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 .
Claim Rejections - 35 USC § 101
Claims 1, 3, 4, 6-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 4 follows.
Regarding claim 4, the claim recites a series of steps or acts, including calculating, by a computer, from an electromyography of a left muscle and an electromyography of a right muscle both acquired at an identical time, a switching index indicating that the left muscle and the right muscle are alternately used, the left muscle and the right muscle being paired. Thus, the claim is directed to a process, which is one of the statutory categories of invention.
The claim is then analyzed to determine whether it is directed to any judicial exception. The step of calculating, from an electromyography of a left muscle and an electromyography of a right muscle both
acquired at an identical time, a switching index indicating that the left muscle and the right muscle are alternately used sets forth a judicial exception. Further, the “generating… and the second electrode” (added limitations) are further drawn to the judicial exception. These steps describe mathematical relationships, mathematical formulas or equations, and mathematical calculations. Thus, the claim is drawn to Mathematical Concepts, which is an Abstract Idea.
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements
that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Claim 4 recites “outputting, by a
computer, …simultaneously by the first electrode and the second electrode”, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The output of the switching value does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the outputted switching index, nor does the method use a particular machine to perform the Abstract Idea.
Next, the claim as a whole is analyzed to determine whether any element, or combination of
elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides
the Abstract Idea, the claim recites additional steps of generating, by a computer (or a pre-processing unit), electromyography data indicating a time course of an electromyography acquired from an electrode set on a left muscle of an exerciser and a time course of an electromyography acquired from an electrode set on a right muscle of the exerciser, the left muscle and the right muscle being paired, and the exerciser performing an exercise in which the left muscle and the right muscle are alternately used. The generating step is recited at a high level of generality such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering and comparing activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the generating step does not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the
eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
Regarding claim 1, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited electromyography acquiring unit is a generic sensor configured to perform pre-solutional data gathering activity, and the evaluation unit is a processor configured to perform the Abstract Idea. According to section 2106.05(f) of the MPEP, merely
using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application.
The same rationale applies to claim 7.
The dependent claims also fail to add something more to the abstract independent claims as they
generally recite method steps pertaining to data gathering, data processing, and data outputting. The generating step recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims. Claim 8 adds the additional structure of the first and second electrode are provided on an inside of an item of worn clothing worn by the exerciser and are configured to come into contact with a skin of the exerciser. However, Morun (2015/0141784) teaches that in electromyography it is well understood, routine, and conventional that the wearable electronic device that detects and analyzes electromyography may by attached to the user by multiple means including in an article of clothing (par. 6, noted background implicitly teaches what is known in the art) and that the sensors must be in physical contact with the user’s skin (par. 34).
Response to Arguments
Applicant's arguments towards the 35USC101 rejection filed 6/25/26 have been fully considered but they are not persuasive.
The Applicant argues that the claims recite an improvement utilizing a preprocessing unit (i.e. a computer). However, the improvement cannot be solely within the judicial exception, thus the argument is not persuasive.
Applicant’s arguments, filed 6/25/2026, with respect to the 35USC102 and 112 rejections have been fully considered and are persuasive. The 35USC102 and 112 rejections have been withdrawn.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEX M VALVIS whose telephone number is (571)272-4233. The examiner can normally be reached 9:00-5:00 M-F.
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ALEX M. VALVIS
Supervisory Patent Examiner
Art Unit 3791
/ALEX M VALVIS/Supervisory Patent Examiner, Art Unit 3791
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