Application No. 13/378,
`Amendment dated May 26, 2015
`Reply to Office Action of February 13, 2015
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`9
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`Docket N0.: Docket N0.: 89884(316697)
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`REMARKS
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`Claims l—2l are pending in this Application. Claims 2—6 and 8—19 are withdrawn and claims
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`20—21 are newly presented. Claim 1 is amended to clarify its features and to correct informalities.
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`Claims 20 and 21 are newly added and find support in Applicant’s Specification at least at page 11,
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`line 24— page 12, line 2 and page 13, lines 17—18, respectively.
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`In view of the above amendment,
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`applicant believes the pending application is in condition for allowance. No new matter is added.
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`Claim Objection
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`Claim 1
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`is objected to for an informality. Namely, claim 1 recites, in part: “for non—
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`invasively calculate” and the Examiner suggests that this portion of claim 1 should read either; “for
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`non—invasively calculating” or “to non—invasively calculate”. Claim 1 is amended to obviate this
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`Objection. Accordingly, Applicant requests reconsideration and withdrawal of this Objection to
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`claim 1.
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`35 U.S.C. §112, sixth paragraph
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`The Examiner writes that claims 1 and 7 are being interpreted under 35 U.S.C. §ll2, sixth
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`paragraph. The Examiner alleges that claims 1 and 7 use non—structural phrases “a calibration
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`model” and “a blood sugar estimation apparatus”.
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`Regarding “a calibration model”
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`Applicant respectfully disagrees that “a calibration model” invokes 35 U.S.C. §ll2, sixth
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`paragraph as being analogous to “means plus function” language. “A calibration model” includes a
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`set of data and/or algorithm(s), and is not an apparatus by itself and therefore cannot invoke 35
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`U.S.C. §ll2, sixth paragraph. Applicant respectfully wonders whether the Examiner intended to
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`allege that the “calibration model creating means” of claim 1
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`invokes 35 U.S.C. §ll2, sixth
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`paragraph.
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`Application No. 13/378,
`Amendment dated May 26, 2015
`Reply to Office Action of February 13, 2015
`
`10
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`Docket N0.: Docket N0.: 89884(316697)
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`Regarding “a blood sugar estimation apparatus”
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`Claim 1 is amended to recite, in part: “said blood sugar value estimation apparatus includes
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`an input port configured to communicate with a measurement output member, the measurement
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`output member configured to receive a signal from a measurement probe.” This amendment finds
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`support in Applicant’s Specification as originally filed at least at page 12, lines 8—30; no new matter
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`is added. Claim 1 is further amended to recite, in part: “said blood sugar value estimation apparatus
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`is configured to make a change in the calibration model, using the processor, according to a
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`variation of the difference spectrum over time”.
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`Regarding “vague and indefinite”
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`The Examiner alleges that the following features of claims 1—6 are vague and indefinite
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`under 35 U.S.C. §ll2, sixth paragraph at page 5 of the Office Action: “calibration creating means
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`configured to create the calibration model”, “apparatus configured to ‘to set a reference spectrum’”,
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`“calculate a difference spectrum and “make a change of the calibration model”. While Applicant
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`does not accede to the Examiner’s allegations, claim 1 is amended to recite, in part: “a calibration
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`model creating means configured to create, using a processor, the calibration model”, “apparatus is
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`configured to set, using the processor, a reference spectrum”, “calculate, using the processor, a
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`difference spectrum” and “make a change in the calibration model, using the processor, according to
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`a variation of the difference spectrum”.
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`Such amendments find support
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`in the Applicant’s
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`specification, as originally filed at least at page 7, lines 14—30, page 13, lines 3—12, pages 13—14 and
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`fig. 11, which illustrates that each of the claimed “means” in question may be parts of computing
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`unit 17. One skilled in the art would understand that a computing unit would contain a processor, as
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`claimed in claim 1.
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`In light of the foregoing,
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`the claim 1 features listed are not “vague and
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`indefinite” under 35 U.S.C. §ll2, sixth paragraph, or (second paragraph). Accordingly, Applicant
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`requests reconsideration and withdrawal of this rejection.
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`35 U.S.C. §112, second paragraph
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`Claim 1 and its dependent claim 7 were rejected under 35 U.S.C. §ll2, second paragraph as
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`allegedly being indefinite for failing to point out the metes and bounds of their respective subject
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`Application No. 13/378,
`Amendment dated May 26, 2015
`Reply to Office Action of February 13, 2015
`
`1 1
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`Docket N0.: Docket N0.: 89884(316697)
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`matter. Claim 1 is amended to clarify that certain of the originally claimed spectra include optical
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`spectra.
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`Such amendments find support
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`throughout
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`the Specification, as originally filed.
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`Accordingly, Applicant requests reconsideration and withdrawal of the rejection of claims 1 and 7
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`under 35 U.S.C. §ll2, second paragraph.
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`35 U.S.C. §101
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`Claims 1 and 7 were rejected under 35 U.S.C. §101 as allegedly being directed to non—
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`statutory subject matter. Specifically,
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`the Examiner alleges “there is no specific or limitation
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`recitation limitation of improved computer technology, nor do they effect an improvement in any
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`other technology or technical field... In the instant claims, the computer and/or program/product
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`amount to mere instruction to implement an abstract idea.”
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`Claim 1 is amended to recite: in part: “wherein the blood sugar value estimation apparatus
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`includes an input port configured to be in communication with a measurement output member, the
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`measurement output member configured to receive a signal from a measurement probe”. This
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`amendment finds support in Applicant’s Specification as originally filed, at least at page 12, lines 8—
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`30; no new matter is added. Claim 1 cannot be said to include only a “mere instruction to
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`implement an abstract idea, and claim 7 depends from claim 1. Accordingly, Applicant requests
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`reconsideration and withdrawal of the rejection of claims 1 and 7 under 35 U.S.C. §101.
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`35 U.S.C. §102
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`Claim 1 was rejected under 35 U.S.C. §102(b) as allegedly being unpatentable over Ruchti,
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`(US Pat. Pub. No. 2007/0179367, hereinafter, “Ruchti”). Claims 1 and 7 were rejected under 35
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`U.S.C. §102(b) as allegedly being unpatentable over Ota,
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`(US Pat. Pub. No. 2006/0063987,
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`hereinafter, “Ota”). Claims 1 and 7 were rejected under 35 U.S.C. §102(b) as allegedly being
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`unpatentable over Maruo, (US Pat. Pub. No. 2004/0142402, hereinafter, “Maruo”).
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`Application No. 13/378,
`Amendment dated May 26, 2015
`Reply to Office Action of February 13, 2015
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`Regarding Ruchti
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`12
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`Docket N0.: Docket N0.: 89884(316697)
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`Claim 1 is recites, in part: “said blood sugar value estimation apparatus is configured to set a
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`reference spectrum by measuring a bio—spectrum of a person being tested... said blood sugar value
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`estimation apparatus is configured to calculate a difference spectrum which is a difference between
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`the reference spectrum and a measurement spectrum which is measured in a time other than a time
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`when the reference spectrum is measured... ”.
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`Ruchti is silent on “a difference spectrum which is a difference between the reference
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`spectrum and a measurement spectrum which is measured in a time other than a time when the
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`reference spectrum is measured”, and further, the Examiner has not provided Applicant with a
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`citation to Ruchti where Ruchti allegedly discloses such a feature.
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`Instead, the Examiner cites to
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`Ruchti at paragraph [0091], stating: “there are many different operations that can be performed on
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`the spectra to non—invasively obtain an analyte value”. See Office Action at 10.
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`Ruchti at paras. [0091] et seq. recites:
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`[0091] In still another example, one or more of the following operations may be
`performed to process the spectra:
`[0092] averaging spectra; [0093] correcting
`dead
`pixels;
`[0094]
`calculating
`absorbance;
`[0095]
`performing
`x—axis
`standardization; [0096] uniformly re—sampling the spectrum to standardize the x—
`axis; [0097] performing a first (gross) outlier detection; [0098] correcting the
`spectrum;
`[0099]
`performing
`a wavelength
`selection;
`[0100]
`removing
`interference; and [0101] performing a second (fine) outlier detection[.]
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`Applicant respectfully asserts that none of the many different operations of Ruchti discloses:
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`“a difference spectrum which is a difference between the reference spectrum and a measurement
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`spectrum which is measured in a time other than a time when the reference spectrum is measured”,
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`as recited in Applicants’ claim 1.
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`Further, Ruchti fails to disclose: “said blood sugar value
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`estimation apparatus is configured to set a reference spectrum by measuring a bio—spectrum of a
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`person being tested... said blood sugar value estimation apparatus is configured to calculate a
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`difference spectrum which is a difference between the reference spectrum and a measurement
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`spectrum which is measured in a time other than a time when the reference spectrum is measured”.
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`Because Ruchti fails to disclose each and every feature of Applicant’s claim 1, Ruchti cannot
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`Application No. 13/378,
`Amendment dated May 26, 2015
`Reply to Office Action of February 13, 2015
`
`13
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`Docket N0.: Docket N0.: 89884616697)
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`anticipate Applicant’s claim 1 under 35 U.S.C. §102(b). Accordingly, Applicant requests
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`reconsideration and withdrawal of the rejection of claim 1 under 35 U.S.C. §102(b) over Ruchti.
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`Regarding Ota
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`Claims 1 and 7 were rejected under 35 U.S.C. §102(b) as allegedly being unpatentable over
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`Ota, (US Pat. Pub. No. 2006/0063987, hereinafter, “Ota”).
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`In the Office Action, the Examiner states that Ota describes the instantly claimed method at
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`the abstract and at paragraphs [0004] and [0043]—[0063], without providing more details.
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`Claim 1 recites, in part: “said blood sugar value estimation apparatus is configured to make a
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`change in the calibration model according to a variation of the difference spectrum over time”. Ota
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`is silent on a change in a calibration model [according to a variation of the difference spectrum]
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`over time and for at least this reason, Ota fails to disclose each and every feature of Applicant’s
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`claim 1. Because Ota fails to disclose each and every feature of Applicant’s claim 1 and because
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`claim 7 depends from claim 1, Ota cannot anticipate Applicant’s claim 1 or 7 under 35 U.S.C.
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`§102(b). Accordingly, Applicant requests reconsideration and withdrawal of the rejection of claims
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`1 and 7 under 35 U.S.C. §102(b) over Ota.
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`Regarding Maruo
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`Claims 1 and 7 were rejected under 35 U.S.C. §102(b) as allegedly being unpatentable over
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`Maruo, (US Pat. Pub. No. 2004/0142402, hereinafter, “Maruo”).
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`In the Office Action,
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`the Examiner states that Maruo anticipates the instantly claimed
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`method at the abstract and at paragraphs [0035]—[0080], without providing more details.
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`Claim 1 recites, in part: “said blood sugar value estimation apparatus is configured to make a
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`change in the calibration model according to a variation of the difference spectrum over time”. By
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`contrast, Maruo discloses the following:
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`In order to determine the glucose density, a suitable calibrating equation is selected from two
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`or more calibrating equations prepared beforehand, and is used. Each of the calibrating equations is
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`different from each other according to the skin thickness of the subject and is prepared for each of
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`plural groups in which skin thickness of the subject are different from each other. Each of the
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`Application No. 13/378,
`Amendment dated May 26, 2015
`Reply to Office Action of February 13, 2015
`
`14
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`Docket N0.: Docket N0.: 89884(316697)
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`calibrating equations is calculated by a spectral analysis method by multivariate analysis, in which
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`glucose density of which quantity is determined by a normal process is used as a response variable
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`and body tissue spectrum obtained by this spectral analysis device is used as an explanatory
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`variable. Maruo at para. [0038], see also id. at para. [0005].
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`Maruo is silent on a change in the calibration model over time and therefore, Maruo fails to
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`disclose “said blood sugar value estimation apparatus is configured to make a change in the
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`calibration model according to a variation of the difference spectrum over time”, as recited in
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`Applicant’s claim 1. Because Maruo fails to disclose each and every feature of Applicant’s claim 1
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`and because claim 7 depends from claim 1, Maruo cannot anticipate Applicant’s claim 1 or 7 under
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`35 U.S.C. §102(b). Accordingly, Applicant requests reconsideration and withdrawal of the rejection
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`of claims 1 and 7 under 35 U.S.C. §102(b) over Maruo.
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`W
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`Claims 20 and 21 are newly presented and find support in Applicant’s Specification at least
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`at page 11, line 24— page 12, line 2 and page 13, lines 17—18, respectively; no new matter is added.
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`Claims 20 and 21 depend from claim 1 and are allowable at least due to their dependency from an
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`allowable claim, as well as for their own merits.
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`Claim Rejoinder
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`Applicant respectfully requests that the unelected claims be rejoined once the examined
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`claims have been allowed.
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`Application No. 13/378,
`Amendment dated May 26, 2015
`Reply to Office Action of February 13, 2015
`
`15
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`Docket N0.: Docket N0.: 89884(316697)
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`In View of the above amendment, applicant believes the pending application is in
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`condition for allowance.
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`The Director is hereby authorized to charge any deficiency in the fees filed, asserted to
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`be filed or which should have been filed herewith (or with any paper hereafter filed in this
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`application by this firm) to our Deposit Account No. 04—1105.
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`Dated: May 26, 2015
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`Respectfully submitted,
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`/James E. Armstrong, IV/
`Electronic signature:
`James E. Armstrong, IV
`Registration N0.: 42,266
`James M. Acheson, Jr.
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`Registration N0.: 45,585
`LOCKE LORD LLP
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`PO. Box 55874
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`Boston, Massachusetts 02205
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`(202) 478-7375
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`Attomeys/Agents For Applicant
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`AM 503134581
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