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 was filed in this application after appeal to the Patent Trial and Appeal Board, but prior to a decision on the appeal. 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examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on 5/1/26 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.
Claims 1, 6-13, and 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, 6-13, and 15 are directed to a system for assisting in and supporting improvement of quality of chewing, which is an abstract idea. Claims 1, 6-13, and 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 1 is as follows:
Step 1: Claim 1 is drawn to a system for assisting in and supporting improvement of quality of chewing.
Step 2A: Prong One: Claim 1 recites an abstract idea. In particular, claim 1 recites the following limitations: “chewing information storage means that stores information about chewing quality; muscle activity obtaining means that obtains a muscle activity signal of masticatory muscle of a person; analysis means that frequency-analyzes the muscle activity signal obtained by the muscle activity obtaining means, and analyzes chewing behavior based on the frequency-analyzed muscle activity signal; quality determination means that determines quality of the chewing behavior based on information of the chewing behavior analyzed by the analysis means; and extraction means that extracts assistance information corresponding to the chewing quality determined by the quality determination means, from the chewing information storage means, wherein the analysis means analyzes the chewing behavior based on an envelope obtained by performing, for each block, fast Fourier transform of electromyogram data as the muscle activity signal, by using the envelope as a change state of a power value in a specific frequency band, and determines that chewing is determined to be performed when an integral value calculated as the change state from the envelope exceeds a predetermined threshold value”.
These elements 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/or (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: The memory (i.e., “chewing information storage means”) limitation does not integrate the exception into a practical application since it is merely an instruction 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).
The processing unit (i.e., “muscle activity obtaining means”, “analysis means”, “quality determination means”, and “extraction means”) limitation does not integrate the exception into a practical application since it is merely an instruction 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 1 does not recite additional elements that amount to significantly more than the judicial exception itself. In particular, the recitation “chewing information storage means”, “muscle activity obtaining means”, “analysis means”, “quality determination means”, and “extraction means”
do not qualify as significantly more because this limitation is merely insignificant extrasolution 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 data acquirer is nothing more than an electromyograph detecting a patient’s chewing behavior. Such a conventional electromyograph is known by one of skill in the art as evidenced by:
EP 0043569 (Radke) discloses conventional mandibular electromyographs that utilize conventional electrodes placed on the surface of the skin to pick up electric potentials generated by contraction of the muscles beneath the skin. (Page 1, lines 9-12, 20-24).
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. Thus, independent claim 1 fails to recite patent-eligible subject matter under 35 U.S.C. 101.
Claims 6-13 and 15 depend from claim 1, recite the same abstract idea as claim 1, and fail to cure the deficiencies of the independent claim by merely reciting additional abstract ideas or further limitations on the abstract idea already recited.
They contain no claim limitations that integrate the exception into a practical application or that recite additional elements that amount to significantly more than the judicial exception itself. 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.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
Claim 1: Claim limitation “chewing information storage means that stores”, “muscle activity obtaining means that obtains”, “analysis means that frequency-analyzes”, “quality determination means that determines”, and “extraction means that extracts” has been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112 sixth paragraph, because it uses a generic placeholder “means” coupled with functional language “stores/obtains/frequency-analyzes/determines/extracts” without reciting sufficient structure to achieve the function.
Because this claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it is being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation:
Claim 1: “chewing information storage means that stores” refers to the Specification as filed, Paragraph [0029], storage means includes a memory 3; “muscle activity obtaining means that obtains” refers to the Specification as filed, Paragraph [0030] a processing unit 2 includes a muscle activity obtaining unit 21; “analysis means that frequency-analyzes” refers to the Specification as filed, Paragraph [0030] a processing unit 2 includes an analysis unit 22, “quality determination means that determines” refers to the Specification as filed, Paragraph [0030] a processing unit 2 includes an quality determination unit 23, and “extraction means that extracts” refers to the Specification as filed, Paragraph [0030] a processing unit 2 includes an information extraction unit 24.
See MPEP 2181.II.A. The disclosure of the structure (or material or acts) may be implicit or inherent in the specification if it would have been clear to those skilled in the art what structure (or material or acts) corresponds to the means- (or step-) plus-function claim limitation. See id. at 1380, 53 USPQ2d at 1229; In re Dossel, 115 F.3d 942, 946-47, 42 USPQ2d 1881, 1885 (Fed. Cir. 1997).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or
pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
For more information, see MPEP 2173 et seq. and Supplementary Examination Guidelines for
Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
Allowable Subject Matter
Claims 1, 6-13, and 15 are allowable.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 1, Niijima (WO 2019230528) (previously cited) teaches a chewing assistance system (Figure 1, chewing side determination apparatus 1) comprising an information processing device (20) that includes: chewing information storage means (storage unit 30) that stores information about chewing quality (Page 4, lines 12-20 of Machine Translation);
muscle activity obtaining means (Fig. 1, electrodes 3L1, 3L2, 3R1, 3R2) that obtains a muscle activity signal of masticatory muscle of a person (Page 7, lines 15-17 of Machine Translation);
analysis means that frequency-analyzes the muscle activity signal obtained by the muscle activity obtaining means, and analyzes chewing behavior based on the frequency-analyzed muscle activity signal (Page 11, lines 3-5 the processing unit 20 of the mastication side determination apparatus 1 reads the electromyogram data corresponding to the left and right temporal muscles from the electromyogram data storage unit 31; Page 11, lines 21-23 mastication side determination apparatus 1 performs fast Fourier transform (FFT) on the left and right electromyogram data in step S406 under the control of the right frequency parameter calculation unit 232 and the left frequency parameter calculation unit 233).
quality determination means that determines quality of the chewing behavior based on information of the chewing behavior analyzed by the analysis means; (Page 12, lines 15-25 masticatory muscle activity is measured in advance under the condition that the mastication side can be distinguished, and the learning amount for classification is generated by labeling the feature amount calculated from the data. Newly measured data is classified into, for example, “bilateral chewing”, “left chewing” or “right chewing”).
and extraction means that extracts assistance information corresponding to the chewing quality determined by the quality determination means, from the chewing information storage means. (Page 12, lines 26-40 the chewing side determination apparatus 1 can total and output the determination results. For example, the chewing side determination apparatus 1 outputs the number or percentage (%) of data classified into each label of both sides chewing, right chewing, and left chewing for a predetermined data acquisition period via a display unit. A user or medical personnel who sees the result can estimate the degree of partial chewing of the subject. For example, if the data measured over a given time for a subject shows a determination result that the rate classified as right chewing is significantly higher than left chewing and bilateral chewing, the subject is subject to right side chewing.
It can be presumed that there is a tendency, and appropriate measures can be taken, such as
performing a test to investigate the cause of partial mastication, making the chewing wrinkle aware, and promoting dental caries treatment.)
wherein the analysis means analyzes the chewing behavior based on an envelope obtained by performing, for each block, fast Fourier transform of electromyogram data as the muscle activity signal, by using the envelope as a change state of a power value in a specific frequency band (Page 11, lines 20-28 The chewing side determination device 1 performs frequency analysis such as FFT on the left and right electromyogram data in step S406 under the control of the right frequency parameter calculation unit 232 and the left frequency parameter calculation unit 233 and calculates the frequency median value of the power spectrum. The right frequency parameter calculation unit 232 and the left frequency parameter calculation unit 233 can calculate the feature amounts F2 and F3 sequentially or concurrently in steps S406 to S407.)
However, Niijima does not specifically teach wherein the analysis means “determines that chewing is determined to be performed when an integral value calculated as the change state from the envelope exceeds a predetermined threshold value.”
Kurosawa, et al, Cami-Log: Proposal of application using EMG information to promote improvement of mastication” (previously cited) (cited by Applicant), in a related field of endeavor, teaches data obtained at a sampling frequency of 1kHz, and a total number of chewing times is calculated, using an integration function, from an integrated value of the output value d. However, it does not teach or disclose performing a frequency analysis, and an envelope of the power value for a specific frequency.
Claims 6-13 and 15 are allowable by virtue of their dependence from claim 1.
Any comments considered necessary by applicant must be submitted no later than the payment
of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such
submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
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.
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.
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/OM PATEL/Examiner, Art Unit 3791
/JENNIFER ROBERTSON/ Supervisory Patent Examiner, Art Unit 3791
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