Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 1 of 14 Page ID #:1280
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 1 of 14 Page ID #:1280
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`
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`EXHIBIT B
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`EXHIBIT B
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`

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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 2 of 14 Page ID #:1281
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 2 of 14 Page ID #:1281
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`Serial No.: 12/211,033
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Applicant:
`
`Roger J. Quy
`
`Serial No.:
`
`12/211,033
`
`Filed:
`
`Titlc:
`
`09/15/2008
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`METHOD AND APPARATUS FOR HEALTH AND DISEASE
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`MANAGEMENT COMBINING PATIENT DATA MONITORING WITI-I
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`WIRELESS INTERNET CONNECTIVITY
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`Art Unit:
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`3769
`
`Examiner:
`
`Michael C. Astorino
`
`Confirmation No.: 7693
`
`Docket No.:
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`00125/002005
`
`Via EFS Web
`
`Mail Stop Amendment
`Commissioner for Patents
`
`PO. Box 1450
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`Alexandria, VA 22313—1450
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`AMENDMENT AND RESPONSE TO OFFICE ACTION
`
`Sir:
`
`In response to the Office Action mailed May 4, 2009, kindly amend the above—identified
`
`application as follows:
`
`Certificate of Electronic Filing Under
`37 C.F.R. 1.8
`
`I certify that this correspondence and any document reference
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`herein is being electronically deposited with the USPTO Via EFS-
`Web on 08/04/2009.
`
`
`
`Nancy Joyce Simmons
`_(Printed Name of Person Mailing Correspondence)
`/nancy joyce simmons/
`(Signature!
`
`PA00029826
`
`PA00029826
`

`

`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 3 of 14 Page ID #:1282
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 3 of 14 Page ID #:1282
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`Serial No.: 12/211,033
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`Amendments to the Claims:
`
`1.
`
`(Currently Amended) A method for interactive exercise monitoring, the method
`
`comprising the steps of:
`
`a.
`
`coupling a web-enabled wireless phone to a device which provides healthexcrcise-related
`
`information;
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`b.
`
`0.
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`rendering a user interface on the web-enabled wireless phone;
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`receiving healthexercise-related information in the web-enabled wireless phone, wherein
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`the healthexereise-related information includes physiological data and data indicating an amount
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`iexercise performed data, and wherein at least one of the physiological data and the data
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`indicating an amount of exercise pcrformeddata—is received from the device which provides
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`healthexercise—related information;
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`d.
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`sending the healthexercise-related information to an internet server via a wireless
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`network;
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`e.
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`receiving a calculated response from a the server, the response associated with a
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`calculation performed by the server based on the healthexercisc-rclatcd information; and
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`f.
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`running an application in the web—enabled wireless phone for receiving the exercise—
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`related information and displaying the response.
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`2. (Currently Amended) The method of claim 1, where the receiving exercise-related
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`information including physiological data is includes receiving data feeeived from a physiological
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`monitoring device or from an exercise machine.
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`3.
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`(Currently Amended) The method of claim 1, where the receiving exercise-related
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`information including data indicating an amount of exercise performed data—is—reeeived includes
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`receiving data from an exercise machine or from a physiological monitoring device.
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`4. (Currently Amended) The method of claim 1, wherein the web-enabled wireless phone
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`receives healt-hexercise-related information over a transmission medium, the transmission
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`medium including a wired eonneetionrafl—RSégéLeenfieetienrafl—ififrared—eermeetien; or a radie
`
`frequeney wireless connection.
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`PA00029827
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`PA00029827
`

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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 4 of 14 Page ID #:1283
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 4 of 14 Page ID #:1283
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`Serial No.: 12/211,033
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`5. (Currently Amended) The method of claim 1, wherein the receiving healthexercise-related
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`information includes receiving data input by a patient.
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`6. (Original) The method of claim 1, wherein the web-enabled wireless phone receives data via
`
`an adapter to convert a signal from the device to a suitable input for the wireless phone.
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`7. (Currently Amended) The method of claim 1, where the device which provides
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`healthexercise-related information is selected from the group consisting of: an electronic body
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`weight scale, a body fat gauge, a pedometer, a biofeedback device, a treadmill, a stepper, an
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`exercise cycle, an accelerometer, a rowing machine, physiotherapy equipment, an aerobic or
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`anaerobic exercise device, a temperature monitor, a heart rate monitor, a blood pressure monitor,
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`a respiratory monitor, and a device that monitors an amount of work or rate of work performed
`
`
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`8. (Currently Amended) A computer-readable medium, containing instructions for performing
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`an interactive method of exercise monitoring, the method comprising the steps of:
`
`‘3'
`
`éiSP‘l'a‘Yl'fl‘g‘Hlser—mtmi
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`receiving healthexercise-related information from a web-enabled wireless phone, wherein
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`the healthexercise-related information includes physiological data and data indicating an amount
`
`b.
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`iexercise performed data;
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`c.
`
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`sending calculating a response based on the healthexercise-related information te—an
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`internet—sewer;
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`d—reeeiving—a transmitting the calculated response to the web-enabled wireless phone frem—a
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`
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`9. (Currently Amended) The medium of claim 8, wherein the method further comprises:
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`a. enabling the web-enabled wireless phone to receive exercise-related information from a
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`device; and
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`PA00029828
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`PA00029828
`

`

`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 5 of 14 Page ID #:1284
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 5 of 14 Page ID #:1284
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`Serial No.: 12/211,033
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`b.
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`transmitting to the web-enabled wireless phone an application including a user interface on
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`which the calculated response may be rendered
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`
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`10. (Currently Amended) The medium of claim 8, wherein the calculating a response includes
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`calculating a response to assist a person in monitoring calorie expenditure, losing weight, or
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`maintaining a healthy lifestyle instruefiens—further—eauseme—web-enabled—uareless—phene—te
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`11. (Currently Amended) The medium of claim 8, wherein the instructions further cause the
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`web—enabled wireless phone to receive the healthexercise—related information via an adapter, the
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`adapter to convert a received data signal to a suitable input for the web-enabled wireless phone.
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`12. (Currently Amended) The medium of claim 8, wherein the healthexercise-related
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`information is received from a physiological monitoring device which is selected from the group
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`consisting of: an electronic body weight scale, a body fat gauge, a pedometer, a biofeedback
`
`device, a treadmill, a stepper, an exercise cycle, an accelerometer, a rowing machine,
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`physiotherapy eguipment, an aerobic or anaerobic exercise device, a temperature monitor, a heart
`
`rate monitor, a blood pressure monitor, a respiratog monitor, and a device that monitors an
`
`amount of work or rate of work performed anyphfysielegieal—meniteflng—deweerand—anyexeretse
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`maehine.
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`13. (New) The medium of claim 8, wherein the receiving exercise-related information includes
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`receiving exercise-related information over a wireless or a wired connection.
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`14. (New) A web—enabled wireless phone, containing a computer-readable medium, the
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`computer-readable medium comprising instructions for causing a processor in the web-enabled
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`wireless phone to perform the method of claim 1.
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`PA00029829
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`PA00029829
`

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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 6 of 14 Page ID #:1285
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 6 of 14 Page ID #:1285
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`Serial No.: 12/211,033
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`15.
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`(New) A computer-readable medium , containing instructions for causing a processor in a
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`web—enabled wireless phone to perform the method of claim 1.
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`16. (New) The method of claim 1, further comprising downloading the application to the web-
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`enabled wireless phone from a server.
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`17. (New) The method of claim 4, wherein the wireless connection includes an infrared
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`connection or a radio frequency communication protocol including Bluetooth® or 802.11.
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`18. New) The method of claim 4, wherein the wired connection includes a USB connection, a
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`cable, or a docking station.
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`PA00029830
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`PA00029830
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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 7 of 14 Page ID #:1286
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 7 of 14 Page ID #:1286
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`Serial No.: 12/211,033
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`Amendments to the Abstract:
`
`Please amend the abstract as follows:
`
`Embedi—mehts—ef—the—ihvehtieh—pfevide—a_A method and apparatus are provided for a
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`wireless health monitoring of exercise fitness or nutrition system—fer—mteraehvel—y—merrtteang—a
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`diseaseer—healthreehditiehefa—patieht—by connecting ah internetw_eb—enabled wireless1% web
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`4% to a health—mehiter—ing device which may—beehied-ieal—deséeeer—ether—heahh
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`felated—deViee—SHeh—as—ah provides exercise-related information, including physiological data and
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`data indicating an amount of exercise performed maehihe. The WD—ma-y—beeehheeted—te—the
`
`
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`Wismg—an—ephehahadapter—heeessaiWematwel-fi the connection WLD may be py
`
`
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`way of a wireless v
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`frequehey—eehheetiehrihehidihg connection using protocols such as Bluetooth® or 802.11ilby
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`way of a wired connection. Cllhe—wdqceless—eehheetieh—may—alse—empleyah An optional adaptor
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`may be included if necessary. An application for receiving the exercise-related information and
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`providing a uscr interface may bc downloadcd to thc wcb-cnablcd wirclcss phonc from an
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`internet server. The .
`
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`CFhehea-lt-h e_xercise--related data information may be1-5 transmitted hem—W to an
`
`
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`in_ternet server using—stahdafd—ihterhet—preteeels—The_and the servermay calculates and return a
`
`= -.
`a
`-
`-a.
`response.
`
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`swtemmhdmayfufthaprmideferrwiewbyaphfiicmtheahhspecHhst. Thehser—may
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`
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`Attached to this Amendment is a replacement Abstract sheet.
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`PA00029831
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`PA00029831
`

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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 8 of 14 Page ID #:1287
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 8 of 14 Page ID #:1287
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`Serial No.: 12/211,033
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`Replacement Abstract:
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`A method and apparatus are provided for wireless monitoring of exercise, fitness, or
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`nutrition by connecting a web-enabled wireless phone to a device which provides exercise-
`
`related information, including physiological data and data indicating an amount of exercise
`
`performed. The connection may be by way of a wireless connection using protocols such as
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`Bluetooth® or 802.11, or by way of a wired connection. An optional adaptor may be included if
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`necessary. An application for receiving the exercise-related information and providing a user
`
`interface may be downloaded to the web-enabled wireless phone from an internet server. The
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`exercise-related information may be transmitted to an internet server, and the server may
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`calculate and return a response.
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`PA00029832
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`PA00029832
`

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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 9 of 14 Page ID #:1288
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 9 of 14 Page ID #:1288
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`Serial No.: 12/211,033
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`In the Title:
`
`Please amend the title as follows:
`
`METHOD AND APPARATUS FORWW
`
`COMBINING—W MONITORING EXERCISE WITH WIRELESS INTERNET
`
`CONNECTIVITY
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`Replacement Title:
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`METHOD AND APPARATUS FOR MONITORING EXERCISE WITH WIRELESS
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`INTERNET CONNECTIVITY
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`PA00029833
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`PA00029833
`

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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 10 of 14 Page ID #:1289
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 10 of 14 Page ID #:1289
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`Serial No.: 12/211,033
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`REMARKS
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`Claims 1-12 were pending in this application. Claims 13-18 have been added and claims
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`1-5 and 7-12 have been amended. Claims 1-18 are pending. Reconsideration and allowance of
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`all pending claims are respectfully requested.
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`Applicant has modified the Abstract and Title to more succinctly describe the subject
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`matter of the invention.
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`Rejections Under 35 U.S.C. §112
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`The Examiner has rejected claims 1-12 under 35 U.S.C. 112, second paragraph, as being
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`indefinite for failing to particularly point out and distinctly claim the subject matter which
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`Applicant regards as the invention. Specifically, the Examiner has indicated that one cannot
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`discern based on the specification the distinction between “physiological data” and “exercise
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`data” and as such the term is indefinite. Applicant has obviated the rejection by way of
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`amendment. In particular, the claims now recite receiving exercise-related information including
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`physiological data and data indicating an amount of exercise performed. Physiological
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`information is clear from the specification at, e.g., paragraph [0018] as describing devices that
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`“monitor the physiologic status of a healthy subject” and data indicating an amount of exercise
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`performed is described in the specification at, e.g., paragraph [0044].
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`It is respectfully
`
`submitted that the rejections have been obviated and should be withdrawn.
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`Rejections Under 35 U.S.C. §102
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`Claims 1—12 stand rejected under 35 U.S.C. 102(e) as being allegedly anticipated by
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`Brown (US Patent 5,997,476). These rejections are traversed with respect to the amended
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`independent claims 1 and 8 (and corresponding CRM claims 14 and 15) as follows.
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`Brown discloses a networked system for communication of information to an individual
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`and for remotely monitoring the individual, including a server and a workstation connected to the
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`server through a communication system, where the workstation fimctions as a remote interface
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`for entering server messages and queries to be communicated to the patients, or script
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`information (column 4, lines 46-48), as well as displaying patient reports generated by the server
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`(column 8, lines 46-51). The server includes a script generator designed to generate script
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`programs from the script information entered through the workstation (column 6, lines 56-5 8)
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`9
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`PA00029834
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`PA00029834
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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 11 of 14 Page ID #:1290
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 11 of 14 Page ID #:1290
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`Serial No.: 12/211,033
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`and a database for storing the script programs (column 5, lines 15-16). The system also includes
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`a programmable apparatus (corresponding to elements 26 or 32) which executes the script
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`program to communicate queries and messages to a patient, receive responses to the queries,
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`collect monitoring device measurements, and transmit responses and measurements to the server
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`(column 5, lines 16-20). In some embodiments, the system of Brown also includes a monitoring
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`device for measuring and recording a physiological condition of the patient, and transmitting the
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`measurements to the patient’s remotely programmable apparatus (column 4, line 64 to column 5,
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`line 3). Brown notably fails to disclose any substantial teaching of how to take patient
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`monitoring ”into the field", i.e. to make it work wherever the patient is as long as there is a
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`standard wireless connection.
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`Applicant submits that Brown does not disclose each and every element of the presently
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`claimed invention, and thus is deficient as an anticipatory rcfcrcncc.
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`First, the present invention and current claims require a web—enabled wireless phone.
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`Brown does not disclose this. Reviewing the devices Brown does disclose, one can see a
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`remotely programmable apparatus and a workstation. The remotely programmable apparatus is a
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`proprietary piece of hardware as described in Figs. 3 and 4. Nowhere does Brown teach that its
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`functionality could be implemented on a web-enabled wireless phone. For example, the Brown
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`apparatus does not run a typical web browser or mobile phone application; rather the displays
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`and input buttons operate according to a simple scripting language that provides a set of
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`commands assigned to each patient. If the workstation is submitted to meet the limitation of a
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`web-enabled wireless phone, yet another element of claim 1 is lacking, since the workstation of
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`Brown is not disclosed to have a wireless connection.
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`Moreover, although Brown mentions that the apparatus may be placed in communication
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`with the server via wireless or cellular networks, this is done with a modem (86/66) and
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`telephone jack (22) for the means of transmission. The apparatus is clearly not a web-enabled
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`wireless phone. This aspect is made even more clear in Brown by the embodiment for
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`communicating script commands audibly to the patient in Figs. 13-15, where the scripts are made
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`audible through speech synthesis and recognition functionality.
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`Besides the lack of a web-enabled wireless phone, Brown is further deficient as an
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`anticipatory reference as the same fails to disclose receiving exercise-related information, as
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`required by the independent claims.
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`10
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`PA00029835
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`PA00029835
`

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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 12 of 14 Page ID #:1291
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 12 of 14 Page ID #:1291
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`Serial No.: 12/211,033
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`Applicant has noted advantages of the use of a web-enabled wireless phone at paragraphs
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`[0015]—[0022], including specific advantages with respect to exercise—related information. As a
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`simple illustration, a person could not do with Brown’s device that which is intended by the
`
`claimed invention: for example, a cyclist could not take Brown’s device on a bike ride to monitor
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`heart rate and miles traveled.
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`Even more differences are apparent with respect to the dependent claims. For example,
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`with respect to claim 17, the physiological data being monitored in Brown is transmitted to the
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`apparatus through a standard connection cable (3 0); Brown does not disclose any wireless
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`connection to a health monitoring or exercise device.
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`Numerous other distinctions will be apparent. For example, Brown does not disclose
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`coupling a web-enabled wireless phone to a device which provides exercise-related information
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`including physiological data and data indicating an amount of exercise performed, nor receiving
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`such information. This aspect of including multiple types of data is mentioned in various
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`locations in the specification, e.g., paragraphs [0015], [0017], and [0055]. Paragraph [0015]
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`notes that “Various health parameters, such as those relating to nutrition or exercise, may be
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`entered into a health monitoring device.” Paragraph [0017] notes that “[what may be sent
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`includes] data output from various exercise machines over the Internet...” And paragraph [0055]
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`notes that, following a discussion of a blood glucose scnsor, “Othcr hcalth monitors may also be
`
`employed. . .”
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`
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`11
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`PA00029836
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`PA00029836
`

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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 13 of 14 Page ID #:1292
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 13 of 14 Page ID #:1292
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`Serial No.: 12/211,033
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`
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`The specific locations where sensors are described as connected to exercise machines
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`include paragraphs [0018], [0044], and [0078]. As Brown provides no such teaching or
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`disclosure of exercise management, nor teaching or disclosure of two types of data as noted
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`above, Applicant respectfully submits that the rejection based on Brown should be Withdrawn.
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`Even if Brown were to disclose the above, Applicant also notes that the reference is
`
`deficient as Brown discloses virtually no functions of the server application, beyond script and
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`report generation and storage of script programs and response queries. Even if one identifies the
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`programmable apparatus as the web-enabled wireless phone, then Brown cannot anticipate the
`
`claimed invention as the server application of Brown does not provide the report to this web—
`
`enabled wireless phone, but rather to the workstation. Conversely, if one identifies the
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`workstation as the web-enabled wireless phone, then Brown cannot anticipate the claimed
`
`invention as the workstation does not have a way to couple to a device that provides exercise-
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`related information. In summary, nowhere does Brown disclose that the server application
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`performs a calculation using exercise-related information, and transmit a response corresponding
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`to the calculation from the server back to the web-enabled wireless phone, as required by the
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`claims noted above. Thus, the server application of the current invention differs widely from any
`
`software identified with Brown.
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`For at least the above reasons, Applicant submits that the anticipation rejection of the
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`claims based on Brown should be withdrawn. The discussion above has focused on the
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`independent claims; however, Applicant submits that the dependent claims are allowable for at
`
`least these reasons.
`
`12
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`PA00029837
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`PA00029837
`

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`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 14 of 14 Page ID #:1293
`Case 2:19-cv-06301-AB-KS Document 76-2 Filed 06/26/20 Page 14 of 14 Page ID #:1293
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`Serial No.: 12/211,033
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`Nonstatutory Double Patenting Rejection
`
`With respect to the amended claims, Applicant traverses the nonstatutory double
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`patenting rejection as follows. The current independent claims 1 and 8 (and corresponding
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`CRM claims 14 and 15) are limited to methods requiring receiving exercise-related information
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`in a web-enabled wireless phone, where the exercise-related information includes physiological
`
`data and data indicating an amount of exercise performed, and where at least one of the
`
`physiological data and the data indicating an amount of exercise performed is received from the
`
`device which provides exercise-related information. The claims of US Patent 6,602,191 do not
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`so require these two types of data to be input. As noted above, various sections of the application
`
`point to these several types of data, and the claimed two types of data require monitoring of
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`physiologic and exercise data during exercise. For example, the same would apply to tracking
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`the amount of exercise performed during a bike ride as well as heart rate during the ride. For
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`these reasons, it is respectfiilly submitted that the nonstatutory double patenting rejection should
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`thus be withdrawn.
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`Should the Examiner be of the view that an interview would expedite consideration of the
`
`application, request is made that the Examiner telephone the Applicants’ attorney at (619) 818-
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`4615 in order that any outstanding issues be resolved.
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`Respectfully submitted,
`
`Date: August 4, 2009
`
`/Mark Wieczorek/
`
`Attorney for Applicant
`Mayer & Williams PC
`251 North Avenue West, 211d Floor
`Westfield, NJ 07090
`Tel: 619-818-4615
`Fax: 908-518-7795
`
`Mark D. Wieczorek
`Registration No. 37,966
`
`13
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`PA00029838
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`PA00029838
`