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 .
Status of Claims
This action is in response to the amendment filed on August 18, 2025. Claims 1, 3-8, 10-15, and 17-21 are pending, with claims 1, 8, 10-15, and 17-21 being amended and claims 2, 9, and 16 being canceled.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 1, 3-8, 10-15, and 17-21 are rejected under 35 U.S.C. 112(a), as failing to comply with the written description requirement. The claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, at the time the application was filed, had possession of the claimed invention.
Specifically, the limitation “defining workout criteria for the user including a workout orientation of the user as one of: standing and seated” found in claims 1, 8, and 15 recite NEW MATTER.
With regard to the newly added limitations, a review of the Specification discloses examples of workout criteria as length of workout, frequency of workout, a target body area, workout type, and workout result (See, e.g., ¶34). While the specification describes workout type and gives the example of a type of workout (e.g., stretch / balance / standing / endurance / cardio); the specification is silent with regard to defining workout criteria for the user including a workout orientation of the user as one of: standing and seated, and, therefore does not provide a written description supporting this limitation. In fact there is no mention of either a workout orientation of the user or an orientation of seated.
As a result, the amended claims 1, 8, and 15 contain subject matter which lacks adequate written description, and for at least these reasons, claims 1, 8, and 15 are found to fail the written description requirement.
Claims 3-7, 10-14, and 17-21 depend from a rejected base claim, and therefore also lack written description based on their dependency.
As a result, claims 1, 3-8, 10-15, and 17-21 contain subject matter which lacks adequate written description, and for at least these reasons, claims 1, 3-8, 10-15, and 17-21 are found to fail the written description requirement.
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.
Claims 1, 3-8, 10-15, and 17-21 are rejected under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
In re claims 1, 8, and 15 recite “defining one or more physical limitations for the user”; however, the claims then further recite at least three physical limitations (i.e., one of physical sensitivity, one of areas of the body to exclude, and one of exercises to exclude). Therefore it is unclear how the claim can define only one physical limitation when at least three are entered by the claims.
Claims 3-7, 10-14, and 17-21 depend from a rejected base claim, and therefore are rejected for at least the reasons provided for the base claim.
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 8-14 are rejected under 35 U.S.C. 101 because the claimed invention is not directed to patent eligible subject matter. In addition, claims 1, 3-8, 10-15, and 17-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
A patent may be obtained for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. The Supreme Court has held that this provision contains an important implicit exception: laws of nature, natural phenomena, and abstract ideas are not patentable. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014); Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”). Notwithstanding that a law of nature or an abstract idea, by itself, is not patentable, the application of these concepts may be deserving of patent protection. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293-94 (2012). In Mayo, the Court stated that “to transform an unpatentable law of nature into a patent eligible application of such a law, one must do more than simply state the law of nature while adding the words ‘apply it.” Mayo, 132 S. Ct. at 1294 (citation omitted).
In Alice, the Supreme Court reaffirmed the framework set forth previously in Mayo “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of these concepts.” Alice, 134 S. Ct. at 2355. The first step in the analysis is to “determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Id. If the claims are directed to a patent-ineligible concept, then the second step in the analysis is to consider the elements of the claims “individually and ‘as an ordered combination” to determine whether there are additional elements that “transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S. Ct. at 1298, 1297). In other words, the second step is to “search for an ‘inventive concept’-i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Id. (brackets in original) (quoting Mayo, 132 S. Ct. at 1294). The prohibition against patenting an abstract idea “cannot be circumvented by attempting to limit the use of the formula to a particular technological environment or adding insignificant post-solution activity.” Bilski v. Kappos, 561 U.S. 593, 610-11 (2010) (citation and internal quotation marks omitted). The Court in Alice noted that “[s]imply appending conventional steps, specified at a high level of generality,’ was not ‘enough’ [in Mayo] to supply an ‘inventive concept.” Alice, 134 S. Ct. at 2357 (quoting Mayo, 132 S. Ct. at 1300, 1297, 1294).
Examiners must perform a Two-Part Analysis for Judicial Exceptions. In Step 1, it must be determined whether the claimed invention is directed to a process, machine, manufacture or composition of matter.
Claims 8-14 do not fall within at least one of the four categories of patent eligible subject matter because the claims recite “A computer program product residing on a non-transitory computer readable medium having a plurality of instructions stored thereon.” The broadest reasonable interpretation of a computer program product is software per se as the product is claimed without any structural recitations. A computer program product does not fall within at least one of the four categories of process, machine, manufacture, or composition of matter as it may encompass software per se. “If a claim covers material not found in any of the four statutory categories, that claim falls outside the plainly expressed scope of § 101 even if the subject matter is otherwise new and useful." In re Nuijten, 500 F.3d 1346, 1354, 84 USPQ2d 1495, 1500 (Fed. Cir. 2007). Therefore, claims 8-14 are directed to non-statutory subject matter.
To overcome this rejection it is suggested the claim be amended to read --A non-transitory computer program product residing on a computer readable medium having a plurality of instructions stored thereon which, when executed by a processor, cause the processor to perform operations comprising-- or --A non-transitory computer readable medium having a plurality of instructions stored thereon which, when executed by a processor, cause the processor to perform operations comprising--.
Claims 1, 3-7, 15, 17-21 are directed to method and system. As such, the claimed invention of claims 1, 3-7 and 15, 17-21 fall into the broad categories of invention. However, even claims that fall within one of the four subject matter categories may nevertheless be ineligible if they encompass laws of nature, physical phenomena, or abstract ideas. See Diamond v. Chakrabarty, 447 U.S. at 309.
In Step 2A, it must be determined whether the claimed invention is ‘directed to’ a judicially recognized exception. According to the specification, “workout generation systems and methods that consider the physical limitations of the user.” (par. 1).
Independent claim 1 recites the following (with emphasis):
A computer-implemented method, executed on a computing device, comprising:
defining one or more physical identifiers for a user;
defining one or more physical limitations for the user, wherein defining the one or more physical limitations for the user includes:
processing one or more entries in a first portion of a user interface concerning one or more physical sensitivities,
processing one or more entries in a second portion of the user interface concerning one or more areas of a body of the user to exclude from an online exercise routine, and
processing one or more entries in a third portion of the user interface concerning one or more types of exercises to exclude from the online exercise routine;
defining workout criteria for the user including a workout orientation of the user as one of: standing, and seated; and
generating the online exercise routine for the user based, at least in part, upon the one or more physical identifiers, the one or more physical limitations and the workout criteria, wherein generating the online exercise routine for the user based, at least in part, upon the one or more physical identifiers, the one or more physical limitations and the workout criteria includes combining two of more discrete workout portions to form the online exercise routine.
The underlined portions of claim 1 generally encompass the abstract idea, with substantially identical features in claims 8 and 15. Claims 3-7, 10-14, and 17-21 further define the abstract idea such as by further defining the types of identifiers, limitations, and criteria.
Under prong 2, the claimed invention encompasses an abstract idea in the form of mental processes and/or certain methods of organizing human activity. The invention encompasses making judgments about what exercises to include in a workout routine based on attributes of a user and the desired workout criteria such as those performed by a coach, a trainer, or a physical therapist. Such judgments about a user’s fitness and routine to recommend based on a user’s physical information and limitations are directed to mental processes. The judgments as drafted are directed to a process that, under its broadest reasonable interpretation, covers performance of the limitations in the mind but for the recitation of the language “computer implemented” or generic computer components (e.g., user interface, computer program product or processor and memory). That is, other than reciting “computer” or “interface” nothing in the claimed method or system precludes the step from practically being performed in the mind. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas.
In addition, generating exercises to include in a customized workout routine based on attributes of a user and the desired workout criteria is directed managing personal behavior of a user. In this instance, the claims are directed to managing the personal behavior of a user by instructing them how to work out or exercise in the manner a coach, a trainer, or a physical therapist would instruct a client. As a result, this managing of personal behavior also is an abstract method of organizing human activity.
Under prong 2, the instant claims do not integrate the abstract idea into a practical application. In other words, the claims do not (1) improve the functioning of a computer or other technology, (2) effect a particular treatment or prophylaxis for a disease or medical condition (3) are not applied with any particular machine, (4) do not effect a transformation of a particular article to a different state, and (5) are not applied in any meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim, as a whole, is more than a drafting effort designed to monopolize the exception, the claims are directed to the judicially recognized exception of an abstract idea. See MPEP §§ 2106.05(a)-(c), (e)-(h).
While certain physical elements (i.e., elements that are not an abstract idea) are present in the claims, such features do not affect an improvement in any technology and are recited in generic (i.e., not particular) ways. In recent cases, the CAFC has made it clear that the term “practical application” means providing a technical solution to a technical problem in computers or networks per se. Here the claims appear to recite an improvement to the mental processes (how should a person exercise or how to customize a workout routine) and address the abstract problem of what training should be provided. However, to be patent-eligible, the claimed invention must improve the computer as a computer. Applicant’s invention does not meet this requirement. Applicant’s invention uses computers to process data and provide an output based on the result. This does not improve the computer qua computer. Instead, Applicant’s invention uses generic computers and components as a tool to implement the abstract idea. As such, the claims are not eligible under Section 101.
In particular, the claims do not recite any additional structural elements other than the recitation of generic computer components, such as a user interface, a computer system, a processor, a memory, and program instructions. These components are recited at a high-level of generality (i.e., as generic computers performing a generic computer function of executing software or receiving data inputs) and are used for their intended purposes, such that they amount to no more than mere instructions of how to apply the exception using a generic computer component. Defining (accessing) user data associated is insignificant extra solution activity of data gathering for the abstract processes (generating a customized workout). Similarly, effectuation the routine is insignificant post solution activity of providing the result of abstract process. Accordingly, the additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. Therefore, the claims are directed to the judicially recognized exception of an abstract idea.
Step 2B requires that if the claim encompasses a judicially recognized exception, it must be determined whether the claimed invention recites additional elements that amount to significantly more than the judicial exception. The additional element(s) or combination of elements other than the abstract idea per se amount(s) to no more than: a system having a processor and memory and/or user interface configured to perform the abstract idea.
These elements amount to generic, well-understood and conventional computer components. The use of computers to implement data processing are presently claimed at a high level of generality, such that they represent well-understood, routine, conventional activity previously known to the industry. The claims as presently recited do not provide any specific implementation or details of the computer beyond what is well-understood, routine, conventional. Therefore, the claims recite the use of a generic computer used for its intended purpose, which does not amount to significantly more than the abstract concept.
As demonstrated by Berkheimer v. HP, such computer functions cannot save an otherwise ineligible claim under §101. In short, each step or element does no more than require a generic computer to perform generic computer functions. Again, here the computer is recited at basic or high level and is used in the well-understood, routine, and conventional way that is data processing functions. The inputs used to implement the process and the output of workout routing are insignificant extra-solution activity.
Considered as an ordered combination, only generic computer components are present. Viewed as a whole, the claims simply recite the concept of making judgments by a generic computer. The claims do not, for example, purport to improve the functioning of the computer itself. Nor do they effect an improvement in any other technology or technical field. Instead, the claims at issue amount to nothing significantly more than an instruction to apply the abstract idea using some unspecified, generic computer. Under relevant court precedents, that is not enough to transform an abstract idea into a patent-eligible invention.
As a result, claims 1, 3-7, 10-14, and 17-21 are not patent eligible.
Claim Rejections - 35 USC § 103
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3-7, 10-14, and 17-21 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Publication No. 2017/0263147 by King et al. (“King”) in view of over U.S. Publication No. 2016/0086500 by Kaleal et al. (“Kaleal”).
In re claims 1, 8, and 15, King discloses a computer-implemented method, executed on a computing device, a computer program product, and a system with processor and memory including instructions to implement the method [Fig. 1, Fig. 9, ¶¶13-15, 27-43 describe a method, a processor, a memory and instructions for carrying out the functions of the system and processor] comprising: defining one or more physical identifiers for a user [¶58, among others, describe examples defining physical identifiers of the user including a fitness level, a gender, an age, height, weight, body mass index (BMI), and fitness goals]; defining one or more physical limitations for the user, wherein defining the one or more physical limitations for the user includes: processing one or more entries in a user interface concerning one or more physical sensitivities, processing one or more entries in a user interface concerning one or more areas of a body of the user to exclude from an online exercise routine, and processing one or more entries in a user interface concerning one or more types of exercises to exclude from the online exercise routine [¶¶29, 34, 35, 58, 59, 89, among others, describe a user interface for defining physical limitations including sensitivities (injuries, constraints), areas of the body (body areas, e.g., legs, core, foot, shoulder, upper body, lower body, etc. lower body), exercises to exclude (e.g., lunges). The criteria may be entered by the user on an interface of the user device]; defining workout criteria for the user including a workout orientation of the user as one of: standing, and seated [¶130 describes constraint on type of exercise based on the user orientation of as seated]; and generating an online exercise routine for the user based, at least in part, upon the one or more physical identifiers, the one or more physical limitations and the workout criteria, wherein generating the online exercise routine for the user based, at least in part, upon the one or more physical identifiers, the one or more physical limitations and the workout criteria includes combining two of more discrete workout portions to form the online exercise routine [¶¶26-30, 57-59, 64-68, among others, generating a custom online workout routine (e.g., streamed from a server 108 to a user device 102) based on the user data, limitations, and criteria. The workout including portions (videos) of different exercises which are combined to create a workout routine].
King describes various physical interfaces. The physical interface included in client computing platforms 102 may be configured to provide an interface between personalized workout video creation servers 108 and a user of client computing platforms 102 through which the user may provide information to or receive information from personalized workout video creation servers 108. This facilitates data, videos, results, reports, recommendations, or instructions and other communicable items, collectively and individually examples of “information,” being communicated between the user and personalized workout video creation servers 108. Example include display and touch screens. King does not explicitly disclose that the user interface includes portions (first-third) for entering the different user data (e.g., the physical limitations).
Kaleal teaches routine builder component can be configured to design a custom fitness routine or activity for a user based on the user's needs, desires, physical abilities and context (including physical limitations, restrictions, workout preferences). Kaleal also teaches defining physical limitations using a graphical user interface having different portions for entering/defining the information. [Fig. 5, ¶¶129, 140, 147-148, among others, shows a user workout profile interface having different portions indicating physical limitations of the user which may be used by routine builder 406 to generate a custom workout for the user].
King and Kaleal are both considered to be analogous to the claimed invention because they are in the same field of providing custom user workouts. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the custom workout generation and interface of King to include different portions for defining the user limitations, as taught by Kaleal, to provide better user experience training, e.g., providing convenient interface for entering information and provide a pictorial representation to facilitate indication of body parts body parts and/or muscle groups to indicate where the user has injuries and/or physical limitations, see, e.g., ¶148. In addition, the configuration of any particular portion and number of portions of the interface for data entry is an element of routine graphical user interface input design. Therefore, it would have been an obvious matter of design choice to one of ordinary skill in the art before the effective filing date of the claimed invention to include three portions for a user entering physical limitation data as the selection of number, arrangement, dimensions, etc. will depend on the specific implementation of the user interface and device on which the interface is implemented, and there is a limited range of possible sizes and numbers of portions for any particular application; therefore, the choice of three portions are part of routine interface; moreover, Applicant provides three portions as one example and has not disclosed that the number of portions solves any stated problem or is for any particular purpose.
In re claims 3, 10, and 17, King discloses effectuating the online exercise routine [¶¶33, 39, 57,58, 135, 166, 247, among others, describe customizing an exercise session and generating a customized video and/or audio for the session performed by a client device (e.g., a mobile device) and/or a server, which may be in communication with the mobile device including streaming the session over a network (e.g., the Internet)].
In re claims 4, 11, and 18, King discloses wherein effectuating the online exercise routine includes: streaming the online exercise routine to the user [¶¶32, 51, 56, 96, 129 among others, describe streaming workout to a client device (e.g., a mobile device) from a server over a network].
In re claims 5, 12, and 19, King discloses the one or more physical identifiers for the user include one or more of: an age of the user; a weight of the user; a height of the user; a gender of the user; and a physical condition of the use [¶¶58, among others, describe examples of the type of user data gathered, stored in a user profile, used to create a workout routine includes fitness level, gender, age, height, and weight].
In re claims 6, 13, and 20, King discloses the one or more physical limitations for the user define one or more of: an area of the body that the user physically cannot exercise; an area of the body that the user chooses not to exercise; an area of the body that the user chooses to lightly exercise; a type of exercise that the user physically cannot perform; and a type of exercise that the user chooses not to perform [¶¶28, 29, 58, 59, 64, 72, 74, 82, 89, among others, describe attributes used to determine exercises limitations corresponding to an area of the body or exercise (e.g., injured or disliked) including an exercise the user cannot or chooses not to perform (e.g., lunges)].
In re claims 7, 14, and 21, King discloses the workout criteria define one or more of: a length of a workout; a target body area; a workout type; and a workout result [¶¶28, 29, 49-51, 58, 59 among others, describe various criteria for forming a customized workout including fitness goals, length, intensity, target body area, workout types, and desired results].
Response to Arguments
Applicant's arguments filed August 18, 2025 have been fully considered.
The previous rejections of claims 9-14 and 16-21 under 35 U.S.C. 112(b) is withdrawn in view of Applicant’s amendments to the claims; however, new grounds of rejection have been made based on the amendment to the claims.
With regard to the rejection of claims 1, 3-8, 10-15, and 17-21 under Section 101, the rejection has been updated to reflect the language of the newly submitted claims. Applicant’s arguments have been considered, but are not persuasive.
With regard the amendment of claims 8 and 10-14, the rejection of the claims as directed to non-eligible subject matters covering a signal or software per se the rejection is maintained. However, suggested amendments to overcome this rejection have been provided above. With regard to the rejection of claims 1, 3-8, 10-15, and 17-21 as directed to an abstract idea without more the rejection is maintained for the reasons provided above.
Applicant argues Applicant has amended claims recite a practical application of the abstract idea. In particular, Applicant states “For example, as amended, independent claims 1, 8, and 15 describe the interaction with a user interface concerning user limitations and preferences that include a user's physical sensitivities, areas of the body to exclude, and types of exercises to exclude from an online exercise routine. Applicant respectfully submits that the claimed processing one or more entries in a first portion of a user interface concerning one or more physical sensitivities, processing one or more entries in a second portion of the user interface concerning one or more areas of a body of the user to exclude from an online exercise routine, and processing one or more entries in a third portion of the user interface concerning one or more types of exercises to exclude from the online exercise routine is beyond any alleged generic computer component performing a generic computer function.” The examiner respectfully disagrees.
The processing claimed is performed by generic computer components, as identified in Applicant’s specification (See, e.g., ¶¶39-47). The additional processing claimed is further detail of the inputs for the abstract idea, and therefore is at best directed to insignificant extra solution activity (e.g., data gathering used for the abstract idea). Applicant at most has provided additional detail of the abstract processes/operations without more. A “practical application” of the abstract idea would encompass (1) improvement of the functioning of a computer or other technology, (2) effecting a particular treatment or prophylaxis for a disease or medical condition (3) application with any particular machine, (4) effecting a transformation of a particular article to a different state, and (5) application in any meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim, as a whole, is more than a drafting effort designed to monopolize the exception, the claims are directed to the judicially recognized exception of an abstract idea. See MPEP §§ 2106.05(a)-(c), (e)-(h).
While certain physical elements (i.e., elements that are not an abstract idea) are present in the claims, such features do not affect an improvement in any technology and are recited in generic (i.e., not particular) ways. The recitation of an interface is a generic component commonly used to input data. More detailed specification of the data received by the interface does not change this. In recent cases, the CAFC has made it clear that the term “practical application” means providing a technical solution to a technical problem in computers or networks per se. Here the claims appear to recite an improvement to the mental processes (how should a person exercise or how to customize a workout routine) and address the abstract problem of what training should be provided. However, to be patent-eligible, the claimed invention must improve the computer as a computer. Applicant’s invention does not meet this requirement. Applicant’s invention uses computers and their components enter, process data, and provide an output based on the result. This does not improve the computer qua computer. Instead, Applicant’s invention uses generic computers and components as a tool to implement the abstract idea. As such, the claims are not eligible under Section 101.
Applicant’s arguments with respect to the rejections of claims 1, 3-8, 10-15, and 17-21 as anticipated under section 102 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and is listed on the attached Notice of References Cited.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any 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 Andrew Bodendorf whose telephone number is (571) 272-6152. The examiner can normally be reached M-F 9AM-5PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Xuan Thai can be reached on (571) 272-7147. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW BODENDORF/Examiner, Art Unit 3715
/XUAN M THAI/Supervisory Patent Examiner, Art Unit 3715