Michael RockDownload PDFPatent Trials and Appeals BoardAug 21, 201913444790 - (D) (P.T.A.B. Aug. 21, 2019) Copy Citation 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.) Appeal 2018-006797 Application 13/444,790 2 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; Appeal 2018-006797 Application 13/444,790 3 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). Appeal 2018-006797 Application 13/444,790 4 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. Appeal 2018-006797 Application 13/444,790 5 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 Appeal 2018-006797 Application 13/444,790 6 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 Appeal 2018-006797 Application 13/444,790 7 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.”). Appeal 2018-006797 Application 13/444,790 8 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 Appeal 2018-006797 Application 13/444,790 9 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, Appeal 2018-006797 Application 13/444,790 10 840 (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.) Appeal 2018-006797 Application 13/444,790 11 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 Appeal 2018-006797 Application 13/444,790 12 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 Appeal 2018-006797 Application 13/444,790 13 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. Appeal 2018-006797 Application 13/444,790 14 (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 Appeal 2018-006797 Application 13/444,790 15 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 Appeal 2018-006797 Application 13/444,790 16 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. Appeal 2018-006797 Application 13/444,790 17 (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. Appeal 2018-006797 Application 13/444,790 18 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 Copy with citationCopy as parenthetical citation