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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 18, 2026 has been entered.
Response to Amendment
The amendment filed September 18, 2026 has been entered. Claims 1-17 remain pending in the application. Applicant’s amendments to the claims have overcome each and every 112 rejection previously set forth in the Final Office Action mailed March 19, 2026. Applicant’s amendments to the claims necessitate new grounds of rejection, as described in the Response to Arguments and 101 Rejections below.
Claim Objections
Claim 1 is objected to because of the following informalities: “while the exercised is being performed” should read “while the exercise is being performed” (lines 5-6). Appropriate correction is required.
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.
Claims 1-7 and 11-15 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.
Claims 1-7 are directed to a method of determining metabolic parameters, which is an abstract idea. Claims 1-7 do not include additional elements that integrate the exception into a practical application or that are sufficient to amount to significantly more than the judicial exception for the reasons provided below which are in line with the 2014 Interim Guidance on Patent Subject Matter Eligibility (Federal Register, Vol. 79, No. 241, p 74618, December 16, 2014), the July 2015 Update on Subject Matter Eligibility (Federal Register, Vol. 80, No. 146, p. 45429, July 30, 2015), the May 2016 Subject Matter Eligibility Update (Federal Register, Vol. 81, No. 88, p. 27381, May 6, 2016), and the 2019 Revised Patent Subject Matter Eligibility Guidance (Federal Register, Vol. 84, No. 4, page 50, January 7, 2019).
The analysis of claim 1 is as follows:
Step 1: Claim 1 is drawn to a process.
Step 2A – Prong One: Claim 1 recites an abstract idea. In particular, claim 1 recites the following limitations:
[A1] “A method of determining metabolic parameters of one or several muscle motor units of a subject by coupling muscle response to ventilatory response of said subject”
[B1] “a step of plotting a Cost of Transport (COT) curve of the oxygen flow rate against the movement speed of the one or several muscle motor units v(t)”, the curve formula, and the variables of the formula; and
[C1] “a step of determining the following metabolic parameters from the COT curve: Basal power B which is the vertical asymptote at the origin; Flow resistance RM which is the oblique asymptote; a0 which is the y-intercept of the oblique asymptote.
These elements [A1]-[C1] of claim 1 are drawn to an abstract idea since (1) they involve mathematical concepts in the form of mathematical relationships, mathematical formulas or equations, and/or mathematical calculations; and (2) they involve a mental process that can be practically performed in the human mind including observation, evaluation, judgment, and opinion and using pen and paper.
Step 2A – Prong Two: Claim 1 recites the following limitations that are beyond the judicial exception:
[A2] – “a step of performing exercise using a test device”;
[B2] - “a step of instantaneously measuring, by the test device while the exercised is performed, movement speed of the one or several muscle motor units of the subject as a function of time v(t), and an oxygen flow rate φO2(t) of the subject,”;
[C2] – “wherein the movement speed of the one or more several muscle motor units and the oxygen flow rate of the subject are obtained by the test device while the test device generates a variable load for the subject”; and
[C2] - “a step of generating and outputting a synthetic mapping of a metabolic response of a subject to an exercise”.
The elements [A2-D2] of claim 1 do not integrate the exception into a practical application of the exception. In particular, the elements [A2-D2] are merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering at a higher level of generality and mere display of data- see MPEP 2106.04(d) and MPEP 2106.05(g).
Step 2B: Claim 1 does not recite additional elements that amount to significantly more than the judicial exception itself. In particular, the recitation “a step of instantaneously measuring, by the test device while the exercised is performed, movement speed of the one or several muscle motor units of the subject as a function of time v(t), and an oxygen flow rate φO2(t) of the subject” does not qualify as significantly more because this limitation merely describes gathering data as part of the claimed invention in a non-descript and unspecified way. The movement speed v(t) of the user is conventionally measured by test devices such as treadmills and bikes, and the oxygen flow rate can be conventionally detected by generic exercise sensors.
Also, the recitation “a test device” is merely insignificant extra-solution activity to the judicial exception, e.g., mere data gathering in conjunction with the abstract idea that uses conventional, routine, and well-known elements or simply displaying the results of the algorithm that uses conventional, routine, and well-known elements. In particular, the test device is nothing more than a device configured for a user to exercise. Such test device is conventional as evidenced by:
U.S. Patent Application Publication No. US 20200221975 A1 (Basta et al.) discloses that treadmills or stationary bikes are conventional training systems with a motor that can be used to sense biometric data of an individual that communicates with a processor ([0046], [0110], [0144] [0176]).
U.S. Patent Application Publication No. US 20160317044 A1 (Wu, Jiankang) discloses that treadmills and bicycles are commonly used in exercise load tests and can gather data regarding oxygen uptake (VO2) and movement speed ([0027], [0061], [0068], [0077]).
In view of the above, the additional elements individually do not integrate the exception into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
Claims 2-7 depend from claim 1, and recite the same abstract idea as claim 1. Furthermore, these claims only contain recitations that further limit the abstract idea (that is, the claims only recite limitations that further limit the algorithm), with the following exceptions:
Claim 5: “wherein the movement speed of one or several muscle motor units was measured from the test device corresponding to a treadmill or a bicycle”.
Each of these claim limitations does not integrate the exception into a practical application. In particular, the elements of claims 5 are merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering at a higher level of generality - see MPEP 2106.04(d) and MPEP 2106.05(g).
Also, the recitation “wherein the movement speed of one or several muscle motor units was measured from a test device corresponding to a treadmill or a bicycle” is merely insignificant extra-solution activity to the judicial exception, e.g., mere data gathering in conjunction with the abstract idea that uses conventional, routine, and well-known elements. In particular, the data acquirer is nothing more than a testing device being a treadmill or bike with a motor. Such testing devices are conventional as evidenced by Basta and Wu, as described above in the rejection of claim 1.
In view of the above, the additional elements individually do not integrate the exception into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations of each claim as an ordered combination in conjunction with the claims from which they depend (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually.
Claims 11-15 are directed to a device for determining metabolic parameters using a computational algorithm, which is an abstract idea. Claims 11-15 do not include additional elements that integrate the exception into a practical application or that are sufficient to amount to significantly more than the judicial exception for the reasons provided below which are in line with the 2014 Interim Guidance on Patent Subject Matter Eligibility (Federal Register, Vol. 79, No. 241, p 74618, December 16, 2014), the July 2015 Update on Subject Matter Eligibility (Federal Register, Vol. 80, No. 146, p. 45429, July 30, 2015), the May 2016 Subject Matter Eligibility Update (Federal Register, Vol. 81, No. 88, p. 27381, May 6, 2016), and the 2019 Revised Patent Subject Matter Eligibility Guidance (Federal Register, Vol. 84, No. 4, page 50, January 7, 2019).
The analysis of claim 11 is as follows:
Step 1: Claim 11 is drawn to a machine.
Step 2A – Prong One: Claim 11 recites an abstract idea. In particular, claim 11 recites the following limitations:
[A1] “determining metabolic parameters of one or several muscle motor units of a subject by coupling muscle response to ventilatory response of said subject”
[B1] “plotting a Cost of Transport (COT) curve of the oxygen flow rate of the subject against the movement speed of one or several muscle motor units v(t)”, the curve formula, and the variables of the formula
[C2] “determine the following metabolic parameters from the COT curve: Basal power B which is the vertical asymptote at the origin; Flow resistance RM which is the oblique asymptote; a0 which is the y-intercept of the oblique asymptote”
These elements [A1]-[C1] of claim 11 is drawn to an abstract idea since it involves a mental process that can be practically performed in the human mind including observation, evaluation, judgment, and opinion and using pen and paper and/or they involve mathematical concepts in the form of mathematical relationships, mathematical formulas or equations, and/or mathematical calculations.
Step 2A – Prong Two: Claim 11 recites the following limitations that are beyond the judicial exception:
[A2] - “a test device, configured to be utilized by the subject to perform an exercise, the test device further configured to measure as a function of time: at least movement speed of one or several muscle motor units of the subject v(t), and an oxygen flow rate φO2(t)”;
[B2] – “wherein the movement speed of the one or more several muscle motor units and the oxygen flow rate of the subject are obtained by the test device while the test device generates a variable load for the subject”;
[C2] - “a processor”; and
[D2] – “the processor being further configured to generate a synthetic mapping of a metabolic response of the subject to the exercise for display or storage”.
These elements [A2]-[D2] of claim 11 do not integrate the exception into a practical application of the exception. In particular, the elements [A2-B2] are merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering or display at a higher level of generality - see MPEP 2106.04(d) and MPEP 2106.05(g). Furthermore, the element [C2-D2] is merely instructions to implement an abstract idea on a computer or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f).
Step 2B: Claim 11 does not recite additional elements that amount to significantly more than the judicial exception itself. In particular, the elements [A2-B2] do not qualify as significantly more because these limitations merely describe gathering data as part of the claimed invention. These limitations are merely insignificant extra-solution activity to the judicial exception, e.g., mere data gathering in conjunction with the abstract idea that uses conventional, routine, and well-known elements. In particular, the test device is merely any type of test device used for exercise that gathers speed and oxygen data. Such means are conventional as evidenced by Basta and Wu (as provided above with respect to the rejection of claim 1).
Further, the elements [C2-D2] do not qualify as significantly more because these limitation are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Claims 12-15 depend from claim 11, and recite the same abstract idea as claim 11. Furthermore, these claims only contain recitations that further limit the abstract idea (that is, the claims only recite limitations that further limit the algorithm), with the following exceptions:
Claim 14: “wherein the test device is of the treadmill of bicycle type”.
Each of these claim limitations does not integrate the exception into a practical application. In particular, the elements of claim 14 are merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering at a higher level of generality - see MPEP 2106.04(d) and MPEP 2106.05(g).
Also, the recitation “wherein the test device is of the treadmill of bicycle type” is merely insignificant extra-solution activity to the judicial exception, e.g., mere data gathering in conjunction with the abstract idea that uses conventional, routine, and well-known elements. In particular, the data acquirer is nothing more than a treadmill or bike testing device with a motor providing information to a processor. Such testing devices are conventional as evidenced by Basta and Wu (as provided above with respect to the rejection of claim 1).
In view of the above, the additional elements individually do not integrate the exception into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations of each claim as an ordered combination in conjunction with the claims from which they depend (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
Response to Arguments
Applicant's arguments filed September 18, 2026 have been fully considered but they are not persuasive. With respect to the 101 Rejections in the Final Office Action (See Page 10 of Applicant’s Response), Applicant describes that the test device is integrated into the claimed technique.
There are new grounds of claim rejections that were necessitated by the claim amendments.
The limitations of claims 1 and 11 recite a test device gathering data during exercise, which is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering at a higher level of generality - see MPEP 2106.04(d) and MPEP 2106.05(g). Claims 1 and 11, as written, do not include any particular structure to the test device that would make the test device a particular machine, rather than a well-understood, routine, and conventional device or gathering data.
Claims 2-7 and 12-15 are rejected because the rejections of claims 1 and 11 are proper and described above in the 101 Rejection, and claims 2-7 and 12-15 do not recite limitations separating the claims from an abstract idea or extra-solution activities of an abstract idea. Claims 8-10 and 15-15 are objected to based on their dependence on claims 1 and 11.
Conclusion
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/EVELYN GRACE PARK/Examiner, Art Unit 3791 /TSE CHEN/Supervisory Patent Examiner, Art Unit 3791
