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`INFORMATION DISCLOSURE
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`STATEMENT BY APPLICANT
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`2003-08-11
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`Filing Date
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`First Named Inventor
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`Art Unit
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`| M. Astorino
`Examiner Name
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`Attorney Docket Number
`1148/083
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`If you wish to add additional non-patent literature document citation information please click the Add button
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`‘EXAMINER: Initial if reference considered, whether or not citation is in conformance with MPEP 609. Draw line through a
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`citation if not in conformance and not considered.
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`3 Enter office that issued the document, by the two—|etter code (WIPO
`1 See Kind Codes of USPTO Patent Documents at www.USPTO.GOV or MPEP 901.04.
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`Standard ST.3). 3 For Japanese patent documents, the indication of the year of the reign of the Emperor must precede the serial number of the patent document.
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`4 Kind ofdocument by the appropriate symbols as indicated on the document under WIPO Standard ST.‘l6 if possible.
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`English language translation is attached.
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`EFS Web 2.0.1
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`501 of 987
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`INFORMATION DISCLOSURE
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`(Not for submission under 37 CFR1.99)
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`2003-08-11
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`Please see 37 CFR 1.97 and 1.98 to make the appropriate se|ection(s):
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`from a foreign patent office in a counterpart foreign application not more than three months prior to the filing of the
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`after making reasonable inquiry, no item of information contained in the information disclosure statement was known to
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`any individual designated in 37 CFR 1.56(c) more than three months prior to the filing of the information disclosure
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`statement. See 37 CFR 1.97(e)(2).
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`See attached certification statement.
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`Fee set forth in 37 CFR 1.17 (p) has been submitted herewith.
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`form of the signature.
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`public which is to file (and by the USPTO to process) an application. Confidentiality is governed by 35 U.S.C. 122 and 37 CFR
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`require to complete this form and/or suggestions for reducing this burden, should be sent to the Chief Information Officer, U.S.
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`Patent and Trademark Office, U.S. Department of Commerce, P.O. Box 1450, Alexandria, VA 22313-1450. DO NOT SEND
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`FEES OR COMPLETED FORMS TO THIS ADDRESS. SEND TO: Commissioner for Patents, P.O. Box 1450, Alexandria,
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`the information in order to perform a contract. Recipients of information shall be required to comply with the
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`National Security review (35 U.S.C. 181) and for review pursuant to the Atomic Energy Act (42 U.S.C. 218(c)).
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`his/her designee, during an inspection of records conducted by GSA as part of that agency's responsibility to
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`recommend improvements in records management practices and programs, under authority of 44 U.S.C. 2904 and
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`2906. Such disclosure shall be made in accordance with the GSA regulations governing inspection of records for this
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`application pursuant to 35 U.S.C. 122(b) or issuance of a patent pursuant to 35 U.S.C. 151. Further, a record may be
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`which became abandoned or in which the proceedings were terminated and which application is referenced by either a
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`enforcement agency, if the USPTO becomes aware of a violation or potential violation of law or regulation.
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`Electronic Patent Application Fee Transmittal
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`Title of Invention:
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`System for monitoring health, wellness and fitness
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`First Named Inventor/Applicant Name:
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`Eric Teller
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`Filer:
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`Barry I. Friedman/Patricia Boss
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`Attorney Docket Number:
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`1148/083
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`Filed as Small Entity
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`Extension-of-Time:
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`504 of 987
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`505 of 987
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`Electronic Acknowledgement Receipt
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`2245405
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`Confirmation Number:
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`Title of Invention:
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`System for monitoring health, wellness and fitness
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`First Named Inventor/Applicant Name:
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`Philip E. Levy, Esq.
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`Metz Schermer & Lewis, LLC
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`18th Floor
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`Correspondence Address:
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`11 stanwix st.
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`Pittsburgh
`US
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`4129181100
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`Filer:
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`Barry I. Friedman/Patricia Boss
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`Filer Authorized By:
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`Barry I. Friedman
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`Receipt Date:
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`Filing Date:
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`26-SEP-2007
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`11-AUG-2003
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`Application Type:
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`Utility under 35 USC 111(a)
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`506 of 987
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`The Director of the USPTO is hereby authorized to charge indicated fees and credit any overpayment as follows:
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`Charge any Additional Fees required under 37 C.F.R. Section 1.16 and 1.17
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`Document Descnpuon
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`Information Disclosure Statement
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`ids092607-firefly-us-cont.pdf
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`1054276
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`Fee Worksheet (PTO-06)
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`Warnings:
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`This Acknowledgement Receipt evidences receipt on the noted date by the USPTO of the indicated documents,
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`characterized by the applicant, and including page counts, where applicable.
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`similar to a Post Card, as described in MPEP 503.
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`New Applications Under 35 U.S.C. 111
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`If a new application is being filed and the application includes the necessary components for a filing date (see
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`37 CFR 1.53(b)-(d) and MPEP 506), a Filing Receipt (37 CFR 1.54) will be issued in due course and the date
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`shown on this Acknowledgement Receipt will establish the filing date of the application.
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`National Stage of an International Application under 35 U.S.C. 371
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`It a timely submission to enter the national stage of an international application is compliant with the conditions
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`of 35 U.S.C. 371 and other applicable requirements a Form PCT/DO/E0/903 indicating acceptance of the
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`application as a national stage submission under 35 U.S.C. 371 will be issued in addition to the Filing Receipt,
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`New International Application Filed with the USPTO as a Receiving Office
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`components for an international filing date (see PCT Article 11 and MPEP 1810), a Notification of the
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`International Application Number and of the International Filing Date (Form PCT/R0/105) will be issued in due
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`course, subject to prescriptions concerning national security, and the date shown on this Acknowledgement
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`Receipt will establish the international filing date of the application.
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`507 of 987
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`TRANSMITTAL or APPEAL BRIEF (Small Entity)
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`/_“i§_
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`T1261, R ET_;AL. -1 ~=r
`In Re Appliation or:
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`D°°ket N°'
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`1148/08?»
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`10/638,588
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`August 11, 2008
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`Examiner
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`M. Astorino
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`Customer No. Group Art Unit Confirmation No.
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`5109
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`SYSTEM FOR MONITORING HEALTH, WELLNESS AND FITNESS
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`COMMISSIONER FOR PATENTS:
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`Transmitted herewith is the Appeal Brief in this application, with respect to the Notice of Appeal filed on:
`August 9, 2007
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`Applicant claims small entity status. See 37 CFR 1.27
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`The fee for filing this Appeal Brief is:
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`$255.00
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`A check in the amount of the fee is enclosed.
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`The Director has already been authorized to charge fees in this application to a Deposit Account.
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`The Director is hereby authorized to charge any fees which may be required, or credit any
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`overpayment to Deposit Account No. 5_0;fl525j.__ I have enclosed a duplicate copy of this sheet.
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`Payment by credit card. Form PTO-2038 is attached.
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`WARNING: Information on this form may become public. Credit card information should not be
`included on this form. Provide credit card information and authorization on PTO-2038.
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`P>1Uz/L7/ fl/L(/Lrf//ML4/M/Q,
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`Signature
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`Datedrl March 10,2008
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`Barry 1. Friedman, Esq., Reg. No. 33,695
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`Metz Lewis LLC
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`11 Stanwix Street, 18th Floor
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`Pi“sburgh’PA
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`John A’ Monoceuo’ Esq" Reg‘ No‘ SL022
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`GTC Law Group, LLP
`837 Chalmers Place
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`Pittsburgh, PA 15243
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`this correspondence is being
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`I hereby certify
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`deposited With the United States POSIEI Service with
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`addressed to "Commissioner for Patents, P.O. Box 1450.
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`Alexandria. VA 22313-1450" [37 CFR 1.8(a)] on
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`M rch 10. 2008
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`(“mi
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`Signature ofPerson Mailing Correspondence
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`Patricia A. Boss
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`Typed or Printed Name of Person Malling Correspondence
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`P3OSMALLIR EV09
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`508 of 987
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`Q3“
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`e,,&If1;I&"aNITED STATES PATENT AND TRADEMARK OFFICE
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`SYSTEM FOR MONITORING
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`HEALTH, WELLNESS AND
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`March 10, 2007
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`%€€%%%€€%%€€%
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`In re Application of:
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`Teller et al.
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`Serial No. 10/638,588
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`Filed: August 11, 2003
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`Art Unit: 3736
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`Patent Examiner: M. Astorino
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`Our Ref:
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`1 148/083
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`1 M
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`ail Stop Appeal Brief-Patents
`Commissioner for Patents
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`P.O. Box 1450
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`Alexandria, VA 22313-1450
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`APPEAL BRIEF
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`Applicants submit the following Appeal Brief in response to the Final Office Action of May
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`10, 2007 (“Office Action”), which finally rejected claims 1-6, 13-27, 29, 31, 33-37, 39-43, 45-50, 52,
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`55, 58, 62, 64, 65, 67-70, 72-74, 76, 79-87, 89-93, 100-113, 115, 117, 119-123, 125-129, 131-135,
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`138, 141, 144, 145, 148, 150, 151, 153-157 and 161-164 ofthe above-referenced application.
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`Applicants timely filed a Notice of Appeal on August 9, 2007.
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`A
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`In accordance with 37 C.F.R. 1.8(a). I hereby certify that I have a
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`reasonabIe__basis to expect that this correspondence is being
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`deposited with the Unitedlstates Postal Sewiceiais first class mail
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`in an envelope bearing sufficient postage and_ad_E.lressed to: Mail
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`Stop Appeal Brief - Patents,_Commiss_ioner for 'P"a‘t’ents, _P.O. Box
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`at 1450; ‘Alexandria. VA 22313-145o—on:
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`March 10 2007 5
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`Date of Deposit _
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`'71.?
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`N me of Person Signing
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`03/I3/E008FHETEKII0000003150052510638585
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`509 of 987
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`I. Real Party in Interest
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`The real party and interest is BodyMedia, Inc. BodyMedia, Inc. is a Delaware
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`corporation with a principal place of business of 4 Smithfield Street, 11”‘ Floor, Pittsburgh,
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`PA 15222. BodyMedia, Inc. is the assignee of the above-referenced patent application.
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`II. Related Appeals and Interferences
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`There are no appeals or interferences related to this application.
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`III. Status of Claims
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`Claims 1-6, 13-27, 29, 31, 33-37, 39-43, 45-50, 52, 55, 58, 62, 64, 65, 67-70, 72-
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`74, 76, 79-87, 89-93,100-113,115,117,119-123,125-129,131-135,138,141,144,145,
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`148, 150, 151, 153-157, 159, and 161-164 are currently pending in this application and
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`all stand rejected.
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`Claims 7-12, 28, 30, 32, 38, 44, 51,53, 54, 56, 57, 59-61, 63, 66, 71, 77, 78, 88,
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`94-99,114,116,118,124,130,136,137,139,140,142,143,146,147,149,152,160 are
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`withdrawn from consideration.
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`Claims 75 and 158 have been cancelled.
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`IV. Status of Amendments
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`All amendments presented in the case have been entered.
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`510 of 987
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`V. Summary of the Claimed Subject Matter
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`A.
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`Brief Summary
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`The invention is an apparatus for monitoring human status parameters, which for
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`example, relate to an individual’s heath. The claimed apparatus comprises a first sensor.
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`The first sensor is capable of generating relating to a first physiological parameter, for
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`example skin temperature. The apparatus is further capable of receiving a second status
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`parameter for the individual, which may for example be a physiological parameter such
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`as activity. The processor in the claimed apparatus receives (at least a portion of) the
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`data of the first and second parameters and generates and entirely distinct derived third
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`parameter therefrom, for example, the stress level of said individual. The processor
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`utilizes a filter for the generation of the distinct third parameter. The term “filter” and its
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`relationship to the prior art is a primary focus of this appeal.
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`B.
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`Direct Mapping of Independent Claim Elements to Specification
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`A direct mapping of the elements of the independent claims to the specification is
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`1. (Rejected) An apparatus for monitoring human status parameters, comprising:
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`a. a first sensor capable of generating data indicative of at least a first
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`physiological status parameter relating to an individual; {Support can be found
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`throughout the Specification speczfically, page 2, line 18 to page 3, line 7; page 7, lines
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`b. a receiver for receiving data indicative of at least a second status parameter
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`relating to said individual; and (Specification, page 14, lines 3-22)
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`c. a processor programmed to-
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`i. receive at least a portion of said data indicative of said first and second
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`status parameters relating to said individual, and
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`ii. generate a derived third status parameter relating to said individual from
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`said first and second status parameters (Support throughout the Specification
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`specifically at page 9, lines 7-14, Table 2)
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`wherein said third parameter is an additional status parameter distinct from said
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`first and second status parameters, (Support throughout the Specification specifically in
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`wherein a filter is utilized in said generation of said derived third status parameter.
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`(Specification, page 27, lines 8-14)
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`85. (Rejected) An apparatus for monitoring human status parameters, comprising:
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`relating to an individual; (Support can be found throughout the Specification specifically,
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`page 2, line 18 to page 3, line 7; page 7, lines 7-9)
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`b. a receiver for receiving data indicative of at least a second status parameter
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`relating to said individual; and (Specification, page I 4, lines 3-22)
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`VI. Grounds of Rejection to Be Reviewed on Appeal
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`Applicants present the following concise statements of each of the grounds of
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`rejections presented for review:
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`A.
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`Whether the term “filter” used in both independent claims 1 and 85 is
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`indefinite under 35 U.S.C. 112, Second Paragraph; and
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`Whether United States Pat No. 6, 478, 736 to Mault (“Mault”) anticipates
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`Claims 1, 85 and respective dependent claims under 35 U.S.C. Section 102
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`Applicants respectfully submit that the above statements of the grounds of rejections is
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`VII. Argument
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`“Filter” Is Not Indefinite Therefore the Rejection of Claims 1 and 85
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`under 35 U.S.C. Section 112, Second Paragraph Should be Reversed.1
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`Claims 1 and 85 are argued together. The Board in its discretion may choose one
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`of the claims to decide the appeal.
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`Page 27, lines 8-14 of the Specification (paragraph [0065] of the published
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`specification provides the meaning of "filter". The relevant passage reads as follows:
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`It is worth noting that the Applicants’ decision to amend the claims to Include the term “filter” was
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`prompted by a fruitful interview the Applicants had with the Examiner on May 22, 2006. After filing this
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`application in August of 2003, Applicants went through several rounds of office actions and responses with
`the Examiner. While the interactions with the Examiner were fruitful, the Applicants understood that they
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`were at an impasse. Thus, Applicants chose to request an interview with the Examiner. The Examiner
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`courteously obliged and during the interview, a range of possible amendments to overcome the prior art
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`were discussed, one of which included the utilization of a filter in the generation of the derived third status
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`parameter. It was suggested that such amendment could possibly distinguish the claimed invention from
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`the prior art of record. Afier the interview and prior to making the amendment, the record shows no
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`objection or question as to the meaning of the term filter on the part of the Examiner. See Interview
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`Summary of May 22, 2006 (attached hereto as Exhibit A); and Applicants Statement to the Substance of
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`the Interview on page 36 of the RCE and Amendment filed June 5, 2006 (attached as Exhibit B hereto) .
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`513 of 987
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`Relevant data sensed by sensor device 10 may include heart rate, movement as
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`sensed by a device such as an accelerometer, heat flow, respiration rate, calories
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`burned, GSR and hydration level, which may be derived by sensor device 60 or
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`central monitoring unit 30. Calories burned 36 may be calculated in a variety of
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`manners, including: the multiplication of the type of exercise input by the user by
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`the duration of exercise input by the user; sensed motion multiplied by time of
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`motion multiplied by a filter or constant; or sensed heat flux multiplied by time
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`multiplied by a filter or constant.
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`The passage in the above paragraph speaks directly to the claimed element of a processor
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`programmed to generate a derived third status parameter (i.e., calories burned) relating to
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`said individual from said first and second status parameters. Indeed, the paragraph
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`above speaks directly to the use of the term “filter” as it relates to the limitation of
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`claims 1 and 85 in dispute whereas the paragraph cited by the Examiner in support of a
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`second “possible interpretation” does not relate to or describe the limitation of generating
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`a derived third parameter (as discussed below).
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`With respect to "filter", the specification shows that a filter is not necessarily a
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`constant; hence, the Applicants‘ usage of the phrase "filter or constant" in the
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`specification. One skilled in the art would appreciate that the meaning of filter is "a
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`program or section of code that is designed to examine each input or output request for
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`certain qualifying criteria and then process or forward it accordingly and/or ‘pass-through’
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`code that takes input data, makes some specific decision about it and possible
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`transformation of it, and passes it on to another program in a kind of a pipeline ." See
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`Declaration of David Andre, paragraphsl5-17. (Attached as Exhibit C hereto). Thus, the
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`claimed element in claims 1 and 85 of filter being utilized in said generation of said
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`514 of 987
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`derived third status parameter is supported in the Specification since, as the Declaration
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`of David Andre shows, one skilled in the art would understand the meaning of the term.
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`Although the Applicants have pointed out the support for the term filter, and the
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`rationale of one skilled in the art to buttress said support, the Examiner continues to rely
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`on an alternate interpretation of the term “filter”. Alleged support this alternate
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`interpretation resides in the specification (paragraph [0079]) in the published
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`specification. The Examiner has not responded with any criticism or objection to
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`Applicants’ argument, evidence, and rationale to support the meaning of the term “filter”.
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`Rather, the Examiner states that he disagrees with Applicants, and continues to rely on
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`his alternate interpretation of the term “filter”. The Applicants respectfully disagree with
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`the Examiner’s continued reliance on an interpretation of the term filter that has no
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`support in the context of the claims and in light of the evidence.
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`The Examiner’s citation of paragraph [0079] of the published application to
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`support an alternate interpretation of the term “filter” is, respectfully, taken out of
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`context. Unlike the Specification page 27, line 8-14 (paragraph [0065] in the published
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`application), the paragraph that the Examiner cites (paragraph [0079] in the published
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`application) fin support of his alternate interpretation does not mention the use of a filter
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`in the context of the generating a derived third parameter, which is the claimed limitation
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`in dispute. Rather, the passage cited by the Examiner refers to the Health Manager Web
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`Page, which in an embodiment of the invention, displays user-selectable summaries of
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`data generated by the system. Paragrap