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 .
This Office Action is responsive to the claims filed December 28, 2021. The Examiner acknowledges the amendments to claims 1 & 7. Claims 1-7 are currently pending.
Claim Objections
Claims 2 & 3 are objected to because of the following informalities:
at claim 2, line 2 “wherein the evaluation unit configured to calculate” should read as --wherein the evaluation unit is configured to calculate--;
at claim 3, line 2 “wherein the evaluation unit configured to calculate” should read as --wherein the evaluation unit is configured to calculate--.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 2-3 & 5-6 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 2 recites “wherein the evaluation unit configured to calculate the switching index from multiplication of the electromyography of the left muscle and the electromyography of the right muscle both acquired at the identical time” [emphasis added]. It is unclear what multiplication is done to calculate the switching index (i.e., are the electromyography of each of the left muscle and the right muscle multiplied by each other to calculate the switching index, or is there something else multiplied by the electromyography of each of the left muscle and the right muscle to calculate the switching index?). For examination purposes, it will be interpreted that the switching index is calculated from a formula that uses data obtained from the electromyography/myoelectric potential data acquired from the left and right muscles. Claim 5 is similarly rejected and interpreted.
Claim 3 recites “wherein the evaluation unit configured to calculate the switching index from multiplication of values obtained by normalizing each of the electromyography of the left muscle and the electromyography of the right muscle both acquired at the identical time” [emphasis added]. It is unclear what multiplication is done to calculate the switching index (i.e., are the electromyography of each of the left muscle and the right muscle multiplied by each other to calculate the switching index, or is there something else multiplied by the electromyography of each of the left muscle and the right muscle to calculate the switching index?). For examination purposes, it will be interpreted that the switching index is calculated from a formula that uses data obtained from the electromyography or myoelectric potential data acquired from the left and right muscles. Claim 6 is similarly rejected and interpreted.
Claim Rejections - 35 USC § 101
Claims 1-7 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. This step describes 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, 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, 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, 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 Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent Application Publication 2007/0232869, hereinafter referenced "Kanzaki".
With respect to claim 1, Kanzaki teaches an electromyography processing apparatus (i.e., a biological information measuring system comprising a plurality of myoelectric potential measuring devices 10 and a control device 30) (see Kanzaki, figs. 1 & 2, par 0029, 0033, 0052) comprising:
an electromyography acquiring unit 10, 110 (i.e., myoelectric potential measuring devices located on the musculus vastus lateralis of femoral quadriceps of both legs of a user, comprising electrode measuring units) (see Kanzaki, figs. 1 & 2, par 0029-0047) comprising one or more hardware processors 120, 320 (i.e., a CPU) (see Kanzaki, par 0034-0047, 0049-0050, 0052) and configured to generate electromyography data (i.e., myoelectric potential 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 (i.e., a cycling exercise) (see Kanzaki, figs. 1-2, 3A-3B, par 0029-0047);
and an evaluation unit comprising the one or more hardware processors 120, 320 (i.e., a CPU of a control unit 30) and configured to calculate and output (see Kanzaki, par 0049, 0052-0053, 0057, 0076-0080, 0090), from an electromyography of the left muscle and an electromyography of the right muscle both acquired at an identical time (see Kanzaki, figs. 1-2, 3A-3B, par 0029-0047), a switching index indicating that the left muscle and the right muscle are alternately used, the left muscle and the right muscle being paired (i.e., metrics such as respective values of the number of pedaling, muscular strength keeping duration, myoelectric potential generating intervals, averaged rectified values, and mean power frequencies, all of which are calculated for both the right and left leg (i.e., the musculus vastus lateralis of femoral quadriceps of both legs of a user), are measured to calculate indices such as pedaling efficiency data, and are outputted to a user which permits the user to measure biological information of their muscles so as to be synchronized during exercise) (see Kanzaki, par 0005-0007, 0043-0046, 0049, 0059, 0061-0064, 0076-0080, 0090, figs. 3A-3B, 7A-7B, 8A-8B).
With respect to claim 2, Kanzaki teaches the electromyography processing apparatus according to claim 1, and Kanzaki further teaches the evaluation unit 120, 320 (i.e., CPUs) is configured to calculate the switching index from multiplication of the electromyography of the left muscle and the electromyography of the right muscle both acquired at the identical time (i.e., the pedaling efficiency data is calculated by a formula using muscular strength keeping duration data and myoelectric potential generating interval data for both the left leg muscle and the right leg muscle) (see Kanzaki, 0059-0063, figs. 3A-3B, 7A-7B).
With respect to claim 3, Kanzaki teaches the electromyography processing apparatus according to claim 1, and Kanzaki further teaches the evaluation unit 120, 320 (i.e., CPUs) is configured to calculate the switching index from multiplication of values obtained by normalizing each of the electromyography of the left muscle and the electromyography of the right muscle both acquired at the identical time (i.e., the pedaling efficiency data is calculated by a formula using muscular strength keeping duration data and myoelectric potential generating interval data for both the left leg muscle and the right leg muscle, wherein the myoelectric potential data undergoes impedance conversion to amplify signals obtained from the myoelectric potential measuring devices) (see Kanzaki, 0036, 0059-0063, figs. 3A-3B, 7A-7B).
With respect to claim 4, Kanzaki teaches an electromyography processing method (i.e., a biological information measuring system comprising a plurality of myoelectric potential measuring devices 10 and a control device 30 that is configured to execute a biological information measuring method) (see Kanzaki, figs. 1 & 2, par 0029, 0033, 0052) comprising:
generating, by a computer 120, 320 (i.e., a CPU) (see Kanzaki, par 0034-0047, 0049-0050, 0052), electromyography data (i.e., myoelectric potential 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 (i.e., myoelectric potential measuring devices are located on the musculus vastus lateralis of femoral quadriceps of both legs of a user, comprising electrode measuring units) (see Kanzaki, figs. 1 & 2, par 0029-0047), 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 (i.e., a cycling exercise) (see Kanzaki, figs. 1-2, 3A-3B, par 0029-0047);
and calculating and outputting (see Kanzaki, par 0049, 0052-0053, 0057, 0076-0080, 0090), by the computer 120, 320 (i.e., a CPU of a control unit 30), from an electromyography of the left muscle and an electromyography of the right muscle both acquired at an identical time (see Kanzaki, figs. 1-2, 3A-3B, par 0029-0047), a switching index indicating that the left muscle and the right muscle are alternately used, the left muscle and the right muscle being paired (i.e., metrics such as respective values of the number of pedaling, muscular strength keeping duration, myoelectric potential generating intervals, averaged rectified values, and mean power frequencies, all of which are calculated for both the right and left leg (i.e., the musculus vastus lateralis of femoral quadriceps of both legs of a user), are measured to calculate indices such as pedaling efficiency data, and are outputted to a user which permits the user to measure biological information of their muscles so as to be synchronized during exercise) (see Kanzaki, par 0005-0007, 0043-0046, 0049, 0059, 0061-0064, 0076-0080, 0090, figs. 3A-3B, 7A-7B, 8A-8B).
With respect to claim 5, Kanzaki teaches the electromyography processing method according to claim 4, and Kanzaki further teaches in the calculating and outputting (see Kanzaki, par 0049, 0052-0053, 0057, 0076-0080, 0090) the switching index is calculated from multiplication of the electromyography of the left muscle and the electromyography of the right muscle both acquired at the identical time (i.e., the pedaling efficiency data is calculated by a formula using muscular strength keeping duration data and myoelectric potential generating interval data for both the left leg muscle and the right leg muscle) (see Kanzaki, 0059-0063, figs. 3A-3B, 7A-7B).
With respect to claim 6, Kanzaki teaches the electromyography processing method according to claim 4, and Kanzaki further teaches in the calculating and outputting (see Kanzaki, par 0049, 0052-0053, 0057, 0076-0080, 0090) the switching index is calculated from multiplication of values obtained by normalizing each of the electromyography of the left muscle and the electromyography of the right muscle both acquired at the identical time (i.e., the pedaling efficiency data is calculated by a formula using muscular strength keeping duration data and myoelectric potential generating interval data for both the left leg muscle and the right leg muscle, wherein the myoelectric potential data undergoes impedance conversion to amplify signals obtained from the myoelectric potential measuring devices) (see Kanzaki, 0036, 0059-0063, figs. 3A-3B, 7A-7B).
With respect to claim 7, Kanzaki teaches a computer-readable recording medium storing an electromyography processing program executable to cause one or more computers to perform operations (i.e., a biological information measuring system comprising a plurality of myoelectric potential measuring devices 10 and a control device 30 that is configured to execute a biological information measuring method that is executed by a program and stored data in a memory unit 140 of CPU 120) (see Kanzaki, figs. 1 & 2, par 0029, 0033, 0038, 0048, 0052, 0059, 0066) comprising:
generating, by a computer 120, 320 (i.e., a CPU) (see Kanzaki, par 0034-0047, 0049-0050, 0052), electromyography data (i.e., myoelectric potential 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 (i.e., myoelectric potential measuring devices are located on the musculus vastus lateralis of femoral quadriceps of both legs of a user, comprising electrode measuring units) (see Kanzaki, figs. 1 & 2, par 0029-0047), 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 (i.e., a cycling exercise) (see Kanzaki, figs. 1-2, 3A-3B, par 0029-0047);
and calculating and outputting (see Kanzaki, par 0049, 0052-0053, 0057, 0076-0080, 0090), by the computer 120, 320 (i.e., a CPU of a control unit 30), from an electromyography of the left muscle and an electromyography of the right muscle both acquired at an identical time (see Kanzaki, figs. 1-2, 3A-3B, par 0029-0047), a switching index indicating that the left muscle and the right muscle are alternately used, the left muscle and the right muscle being paired (i.e., metrics such as respective values of the number of pedaling, muscular strength keeping duration, myoelectric potential generating intervals, averaged rectified values, and mean power frequencies, all of which are calculated for both the right and left leg (i.e., the musculus vastus lateralis of femoral quadriceps of both legs of a user), are measured to calculate indices such as pedaling efficiency data, and are outputted to a user which permits the user to measure biological information of their muscles so as to be synchronized during exercise) (see Kanzaki, par 0005-0007, 0043-0046, 0049, 0059, 0061-0064, 0076-0080, 0090, figs. 3A-3B, 7A-7B, 8A-8B).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Destiny J Cruickshank whose telephone number is (571)270-0187. The examiner can normally be reached M-F, 9am-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Marmor II can be reached at (571) 272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLES A MARMOR II/Supervisory Patent Examiner
Art Unit 3791
/D.J.C./Examiner, Art Unit 3791
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