DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
This Office action is responsive to an amendment filed April 1, 2026. Claims 1-17 are pending. Claim 1 has been amended. Claim 18 has been canceled.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 8-10, 13 & 16-17 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gettelman et al. (US 2013/0046149) (“Gettelman” hereinafter) in view of Berliner et al. (US 2010/0034457) (“Berliner” hereinafter).
In regards to claim 1, Gettelman discloses a range of motion evaluation system for monitoring and evaluating motion of a subject in real time, comprising:
a depth image based motion sensor 105 that tracks, in real-time, ongoing motion of a plurality of skeletal joints of a subject simultaneously and outputs a real-time motion signal corresponding to one or more vector calculations automatically performed for said ongoing motion by said depth image based motion sensor directly in response to said tracking of said subject (see at least figs. 1 & 10-11 and par 0026, 0028, 0032-0033, 0035 & 0037);
an electronic database 109 storing a plurality of predefined ongoing motion patterns, each as video data of ongoing motion, of a template subject (e.g., the user at baseline, a statistically normal user, or pre-recorded user-instructions 154 stored as a template, see par 0026 & 0037), according to a respective one of said plurality of predefined motion patterns (see at least figs. 1 & 10-11 and par 0026 & 0051-0052);
a computing system comprising a processor configured to receive said real-time motion signal and to compare detected ongoing motion of said subject indicated by said real-time motion signal with predefined ongoing motion patterns stored in said database 109, said processor further being configured to (a) generate an output signal indicating that said detected ongoing motion corresponds to a specific one or more of said plurality of predefined ongoing motion patterns, and (b) for said generated output signal, further generate feedback (e.g., visual cues to guide the user through the correct process, see par 0023 & 0036), based on an evaluation of the correspondence at said processor, that is communicated to said subject during said ongoing motion of said subject, by said computing system, as basis to train said subject to attain ongoing motion that aligns with a specific one or more of said predefined ongoing motion patterns (see at least figs. 1 & 10-11 and par 0017, 0020, 0026 & 0034-0037, 0046-0047 & 0049-0050); and
an electronic monitor (120, 130) that receives said output signal and communicates a condition of said subject corresponding to said specific one or more of said plurality of predefined ongoing motion pattern indicated by said output signal (see at least figs. 1 & 10-11 and par 0027-0032, 0034, 0037 & 0041-0044).
Gettelman discloses the range of motion evaluation system, as described above, that fails to explicitly teach a range of motion evaluation system comprising a depth image based motion sensor that tracks, in real-time, ongoing motion of a plurality of skeletal joints of a subject simultaneously in three dimensions and outputs a three dimensional (3D) real-time motion signal corresponding to one or more vector calculations automatically performed for said ongoing motion by said depth image based motion sensor directly in response to said tracking of said subject in said three dimensions; wherein said depth image based motion sensor comprises at least a projector and a camera in which said depth image based motion sensor tracks said ongoing motion of said plurality of skeletal joints of said subject and outputs said 3D real-time motion signal via said projector projecting a known infrared pattern toward said subject and said camera capturing infrared points projected onto said subject that, from a perspective of imaging by said camera and for a corresponding depth map generated by said depth image based motion sensor, represent said ongoing motion of each of said plurality of skeletal joints of said subject as video data of said ongoing motion.
However, Berliner teaches that it is known to provide a range of motion evaluation system comprising a depth image based motion sensor 22 that tracks, in real-time, ongoing motion of a plurality of skeletal joints of a subject 28 simultaneously in three dimensions and outputs a three dimensional (3D) real-time motion signal corresponding to one or more vector calculations automatically performed for said ongoing motion by said depth image based motion sensor 22 directly in response to said tracking of said subject in said three dimensions (see at least fig. 1 and par 0039, 0060, 0079-0082 & 0089-0090);
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wherein said depth image based motion sensor 22 comprises at least a projector (i.e., light source) and a camera in which said depth image based motion sensor tracks said ongoing motion of said plurality of skeletal joints of said subject and outputs said 3D real-time motion signal via said projector projecting a known infrared pattern toward said subject and said camera capturing infrared points projected onto said subject that, from a perspective of imaging by said camera and for a corresponding depth map generated by said depth image based motion sensor 22 (see at least par 0041-0043), represent said ongoing motion of each of said plurality of skeletal joints of said subject as video data of said ongoing motion (see at least abstract, figs. 1-10 and par 0002).
Therefore, since Gettelman suggests that the depth camera may include a Microsoft Kinect camera system (see at least par 0021 & 0032), it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the range of motion evaluation system of Gettelman comprising a depth image based motion sensor that tracks, in real-time, ongoing motion of a plurality of skeletal joints of a subject simultaneously in three dimensions and outputs a three dimensional (3D) real-time motion signal corresponding to one or more vector calculations automatically performed for said ongoing motion by said depth image based motion sensor directly in response to said tracking of said subject in said three dimensions; wherein said depth image based motion sensor comprises at least a projector and a camera in which said depth image based motion sensor tracks said ongoing motion of said plurality of skeletal joints of said subject and outputs said 3D real-time motion signal via said projector projecting a known infrared pattern toward said subject and said camera capturing infrared points projected onto said subject that, from a perspective of imaging by said camera and for a corresponding depth map generated by said depth image based motion sensor, represent said ongoing motion of each of said plurality of skeletal joints of said subject as video data of said ongoing motion as taught by Berliner since such a modification would amount to a simple substitution of one known element (i.e., the depth image based motion sensor as taught by Gettelman) for another (i.e., the depth image based motion sensor as taught by Berliner) to obtain predictable results such as providing a depth map imaging device that comprises a single, stationary device, comprising a single image sensor (see at least par 0041 of Berliner) with the added advantage of providing separation of the background from the moving image of the subject, wherein the data is transformed into a stereoscopic 3-dimensional (3-D) representation of the subject's movements using known image reconstruction techniques, which can transform the images of the subject in the video recording to become an outline of the subject with full retention of all movements of all of the subject's body including feet, legs, trunk, arms, hands and head while rendering the recording devoid of the information needed to identify the subject, thereby providing stereoscopic 3-D modelling of the subject's movement that can provide more precise and more accurate determination of the subject's movements while the subject's privacy is maintained during the mobility as is known in the art--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 2143 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
In regards to claim 8, Gettelman discloses the range of motion evaluation system as set forth in claim 1, wherein said subject is a homebound resident and said condition of said subject indicates a specific activity of said subject (see at least par 0016 & 0024).
In regards to claim 9, Gettelman discloses the range of motion evaluation system as set forth in claim 1, wherein said monitoring device (120, 130) is remotely located from said ongoing motion sensor 105 (see at least par 0024, 0027-0032, 0034, 0037 & 0041-0044).
In regards to claim 10, Gettelman discloses the range of motion evaluation system as set forth in claim 9, wherein said processor communicates with said ongoing motion sensor 105 over a communications network (see at least par 0053).
In regards to claim 13, Gettelman discloses the range of motion evaluation system as set forth in claim 1, that fails to explicitly teach a system wherein said ongoing motion sensor is a marker-less sensor. However, Berliner teaches that it is known to provide a motion evaluation system wherein said ongoing motion sensor is a marker-less sensor (see at least fig. 1 and par 0015). Therefore, since Gettelman suggests that the depth camera may include a Microsoft Kinect camera system (see at least par 0021 & 0032), it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the range of motion evaluation system of Gettelman wherein said ongoing motion sensor is a marker-less sensor as taught by Berliner since such a modification would amount to a simple substitution of one known element (i.e., the depth image based motion sensor as taught by Gettelman) for another (i.e., the depth image based motion sensor as taught by Berliner) to obtain predictable results such as a depth map imaging device that comprises a single, stationary device, comprising a single image sensor (see at least par 0041 of Berliner) with the added advantage of providing separation of the background from the moving image of the subject, wherein the data is transformed into a stereoscopic 3-dimensional (3-D) representation of the subject's movements using known image reconstruction techniques, which can transform the images of the subject in the video recording to become an outline of the subject with full retention of all movements of all of the subject's body including feet, legs, trunk, arms, hands and head while rendering the recording devoid of the information needed to identify the subject, thereby providing stereoscopic 3-D modelling of the subject's movement that can provide more precise and more accurate determination of the subject's movements while the subject's privacy is maintained during the mobility as is known in the art--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 2143 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
In regards to claim 16, Gettelman discloses the range of motion evaluation system as set forth in claim 1, wherein said subject is a physical therapy patient and said condition of said subject indicates a gait of the subject (see at least par 0022).
In regards to claim 17, Gettelman discloses the range of motion evaluation system as set forth in claim 1, wherein said subject is a physical therapy patient and said condition of said subject indicates a balance of the subject (see at least par 0022).
Claim(s) 2-5 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gettelman et al. (US 2013/0046149) (“Gettelman” hereinafter) in view of Berliner et al. (US 2010/0034457) (“Berliner” hereinafter) further in view of Kelly et al. (US 2001/0032059) (“Kelly” hereinafter).
In regards to claim 2, Gettelman discloses the range of motion evaluation system as set forth in claim 1, that fails to explicitly teach a system wherein said condition of said subject indicates that said subject is at risk for imminent injury. However, Kelly teaches that it is known to provide a system wherein said condition of said subject indicates that said subject is at risk for imminent injury (see at least par 0024, 0029, 0036 & 0040). Therefore, it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein said condition of said subject indicates that said subject is at risk for imminent injury as taught by Kelly since such a modification would amount to applying a known technique (i.e., as taught by Kelly) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as mitigating the risk of patient falls (see at least par 0040 of Kelly)--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
In regards to claim 3, while Gettelman disclose a system wherein said subject is a hospital patient (e.g., clinic) or a community dwelling person (e.g., home) (see at least par 0024), Gettelman as modified by Berliner discloses the range of motion evaluation system as set forth in claim 2, that fails to explicitly a system wherein said imminent injury is a fall. However, Kelly teaches that it is known to provide a system wherein said subject is a hospital patient or a community dwelling person (see par 0076) and said imminent injury is a fall (see at least par 0024, 0029, 0036 & 0040). Therefore, it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein said imminent injury is a fall as taught by Kelly since such a modification would amount to applying a known technique (i.e., as taught by Kelly) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as mitigating the risk of patient falls (see at least par 0040 of Kelly)--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
In regards to claim 4, while Gettelman discloses a system wherein said subject is a hospital (e.g., clinic) (see at least par 0024), Gettelman as modified by Berliner discloses the range of motion evaluation system as set forth in claim 2, wherein said imminent injury is bed or chair exit that could lead to a fall. However, Kelly teaches that it is known to provide a system wherein said subject is a hospital or nursing home (see at least par 0076) and said imminent injury is bed or chair exit that could lead to a fall (see at least par 0025). Therefore, it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein said imminent injury is bed or chair exit that could lead to a fall as taught by Kelly since such a modification would amount to applying a known technique (i.e., as taught by Kelly) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as mitigating the risk of patient falls (see at least par 0040 of Kelly)--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
In regards to claim 5, Gettelman as modified by Berliner discloses the range of motion evaluation system as set forth in claim 2, that fails to explicitly teach a system wherein said subject is a worker and said imminent injury is a workplace-related injury. However, Kelly teaches that it is known to provide a system wherein said subject is a worker and said imminent injury is a workplace-related injury (see at least par 0029). Therefore, it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein said subject is a worker and said imminent injury is a workplace-related injury as taught by Kelly since such a modification would amount to applying a known technique (i.e., as taught by Kelly) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as mitigating the risk of unsafe worker activity or lifting posture (see at least par 0029 of Kelly)--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
Claim(s) 6-7 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gettelman et al. (US 2013/0046149) (“Gettelman” hereinafter) in view of Berliner et al. (US 2010/0034457) (“Berliner” hereinafter) further in view of Brown et al. (US 2008/0189142) (“Brown” hereinafter).
In regards to claim 6, Gettelman as modified by Berliner discloses the range of motion evaluation system as set forth in claim 1, that fails to explicitly teach a system wherein said subject is a worker in a workplace and said condition of said subject indicates a measure of work performance of said subject. However, Brown teaches that it is known to provide a system wherein said subject is a worker in a workplace and said condition of said subject indicates a measure of work performance of said subject (see at least abstract, figs. 1 & 3-5 and par 0025, 0052, 0054-0055, 0057, 0079-0081 & 0085-0086). Therefore, it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein said subject is a worker in a workplace and said condition of said subject indicates a measure of work performance of said subject as taught by Brown since such a modification would amount to applying a known technique (i.e., as taught by Brown) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as promoting safe work practices (see at least par 0086 of Brown)--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
In regards to claim 7, Gettelman as modified by Berliner discloses the range of motion evaluation system as set forth in claim 6, that fails to explicitly teach a system wherein said measure of work performance is stored in a storage medium in a location associated with said subject. However, Brown teaches that it is known to provide a system wherein said measure of work performance is stored in a storage medium in a location associated with said subject (see at least figs. 1 & 3-5 and par 0079-0080). Therefore, it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein said measure of work performance is stored in a storage medium in a location associated with said subject as taught by Brown since such a modification would amount to applying a known technique (i.e., as taught by Brown) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as promoting safe work practices (see at least par 0086 of Brown)--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
Claim(s) 11-12 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gettelman et al. (US 2013/0046149) in view of Berliner (US 2010/0034457) further in view of Rawat et al. (US 2012/0182291) (“Rawat” hereinafter).
In regards to claim 11, Gettelman as modified by Berliner discloses the range of motion evaluation system as set forth in claim 10, that fails to explicitly teach wherein said communications network is the Internet. However, Rawat teaches that it is known to provide a system wherein said communications network is the Internet (see at least abstract, figs. 2 & 7 and par 0041 & 0044). Therefore, it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein said communications network is the Internet as taught by Rawat since such a modification would amount to applying a known technique (i.e., as taught by Rawat) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as allowing remote access to the patient data--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
In regards to claim 12, Gettelman as modified by Berliner discloses the range of motion evaluation system as set forth in claim 10, that fails to explicitly teach a system wherein said communications network is a local area network. However, Rawat teaches that it is known to provide a system wherein said communications network is a local area network (see at least abstract, figs. 2 & 7 and par 0041 & 0044). Therefore, it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein said communications network is a local area network as taught by Rawat since such a modification would amount to applying a known technique (i.e., as taught by Rawat) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as allowing remote access to the patient data--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
Claim(s) 14 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gettelman et al. (US 2013/0046149) in view of Berliner (US 2010/0034457) further in view of Marty et al. (US 2012/0289296) (“Marty” hereinafter).
Gettelman as modified by Berliner discloses the range of motion evaluation system as set forth in claim 13, that fails to explicitly teach a system wherein marker-less sensor is an infrared depth sensor.
However, Marty teaches that it is known to provide a motion evaluation system wherein marker-less sensor is an infrared depth sensor (see at least abstract, figs. 4A-B and par 0092).
Therefore, since Gettelman suggests that the depth camera may include a Microsoft Kinect camera system (see at least par 0021 & 0032), it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein marker-less sensor is an infrared depth sensor as taught by Marty since such a modification would amount to applying a known technique (i.e., as taught by Marty) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as using a Kinect to generate a depth map, which provides the the added advantage of providing separation of the background from the moving image of the subject, wherein the data is transformed into a stereoscopic 3-dimensional (3-D) representation of the subject's movements using known image reconstruction techniques, which can transform the images of the subject in the video recording to become an outline of the subject with full retention of all movements of all of the subject's body including feet, legs, trunk, arms, hands and head while rendering the recording devoid of the information needed to identify the subject, thereby providing stereoscopic 3-D modelling of the subject's movement that can provide more precise and more accurate determination of the subject's movements while the subject's privacy is maintained during the mobility as is known in the art--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
Claim(s) 15 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gettelman et al. (US 2013/0046149) (“Gettelman” hereinafter) in view of Berliner et al. (US 2010/0034457) (“Berliner” hereinafter) further in view of Stergiou et al. (US 2012/0130203) (“Stergiou” hereinafter).
Gettelman as modified by Berliner discloses the range of motion evaluation system as set forth in claim 1, that fails to explicitly teach a system wherein said subject is a physical therapy/neuro/ortho patient and said condition of said subject indicates an amount of pain experienced by said subject at a specific point of motion as indicated by a pain indication device operated by said subject.
However, Stergiou teaches that it is known to provide a system wherein said subject is a physical therapy/neuro/ortho patient and said condition of said subject indicates an amount of pain experienced by said subject at a specific point of motion as indicated by a pain indication device 800 operated by said subject (see at least fig. 8 and par 0063, 0065, 0067-0068, 0131-0132 & 0134-0135).
Therefore, it would have been obvious to one of ordinary skill in the art at the time Applicant’s invention was filed to provide the system of Gettelman as modified by Berliner wherein said subject is a physical therapy/neuro/ortho patient and said condition of said subject indicates an amount of pain experienced by said subject at a specific point of motion as indicated by a pain indication device operated by said subject as taught by Stergiou since such a modification would amount to applying a known technique (i.e., as taught by Stergiou) to a known device (i.e., as taught by Gettelman) ready for improvement to achieve a predictable result such as collecting feedback from the user on the physiological movement (see at least par 0063 of Stergiou)--See KSR, 550 U.S. at___, 82 USPQ2d at 1396 (See MPEP § 214 3 for a discussion of the rationale(s) listed above. See also MPEP § 2144 - §2144.09 for additional guidance regarding support for obviousness determinations).
Response to Arguments
Applicant’s arguments filed April 1, 2026 with respect to the 101 rejection have been fully considered and are persuasive. The 101 rejection of the claim(s) is hereby withdrawn.
Applicant's arguments filed April 1, 2026 with respect to the 103 rejections have been fully considered but they are not persuasive. Applicant contends that Gettelman does not describe a 3D signal and thus a 3D pattern to pattern comparison. The Office respectfully traverses because Applicant’s argument(s) fail(s) to consider the combination of references. Moreover, Applicant implies that the Office is bound by some type of estoppel by mischaracterizing the Board’s decision and quoting the MPEP out of context.
With respect to the combination of references, the Office notes that 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). The Applicant’s response fails to even address the combination of Gettelman and Berliner, which teaches the claimed depth image based motion sensor for capturing 3D motion signals as claimed. For example, where Gettleman describes comparison of motion signals as admitted by the Applicant, Berliner teaches that said motion signals may be 3D motion signals so as to suggest to a skilled artisan a modification of the motion signal of Gettelman into a 3D motion signal in the combination such in the combined teachings, the comparison involves the comparison of 3D motion signals. Instead, Applicant theorizes on some alleged disqualification of the primary reference of Gettelman based on the Board’s decision.
With respect to the Board’s decision, Applicant saliently makes no effort to address the teaching in the original specification of the instant application, which clearly states that the instantly claimed depth image based motion sensor for capturing 3D motion signals using a Microsoft Kinect (see at least par 0149, 0153 & 0156 of the publication of the instant application). Gettelman also teaches a depth image based motion sensor for capturing motion signals using a Microsoft Kinect. The only distinction stems from the fact that Applicant specifies that the motion signal is a 3D motion signal whereas Gettelman is silent as to that fact. Absent further evidence, the Office previously concluded that because both the claimed depth image based motion sensor and the depth image based motion sensor of Gettelman are Microsoft Kinects, both the claimed depth image based motion sensor and the depth image based motion sensor of Gettelman inherently capture a 3D motion signal. The Board disagreed based on a lack of additional evidence to arrive at said conclusion.
In fact, excerpts of the Board’s decision quoted by Applicant clearly point to said lack of support provided by the Office for the assertion that Gettelman inherently describes a 3D motion signal. The decision pertinently does NOT say that the Office cannot rely on Gettelman for teaching portions of the instant invention.
With respect to quoting the MPEP out of context, Applicant quotes MPEP 1214.04 addressing what Examiner should do when reversed in whole by the Board. However, the quoted section pertains to cases where the Examiner is reversed in whole and the case is returned to the Examiner for consideration. The instant prosecution history is not consistent with that section of the MPEP. For example, (i) the Examiner was not reversed in whole but instead Affirmed in whole as shown at pg. 13 of the Board’s decision, (ii) Applicant filed an RCE on November 12, 2025 to avoid abandonment of the application as a result, and (iii) The RCE in fact requires the Examiner to perform a new search and consideration contrary to the situation involved in section 1214.04 of the MPEP.
In view of the foregoing, the rejections over at least Gettelman and Berliner are maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RENE T TOWA whose telephone number is (313)446-6655. The examiner can normally be reached Mon-Fri, 9:00 AM-5:00 PM.
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/RENE T TOWA/Primary Examiner, Art Unit 3791
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