1 from
which it depends. See Appeal Br. 21– 22.
Therefore, we sustain the rejection of claims 3 as patent-ineligible for
the same reasons as claim 1. Claims 9 and 23 fall with claim 3.

Claims 6, 12, 26, and 29–31
As Appellant does not present arguments for the patentability of
claims 12, 26, and 29–31 apart from claim 6, we select claim 6 as the
representative claim to decide the appeal of the rejection of these claims,
with claims 12, 26, and 29–31 standing or falling with claim 6. See Appeal
Br. 22–23; Reply Br. 8–9.
Appellant argues that it is improper for the Examiner to “not discuss
[c]laims 6, 12, 26, and 29–31 in any way in the § 101 rejection other than to
state that the dependent claims ‘are also abstract as they do nothing more
than to further define the abstract idea.’” Appeal Br. 23.
As claim 6 is dependent from claim 1, claim 6 sets forth the same
abstract idea as claim 1, discussed supra. In addition, the Examiner is
correct that claim 6 “do[es] no more than further define the abstract idea.”
See Ans. 5. More specifically, claim 6 adds the limitations of “determining
if the breath is a short breath” and “determining a peak signature for each
breath that is not a short breath.” See Appeal Br. 29, 32, 35, 36 (Claims
App.). Appellant’s Specification states that “[a] breath must be longer than
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a threshold value, or it is considered a short breath” and “in addition to
computing the average signature, the method may find the maximum
signature value, also called the ‘peak signature.’” Spec. paras. 71, 73. As
such, evaluating a duration of a breath with respect to a threshold value and
finding a peak value of a breath signal involve evaluating information that
can be performed in the human mind (which can include observation,
evaluation, judgment, and/or opinion), and, thus, represent an extension of
the “mental processes” grouping discussed above regarding claim 1.
Therefore, claim 6 adds nothing beyond the abstract idea set forth in
independent claim 1 from which it depends.
Accordingly, claim 6 fails to survive Step 2A, Prong 2, and, for the
same reasons, fails to survive Step 2B. We agree with the Examiner that
claim 6, sets forth “an abstract idea without significantly more.” Ans. 6.
Appellant merely recites the limitations of dependent claim 6, but does not
provide a substantive explanation as to why claim 6 is directed to something
significantly more than the abstract idea set forth in independent claim 1
from which it depends. See Appeal Br. 22–23.
Therefore, we sustain the rejection of claim 6 as patent-ineligible for
the same reasons as claim 1. Claims 12, 26, and 29–31 fall with claim 6.

Claims 27 and 28
As Appellant does not present arguments for the patentability of claim
28 apart from claim 27, we select claim 28 as the representative claim to
decide the appeal of the rejection of these claims, with claim 27 standing or
falling with claim 28. Appeal Br. 24–25; Reply Br. 8–9.
Appellant argues that it is improper for the Examiner to “not discuss
[c]laims 27 and 28 in any way in the § 101 rejection other than to state that
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the dependent claims ‘are also abstract as they do nothing more than to
further define the abstract idea.’” Appeal Br. 24.
As claim 28 is indirectly dependent from claim 1, claim 28 sets forth
the same abstract idea as claim 1, discussed supra. In addition, the
Examiner is correct that claim 28 “do[es] no more than further define the
abstract idea.” See Ans. 5. More specifically, claim 28 adds the limitation
of “discarding each breath that is a short breath.” See Appeal Br. 36 (Claims
App.). Appellant’s Specification describes a “short breath” as a breath that
is shorter than a threshold value. Spec. para. 71. As such, evaluating a
duration of a breath with respect to a threshold value involves evaluating
information that can be performed in the human mind (which can include
observation, evaluation, judgment, and/or opinion), and, thus, represents an
extension of the “mental processes” grouping discussed above regarding
claim 1. Therefore, claim 28 adds nothing beyond the abstract idea set forth
in independent claim 1 from which it indirectly depends.
Accordingly, claim 28 fails to survive Step 2A, Prong 2, and, for the
same reasons, fails to survive Step 2B. We agree with the Examiner that
claim 28 sets forth “an abstract idea without significantly more.” Ans. 6.
Appellant merely recites the limitations of dependent claim 28, but does not
provide a substantive explanation as to why claim 28 is directed to
something significantly more than the abstract idea recited in independent
claim 1 from which it indirectly depends. See Appeal Br. 24–25.
Therefore, we sustain the rejection of claim 28 as patent-ineligible for
the same reasons as claim 1. Claim 27 falls with claim 28.

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CONCLUSION
Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5–9, 11,
12, 21–23,
25–31
101 Eligibility 1–3, 5–9, 11,
12, 21–23,
25–31

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED