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 .
Acknowledgements
This communication is in response to Request for Reconsideration filed on 9/22/2025.
Claims 1, 8, 10, 11, 18 are amended.
Claim 20 is new.
Claims 1-20 are currently pending and have been examined.
Claims 1-20 have been rejected as follows.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 9/22/2025 has been entered.
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.
1. Claims 1-20 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.
2. Claims 1, 10, 11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim recites a method, system and computer readable medium for identifying and presenting a health-related feature.
3. The limitations of determining, based on an input dataset, a current state of a user and a desirability score, wherein the desirability score indicates a level of appropriateness to select and present a customized health-related feature to the user at a current time; when the desirability score is above a prescribed threshold: generating a first group of a plurality of […] health-related features based on the current state, wherein the plurality of […] health-related features within the first group shares at least a common characteristic among the plurality of […] health-related features; extracting an experience level value of the user for each of the plurality of […] health-related features within the first group; identifying a customized […] health-related feature; and presenting the customized […] health-related feature […]; and when the desirability score is not above the threshold, repeat the method starting with the determining, as drafted, is a process that, under the broadest reasonable interpretation, covers certain methods of organizing human activity (i.e., managing personal behavior including following rules or instructions) but for recitation of generic computer components. That is, other than reciting (claim 10) a non-transitory computer readable medium having stored thereon instructions for causing a processing circuitry to execute a process; or (Claim 11) a processing circuitry; and a memory, the memory containing instructions that, when executed by the processing circuitry, configure the system to perform the claimed invention, the claimed invention amounts to managing personal behavior or interaction between people. For example, but for the computer, the claim encompasses a person looking at a user, determining health-related features, extracting an experience level, identifying a feature and presenting the feature and repeating the process when a desirability score is not above a threshold in the manner described in the identified abstract idea, supra. The Examiner notes that certain “method[s] of organizing human activity” includes a person’s interaction with a computer (see MPEP 2106.04(a)(2)(II)). If a claim limitation, under its broadest reasonable interpretation, covers managing personal behavior or interactions between people but for the recitation of generic computer components, then it falls within the “certain methods of organizing human activity” grouping of abstract ideas. Accordingly, the claim recites an abstract idea.
Step 2A2
5. This judicial exception is not integrated into a practical application. In particular, the claim recites the additional element of (claim 10) a non-transitory computer readable medium having stored thereon instructions for causing a processing circuitry to execute a process; (Claim 11) a processing circuitry; and a memory, the memory containing instructions that, when executed by the processing circuitry, configure the system to; that implements the identified abstract idea. The processing circuitry and memory is not described by the applicant and is recited at a high-level of generality (i.e., a generic computer performing a generic computer functions of computing, determining, and selecting) such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
6. This judicial exception is not integrated into a practical application. In particular, the claim recites the additional element of digital data and a digital assistant that implements the identified abstract idea. The digital data and digital assistant are not described by the applicant and are recited at a high-level of generality (i.e., a generic digital data and generic digital assistant performing a generic computer functions of computing, determining, and selecting) such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
Step 2B
9. The claim does 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 a processing circuitry and memory to perform the noted steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept (“significantly more”).
10. The claim does 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 a digital data and digital assistant to perform the noted steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept (“significantly more”).
Dependent claims
14. Claims 2-9, and 12-20 are similarly rejected because they either further define/narrow the abstract idea and/or do not further limit the claim to a practical application or provide as inventive concept such that the claims are subject matter eligible even when considered individually or as an ordered combination. Claims 2, 3, 8, 12, 13, 18 merely describes the health feature. Claims 4, 14 merely describes the experience level. Claims 5, 15 merely describes collecting feedback. Claims 6, 16 merely describes an action based on experience level and feedback. Claims 7, 17 merely describes the action. Claims 9, 19 merely describes the input dataset. Claim 20 merely describes the digital assistant.
Claim Rejections - 35 USC § 103
1. In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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.
Claims 1-7, 8-17, 19 are rejected under 35 U.S.C. 103 as being unpatentable over Moturu (US 20170004260) in view of Van de Bruggen (US 20140325398) further in view of Joshi (US 20220115138) in view of Uske (US 20190115104)
Claim 1, 10, 11:
Moturu teaches A method for identifying a customized digital health-related feature by a digital assistant, comprising: (Moturu para 154 teaches method, system and computer readable medium for implementing the details of the disclosure)
determining, based on an input dataset, a current state of a user and a desirability score; (Moturu para 24 teaches a dataset including user behavior (i.e., state of user) and a survey response (i.e., desirability score). Para 106 further teaches the survey responses being scored. Para 25 further teaches the state of a user being detected such as being symptomatic. Para 52 further teaches surveys assess a patients feelings about an intervention that can be used in modifying the care plan (i.e., surveys serve as a desirability score))
when the desirability score is above a prescribed threshold: generating a first group of a plurality of digital health-related features based on the current state, wherein the plurality of digital health-related features within the first group shares at least a common characteristic among the plurality of digital health-related features; (Moturu Para 52 teaches using surveys to dynamically modify the care plan. Moturu para 79 teaches these interventions may be selected based on an identified health state and selected intervention being selected from a set of interventions (i.e., group of health-related features). Moturu para 106 teaches comparing survey scores to thresholds. Moturu para 24 teaches selecting a therapeutic intervention (i.e., customized digital health-related feature) from a set of therapeutic interventions. See also Moturu Fig 1B for an image showing element S150 for generating a care plan is composed of generating a comparison between threshold conditions, promoting an intervention, and then dynamically modifying the care plan and repeating the S150 element of generating a care plan. Para 31 teaches the set of personalized interventions may include health tips, exercises, care provider matching, controlling of patient devices which is understood as a group of possible interventions. )
identifying a customized digital health-related feature; and (Moturu para 24 teaches selecting a therapeutic intervention (i.e., customized digital health-related feature) from a set of therapeutic interventions)
presenting the customized digital health-related feature by the digital assistant; (Moturu para 24 teaches selecting a therapeutic intervention and generating a dynamic care plan and promoting the dynamic care plan including the intervention. Para 79 teaches selecting the intervention and/or generating the care plan can be based on interacting with a chat bot or virtual assistant. Para 80 further teaches selecting may be performed by an entity such as the computing system. Examiner interprets this as a digital assistant because it is a computer assisting in selection therefore a digital assistant. Para 94 further teaches a intervention model that can generate outputs of a preferred intervention or health state which is also interpreted as a digital assistant because it is a computer assisting in selection therefore a digital assistant. )
when the desirability score […] (Moturu para 53 teaches evaluating patient feelings with a survey (i.e., desirability score) and then generating or modifying a care plan. Para 84 teaches the care plan is dynamically generated over time and patient interactions can be leveraged in selecting other therapeutic interventions such as by use of a threshold condition. Para 52 further teaches using surveys to dynamically modify the care plan. See also Moturu Fig 1B for an image showing element S150 for generating a care plan is composed of generating a comparison between threshold conditions, promoting an intervention, and then dynamically modifying the care plan and repeating the S150 element of generating a care plan. )
Moturu does not teach extracting an experience level value of the user for each of the plurality of digital health-related features within the first group;
Van de Bruggen does teach extracting an experience level value of the user for each of the plurality of digital health-related features within the first group; (Van de Bruggen para 37 teaches experiences scores of a user corresponding to features being calculated)
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the system as taught by Moturu with the experience level value as taught by van de Bruggen. It would be beneficial to take into account each individual’s experience level scores for a feature in order to best choose the most relevant and important features for that particular user as taught by van de Bruggen, "[0023] the most relevant or important features for that particular user to learn about at that particular point in time may be determined.”
Moturu in view of Van de Bruggen do not teach when the desirability score is not above the threshold, repeat the method starting with the determining.
Joshi does teach when the desirability score is not above the threshold, repeat the method starting with the determining. (Joshi para 87 teaches a signal not being above a threshold and therefore causing the method to repeat)
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method as taught by Moturu with the checking if the score is not above a threshold and repeating the method as taught by Joshi. It would be beneficial for a method to repeated if a score is not above a threshold in order to accurately produce signals and responses as taught by Joshi para 7.
Moturu in view of Van de Bruggen in view of Joshi do not teach wherein the desirability score indicates a level of appropriateness to select and present a customized health-related feature to the user at a current time;
Uske does teach wherein the desirability score indicates a level of appropriateness to select and present a customized health-related feature to the user at a current time; (Uske para 99 teaches a desirability score is used to select and present a health related question to a user at a time)
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the desirability score as taught by Moturu with the score indicating a level of an appropriateness to select and present a customized health-related feature to the user at a current time checking as taught by Uske. It would be beneficial for a desirability score to indicate the level of appropriateness to select and present a feature because it would be mindful of a patient’s preferences and desires as taught by Uske para 27.
Claim 2, 12:
Moturu teaches wherein the customized digital health-related feature is selected based on the current state and […] for each of the plurality of digital health-related features. (Moturu para 25 teaches detecting a state of a user and improving the state with an intervention. See also para 92 for selecting an intervention based on patient state. )
Moturu does not teach wherein the customized digital health-related feature is selected based on the current state and the experience level value for each of the plurality of digital health-related features.
Van de Bruggen does teach wherein the customized digital health-related feature is selected based on the current state and the experience level value for each of the plurality of digital health-related features. (Van de Bruggen para 37 teaches experiences scores corresponding to features being calculated)
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the system as taught by Moturu with the experience level value as taught by van de Bruggen. It would be beneficial to take into account each individual’s experience level scores for a feature in order to best choose the most relevant and important features for that particular user as taught by van de Bruggen, "[0023] the most relevant or important features for that particular user to learn about at that particular point in time may be determined.”
Claim 3, 13:
Moturu teaches extracting a priority list of the plurality of digital health-related features within the first group, wherein the priority list ranks the plurality digital health-related features including priority scores for each of the plurality of digital health-related features; and (Moturu para 95 teaches interventions can be selected, ranked, and scored. Para 103 further teaches the model facilitates prioritization for different users. Para 126 further teaches a priority ranking and para 24 teaches selecting an intervention from a set of therapeutic interventions based on processing of the dataset.)
determining a fit score based on the […] and the priority list for each of the plurality of digital health-related features. (Moturu Para 95 teaches interventions may be ranked and scored (i.e., fit score). Para 126 teaches a priority ranking of interventions based on parameters. )
Moturu does not teach extracting a priority list of the plurality of digital health-related features within the first group, wherein the priority list ranks the plurality of digital health-related features including priority scores for each of the plurality of digital health-related features; and determining a fit score based on the experience level value and the priority list for each of the plurality of digital health-related features. (Van de Bruggen para 37 teaches experiences scores corresponding to features being calculated)
Van de Bruggen does teach extracting a priority list of the plurality of digital health-related features within the first group, wherein the priority list ranks the plurality of digital health-related features including priority scores for each of the plurality of digital health-related features; and determining a fit score based on the experience level values and the priority list for each of the plurality of digital health-related features.
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the system as taught by Moturu with the experience level value as taught by van de Bruggen. It would be beneficial to take into account each individual’s experience level scores for a feature in order to best choose the most relevant and important features for that particular user as taught by van de Bruggen, "[0023] the most relevant or important features for that particular user to learn about at that particular point in time may be determined.”
Claim 4, 14:
Moturu teaches wherein the […] generated by continuous monitoring of the input dataset over a predetermined time period. (Moturu para 24 teaches the dataset corresponds to a time period. Para 32 teaches the technology continuously collects and utilizes datasets. See also para 57, 58, 60 for examples of data collected in the dataset. )
Moturu does not teach wherein the experience level value is a number generated by continuous monitoring of the input dataset over a predetermined time period.
Van de Bruggen does teach wherein the experience level value is a number generated by continuous monitoring of the input dataset over a predetermined time period. (Van de Bruggen para 37 teaches the calculation module calculates an experience score and para 34 teaches experience score may be a number)
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the system as taught by Moturu with the experience level value as a number as taught by van de Bruggen. It would be beneficial to take into account each individual’s experience level scores for a feature in order to best choose the most relevant and important features for that particular user as taught by van de Bruggen, "[0023] the most relevant or important features for that particular user to learn about at that particular point in time may be determined.”
Claim 5, 15:
Moturu teaches collecting at least one user feedback with respect to the identified customized digital health-related feature; and analyzing the at least one user feedback. (Moturu para 84 teaches collecting patient feedback and analyzing it for updating an intervention)
Claim 6, 16:
Moturu teaches performing at least one action based on […] and the collected at least one user feedback. (Moturu para 84 teaches collecting patient feedback and updating the intervention.)
Moturu does not teach performing at least one action based on experience level value and the collected at least one user feedback.
Van de Bruggen does teach performing at least one action based on experience level value and the collected at least one user feedback. (Van de Bruggen para 37 teaches experiences scores corresponding to features being calculated)
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the system as taught by Moturu with the experience level value as taught by van de Bruggen. It would be beneficial to take into account each individual’s experience level scores for a feature in order to best choose the most relevant and important action for that particular user as taught by van de Bruggen, "[0023] the most relevant or important features for that particular user to learn about at that particular point in time may be determined.”
Claim 7, 17:
Moturu teaches wherein the at least one action comprises at least one of: generating a reminder for using at least one of the plurality of digital health-related features, […]. (Moturu para 130 teaches an action of reminder being provided. Para 139 teaches modifying of the care plan may include a notification (i.e., reminder). Para 108 further teaches identifying if an indication (i.e., reminder) based on the model should be generating. Examiner notes additional limitations interpreted as optional due to claim language of “…at least one of…”)
Claim 9, 19:
Moturu teaches wherein the input dataset includes at least one of: a real- time data and a historical data. (Moturu para 99 teaches historical data may be used. Para 113 teaches data may include near real-time or substantially in real time data.)
Claim 20:
Moturu teaches wherein the digital assistant is implemented on a robot. (Moturu para 24 teaches selecting a therapeutic intervention and generating a dynamic care plan and promoting the dynamic care plan including the intervention. Para 79 teaches selecting the intervention and/or generating the care plan can be based on interacting with a chat bot or virtual assistant. Para 80 further teaches selecting may be performed by an entity such as the computing system. Examiner interprets this as a digital assistant because it is a computer assisting in selection therefore a digital assistant. Para 94 further teaches a intervention model that can generate outputs of a preferred intervention or health state which is also interpreted as a digital assistant because it is a computer assisting in selection therefore a digital assistant. Para 39, 48, 79 teach a computing device, analogous to robot, to implement the assistant )
Claims 8, 18 are rejected under 35 U.S.C. 103 as being unpatentable over Moturu (US 20170004260) in view of Van de Bruggen (US 20140325398) further in view of Joshi (US 20220115138) in view of Uske (US 20190115104) in view of Santanachote “10 best apps to train your brain”, September 9, 2014 further in view of Orlov “The 11 Best Yoga Apps to Get Fit on the Cheap”, March 4, 2015:
Claim 8, 18:
Moturu teaches wherein the customized digital health-related feature is one of a group consisting of an on-line service, a downloadable application […], a downloadable application […]. (Moturu para 29 teaches receiving and delivering therapeutic interventions through an application executing on a mobile computing device. Examiner notes applications on mobile computing devices are downloaded on the device and therefore downloadable in order to run on the device. Para 129 further teaches interventions may be delivered through a web application accessible through an internet browser (i.e., Examiner notes this is an online service and also a downloadable application). Para 129 further teaches interventions include “prompting a skill-based exercise” or “presenting a health tip)
Moturu in view of Van de Bruggen does not teach wherein the customized digital health-related feature is one of group consisting of an on-line service, a downloadable application directed to improving human memory, a downloadable application directed to practice of yoga.
Santanachote does not teach wherein the customized digital health-related feature is one of group consisting of an on-line service, a downloadable application directed to improving human memory, a downloadable application […]
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the downloadable application skill based exercise intervention as taught by Moturu in view of Van de Bruggen in view of Joshi in view of Uske with the application directed to improving human memory as taught by Santanachote because it would be beneficial to improve certain task performance or have control over emotional state as taught by Santanachote para 11, “For the most part, brain apps can’t make you smarter or happier, but they can help you perform certain tasks better or have more control over your emotional state.”.
Moturu in view of Van de Bruggen further in view of Santanachote does not teach wherein the customized digital health-related feature is one of group consisting of an on-line service, a downloadable application directed to improving human memory, a downloadable application directed to practice of yoga.
Orlov does teach wherein the customized digital health-related feature is one of group consisting of an on-line service, a downloadable application directed to improving human memory, a downloadable application directed to practice of yoga. (Orlov section “The Best Fitness Apps for Every Type of Yogi” teaches various yoga apps with various levels and focus such as meditation, flexibility, relaxation, strength, headache relieve, slender waist, etc.)
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the skill based exercise intervention as taught by Moturu in view of Van de Bruggen in view of Joshi in view of Uske in view of Santanachote with the application directed to practicing yoga as taught by Orlov because it would be beneficial to reap the benefits of yoga as taught by Orlov para 1. Examiner notes Orlov references specific goals, understood as benefits of yoga, to be including meditation, flexibility, relaxation, strength, headache relieve, slender waist, etc.
The Examiner also notes that a claim may be rendered obvious where the limiting function is that of making a set of prior-known elements contiguous, i.e., bringing them together. In this case, the limiting function is that of bringing together prior-known elements (an on-line service, a downloadable application directed to improving human memory, a downloadable application directed to practice of yoga) together into a group. As such, this claim would additionally have been prima facie obvious to one of ordinary skill in the art at the time of the invention. MPEP 2144.04.
Response to Arguments Regarding U.S.C. 101 Rejection
Applicant argue page 1-3:
Applicants explained in their prior response that in view of the 2019 Revised Patent Subject Matter Eligibility Guidance, its updates, and Applicants' arguments presented hereinbelow, it becomes self-evident that the instant claims are patent eligible. In particular, in view of the following, it is clear that even if, arguendo, there is indeed a judicial exception contained within the claims, which Applicants are not admitting, that such exception is recited in each claim integrated therein as a practical application thereof so that that the claims call for applying, relying on, or using such judicial exception in a manner that imposes a meaningful limit on the judicial exception and thereby rendering the claim more than a drafting effort designed to monopolize the judicial exception. In this regard, note that the claims do not preempt or substantially preempt any abstract idea. Furthermore, the claims do not preempt anything in, nor do they even fall within, the now defined three main categories of abstract ideas, namely, 1) mathematical concepts, e.g., mathematical relationships, mathematical formulas or equations, mathematical calculations, 2) certain methods of organizing human activity, e.g., fundamental economic principles or practices, commercial or legal interactions, managing personal behavior or relationships or interactions between people, or 3) mental processes, e.g., observation, evaluation, judgment, or opinion performed in the human mind.
With regard to preemption, which Applicants did not submit as an independent test, the Response to Arguments states: The Examiner respectfully disagrees with Applicant's assertion. MPEP 2106.04(1) states that "questions of preemption are inherent in and resolved by the two-part framework from Alice Corp. and Mayo (the Alice/Mayo test referred to by the Office as Steps 2A and 2B)." Thus, pre-emption concerns are fully addressed and made moot upon application of the two-part Alice Corp. subject matter eligibility analysis, as provided in the basis of rejection. Further, by definition, the claimed invention would preempt the identified abstract idea.
While this may be true, it appears to be based on a judgment by the USPTO that the 2019 Revised Patent Subject Matter Eligibility Guidance (PEG), when properly applied, will come to the correct result regarding preemption. In other words, the USPTO believes that the PEG and the preemption test will come to the same result. Thus, preemption remains a useful tool to "check your work" on proper application of the PEG. If the results of the PEG and the preemption analysis are not in accord, there is something wrong with one of the analyses. In the instant case they do not agree and it is clear that the error is in the application by the Office Action of the PEG. In this regard, the fact that the Office Action does not argue that there is preemption here indicates that there is indeed no preemption. Nevertheless, the Office Action finds ineligibility, which shows that there is an error. Since the Office finds no preemption and Applicants agree, the error must be in the application of the PEG by the Office Action, which is the conclusion that Applicants have reached.
In other words, it is insufficient for the Office Action to say the PEG was properly applied yet find no substantial preemption, as failure to find substantial preemption, or even any preemption as in this case, belies the idea that the PEG was properly applied. In this regard, it must be remembered that the Supreme Court in Alice indicated that a claim, to be ineligible, has to be directed to an abstract idea because of the fear that such a claim will preempt the entirety of that abstract idea, which should be free to all men. It is self-evident that Applicants' claims do not preempt any abstract idea but rather constitute a properly limited claim.
Examiner responds:
The Examiner respectfully disagrees with Applicant’s assertion. MPEP 2106.04(I) states that “questions of preemption are inherent in and resolved by the two-part framework from Alice Corp. and Mayo (the Alice/Mayo test referred to by the Office as Steps 2A and 2B).” Thus, pre-emption concerns are fully addressed and made moot upon application of the two-part Alice Corp. subject matter eligibility analysis, as provided in the basis of rejection. Further, by definition, the claimed invention would preempt the identified abstract idea.
Applicant argue page 3-4:
With regard to the Applicants statement the claims do not even fall within, the now defined three main categories of abstract ideas, the Response to Arguments states: The Examiner submits that the identified claim elements represent a series of rules or instructions that a person or persons, with or without the aid of a computer, would follow to identify and present a health-related feature.
Furthermore, the Examiner submits that healthcare itself is inherently represents the organization of human activity. Applicant has not pointed to anything in the claims that fall outside of this characterization. Because the claim elements fall under a series of rules or instructions that a person or persons would follow to identify and present a health-related feature, the claimed invention is directed to an abstract idea. All of this is quite erroneous. This is because all method claims are a set of rules or instructions that are followed. Being a set of steps is not a proper basis for determining ineligibility because, if it were a proper basis, all method claims would be ineligible. Also, the sweeping statement that healthcare itself is inherently represents the organization of human activity and therefore anything related to healthcare is ineligible is also clearly incorrect and totally unsupported by the law, the MPEP, and patents issued by the USPTO. In this regard, a few recently issued patents related to healthcare include: 1. U.S. Patent No. 12,307,657 which has a method claim for training a predictive machine learning system for of lung disease, 2. U.S. Patent No. 12,290,500 concerns the treatment of disorders of propionate metabolism and long chain fatty acid oxidation by administration of anaplerotic agents, and 3. U.S. Patent No. 12,303,558 which teaches a method for inhibiting the development of, or treating, a tumor in a subject, comprising. administering to a subject a therapeutically effective amount of a dominant negative tumor necrosis factor (DN-TNF)-a protein.
It can thus be seen that the Response to Arguments premise is fundamentally flawed and just because an application may relate to healthcare does not make it ineligible. Furthermore, the claim relates to operation of a digital assistant, which is a device, not a person, and what such device does. Devices that interact with people are not precluded from being eligible.
Examiner responds:
The Examiner respectfully disagrees. MPEP 2106. 04(a)(2)(II) states that a claimed invention is directed to certain methods of organizing human activity if the identified claim elements contain limitations that encompass fundamental economic principles or practices, commercial or legal interactions, or managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). The Examiner submits that the identified claim elements represent a series of rules or instructions that a person or persons, with or without the aid of a computer, would follow to identify and present a health-related feature. Furthermore, the Examiner submits that healthcare itself is inherently represents the organization of human activity. Applicant has not pointed to anything in the claims that fall outside of this characterization. Because the claim elements fall under a series of rules or instructions that a person or persons would follow to identify and present a health-related feature, the claimed invention is directed to an abstract idea. This judicial exception is not integrated into a practical application. In particular, the claim recites the additional element of a digital assistant that implements the identified abstract idea. The digital assistant is not described by the applicant and are recited at a high-level of generality (i.e., a generic digital assistant performing a generic computer functions of computing, determining, and selecting) such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea. The claim does 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 a digital assistant to perform the noted steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept (“significantly more”). Unlike the examples Applicant notes, the current claims recite and abstract idea of organizing human activity and do not recite any additional elements that integrate the abstract idea into a practical application.
Applicant argues page 4-7:
Applicants further explained in their prior response that the claims as amended provide for an improvement in the functioning of computers or other technology and apply any judicial exception to effectuate improved operation of a computer system. Amended claim 1 recites (emphasis added):. […] The claim conserves processor power by not performing the other steps of the method when the desirability score is not above the prescribed threshold. As explained in the specification, paragraph 18:
The embodiments disclosed herein provide specific improvement in adaptive adjustment to user and user environment. By collecting and analyzing real-time data and historical data of a user and their environment, the current state of the user is accurately and effectively determined. In this case, a current desirability score can be determined to efficiently assess whether to advance into analyses, and thus preserve and reduce processing power at the digital assistant. Note that the purpose of desirability score is to indicate whether or not it is desirable to present the customized digital health-related feature by the digital assistant. In this regard, as explained in the specification, e.g., in paragraphs 25, 36, and 37, there are times when such should not be presented to the user, e.g., it is undesirable to do so, such as, perhaps, when the user is sleeping. In such situations, going through the rest of the method is wasteful of processing power and given that digital assistants, which are to perform the method typically have limited processing power, it is important to not waste that which is available. The net effect is that, advantageously, the not wasted processing power becomes available for performing other tasks, thus improving the digital assistant perceived performance. In view of the foregoing, even if, arguendo, which Applicants do not admit, there was an abstract idea in the claims that falls with the mental process or organizing human activity grouping of abstract idea, given that the claims produce an improvement in computer technology, any such abstract idea would be integrated into a practical application and thus not be a barrier to eligibility. The Response to Arguments states:
The claim does not recite conservation of processor power. The claim only recites not performing steps of the method when the desirability score is not above the prescribed threshold. MPEP 2106.04(d)(1) states that a practical application may be present where the claimed invention improves the functioning of a computer. See also MPEP 2106.05(a)(1). The technological environment of Applicant's claim is a general-purpose computer. Applicant has not identified nor can the Examiner locate any physical improvement to the functioning of the computer that results from the implementation of Applicant's claim. There is no indication that the computer is made to run faster, more efficiently, or utilize less power. As is well known, the claim need not recite the conservation of processor power. Such conservation merely needs to be the result of the claim, which is the case here. There is no need for the claim to relate to a physical improvement of the computer. There only needs to be an improvement in computer technology, which may be implemented through software. In this regard, the case of Enfish, LLC v. Microsoft Corp (Fed. Cir. 2016) explained that (emphasis added): the claims are directed to a specific implementation of a solution to a problem in the software arts. Accordingly, we find the claims at issue are not directed to an abstract idea. We are not persuaded that the invention’s ability to run on a general purpose computer dooms the claims. Much of the advancement made in computer technology consists of improvements to software that, by their very nature, may not be defined by particular physical features but rather by logical structures and processes. We do not see in Bilskior Alice, or our cases, an exclusion to patenting this large field of technological progress.
The May 4, 2016 Memorandum regarding Formulating a Subject Matter Eligibility Rejection reminds Examiners that they (emphasis added):
should keep in mind that courts have held computer-implemented processes to be significantly more than an abstract idea (and thus eligible), where generic components are able in combination to perform functions that are not merely generic (DDR).
In this regard, in the Memorandum "RecentSubjeci Matter Eligibility Decisions (Enfish, LLC v. Microsoft Corp. andTLI Communications LLC v.A.V Automotive, LLC)" from Deputy Commissioner Robert Bahr, dated May 19, 201 6, it is explained that (emphasis added):
It was noted that the improvement does not need to be defined by reference to "physical" components. Instead, the improvement here is defined by logical structures and processes, rather than particular physical features. The Federal Circuit stated that the Enfish claims were not ones in which general-purpose computer components are added after the fact to a fundamental economic practice or mathematical equation, but were directed to a specific implementation of a solution to a problem in the software arts, and concluded that the Enfish claims were thus not directed to an abstract idea
Thus, the position of the Response to Arguments is untenable.
The Response to Arguments also states:
In fact, the computer may be caused to operate slower and less efficiently through the implementation of Applicant's claimed invention; we do not know. (Examiner also specifically points to the implementation of the desirability score and the state of the user being assessed. This may be a high time and power consuming calculation. Further, the repetition of the method may lead to Applicant performing frequent high cost and power calculations therefore consuming more power and time.) Because there is no improvement to the function of the computer, a practical application is
not present.
The Response to Arguments has missed the point and is not following what is actually presented in the claim. Moreover, the Office Action has failed to appreciate paragraph 18 of the instant specification which explains that a current desirability score can be determined to efficiently assess whether to advance into analyses, and thus preserve and reduce processing power at the digital assistant. Thus, the specification specifically teaches how there is an improvement in computer technology by reducing overall required processing power.
Again, being directed to an improvement in computer technology, as here, is sufficient to integrate any abstract idea that may be present in the claim and render it eligible. Thus, the instant claims are eligible.
Examiner responds:
The claims recite “when the desirability score is not above the threshold, repeat the method starting with the determining …”. This is an infinite loop when the desirability score is not above a threshold. Infinite loops are would cause constant processing by checking the current state of the user and would not conserve processor power. The current claimed invention may unfortunately waste more processing power through the constant checking of the user state and desirability score. Further, the current claims merely implement conditional logic of “if .. then … else …” which is directed to the abstract idea of organizing human activity including following rules and instructions where the rules and instructions are instructions according to the conditional logic of “if … then … else …”. The additional element of a digital assistant is merely applied and insufficient to integrate the abstract idea into a practical application. The general purpose computer is also merely applied to implement the abstract idea of conditional logic instructions onto a general purpose computer which is also insufficient for integrating the abstract idea into a practical application. MPEP 2106.04(d)(1) states that a practical application may be present where the claimed invention improves the functioning of a computer. See also MPEP 2106.05(a)(I). The technological environment of Applicant’s claim is a general-purpose computer. Applicant has not identified nor can the Examiner locate any physical improvement to the functioning of the computer that results from the implementation of Applicant’s claim. There is no indication that the computer is made to run faster, more efficiently, or utilize less power. In fact, the computer may be caused to operate slower and less efficiently through the implementation of Applicant’s claimed invention; we do not know. (Examiner also specifically points to the implementation of the desirability score and the state of the user being assessed. This may be a high time and power consuming calculation that is done repeatedly for as long as the desirability score is under a threshold. Examiner notes the implementation of determining a user state and desirability score may also be a costly calculation. Further, the repetition of the method may lead to Applicant performing frequent high cost and power calculations therefore consuming more power and time.) Because there is no improvement to the function of the computer, a practical application is not present.
Applicant argues page 7-8:
The claim also does not recite a mental process because the steps are not practically performed in the mind because a person could not, in practice, take the information that is required and determine the desirability score, which must in practice be done in at least near real-time because the situation with the user could change at any moment and thus rendering a prior determination of the desirability score void. In this regard, the October 2019 PEG update explains that: Claims do not recite a mental process when they do not contain limitations that can practically be performed in the human mind, for instance
when the human mind is not equipped to perform the claim limitations. Attention is also directed to the October 2019 PEG update which explains that: First, not all methods of organizing human activity are abstract ideas ... Second, this grouping is limited to activity that falls within the enumerated sub-groupings of fundamental economic principles or practices, commercial or legal interactions, managing personal behavior, and relationships or interactions between people, and is not to be expanded beyond these enumerated sub-groupings except in rare circumstances None of the above is called for in, or the subject matter of, the instant claims. At best, the claim relates to an autonomous device interacting with a person. However, such is not the managing of personal behavior. Rather, the claim relates to the managing of the operation of the autonomous device and making sure that the autonomous device is respectful of the user thereof. The person being presented with the customized digital health-related feature by the digital assistant actually has no role and does absolutely nothing in the method. In other words, there is no human activity involved in the claim. As such, the claim also cannot be considered to contain an abstract idea that is related to organizing human activity.
Again, as noted above and not taken into account in the Response to Arguments, in order for the method to be practical, it must be executed in real time, something a person with pen and paper cannot do. Otherwise, the window to present the customized digital health-related feature by the digital assistant will be missed. Thus, the method cannot be performed practically in the human mind.
Accordingly, Applicants respectfully submit that all of the pending claims constitute patentable subject matter and request that the rejection of all claims under 35 U.S.C.§101 be withdrawn..
Examiner responds:
The Examiner respectfully disagrees. Per MPEP 2106.04(a)(2)(III) a claimed invention may encompass an abstract idea if it represents concepts that can be practically performed in the human mind (with or without the aid of pencil and paper or a computer) such as observations, evaluations, judgments, and opinions. Under the broadest reasonable interpretation, the identified features of the claim encompass mental process because it represents identifying a health-related feature. This is one of more of observations, evaluations, judgments, and opinions because a person with aid of pencil and paper can do. Because the identified features of the claim can be performed in the human mind, the claims are directed to an abstract idea.
Further, Examiner notes people make observations and judgements in at least near real time. Applicant’s current claimed invention does not claim a speed of operation so fast as to overcome the near real time operations of the human mind with the aid of a pencil and paper. Further, “real time” is so broad as to encompass milliseconds, days, years, and so on.
Moreover, multiple CAFC decisions that the Office has characterized as Certain Method of Organizing Human Activity did not actively recite a person or persons performing the steps of the claims (see, e.g., EPG, TLI communications, Ultramercial). Because whether a human is required to perform the step of the claim is not a requirement for claims to encompass certain method of organizing human activity, this argument is not persuasive.
Response to Arguments Regarding U.S.C. 103 Rejection
Applicant argue page 9-10:
Applicants explained in their prior response that none of the previously cited references teaches or suggests the claim as now structured such that when a desirability score is less than a prescribed threshold that the rest of the method is performed and instead the determination of the current state and desirability score is repeated. In an attempt to overcome this argument, the Office Action now cites Joshi. This shows that it appears that the Office Action has misunderstood the point of Applicants' argument. Many algorithms do different things based on conditions they detect. In this regard, Joshi is dealing with respiratory anomaly detection, and it repeats step 31 and does not move on to step 32 when the signal is not above the threshold.
However, Joshi is entirely unrelated to anything in the claim or even in the other references. Thus, Applicants pointed that none of the previously cited references teaches or suggests the claim as now structured such that when a desirability score is less than a prescribed threshold that the rest of the method is performed and instead the determination of the current state and desirability score is repeated, remains valid.
Examiner responds:
It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method as taught by Moturu with the checking if the score is not above a threshold and repeating the method as taught by Joshi. It would be beneficial for a method to repeated if a score is not above a threshold in order to accurately produce signals and responses as taught by Joshi para 7. See also Joshi para 4 which teaches a need to generate alerts for clinicians.
Applicant argues pg 10-11:
Further to this point, note that Moturu teaches selecting interventions based on patient data and care plans, Van teaches using experience scores to trigger webpage tours, and Joshi teaches using a score threshold to trigger alerts. As such, it appears that Joshi now, and Moturu and Van previously, have been arrived at using improper hindsight given Applicants' own teachings to simply justify collecting various elements, or piece parts thereof, that the Office Action believes can be used to make Applicants' invention as claimed appear to be obvious based on the words. However this has been done without an appreciation of what one of ordinary skill in the art would actually take away and understand from the references. Moreover, there is no showing by the Office Action as to how or why these references could or would be combined to form Applicants' invention as claimed.
None of these references recognize or suggest the problem solved by the invention as claimed, which is how to present a health-related feature that optimally suits the user's need at a specified moment. Van does not appear to relate to health care at all and Joshi relates to monitoring a patients breathing. One of ordinary skill in the art would simply not look to these references at all in dealing how to present a health-related feature that optimally suits the user's need at a specified moment and Moturu does not take any such thing into account.
Examiner responds:
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant argue page 11:
Second, the Office Action cites a survey response as being a desirability score. However, a survey response, being something provided by a patient, cannot be a desirability score as called for in the claim. Furthermore, the desirability score of the claim is determined based on an input data set, not a survey response. As explained in paragraph 36 of the instant specification: The desirability score that is associated with the current state of the user may be generated to determine the level of appropriateness to select and present a customized health-related feature to the user at the respective time. A desirability score greater than the predetermined desirability score objectively decides that the time is appropriate for presenting and thus, advances to the analyses for identifying a customized health-related feature. Thus, the purpose of desirability score is to indicate whether or not it is desirable to present the customized digital health-related feature by the digital assistant which clearly is not a survey response.
Examiner responds:
Moturu para 53 teaches evaluating patient feelings with a survey (i.e., desirability score) and then generating or modifying a care plan. A survey is also associated with the current state of the user. See also para 53-56 further teaching the survey scores and thresholds associated with the surveys. Examiner notes the surveys are analogous to desirability scores based on input data. Examiner notes “desirability score indicates a level of appropriateness to select and present a customized health-related feature to the user at a current time” is an intended use, but Examiner has applied new art to explicitly teach how a desirability score would be used to indicate whether or not it is desirable to present data at a current time.
Applicant argues page 12:
It should also be appreciated that the survey responses in Moturu is used to select or generate the therapeutic intervention and not as a basis for whether or not it is appropriate to proceed with generating a therapeutic intervention. In addition, such a chat would take too much time and essentially defeat a purpose of the invention as claimed to decide if it is an appropriate time to present to the user given that the chat is effectively a form of presenting something to the user. Moreover, if you are already engaging in a chat with the user, you are past the desirability score since that is the point that must be passed in order to engage with the user according to the claim. Thus, Moturu's chat and the survey responses cannot be desirability score of the claim.
The amended claim language is believed to obviate the Response to Arguments on this point. In addition, it is clear that selecting and presenting a customized health- related feature to the user at a current time is very different from proceed with the next steps of dynamically changing the care plan as taught in Moturu para 52. Also, if one is chatting with the user, as in Moturu, then, as noted above, you are past the time of the desirability score since that is the point in time that must be passed in order to engage with the user according to the claim. Thus, even if, arguendo, the chatting/survey of Moturu was a desirability score, which Applicants deny, it is at the wrong time in the process to be the desirability score of the claim.
Examiner responds:
Examiner respectfully disagrees, the claim does not recite determining an appropriate time to proceed with generating a therapeutic intervention. Examiner further notes “appropriate” is a relative term. Examiner notes “an appropriate time” is so broad as to be analogous to the desirability score being above a threshold because at that moment in time it is appropriate to proceed with the next steps of dynamically changing the care plan as taught in Moturu para 52.
Examiner respectfully disagrees with Applicant’s argument that such a chat would take too much time and defeat the purpose to decide if it is an appropriate time to present something to the user because “an appropriate time” is so broad as to include a chat length of any time.
Examiner respectfully disagrees with Applicant’s argument that if you are already engaging in a chat with the user, you are past the desirability score since that is the point that must be passed in order to engage with the user according to the claim because the claim as drafted is not limited to not engaging in a chat with the user before the desirability threshold is passed.
Applicant argues page 12-13:
Third, Moturu does not teach the grouping as called for in the claim. A group, per the claim, must be based on the current state of the user and it must have common characteristic among the plurality of digital health-related features of the group.
The Office Action has not shown where in Moturu there is any generating of a group. The Office Action points to Moturu teaching that there is a set of interventions in paragraph 79. However, what paragraph 79 is actually teaching is to select one therapeutic intervention based on those that are available, which is apparently the set of available interventions. There is no teaching to perform any grouping. Even if, arguendo, the set was some kind of group, there is no teaching or suggestion of how that group was arrived at, and certainly nothing even along the lines of generating a first group of a plurality of digital health-related features based on the current state, wherein the plurality of digital health-related features within the first group shares at least a common characteristic among the plurality of digital health-related features as called for in the claim is suggested in Moturu. The foregoing applies, mutatis mutandis, to paragraphs 24 and 31 of Moturu which is also cited by the Office Action in connection with this claim element. They do not teach generating a group and certainly not as called for in the claim. Again, like paragraphs 24 and 79, paragraph 31 is just listing examples of the types of interventions that might be available. There is simply no generating of a group disclosed. Note that Moturu knows how to teaching grouping since it mentions "group" twice, once for individuals and once for diseases.
Notwithstanding the suggestion to the contrary in the Response to Arguments, broadest reasonable interpretation cannot overcome the fundamental failing of Moturu to teach generating any group as called for in the claim. In this regard, having a set of available therapeutic interventions that preexist in the system from which to select, e.g., as mentioned in paragraph 80 of Moturu, even if it was considered a grouping, which Applicants deny, is not what is called for in the claim element and it is not performed by the system of Moturu as it is already preexisting therein. In this regard, the therapeutic interventions of Moturu are not developed based on the current state of the user as developed in the claim but are either all of the interventions or were previously identified. Thus, any set in Moturu is not generated in the manner and at the time called for in the claim
Examiner responds:
Moturu para 79 teaches a set of interventions (i.e., group of health-related features.) Examiner interprets a “common characteristic” under the broadest reasonable interpretation to include the fact that the interventions taught by Moturu are therapeutic (i.e., health-related) interventions and therefore share this common characteristic. Examiner notes “a grouping” is interpreted under the broadest reasonable interpretation and is therefore analogous to “a set”. Applicant’s current claim does not describe the “generating a group” sufficiently to not be analogous to a set of therapeutic interventions that preexist in the system from which to select.
Applicant argues page 13:
Turning to Van, Applicants explained in their prior response that it relates to features of a website and, as noted above and explained in Applicants prior response, has nothing to do with digital health-related features, with no relation to the user's state and no applicability to which digital health-related feature will be selected. In other words, while Van may develop some type of user experience, that is for something different than what called for in the claim, i.e., it is not an experience level for each of the plurality of digital health-related features within the first group. […] However, the experience called for in the claim has nothing to do with experience with a website or a computer system. Rather, the experience level of the claim relates to each of the plurality of digital health related features within the first group. In other words, the value indicates the user's knowledge level, i.e., with respect to each of the plurality of health-related features in the group. This is not taught or suggested by Moturu or Van, either individually or in combination. Simply finding some experience level is insufficient to teach the claim element itself or even to teach to modify Moturu, which actually has nothing about experience level at all and has no need for any experience level. In addition, digital applications is too broad of a field for analogous art. Thus, the claim elements for which Van is cited are not actually taught or suggested by Van and hence they are lacking from the combination as a whole.
Examiner responds:
Examiner relies on Van de Bruggen to teach the concept of using an experience score for a feature in order to choose the most important features. A website as used by Van and computer system as used by Moturu are both in the field of digital applications and specifically in modifying a user experience in a digital application. See Van para 2, 24. Examiner notes Applicant’s specification para 4 discuss the features described in the current application as “provide for certain enhancements to a user’s experience”. It would have been obvious to one or ordinary skill in the art, before the effective filing date of the claimed invention, to modify the system as taught by Moturu with the experience level value as taught by van de Bruggen. It would be beneficial to take into account each individual’s experience level scores for a feature in order to best choose the most relevant and important features for that particular user as taught by van de Bruggen, "[0023] the most relevant or important features for that particular user to learn about at that particular point in time may be determined.” Further, Examiner notes Van para 24 explicitly teaches an experience level for new features being determined for a set of features which is explicitly analogous to Applicant’s example of “experience level of the claim relates to each of the plurality of digital health related features within the first group. In other words, the value indicates the user's knowledge level, i.e., with respect to each of the plurality of health-related features in the group”.
Applicant argues page 14:
In addition, Applicants explained in their prior response that even if, arguendo, Van taught that for which the Office Action cites it, which Applicants are not admitting, Van's teaching appears to be limited to a single website and the features thereof, which is not suggestive of different types of on-line services or downloadable applications. Furthermore, the user experience in Van is only used to determine the particular tour of the single website that the user is to be given. In other words, the teaching of Van is directed to providing a better educational experience to the user. There is nothing in Moturu or Van to suggest to somehow import use of an experience level of Van into Moturu. Moreover, there is no need or suggestion for the user in Moturu to have any experience with a therapeutic treatment plan and certainly not to increase the likelihood of using any treatment plan based on such a suggestion, which does not actually exist in Moturu. In this regard, we are mindful that although one of ordinary skill in the art may understand that two references could be combined as reasoned by the Examiner, thisdoes imply a motivation to combine the references. Personal Web Techs., LLC v.Apple, Inc., 848 F.3d 987993-94 (Fed. Cir. 2017); see also Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015) ("[O]bviousness concerns whether a skilled artisan not only could have made but would have been motivated to make the combinations or modifications of prior art to arrive at the claimed invention."); In Touch Techs., Inc. v. VGO Communications, Inc., 751 F.3d 1327, 1352 (Fed. Cir. 2014).
With regard to the Response to Arguments, Applicants are not arguing that the Office Action is relying on features of Van. Applicants were merely saying what Van appears to be teaching.
Also, the experience alleged by the Response to Arguments to be taught in Moturu is an experience of a different patient, and so it is irrelevant with regard to the experience called for in the claim, which is that of the user. To avoid doubt, the claim has been amended to recite "of the user" so that it is further clear that that the experience level being recited is that of the user. In view of the foregoing, even if the experience level value of Van was somehow relevant, which Applicants deny, applying it to the wrong experience in Moturu, i.e., that of a different patient and not the user, as suggested by the Office Action, would still not create the claim element..
Examiner responds:
Moturu specifically teaches para 80 “Block S140 preferably selects a therapeutic intervention type and/or category from a previously identified set of therapeutic intervention types and/or categories known to positively affect users in an adverse state of health similar or identical to the state of the user determined in Block S146.” (See also para 81). Therefore Moturu has the need and meets this need by selecting interventions based on experience. However, Moturu does not explicitly recite “an experience score value”. Van does teach “an experience score value” and it would have been obvious to modify the system of Moturu with the experience score value in order to determine the most relevant and important features as taught by van para 23.
Conclusion
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/A.K.T./Examiner, Art Unit 3687
/MAMON OBEID/Supervisory Patent Examiner, Art Unit 3687
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