DETAILED ACTION
Notice of Pre-AIA or AIA Status
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
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01/30/2026 has been entered.
Applicant's amendments and remarks, filed on 01/30/2026, are acknowledged. Applicant's arguments have been fully considered. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. Rejections and/or objections not reiterated from the previous office actions are hereby withdrawn.
Status of Claims
Claims 1-9, 12-22, 25, 26 are presently under examination.
Claims 10, 11, 23, 24 are cancelled.
Priority
The instant application claims the benefit of priority to Provisional Patent Application Serial No. 63/060,775, filed August 4, 2020. Accordingly, this is the effective filing date of the instant application.
Withdrawn Rejections
The rejection under 35 U.S.C. 103(a) as being unpatentable over Nestec et al. (WO/2010033197) in view of Barreto et al. (Pet Animal Activity Assessment Using 3D Accelerometry, Thesis, University of Coimbra, 2017, pp.1-135) is withdrawn in view of applicant’s amendments.
Claim Rejections - 35 USC § 101
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.
This rejection is maintained.
Claims 1-9, 12-22, 25, 26 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
The United States Patent and Trademark Office published revised guidance on the application of 35 U.S.C. § 101. USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance (“Guidance”). Under the Guidance, in determining what concept the claim is “directed to,” we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes) (Guidance Step 2A, Prong 1); and
(2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)) (Guidance Step 2A, Prong 2).
Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim contains an “‘inventive concept’ sufficient to ‘transform’” the claimed judicial exception into a patent-eligible application of the judicial exception. Alice, 573 U.S. at 221 (quoting Mayo, 566 U.S. at 82). In so doing, we thus consider whether the claim:
(3) adds a specific limitation beyond the judicial exception that are not “well-understood, routine and conventional in the field” (see MPEP § 2106.05(d)); or 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50-57 (January 7, 2019).
(4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.(Guidance Step 2B). See Guidance, 84 Fed. Reg. at 54-56.
Step 1
The instantly claimed invention (claims 1, 14, being representative) requires performing a series of process steps. As such, the claim falls into one of the four statutory categories.
A. Guidance Step 2A, Prong 1
The Revised Guidance instructs us first to determine whether any judicial exception to patent eligibility is recited in the claim. The Revised Guidance identifies three judicially-excepted groupings identified by the courts as abstract ideas: (1) mathematical concepts, (2) certain methods of organizing human behavior such as fundamental economic practices, and (3) mental processes. In this case, the following limitations constitute the abstract idea for the following reasons:
determining, via one or more processors, an activity level of the animal during the first predefined time period based on the movement data of the animal during the first predetermined time period and a resting energy requirement (RER)…as adjusted by a product of a gait coefficient and a distance…;
determining, via one or more processors, a caloric requirement of the animal during a second predetermined time period, the caloric requirement of the animal being based on the activity level of the animal during the first predetermined time period and the animal characteristic data of the animal;
Mental Processes
In this case, the above steps are nominally recited and embrace activities that can be reasonably performed by the mind of a scientist, e.g. analyzing data and making a determination based on said analysis. In addition, the specification describes processes for analyzing sequence data that clearly use algorithms and/or mathematical functions for performing at least some of the above functions [0020-0023, 0052, 0078-80]. As such, the specification provides sufficient evidence that the claims are directed to an abstract idea since the specific descriptions provided for accomplishing these tasks include only data reception and analysis, which may be performed in the human mind via normal processes of observation and evaluation. For these reasons, the above steps fall within the mental process groupings of abstract ideas. See MPEP 2106.04(a)(2), subsection III. [Step 2A, Prong 1: YES].
Mathematical Concept
In addition, the above steps for “determining” activity level and RER require mathematical calculations as they are expressed as a function of different parameters, e.g. based on movement data, based on activity level. Notably, the grouping of “mathematical concepts” in the 2019 PEG is not limited to formulas or equations, as words used in a claim operating on data to solve a problem can serve the same purpose as a formula. Moreover, a review of the specification clearly teaches calculating the above features using mathematical equations [0020, 0078-80]. Therefore, when read in light of applicant’s own specification, the claimed steps clearly encompass mathematical calculations and/or mathematical relationships under the Revised Guidance. For these reasons, the claims are directed to a mathematical concept which is a judicial exception. See MPEP 2106.04 and 2106.05(II), and October 2019 Update at Section I.B. For these reasons, the claims are directed to one or more judicial exceptions. [Step 2A, Prong 1: YES].
B. Guidance Step 2A, Prong 2
Having made that determination, under the 2019 Guidance, the examiner next determines whether there are additional elements beyond the recited abstract idea(s) that integrate them into a practical application. Besides the abstract idea, the claim(s) recite the following additional steps/elements:
receiving, via one or more processors, animal characteristic data relating to an animal;
receiving, via a sensor, movement data of the animal for a first predetermined time period, wherein the movement data comprises…;
causing the caloric requirement of the animal during the second predetermined time period to be displayed via a display device.
With regards to the above receiving steps, these steps are generically recited and merely obtain data for use by the abstract idea (i.e. data collection). Therefore, these steps amount to insignificant extra-solution activity and are not indicative of an integration into a practical application. Similarly, the “causing” step results in displaying information which also amounts to extra-solution activity and is not indicative of an integration into a practical application. See MPEP 2106.05(g).
With regards to the one or more processors, sensors, and display device, these elements are recited at a high level of generality and thus can be viewed as nothing more than generic elements for obtaining data for use by the abstract idea and/or an attempt to generally link the use of the judicial exception to the technological environment of a computer. See MPEP 2106.05(g). Accordingly, the claim as a whole does not integrate the recited judicial exception into a practical application and the claims are directed to the judicial exception. [Step 2A, Prong 2: NO]
C. Guidance Step 2B:
This part of the eligibility analysis evaluates whether the claim as a whole amounts to significantly more than the recited exception i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim. See MPEP 2106.05.
As discussed above, the non-abstract steps/elements amount to nothing more than insignificant extra-solution activity. Moreover, applicant’s own specification teaches a plurality of sensors and devices for obtaining animal data were routine and conventional in the art [0033-0038]. In addition, to the extent that applicant is asserting the claimed sensors are “real-time” sensors, Halachmi et al. (Annu. Rev. Anim. Biosci. 2019. 7:403–25) teaches application of real-time methods and sensors to improve animal well-being and production. Therefore, even upon reconsideration, there is nothing unconventional with regards to the above non-abstract elements/steps. See MPEP 2106.05(d)(Part II). Thus, the independent claim(s) as a whole do not amount to significantly more than the exception itself. Therefore, the claim(s) is/are not patent eligible. [Step 2B: NO].
D. Dependent Claims
Dependent claims 2-9, 12, 13,15-22, 25, 26, have also been considered under the two-part analysis but do not include additional steps/elements appended to the judicial exception that are sufficient to amount to significantly more than the judicial exception(s) for the following reasons. Regarding claim(s) 7, 12, 20, 26, these claims further limit the specificity of the abstract idea. Accordingly, these claims are also directed to an abstract idea for reasons set forth above (Step 2A, prong 1). Regarding claim(s) 2-6, 8, 9, 13, 15-19, 21-22, 25, these claims further limit the specificity of the type of device of the nature of the data being used for analysis by the abstract idea. Accordingly, for the reasons set forth above (Step 2A analysis), the subject matter of these claims amounts to insignificant extra-solution activity that is not indicative of an integration into a practical application, or generic elements for obtaining data for use by the abstract idea and/or an attempt to generally link the use of the judicial exception to the technological environment of a computer. See MPEP 2106.05(g). For these reasons, the instantly rejected claims are not drawn to eligible subject matter as they are directed to an abstract idea without significantly more. For additional guidance, applicant is directed generally to the 2019 Revised Patent Subject Matter Eligibility Guidance published in the Federal Register (84 FR 50) on January 7, 2019.
Response to Arguments
Applicant’s arguments, filed 01/30/2026, have been fully considered but are not persuasive for the following reasons.
Applicant argues that the instant claims are not directed to a mathematical concept and instead provide an improvement to the technology (by using a ‘gait coefficient’ to determine caloric needs of an animal). In response, the examiner has clearly established reasons as to why the claims are directed to an abstract idea (Step 2A, prong 1) and why they do not integrate the judicial exception into a practical application (Step 2A, prong 2). With regards to Step 2A, prong 1, the examiner maintains that the claim indeed recites a mathematical concept as the steps for “determining” activity level and RER require mathematical calculations as they amount to mathematical calculations expressed in prose-equivalent (i.e. as a function of different parameters) for reasons set forth above (Step 2A, prong 1 analysis). Moreover, a review of the specification clearly teaches calculating the above features using mathematical equations [0020, 0078-80]. Therefore, when read in light of applicant’s own specification, the claimed steps clearly encompass mathematical calculations and/or mathematical relationships.
In response to applicant’s argument that the claims do not recite a mental process (because a human cannot observe an animal and mentally calculate a product of a specific gain coefficient), the “determining” steps are nominally recited and embrace activities that can be reasonably performed by the mind of a scientist for reasons set forth above (Step 2A, prong 1). In addition, the specification describes processes for analyzing sequence data that clearly use algorithms and/or mathematical functions for performing at least some of the above functions [0020-0023, 0052, 0078-80]. Accordingly, the examiner maintains that the above steps fall within the mental process groupings of abstract ideas.
With regards to Step 2A (prong 2), one of the relevant considerations for evaluating whether the “additional steps/elements” appended to the abstract idea (i.e. the non-abstract steps) integrate the judicial exception into a practical application is determining if these steps/elements result in an improvement in the functioning of a computer, or an improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a).
With regards to the asserted improvement, neither Applicant nor the specification provides any objective evidence of an improvement to the technology nor does the specification explain the details of an unconventional technical solution expressed in the claim. See MPEP 2106.04(d)(1) and MPEP 2106.05(a). There is also nothing in the specification to suggest that there is anything unconventional with regards to how the data is being “received” or about the sensors and processor being used (Step 2A, prong 1, and Step 2B analysis). To the extent that applicant is asserting that “determining” steps provide the abstract idea, applicant is reminded that an improvement in the abstract idea itself is not an improvement in technology. See Trading Techs. Int’l v IBG, 921 F.3d 1084, 1093-94 (Fed. Cir. 2019). The claimed invention’s use of the ineligible concept to which it is directed (i.e. the abstract idea) cannot supply the inventive concept that renders the invention ‘significantly more’ than that ineligible concept.” BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018). Moreover, the courts have instructed that “[t]he different use of a mathematical calculation, even one that yields different or better results, does not render patent eligible subject matter.” Board Of Trustees Of Leland Stanford Junior University, 991 F.3d 1245, 1251 (Fed. Cir. 2021). In summary, the claimed invention is directed to obtaining data (using conventional sensors), calculating various parameters (using one or more processors), and displaying a caloric requirement of an animal (using a display device) and does not integrate the abstract idea into a practical application (since nothing is being done with the data). For at least these reasons, the examiner maintains that the rejection is maintained.
Claim rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(a):
IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), first paragraph:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same and shall set forth the best mode contemplated by the inventor of carrying out his invention.
This is a written description rejection.
Claims 1-9, 12-22, 25, 26 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
The written description requirement is separate and distinct from the enablement requirement. To satisfy the written-description requirement, the specification must describe every element of the claimed invention in sufficient detail so that one of ordinary skill in the art would recognize that the inventor possessed the claimed invention at the time of filing. Vas-Cath, 935 F.3d at 1563; see also Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997) (patent specification must describe an invention and do so in sufficient detail that one skilled in the art can clearly conclude that “the inventor invented the claimed invention”). Whether the specification shows that applicant was in possession of the claimed invention is not a single, simple determination, but rather is a factual determination reached by considering a number of factors. Factors to be considered in determining whether there is sufficient evidence of possession include: A) Partial structure; B) Physical and/or chemical properties; C) Functional characteristics; D) Known or disclosed correlation between structure and function; E) Method of making; and F) Combinations of A-E. See also MPEP 2163 and the 2011 Supplementary Guidelines to analysis under 35 USC 112 (Computer-Implemented Functional Claim Limitations).
Based on a consideration of the above factors, the level of skill and knowledge in the art, and the specification, the instant claims fail to meet the written description requirement for the following reasons:
Claims 1 and 14 recite, inter alia, determining, via one or more processors, an activity level of the animal during the first predefined time period based on the movement data of the animal during the first predetermined time period and a resting energy requirement (RER)…as adjusted by a product of a gait coefficient and a distance travelled by the animal while moving at that gait…;
determining, via one or more processors, a caloric requirement of the animal during a second predetermined time period, the caloric requirement of the animal being based on the activity level of the animal during the first predetermined time period and the animal characteristic data of the animal;
causing the caloric requirement of the animal during the second predetermined time period to be displayed via a display device.
In this case, the claimed method is not limited to any particular type of animals. The specification teaches that veterinarians and animal caregivers “need to know the appropriate amount of food to feed a cat or dog. Overfeeding (which can result in obesity) and/or underfeeding (which can result in malnourishment) dogs and cats are known, likely due to pet owners providing an amount of food inappropriate to their pet's size, life stage, and activity level. Currently, caloric requirements for cats and dogs are calculated based on a daily caloric requirement that is typically based on published (i.e., static) equations.” [0002]. Therefore, at best, the specification is limited to cats and dogs. In addition, the artisan would recognize that calculating “caloric requirements” for animals is not trivial and varies depending upon the nature of the animal being studied. For example, Barreto et al. (Pet Animal Activity Assessment Using 3D Accelerometry, Thesis, University of Coimbra, 2017, pp.1-135) teaches methods and equations for calculating animal activity based on specific parameters associated with the type of animal and movement data [Section 2.4.1.1; Section 3.2.0.2]. In particular, there method focuses on cats because “an attempt to encompass all the other companion animals would not only require changing the algorithm parameters but also behavior, physical, and diet changes would have to be considered” [Section 1.3.2] and that caloric expenditures for different forms of activity in pets is largely undocumented [Section 2.2.3].
In addition, the specification fails to provide any evidence that applicant has sufficient knowledge of the necessary “gait coefficient” for the full scope of animals (and animal characteristic data) presently encompassed by the instant claims. One of ordinary skill in the art would recognize that such information is not trivial. In fact, Barreto et al. (Pet Animal Activity Assessment Using 3D Accelerometry, Thesis, University of Coimbra, 2017, pp.1-135) provides computational methods for assessing animal activity using 3D accelerometry and specification teaches that gait is highly dependent upon animal breed, size, and activity and is therefore subject to a great deal of variation [Section 2.1.2.1 and 2.1.2.2]. Moreover, Fahie et al. (Front. Vet. Sci., 15 October 2018, pp. 1-7) teaches a system for performing gait analysis in dogs. Unlike the instant claims, Fahie teaches particular equipment and analysis methods for determining gait and velocity parameters (i.e. gait coefficients) associated with various sizes and breeds of dogs [see entire]. Accordingly, the disclosure is insufficient as it does not provide any significant details with regards to gait coefficients full scope of animals and activities that are encompassed by the claimed.
For the reasons discussed above, the instant specification fails to disclose the requisite computational steps and quantitative information that is required in order to realize the full scope of animals encompassed by the claims. “When a patent claims a genus using functional language to define a desired result, the specification must demonstrate that the applicant has made a generic invention that achieves the claimed result and do so by showing that the applicant has invented species sufficient to support a claim to the functionally-defined genus" (Capon v. Eshhar, 418 F.3d 1349 (Fed. Cir. 2005))(emphasis added). For more information regarding the written description requirement, see MPEP §2161.01- §2163.07(b).
Response to Arguments
Applicant’s arguments, filed 01/30/2026, have been fully considered. Applicant arguments regarding the determining activity level are persuasive in view of applicant’s amendments. However, applicant’s amendments have not addressed the lack of written description regarding the scope of animals being claimed. Accordingly, the rejection is maintained for the reasons set forth above.
Claim rejections - 35 USC § 112, 2nd Paragraph
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-9, 12-22, 25, 26 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention. Claims that depend directly or indirectly from claim(s) 1 and 14 is/are also rejected due to said dependency.
Claims 1 and 14 recite “determining…an activity level of the animal during the first predefined time period based on the movement data of the animal during the first predetermined time period and a resting energy requirement (RER)…as adjusted by a product of a gait coefficient and a distance travelled by the animal while moving at that gait…”. The above limitation is problematic for the following reasons. (1) Data must be obtained before a calculation can be made. However, in this case there is no previous positive process step that provides, calculates, or determines a “resting energy requirement” or a “gait coefficient” as claimed. Accordingly, there is lack of antecedent basis for this limitation as the claimed “determining” step is is relying upon information that has not been previously introduced. As a result, the claim is also rejected under 35 USC 112(b) for missing essential matter (e.g. providing or calculating a gait coefficient associated with the animal, providing or calculating an RER) since it fails to interrelate the essential elements of the claimed invention. See also MPEP 2172.01. Clarification is requested via amendment.
(2) With regards to the “adjusting” phrase, it is noted with particularity that the “movement data” (obtained in the receiving step) comprises at least one of a speed, distance traveled, or steps taken. In other words, data relating to distance traveled (while moving at a particular gait) is not required to be received but is merely one of three alternatives/options. Therefore, in the case where “distance travelled” is not obtained/received and only speed and steps taken are received, it is unclear what positive process limitation is intended by the phrase “adjusted by a product of a gait coefficient and a distance travelled by the animal while moving at that gait” (since the information for adjusting RAR will be missing and since the claim does not account for traveling distances “while moving” at a particular gait). Clarification is requested via amendment.
Conclusion
No claims are allowed.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PABLO S WHALEY whose telephone number is (571)272-4425. The examiner can normally be reached between 1pm-9pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Anita Coope can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PABLO S WHALEY/Primary Examiner, Art Unit 3619