Application No.: 15/961,414
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`Docket No.: 083710-2199
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`I.
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`Introduction
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`REMARKS
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`In response to the pending Office Action, in an effort to expedite prosecution of the
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`application, Applicants have amended claim 1 to further define the claimed subject matter. Support
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`for the amendmentto claim 1 can be found, for example, in paragraph [0081] of the published
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`application (see, USP Pub. No. 2018/0338690). No new matter has been added.
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`Applicants would like to thank Examiner Van Winterfor his time and courtesy during the
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`interview conducted on June 23, 2022 during which it was agreed that the foregoing amendmentto
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`claim 1 overcomesthe currently pending rejection of the claims. The substance of the interview is
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`set forth below.
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`Applicants again note with appreciation the indication that claims 5 and 6 recite patentable
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`subject matter. It is noted that the Office Action Summary sheetindicates that claims 5 and 6 are
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`also rejected. This is believed to be a typographicalerror, as the detailed explanation set forth in the
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`Office Action indicates that claims 5 and 6 recite patentable subject matter.
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`Further, upon allowance of claim 1 it is respectfully requested that withdrawn claims 9, 10
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`and 11 be rejoined, as each of claims 9, 10 and 11 depend directly or indirectly on claim 1, and
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`therefore it is clear that claim 1 is generic to claims 9, 10 and 11.
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`Il. The Rejection Of The Claims Under 35 U.S.C.§103
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`Claims 1, 2, 12, 14 and 18 were rejected under 35 U.S.C. § 103 as being obvious over USP
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`Pub. No. 2004/0193063 to Kimura in view of USP Pub. No. 2009/0009595 to Ishiwata. For at least
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`the following reasons, it is respectfully submitted that neither of the cited prior art references
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`disclose or suggest each of the elements of amendedclaim 1.
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`Application No.: 15/961,414
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`Docket No.: 083710-2199
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`Morespecifically, amended claim 1 recites in-part:
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`a light source that emits at least onefirst light pulse and at least one secondlight pulse «:‘the
`at least one second light pulse being different in light power from the atleast onefirst light pulse,
`each of the at least onefirst light pulse and the at least one second light pulse has a wavelength
`of not shorter than 650 nm andnot greater than 950 nm.”
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`Support for the amendmentto claim 1 can be found, for example, in paragraph [0042] of the
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`specification. As detailed in the specification, the additional limitation recited by amended claim 1
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`facilitates an increase in the resulting signal-to-noise ratio which allows improved accuracy and
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`efficiency with respect to the measurementresults.
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`Turning to the cited prior art references and as discussed during the interview, the objective
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`of Kimura is “to provide a method and an apparatus for measuring a biological condition ofa living
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`body, which are capable of reducing adverse effects on the measuring accuracy ofthe biological
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`condition, thereby accurately detecting the biological condition of the living body” (see, paragraph
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`[0023] of Kimura).
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`Asdetailed in paragraphs [0089]-[0091], Kimura controls the intensity of the infrared light
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`to be reduced to approximately one-fifth of the intensity of the green light (see, paragraph [0089]),
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`so to allow the movement componentto be substantially only measured by the measuring circuit 11
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`(see, paragraph [0090]). Further, by comparing the frequency components containing the pulsebeat
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`component and the movement component based on the green light as those containing only the
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`movement componentbased onthe infrared light permits only the pulsebeat component to be
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`extracted (see, paragraph [0091]).
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`In other words, in order to accurately detect the biological condition of the living body,
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`Kimura requires (i)
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`the use of
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`two different
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`types of
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`lights
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`(green light 460 nm to 570 nm and
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`infrared light 780 nm to 1000 nm) and (ii) to change the powerof two differentlights.
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`Application No.: 15/961,414
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`Docket No.: 083710-2199
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`Nowhere does Kimura disclose or suggest that “each of the at least onefirst light pulse and
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`the at least one second light pulse has a wavelength of not shorter than 650nm and notgreater than
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`950nm,” as recited by amended claim 1. Indeed, if Kimura was modified to use a first light pulse
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`and a secondlight pulse each having a wavelength of not shorter than 650nm andnotgreater than
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`950nm, Kimura would not be able to accurately detect the biological condition ofthe living body.
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`Thus, as the modification of Kimura necessary to arrive at the claimed device would defeat the
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`intended functionality of Kimura, clearly such a modification is improper and cannot form the basis
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`of an obviousness rejection under 35 U.S.C. § 103.
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`Applicants further note that while the foregoing amendmentis proposed in an effort to
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`expedite the prosecution of this application, it is submitted that the pending rejection is improperfor
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`at least the following reason. Asset forth, for example, in paragraphs [0100]-[0111] of Kimura,
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`Kimura discloses capturing the entirety of the first reflected pulse (infrared light pulse) and the
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`entirety of the second reflected pulse having a different powerlevel (green light) and then executing
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`a Fast Fourier transform (FFT) on each reflected pulse to obtain respective first and second power
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`spectrums. Kimura then compares the powerspectrumsso asto allow for the extraction of only the
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`pulse rate. Accordingly, Kimura appears to require the entirety of the second reflected pulse to be
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`captured in order to perform the power spectrum comparison correctly, and if Kimura was modified
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`to only capture the second pulseafter starting its falling period, Kimura would notbe able to
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`perform its intended function, and therefore the rejection is in error.
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`Forat least the foregoing reasons, as agreed upon during the interview, claim | is
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`patentable over the combination of Kimura and Ishikawa.
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`Application No.: 15/961,414
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`Docket No.: 083710-2199
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`Ill.
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`Dependent Claims
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`UnderFederal Circuit guidelines, a dependentclaim is nonobvious if the independent claim
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`upon which it dependsis allowable becauseall the limitations of the independent claim are
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`contained in the dependent claims, Hartness InternationalInc. v. Simplimatic Engineering Co., 819
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`F.2d at 1100, 1108 (Fed. Cir. 1987). Accordingly, as the pending independentclaim is patentable
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`for at least the reasonsset forth above,it is respectfully submitted that all claims dependent thereon
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`are also patentable.
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`IV.
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`Summary
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`Applicants submit that all of the claims are now in condition for allowance, an indication of
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`whichis respectfully solicited.
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`Please charge any shortage in fees due in connection with thefiling of this paper, including
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`extension of time fees, to Deposit Account 500417 and please credit any excess fees to such deposit
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`account.
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`500 North Capitol Street, N.W.
`Washington, DC 20001
`Phone: (202) 756-8372 MEF:
`Facsimile: (202) 756-8087
`Date: June 29, 2022
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`Respectfully submitted,
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`MCDERMOTTWILL & EMERY LLP
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`/Michael E. Fogarty/
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`Michael E. Fogarty
`Registration No. 36,139
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`Please recognize our Customer No. 53080 as
`our correspondence address.
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