Michael Rock

Patent Trials and Appeals Board

Aug 21, 2019

13444790 - (D) (P.T.A.B. Aug. 21, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/444,790 04/11/2012 Michael Rock 1095-002 1497
88360 7590 08/21/2019
Richards Patent Law P.C.
20 N Clark Street
Suite 3300
Chicago, IL 60602
EXAMINER
WHALEY, PABLO S
ART UNIT PAPER NUMBER
1631
NOTIFICATION DATE DELIVERY MODE
08/21/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@richardspatentlaw.com
eofficeaction@appcoll.com
robin@richardspatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MICHAEL ROCK
__________

Appeal 2018-006797
Application 13/444,7901
Technology Center 1600
__________

Before JOHN E. SCHNEIDER, RACHEL H. TOWNSEND, and
DAVID COTTA, Administrative Patent Judges.

TOWNSEND, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
hydration and nutrition system for monitoring consumption of fluid by a
user, which have been rejected as directed to patent ineligible subject matter
and as being obvious. Oral argument was heard on August 1, 2019. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
The Specification indicates that for competitive athletes, replacing
fluids and calories in a timely and appropriate manner, one “that does not

1 Appellant is the inventor, who identifies himself as the real party in
interest. (Appeal Br. 3.)
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cost time, energy, and effort” by the athlete is important. (Spec. ¶¶ 3–4.) As
such, it is important “that the athlete be aware of his status with respect to
replenishment at all times since deficits lead to impaired performance.” (Id.
¶ 4.) Appellant’s invention is directed to “a computerized nutritional
calculator (CNC) that monitors real-time expenditure and consumption of
nutrition (electrolytes and calories) and fluid under racing and/or training
conditions.” (Id. ¶¶ 2, 6, 25.) Appellant’s Specification states:
The present subject matter discloses a nutritional monitor with
carefully constructed, mathematical algorithms that can be
applied in real-time and on an individualized basis to calculate
optimized fluid and nutrition consumption during performance.
By utilizing data from readily available input sources, a very
sophisticated nutritional and fluid replacement guide is
provided.
(Id. ¶ 25.)
Claims 1–11, 13, and 21–29 are on appeal. Claim 1 is representative
and reads as follows:
1. A hydration and nutrition system for monitoring
consumption of fluid by a user comprising:
a pressurized reservoir adapted to hold a quantity of fluid
having a caloric value;
a tube adapted to convey the fluid from the reservoir to
the user for consumption;
a flow meter adapted to measure and collect flow data
regarding the flow of fluid from the reservoir through the tube;
a computerized nutritional calculator that performs the
steps of:
receiving the caloric value of the fluid,
receiving baseline requirements for a peak performance
power output;
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storing a consumption plan based on a percentage of the
baseline requirements for the peak performance power output,
constantly receiving the flow data from the flow meter,
constantly calculating an actual caloric intake of fluid
consumed using the caloric value of the fluid and the flow data,
constantly calculating a required caloric replenishment
rate based on the consumption plan and the actual caloric intake
of fluid consumed;
monitors the required caloric replenishment rate to assess
whether there is a caloric deficit; and
sending an alert to the user when there is a caloric deficit
indicating a need for replenishment;
a display in communication with the computerized
nutritional calculator through which the computerized
nutritional calculator indicates to the user the required caloric
replenishment rate.
(Appeal Br. 16–17.)

The following grounds of rejection by the Examiner are before us on
review:2
Claims 1–11, 13, and 21–29 under 35 U.S.C. § 101 as being directed
to non-statutory subject matter.
Claims 1, 8–11, 13, 21, and 26–29 under 35 U.S.C. § 103 as
unpatentable over Hayn3 and Popkin.4

2 The rejection of claims 1–11, 13, and 21–29 under 35 U.S.C. § 112,
second paragraph, which was pending at the time of filing the Appeal (see
Non-Final Action 8–11), was withdrawn by the Examiner after considering
Appellant’s arguments in the Appeal Brief. (Ans. 3.)
3 Hayn et al., GB 2483978 A, published Mar. 28, 2012.
4 Barry M. Popkin et al., Water, Hydration and Health, 68(8) Nutr. Rev. 1–
30 (2010).
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Claims 1–11, 13, and 21–29 under 35 U.S.C. § 103 as unpatentable
over Perkins5 and Popkin.
DISCUSSION
Patent Ineligible Subject Matter
Appellant does not argue the claims separately with particularity.
Instead, Appellant relies on the same arguments for all claims. (See Br. 6–
9.) We select claim 1 as representative for this rejection. See 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner finds that the calculating, generating, and monitor steps
of claim 1 recite mathematical manipulation of collected data and/or relating
data to ascertain caloric intake and caloric deficit. (Non-Final Action 3–4.)
According to the Examiner, these claimed steps performed by the CNC “are
in essence a mathematical algorithm for characterizing data . . . and also
represent ‘[a] procedure for solving a given type of mathematical problem’.”
(Id.) The Examiner finds that the receiving steps relate to information
whose character as information is not changed and is intangible and the steps
are, therefore, “within the realm of abstract ideas.” (Id. at 3.)
The Examiner then finds that the sending an alert step performed by
the CNC “is nothing more than using a computer to ‘apply’ the judicial
exception or limiting the use of an abstract idea ‘to a particular technological
environment’. . . and does not constitute meaningful limitations that would
amount to significantly more than the judicial exception.” (Id. at 5.) The
Examiner further finds that the claimed reservoir, tube, and flow meter are
all generic data collection elements and the display that is in communication

5 Perkins, US 6,212,959 B1, issued Apr. 10, 2001.
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with the CNC is simply a generic computer component and that all perform
functions that are routine and conventional in the art. (Id.) The Examiner
concludes that considered as a combination, these additional elements
beyond the abstract ideas “fail to transform the exception into a patent-
eligible application of that exception.” (Id.) The Examiner states:
Unlike the eligible claim in Diehr in which the elements
limiting the exception are individually conventional, but taken
together act in concert to improve a technical field, the claim
here does not invoke any of the considerations that courts have
identified as providing significantly more than an exception.
(Id.)
Appellant contends that the Examiner’s rejection is in error because
“[t]he claims do not merely recite the use of a model in isolation, but
integrate the model into a hydration and nutrition system that optimizes
athletic performance and recovery.” (Appeal Br. 8.) According to
Appellant:
The invention is impossible to carry out manually due to the
real-time comparison of the caloric intake with the required
caloric replenishment rate specific to a peak performance. The
results of adjusting the caloric intake in accordance with
requirements for a peak performance output on a real-time basis
transform the practice of training and competing by
meaningfully optimizing caloric ingestion and improving the
user’s performance.
(Id. at 9.)
ANALYSIS
35 U.S.C. § 101 defines patent eligible subject matter. The Supreme
Court has carved out exceptions to what would otherwise appear to be
within the literal scope of § 101. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014). One of these exceptions are claims “directed to” an
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abstract idea. Id. at 217. This appeal involves the abstract idea exception to
patent eligibility under section 101.
The Supreme Court has established a two-step framework for
“distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts.” Id. “First, we determine whether the claims at issue are directed
to” a patent-ineligible concept. Id. If so, “we consider the elements of each
claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application.” Id. (quoting Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 78–79 (2012)).
The United States Patent and Trademark Office (PTO) issued the
2019 Revised Patent Subject Matter Eligibility Guidance (“Guidance”),
indicating how the PTO would analyze patent eligibility under the Supreme
Court’s two-step framework. 84 Fed. Reg. 50–57 (January 7, 2019).
Applying the Guidance, we agree with the Examiner that the pending claims
are directed to patent ineligible subject matter.
STEP 2A, Prong One:
Under the Guidance, in determining what concept a claim is “directed
to” in step one of the Supreme Court’s two-step framework, we first look to
whether the claim recites any judicial exceptions, such as a mathematical
concept (including mathematical relationships, mathematical formulas or
equations, mathematical calculations) and/or a mental process (concepts
preformed in the mind, including an observation, evaluation, judgment or
opinion.) Guidance, 84 Fed. Reg. at 52, 54 (Step 2A, Prong One). Concepts
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performed in the mind include performance in the mind but for the recitation
of generic computer components. Id. at 52 n.14.
Claim 1 includes a “computerized nutritional calculator that performs
the steps of . . . ” (1) constantly calculating an actual caloric intake of fluid
consumed, (2) constantly calculating a required caloric replenishment rate,
and (3) monitoring the required caloric replenishment rate to assess whether
there is a caloric deficit. Two of these steps require “calculating.” While
the specific mathematical algorithm used is not recited, each calculating step
involves two inputs (caloric intake is calculated using the caloric value of
the fluid and the flow data and caloric replenishment rate using the
consumption plan and the actual caloric intake). Appellant does not dispute
that a mathematical calculation is required. (Appeal Br. 8.)
Even if one were to disagree that these claims recite a mathematical
calculation, we conclude that the calculation steps under the broadest
reasonable interpretation are steps that could be done with pen and paper,
and thus, are considered mental processes. Guidance, 84 Fed. Reg. at 52
n.14 (citing Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307,
1318 (Fed. Cir. 2016) (“[W]ith the exception of generic computer-
implemented steps, there is nothing in the claims themselves that foreclose
them from being performed by a human, mentally or with pen and paper.”));
Versata Dev. Grp. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015)
(“Courts have examined claims that required the use of a computer and still
found that the underlying, patent-ineligible invention could be performed via
pen and paper or in a person’s mind.”).
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We also determine that the monitoring step is a mental process, i.e., an
observation but for the recitation that the observation is performed by the
CNC.
Appellant argues that “[t]he invention is impossible to carry out
manually due to the real-time comparison of the caloric intake with the
required caloric replenishment rate specific to a peak performance.”
(Appeal Br. 9.) While it may be the case that an exercising athlete may be
too distracted to carry out such calculations regularly, such does not
diminish the fact that the calculations are not so complicated that they
cannot be practically carried out using a pen and paper.
STEP 2A, Prong Two:
Having made the determination that claim 1 recites abstract ideas,
under the Guidance, we next examine whether there are additional elements
beyond the calculations and observations that integrate those judicial
exceptions into a practical application. Under the Guidance, this is referred
to as the “Prong Two” inquiry under “Step 2A.” Guidance, 84 Fed. Reg. at
54–55. That is, under the Prong Two analysis we look to whether the claim
as a whole “appl[ies], rel[ies] on, or use[s] the judicial exception in a manner
that imposes a meaningful limit on the judicial exception.” Id.
While it is true that claim 1 recites elements of a tangible system, e.g.,
a pressurized reservoir, a tube, flow meter, and a display, such limitations
are not sufficient to convert the subject matter claimed into a patent eligible
claim. As the Supreme Court indicated in Alice, whether a device is “a
tangible system (in § 101 terms, a ‘machine’)” is not dispositive. See 573
U.S. at 224. Resolving the § 101 inquiry based on such an argument “would
make the determination of patent eligibility ‘depend simply on the
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draftsman’s art.”’ Id. (quoting Parker v. Flook, 437 U.S. 584, 593 (1978));
see also CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372
(Fed. Cir. 2011) (“[E]ven if some physical steps are required to obtain
information from the database (e.g., entering a query via a keyboard,
clicking a mouse), such data-gathering steps cannot alone confer
patentability.”). Moreover, the pressurized reservoir, a tube, and flow meter
do not apply, rely on, or use the judicial exception in any manner. Rather
they are elements that enable the CNC to obtain data to perform the
calculation of actual caloric intake. As for the display, while it provides for
being able to display the results of the calculation of the required caloric
replenishment rate, such is insignificant post-solution activity. See SAP Am.,
Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353–54 (Fed. Cir. 2016)
(“[M]erely presenting the results of abstract processes of collecting and
analyzing information, without more (such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection and
analysis.”)).
Other limitations of the claim that are not the abstract idea include the
receiving data and storing data steps that the CNC performs. However,
these are pre-solution data gathering steps (see MPEP § 2106.05(g) (“[a]n
example of pre-solution activity is a step of gathering data for use in a
claimed process.”)), that do not apply the abstract idea in a meaningful way,
but instead simply “generally link the use of a judicial exception to a
particular technological environment or field of use.” Guidance, 84 Fed.
Reg. at 55 (citing MPEP § 2016.05(h)); see also In re Grams, 888 F.2d 835,
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840 (Fed. Cir. 1989) (“The presence of a physical step in the claim to derive
data for the algorithm will not render the claim statutory.”).
In sum, the focus of claim 1 is on collecting certain information,
analyzing it using mathematical techniques and reporting and displaying the
results of the analysis. “That is all abstract.” SAP, 898 F.3d at 1167–68
(finding claims directed to “the selection and mathematical analysis of
[investment] information, followed by reporting or display of the results”
using “off-the-shelf computer technology” not directed to patent eligible
subject matter).
Appellant contends that the claim “integrate[s] the model into a
hydration and nutrition system that optimizes athletic performance and
recovery.” (Appeal Br. 8.) However, claim 1 does not require the user do
anything in response to an alert as to a caloric deficit. Thus, we disagree
with Appellant that the claim integrates the system such that it optimizes
athletic performance. Rather, the claim simply requires that the CNC
provide an alert to the user when a caloric deficit is assessed as determined
by calculating actual caloric intake based on data input and calculating a
caloric replenishment rate based on stored information about a consumption
plan for peak performance and actual caloric intake. Indeed, as explained in
the Specification “the role of the CNC 30 is to guide the user to consume
fluid, electrolytes, and calories in a consistent manner so as to replace losses
effectively.” (Spec. ¶ 96.) In short, as the Examiner notes, the claim does
not use the information generated by the abstract ideas of calculating and
monitoring to effect any type of change. (Ans. 4.) Nor does the claim
improve or change the way a computer functions. (Id.)
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Appellant contends that the prompting of the user to replenish the
caloric deficit on a real-time basis is a meaningful limit on the use of the
mathematical calculation. (Appeal Br. 8, 9.) We disagree. We conclude
that claim 1 here is analogous to the claims found to be directed to patent
ineligible subject matter in Flook (437 U.S. 584). In that case, the method
involved three steps: “an initial step which merely measures the present
value of the process variable (e. g., the temperature); an intermediate step
which uses an algorithm[] to calculate an updated alarm-limit value; and a
final step in which the actual alarm limit is adjusted to the updated value.”
Id. at 585. The adjustment of the alarm limit step “cover[ed] any use of
respondent’s formula for updating the value of an alarm limit on any process
variable involved in a process comprising the catalytic chemical conversion
of hydrocarbons.” Id. at 586. The Court noted that “there are numerous
processes of that kind in the petrochemical and oil-refining industries.” Id.
In short, the last step was specified at a high level of generality and was
tantamount to a general instruction to apply the mathematical concept in a
particular field to update an unspecified process variable to the number
computed, and thus, the Supreme Court found that the claimed subject
matter “simply provides a new and presumably better method for calculating
alarm limit values.” Id. at 594–95.
Here, the mathematical calculations performed result in an assessment
as to whether or not there is a caloric deficit. If such is observed, an alert is
sent indicating such a deficit and, thus, a need for replenishment and
displaying what the replenishment rate is. In short, as the Examiner
explains, nothing in the claim uses the information to affect any type of
change to the system or to the user of the system. It simply notifies the user
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about the results of the calculations and monitoring (a caloric deficit was
calculated and noticed) and displays the result of the calculations (what the
required caloric replenishment rate is). Like the adjustment step in Flook,
the notification step here is recited at a high level of generality and is
tantamount to a general instruction to apply the calculations and monitoring
in a particular field. The display for displaying the results of the calculation
also is recited at a high level of generality. Such elements are not a practical
application of the judicial exception sufficient to render the claim patent
eligible.
We disagree with Appellant that claim 1 is like the claim found patent
eligible in Diamond v. Diehr, 450 U.S. 175 (1981). (Appeal Br. 6–7.) In
Diehr, the Supreme Court found the overall physical and chemical process
for molding precision synthetic rubber “patent eligible because of the way
the additional steps of the process integrated the equation into the process as
a whole.” See, e.g., Mayo, 566 U.S. at 80 (discussing Diehr, 450 U.S. at
177–79); RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1326 (Fed.
Cir. 2017) (“In confirming patentability, the Supreme Court focused not on
the presence of a mathematical formula but on the subject matter of the
claims as a whole. [Diehr, 450 U.S.] at 192”). The process included
“installing rubber in a press, closing the mold, constantly determining the
temperature of the mold, constantly recalculating the appropriate cure time
through the use of the formula and a digital computer, and automatically
opening the press at the proper time.” Mayo, 566 U.S. at 80–81 (emphasis
added). The integration was the automatic opening of the press at the
appropriate time determined by the constant recalculation of the cure time
based on constant measuring of the temperature of the mold. This process
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was an improvement in the rubber curing process. See Thales Visionix Inc.
v. U.S., 850 F.3d 1343, 1348 (Fed. Cir. 2017). It is this type of integration
step, e.g., an automatic delivery of fluid to a user from the pressurized
reservoir at the replenishment rate calculated, that is missing from
Appellant’s claim 1.
That the claims may prompt the user to replenish the caloric deficit is
akin to the wherein clause of Mayo where, depending on the level of 6-
thiogauninine determined, there would be an indication of either “a need to
increase” the amount of drug to be administered or a “need to decrease” the
amount of drug to be administered. Mayo, 566 U.S. at 74. In short, the
Mayo claims did not require any actual action be taken based on the
measured level of metabolite. Id. at 75–76. Similarly, claim 1 at issue here,
does not require any actual action by taken by the user.
STEP 2B
Step 2B requires that we look to whether the claim “adds a specific
limitation” beyond the judicial exception that is not “well-understood,
routine, conventional activity in the field.” Guidance, 84 Fed. Reg. at 56.
The Examiner explains that the CNC is nothing more than a recitation
of a general purpose computer and that the claimed reservoir, tube, flow
meter and display in communication with the computer are generic data
collection elements and/or computer components performing functions that
are routine and conventional in the art. Appellant does not dispute the
Examiner’s characterization of these elements.
Moreover, the Examiner’s obviousness rejection refers to two prior art
references which teach a reservoir, tube flow meter, and display in
communication with a computer in systems for insuring proper hydration.
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(See, e.g., Perkins, Abstract; Hayn 2–4, 6). In light of the foregoing, we find
claim 1 combines the recited abstract ideas with appended “well-understood,
routine, conventional” activities specified at a high level of generality. We
consequently affirm the Examiner’s rejection that claim 1 is directed to
patent ineligible subject matter.
II
Obviousness over Perkins and Popkin
As noted by the Examiner, Appellant does not contest the Examiner’s
rejection of claims 1–11, 13, and 21–29 under § 103 as being unpatentable
over Perkins and Popkin in the Appeal Brief. (Ans. 9.) Therefore, we
summarily affirm that rejection. Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed.
Cir. 2008) (“When the appellant fails to contest a ground of rejection to the
Board, . . . the Board may treat any argument with respect to that ground of
rejection as waived.”).

Obviousness over Hayn and Popkin
The Examiner finds that Hayn teaches a system for dehydration
monitoring that includes the claimed elements. (Non-Final Action 12.)
According to the Examiner, the control unit of Hayn is capable of processing
data from the flow meter and exchanging data with an external device, such
as a server. (Id.) The Examiner explains that “Hayn does not specifically
teach receiving the caloric value of the flue, but that this step is made
obvious by Hayn because
the control unit is capable of receiving a plurality of different
types of measured data values or those provided by an external
server, including set liquid quantity . . . and because one of
ordinary skill in the art would recognize that the quantity of
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fluid consumed is inherently associated with caloric values of
the fluid.
(Id.)
The Examiner also finds that Hayn does not specifically teach
constantly calculating an actual caloric intake of fluid consumed or
constantly calculating a required caloric replenishment rate based on a
consumption plan and actual intake of fluid or monitoring the required
caloric replenishment rate to assess whether there is a caloric deficit. (Id. at
13.) However, the Examiner finds that Hayn’s system includes functionality
for (1) receiving a quantity of fluid that a patient is to ingest, (2) calculating
the amount of liquid ingested by a user over a time period, (3) checking
whether the quantity of fluid ingested corresponds to the baseline amount;
and (4) outputting a warning that the subject should ingest more liquid if the
quantity consumed is too low. (Id.) According to the Examiner, the fact that
the system receives a quantity of fluid to be ingested by a patient meets the
requirement of storing a consumption plan and receiving a baseline for peak
performance. (Id.) The Examiner finds further that one of ordinary skill in
the art would recognize that the quantity of fluid consumed is inherently
associated with caloric value. (Id.)
The Examiner finds that “Popkin provides computational methods for
relating water consumption to caloric intake.” (Id. at 14 (citing Popkin 11,
Section III, Table 5).) In light of that teaching, the Examiner concludes that
it would have been obvious to one of ordinary skill in the art to have
modified the system of Hayn that is keeping track of quantity of fluid
consumed to keep track of caloric intake as well and output a warning if the
caloric intake was too low compared to baseline with a reasonable
expectation of success. (Id.) According to the Examiner, “methods for
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programming the control unit of Hayn to perform such calculations in
addition to the fluid consumption values would have been well within the
capabilities of one of ordinary skill in the art.” (Id.) The Examiner finds
that the “motivation [to perform caloric intake monitoring and calculations]
would be to address the problem of hydration using different types of caloric
fluids, as suggested by Popkin.” (Id.)
We find that the Examiner has not articulated a prima facie case of
obviousness with sufficient specificity. Our reviewing court has directed as
follows:
In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima facie case of
obviousness based upon the prior art. “[The Examiner] can
satisfy this burden only by showing some objective teaching in
the prior art or that knowledge generally available to one of
ordinary skill in the art would lead that individual to combine
the relevant teachings of the references.”

In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992) (citations omitted,
bracketed material in original). Popkin is a review article discussing “our
current knowledge of water including overall patterns of intake” among
other things. (Popkin, Abstract.) Section III referred to by the Examiner
discusses the fact that measuring water intake in the past was a crude
approximation that did not account for the water in a variety of ingested
foods and beverages. Popkin states that:
Despite its critical importance in health and nutrition, as noted
earlier, the array of available research that serves as a basis for
determining requirements for water or fluid intake, or even
rational recommendations for populations, is limited compared
to most other nutrients.
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(Popkin 13.) Popkin notes that “an approach to the estimation of water
requirements beyond the limited usefulness of the AI [adequate intake] or
estimated mean intake is to express water intake requirements in relation to
energy requirements in ml/kcal.” (Id. at 14) Table 5 provides a table
expressing water requirements in relation to energy recommendations. (Id.
at 29.) Popkin is not concerned with relating water consumption to caloric
intake other than to indicate that the adequate intake of water should be
related to the estimated energy requirement aside from water for a particular
patient. It is not concerned with the problem of hydration using different
types of caloric fluids. Thus, we disagree with the Examiner that Popkin
provides a motivation to monitor caloric intake to address the problem of
hydration using different types of caloric fluids.
Consequently, we do not sustain the Examiner’s rejection of claims 1,
8–11, 13, 21, and 26–29 as begin obvious over Hayn and Popkin.
SUMMARY
We affirm the rejection of claims 1–11, 13, and 21–29 under 35
U.S.C. § 101 as being directed to non-statutory subject matter.
We reverse the rejection of claims 1, 8–11, 13, 21, and 26–29 under
35 U.S.C. § 103 as unpatentable over Hayn and Popkin.
We affirm the rejection claims 1–11, 13, and 21–29 under 35 U.S.C.
§ 103 as unpatentable over Perkins and Popkin.
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED