DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
2. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 17 September 2025 has been entered. Claims 1-20 remain pending.
Claim Rejections – 35 USC § 101
3. 35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Independent claim 1 recite a method comprising:
having a plurality of visual indicators on a body of an individual, each visual indicator of the plurality of visual indicators corresponding to a unique location on the body;
establishing visual contact with, using a viewing apparatus, at least two of the plurality of visual indicators;
receiving verbal instruction indicating a desired variation of a spatial relationship between the at least two of the plurality of visual indicators;
moving the body, in response to the verbal instruction, to vary the spatial relationship between the at least two of the plurality of visual indicators while in visual contact with the at least two of the plurality of visual indicators; and
producing a therapeutic effect for the individual based on the variation in the spatial relationship between the at least two of the plurality of visual indicators while in visual contact with the at least two of the plurality of visual indicators.
Independent claims 14 and 18 recite similar methods.
The limitations of having visual indicators on a body, establishing visual contact with the visual indicators, receiving verbal instruction, moving the body, and producing a therapeutic effect, as drafted, constitutes a process that, under its broadest reasonable interpretation, covers performance of the limitation in the mind. That is, the claim merely recites the abstract steps of “having…indicators on a body”, viewing the indicators, receiving feedback, moving the body, and producing a therapeutic effect. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea. The claims are also directed to a method of teaching a user to move their body in a particular manner, which is a method for managing personal behavior, and therefore also are directed to an abstract method of organizing human activity.
This judicial exception is not integrated into a practical application. In particular, the claim only recites generic visual indicators on a body, a generic viewing apparatus, and a ball in claim 14. These indicators, viewing apparatus and ball are recited at a high-level of generality such that they amount to no more than an attempt to generally link the use of the judicial exception to a particular technological environment or field of use. See MPEP 2106.05(h). Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claims are directed to an abstract idea.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional element of using generic visual indicators, a generic viewing apparatus, and a ball to perform the claimed steps amounts to no more than an attempt to generally link the use of the judicial exception to a particular technological environment or field of use. The claims are not patent eligible.
Dependent claims 2-13, 15-17, 19 and 20 recite the same abstract idea as in their respective independent claims, and do not recite additional limitations sufficient to direct the claimed invention to significantly more. For example, claims 2-8, 10, 17, 19 and 20 recite further aspects of the abstract idea itself, such as details of the body movements. Claims 9 and 11-16 recite further uses of generic objects such as sitting on balance balls, the indicators are stickers or are drawn on, and the viewing apparatus comprises mirrors. Similar to the independent claims, the use of these generic apparatus constitutes no more than generally linking the use of the judicial exception to a particular technological environment or field of use.
Claim Rejections - 35 USC § 103
4. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
5. The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
6. Claims 1-3, 6-8, 10, 11 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Lanfermann et al. (US 2010/0022351 A1) in view of Thielen et al. (US 2018/0295419 A1).
Regarding claims 1 and 18, Lanfermann discloses:
a method for physical therapy comprising:
having a plurality of visual indicators on a body of an individual, each visual indicator of the plurality of visual indicators corresponding to a unique location on the body (body-worn sensors or markers, such as optical markers comprising colours – Par’s. 24-26);
establishing visual contact with, using a viewing apparatus, at least two of the plurality of visual indicators (this limitation is interpreted as the user establishing visual contact with the visual indicators, or a viewing apparatus establishing the visual contact with the indicators; Lanfermann discloses that the markers are detectable by the viewing apparatus such as by a camera or other type of sensors, and also facilitates viewing of the indicators by the user via the mirror); and
receiving auditory instruction indicating a desired variation of a spatial relationship between the at least two of the plurality of visual indicators (see Par. 33 – feedback to user to vary relationship between multiple dotted lines on limbs; this feedback can be presented “in the form of an audible signal”);
moving the body, in response to the auditory instruction, to vary the spatial relationship between the at least two of the plurality of visual indicators while in visual contact with the at least two of the plurality of visual indicators; and producing a therapeutic effect for the individual based on the variation in the spatial relationship between the at least two of the plurality of visual indicators while in visual contact with the at least two of the plurality of visual indicators (see Par’s. 30-33, 43, 50) (as per claim 1), and
a method for physical therapy comprising: having at least one visual indicator on a body of an individual; establishing visual contact with, using a viewing apparatus, the at least one visual indicator; receiving auditory instruction indicating a desired variation of a position of the at least one visual indicator (Par. 33); and moving the body to vary a position of the at least one visual indicator while in visual contact with the at least one visual indicator; and producing a therapeutic effect for the individual based on the variation (Par’s. 24-26, 30-33, 43, 50) (as per claim 18),
Lanfermann does not appear to disclose the auditory instructions comprises verbal instruction; instead as noted above Lanfermann discloses an “audible signal” (as per claims 1 and 18). However, Thielen discloses a movement skills training system that provides feedback and instruction to the user in the form of verbal instruction (see Par’s. 232, 236). It would have been obvious to one skilled in the art before the effective filing date of the invention to modify the teachings of Lanfermann by providing the auditory instruction in the form of verbal instruction, as taught by Thielen. Such a modification would be a simple substitution of one known element for another to obtain predictable results.
Regarding claims 2, 3, 6-8, 10, 19 and 20, Lanfermann in view of Thielen further discloses varying the spatial relationship between the at least two of the plurality of visual indicators includes aligning the at least two of the plurality of visual indicators (see Fig’s. 1 and 2 – the user’s movements vary the spatial relationships between the indicators) (as per claim 2),
aligning the at least two of the plurality of visual indicators includes aligning the at least two of the plurality of visual indicators on a plane (indicators are aligned on planes for example defined by the angle of the arm – Fig’s. 1 and 2) (as per claim 3),
moving the body includes moving the body to counteract a physical bias of the body (e.g. regaining motor control – Par. 21) (as per claim 6),
the therapeutic effect comprises one or more of an improved posture or gait for the individual (Par. 19) (as per claim 7),
maintaining a spatial relationship between the at least two of the plurality of visual indicators while in visual contact with the at least two of the plurality of visual indicators, to thereby produce a therapeutic effect for the individual (see e.g. Par. 50) (as per claim 8),
breaking visual contact with the at least two visual indicators; reverting the body to a posture; re-establishing visual contact with, using the viewing apparatus, the at least two visual indicators; and varying the spatial relationship between the at least two visual indicators while in visual contact with the at least two visual indicators (these limitations are interpreted merely as performing a second repetition of the process; Lanfermann discloses at Par. 21 that the system is designed to increase exercise frequency, which means performing the exercise more than once) (as per claim 10),
the verbal instruction is received from another individual (a coach – see Thielen, Par. 232) (as per claim 19), and
moving the body to vary the position of the at least one visual indicator while in visual contact with at least one visual includes receiving live-time feedback from the viewing apparatus of the position of the at least one visual indicator, and the therapeutic effect comprises one or more of an improved posture or gait for the individual (Par. 43) (as per claim 20).
Regarding claim 11, the combination of Lanfermann and Thielen does not appear to disclose the plurality of visual indicators comprise one or more stickers or are drawn on the body. OFFICIAL NOTICE was taken in the previous Office Action dated 23 October 2022 that both the concepts and advantages of colored stickers or drawings on the body were old and well known and expected in the art at the time the invention was made. Since the Applicant did not traverse the officially noticed facts by specifically pointing out supposed errors, the officially noticed facts taken in the rejection dated 23 October 2022 are now considered admitted prior art. See MPEP § 2144.03. Accordingly, it would have been obvious to one skilled in the art before the effective filing date of the invention to modify the combination of Lanfermann and Thielen by for example using stickers or drawing on the body to create the colored optical markers. Such a modification would involve applying a known technique to a known device ready for improvement to yield predictable results.
7. Claims 4, 5, 9, 12 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Lanfermann et al. (US 2010/0022351 A1) in view of Thielen et al. (US 2018/0295419 A1), and further in view of Cohen (US 2017/0248398 A1).
Regarding claims 4, 5, 9, 12 and 13, Cohen discloses a similar system for performing exercises in front of a mirror, and further discloses in view of Lanfermann and Thielen:
an exercise plane is defined by an instruction provided to the individual, and is on or parallel to one of a sagittal plane, a coronal plane, or a transverse plane of the body of the individual (placing film on mirror which includes markings defining a sagittal and transverse plane – see Fig. 2) (as per claim 4),
varying the spatial relationship between the at least two of the plurality of visual indicators includes moving the at least two of the plurality of visual indicators towards having a similar length (according to the measurements on the mirror), and wherein moving the body includes moving the body towards an improved posture (Par. 1) (as per claim 5),
maintaining the spatial relationship is performed while at least a portion of the body is in contact a balance ball (Fig’s. 2-3) (as per claim 9),
varying the spatial relationship between the at least two of the plurality of visual indicators is performed while a balance ball (Fig’s. 2-3), and the method further comprises moving the body and simultaneously maintaining a spatial relationship between the at least two of the plurality of visual indicators while in visual contact with the at least two of the plurality of visual indicators (as taught by Lanfermann, Par. 50) (as per claim 12),
the viewing apparatus comprises at least one mirror, and the method further comprises: balancing the body on a balance ball (Fig’s. 2-3); and maintaining a spatial relationship between the at least two of the plurality of visual indicators while the body is being balanced (as taught by Lanfermann, Par. 50) (as per claim 13).
Accordingly, it would have been obvious to one skilled in the art before the effective filing date of the invention to modify the combination of Lanfermann and Thielen by performing the exercises while seated on a balance ball, and defining the instructions for the user by placing measurements and markings on the mirror defining a sagittal or transverse plane of the user’s body, as taught by Cohen. Such a modification would involve combining prior art elements according to known methods to yield predictable results of further helping to develop the user’s posture and balance.
8. Claims 14, 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Lanfermann et al. (US 2010/0022351 A1) in view of Thielen et al. (US 2018/0295419 A1), and further in view of Florian (US Patent No. 7,108,610 B1)
Regarding claims 14 and 16, Lanfermann discloses a method for physical therapy comprising: having a plurality of visual indicators on a body of an individual, each visual indicator of the plurality of visual indicators corresponding to a unique location on the body; establishing visual contact with, using a viewing apparatus, at least two visual indicators of the plurality of visual indicators; receiving auditory instruction indicating a desired variation of a spatial relationship between the at least two of the visual indicators (Par. 33); moving the body to vary the spatial relationship between the at least two of the plurality of visual indicators while in visual contact with the at least two of the plurality of visual indicators; and producing a therapeutic effect for the individual based on the variation in the spatial relationship (see Par’s. 24-26, 30-33, 43, 50) (as per claim 14), and the object is a mirror (11) (as per claim 16).
As noted above, Lanfermann does not disclose the instruction is verbal, but Thielen does disclose this feature (Par’s. 232, 236). Therefore it would have been obvious to one skilled in the art before the effective filing date of the invention to modify the teachings of Lanfermann by providing the auditory instruction in the form of verbal instruction. Such a modification would be a simple substitution of one known element for another to obtain predictable results.
The combination of Lanfermann and Thielen does not explicitly disclose bouncing a ball off the viewing apparatus or an object (as per claim 14). However, Florian discloses providing a mirror and having a user throw a ball into the mirror (see abstract, column 6, lines 23-33). It would have been obvious to one skilled in the art before the effective filing date of the invention to modify the combination of Lanfermann and Thielen by having a user throw a ball at the mirror, to obtain predictable results of providing immediate visual feedback regarding the user’s stance.
Regarding claim 17, to the extent that Florian does not disclose catching the ball after the ball has been bounced off the viewing apparatus or the object, OFFICIAL NOTICE was taken in the previous Office Action dated 23 August 2022 that both the concepts and advantages of catching a ball after it has been bounced off an object were old and well known and expected in the art at the time the invention was made. Since the Applicant did not traverse the officially noticed facts by specifically pointing out supposed errors, the officially noticed facts taken in the rejection dated 23 August 2022 are now considered admitted prior art. See MPEP § 2144.03. Accordingly, it would have been obvious to one skilled in the art before the effective filing date of the invention to modify the combination of Lanfermann, Thielen and Florian by having the user catch the ball after it bounces off the object, to obtain predictable results of allowing the user to practice catching.
9. Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Lanfermann et al. (US 2010/0022351 A1) in view of Thielen et al. (US 2018/0295419 A1) and Florian (US Patent No. 7,108,610 B1), and further in view of Cohen (US 2017/0248398 A1).
Regarding claim 15, the combination of Lanfermann, Thielen and Florian does not appear to disclose the viewing apparatus comprises a first mirror and a second mirror. However, Cohen discloses a similar method for viewing oneself in a mirror while performing exercises, which may include first and second mirrors (Par. 24). It would have been obvious to one skilled in the art before the effective filing date of the invention to modify the combination of Lanfermann, Thielen and Florian by using first and second mirrors, as taught by Cohen, to obtain predictable results of creating a larger mirror surface.
Response to Arguments
10. Applicant's arguments filed 17 September 2025 have been fully considered but they are not persuasive.
Regarding the section 101 rejection, Applicant argues that the limitation of moving the body in response to verbal instruction cannot be performed in the mind. This argument is not persuasive. This limitation in the broadest reasonable interpretation constitutes a user voluntarily moving their body, which is effected by the user receiving an instruction and deciding to perform the movement. This is a mental task which covers performance of the limitation in the mind. Applicant further argues the claims are not drawn to a method for managing personal behavior, but are instead a therapeutic treatment. This is also not persuasive. As noted above, the claims consist of monitoring a user and providing feedback instructing the user to perform a movement. This does not constitute a particular medical treatment or prophylaxis akin to those in Endo or Vanda.
Regarding the section 103 rejection, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this case, Applicant argues that Thielen does not disclose the claimed feature of “receiving verbal instruction indicating a desired variation of a spatial relationship between the at least two of the plurality of visual indicators”. However, Applicant appears to ignore Lanfermann’s disclosure of providing, visually and audibly, feedback indicating a desired variation of this spatial relationship. See Par. 33: Lanfermann provides feedback regarding poses and movements of the user, which inherently includes relative positions of visual indicators on the limbs and body parts being monitored as can be seen in Fig. 1. Thielen is cited for disclosing the use of verbal instruction in a similar movement training system. Applicant seeks to attack Thielen by pointing out the content of the verbal instruction does not include an indication of this spatial relationship, but does not address the combined teachings of Lanfermann and Thielen set forth in the rejection. Accordingly, Applicant has not shown nonobviousness with respect to this feature.
Conclusion
11. All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
12. Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER EGLOFF whose telephone number is (571)270-3548. The examiner can normally be reached on Monday - Friday 9:00 am - 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Xuan Thai can be reached at (571) 272-7147. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Peter R Egloff/
Primary Examiner, Art Unit 3715