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 .
Information Disclosure Statement
The Information Disclosure Statement filed on September 8, 2025 has been considered. An initialed copy of the Form 1449 is enclosed herewith.
Status of Claims
This office action is in response to arguments and amendments entered on September 6, 2025 for the patent application 17/831,030 originally filed on June 2, 2022. Claims 1, 5, 7, 9, 14, 16 and 20 are amended. Claims 10-13 and 17 are cancelled. Claims 1-9, 14-16 and 18-20 are pending. The first office action of May 9, 2025 is fully incorporated by reference into this Final Office Action.
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 1-9, 14-16 and 18-20 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.
Step 1 – “Statutory Category Identification”
Claims 1, 10 and 14 are directed to “a method” (i.e. “a process”), hence the claims are directed to one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter). In other words, Step 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 1 “Abstract Idea Identification”
However, the claims are drawn to the abstract idea of “creating/changing physical therapy home exercise plans,” either in the form of “certain methods of organizing human activity,” in terms of managing personal behavior or relationships or interactions between people (including social activities, teaching and following rules or instructions), or reasonably in the form of “mental processes,” in terms of processes that can be performed in the human mind (including an observation, evaluation, judgement or opinion). Regardless, the claims are reasonably understood as either “certain methods of organizing human activity” or “mental processes,” which require the following limitations:
Per claim 1:
“executing a program that provides a physical therapy digital home exercise plan having a first configuration including at least an exercise technique, an exercise speed, and a rest duration for a patient;
receiving input from a patient device, the input comprising a patient response to a physical therapy digital home exercise plan;
determining if the input from patient device satisfies a threshold for changing the physical therapy digital home exercise plan for the patient; and
in response to the input satisfying the threshold, automatically modifying the program that changes the physical therapy digital home exercise plan at runtime to have a second configuration; wherein the second configuration modifies at least one of the exercise technique, the exercise speed, and the rest duration.”
Per claim 14:
“executing a program that provides a physical therapy digital home exercise plan having a first configuration including at least an exercise technique, an exercise speed, and a rest duration;
receiving a video input from a video camera that captures patient movements of a patient while performing the first configuration of the physical therapy digital home exercise plan;
analyzing, by a video analyzer, the video input and determining the patient movements while performing the first configuration of the physical therapy digital home exercise plan, wherein the video analyzer determines at least one objective measurement comprising one or more of a range of motion, strength, joint mobility impairments, and balance deficits for the patient based on at least the patient movements;
extracting a dataset of features from the input including the at least one objective measurement;
utilizing at least one of the dataset of features from the input with a patient risk model to determine if the input satisfies a threshold for changing the physical therapy digital home exercise plan for the patient;
determining a risk of injury based at least on the patient movements that are determined, wherein the risk of injury is compared to the threshold;
in response to the risk of injury satisfying the threshold, automatically modifying the program that changes the physical therapy digital home exercise plan at runtime to have a second configuration;
wherein the second configuration modifies at least one of the exercise technique, the exercise speed, and the rest duration.”
These limitations simply describe a process of data gathering and manipulation, which is partially analogous to “collecting information, analyzing it, and displaying certain results of the collection analysis” (i.e. Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016)). Hence, these limitations are akin to an abstract idea which has been identified among non-limiting examples to be an abstract idea. In other words, Step 2A, Prong 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 2 – “Practical Application”
Furthermore, the Applicant’s claimed elements of “a computing system,” “a patient device,” and “a video camera,” are merely claimed to generally link the use of a judicial exception (e.g., pre-solution activity of data gathering and post-solution activity of presenting data) to (1) a particular technological environment or (2) field of use, per MPEP §2106.05(h); and are applying the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea, per MPEP §2106.05(f). In other words, the claimed “creating/changing physical therapy home exercise plans,” is not providing a practical application, thus Step 2A, Prong 2 of the subject-matter eligibility analysis is “No.”
Step 2B – “Significantly More”
Likewise, the claims do not include additional elements that either alone or in combination are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g. “a computing system,” “a patient device,” and “a video camera,” are claimed, these are generic, well-known, and conventional data gather computing elements. As evidence that these are generic, well-known, and a conventional data gathering computing elements (or an equivalent term), as a commercially available product, or in a manner that indicates that the additional elements are sufficiently well-known, the Applicant’s specification discloses these in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a), per MPEP § 2106.07(a) III (a). As such, this satisfies the Examiner’s evidentiary burden requirement per the Berkheimer memo.
Specifically, the Applicant’s claimed “a patient device,” is not sufficiently described in the written description as originally filed and is therefore reasonably interpreted to be the same as Applicant’s “a device.” However, the Applicant’s claimed “a computing system,” as described in paras. [0025] and [0027] of the Applicant’s written description as originally filed, provides the following: “[0025] An embodiment of decision support application 140 comprises a software application or set of applications, which may include programs, routines, functions, or computer-performed services, residing on a client computing device; on one or more servers in the cloud; or distributed in the cloud and on a client computing device, such as a personal computer, laptop, smartphone, tablet, mobile computing device, front-end terminals in communication with back-end computing systems, or other computing device(s) such as computer system 120 described below.”
“[0027]… In one embodiment, computer system 120 comprises one or more computing devices, such as a server, desktop computer, laptop, or tablet, cloud-computing device or distributed computing architecture, a portable computing device, such as a laptop, tablet, ultra-mobile PC, or a mobile phone.”
As such, the Applicant’s “a computing system” and “a patient device,” are reasonably interpreted as generic, well-known, and conventional data gathering computing elements commercially available today.
Finally, the Applicant’s claimed “a video camera,” is not sufficiently described in the written description as originally filed. However, “a camera,” as described in paras. [0039] and [0048] of the Applicant’s written description as originally filed, provides the following:
“[0039] In implementations, the digital input for a patient is received from a digital record of patient information, such as an electronic medical record and/or physical therapy record. In implementations, the digital input for a patient is received from a physical therapy digital record for the patient entered by a licensed physical therapist to document evaluation, examination, and follow-up visits. Digital input for the patient may also be captured directly from digital devices such as cameras, 3d cameras, wearable sensors, smart phones, and applications that interact with a patient to capture digital input for the patient.”
“[0048] Patient input 210 is received by decision support application 200 and feature values are extracted by feature values extractor 220 when the patient is performing exercises outside of the in-person physical therapy session. In implementations, patient input comes from cameras, 3d cameras, wearable sensors, smart phones, and patient interface 144 that interacts with a patient to capture patient input. A variety of video analyzers may be utilized to interpret patient movements and motions in the video input. Video motion analysis obtains data and information about moving objects from video.”
As such, the Applicant’s “a video camera” is reasonably interpreted as generic, well-known, and conventional data gathering element commercially available today.
Thus, the Applicant’s own specification discloses “a computing system,” “a patient device,” and “a video camera,” as ubiquitous standard equipment within modern computing that is commercially available and does not provide anything significantly more. Therefore, Step 2B, of the subject-matter eligibility analysis is “No.”
In addition, dependent claims 2-9, 15-16 and 18-20 do not provide a practical application and are insufficient to amount to significantly more than the judicial exception. As such, dependent claims 2-9, 15-16 and 18-20 are also rejected under 35 U.S.C. § 101, based on their respective dependencies to claim 1 or 14. Therefore, claims 1-9, 14-16 and 18-20 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject-matter.
Response to Arguments
The Applicant’s arguments filed on September 6, 2025 related to claims 1-9, 14-16 and 18-20 are fully considered, but are not persuasive.
I. Claims 1-20 were rejected under 35 U.S.C. §101.
Independent Claim 14
Step 2A, Prong Two
The Applicant respectfully argues “In Prong Two, examiners should evaluate whether the claim "as a whole" integrates a recited judicial exception into a practical application of the exception. The judicial exception is integrated into a practical application since claim 14 recites at least “automatically modifying computer code of the software program that changes the physical therapy digital home exercise plan at runtime to have a second configuration” which occurs based on video input being analyzed by a video analyzer, and determining a risk of injury based on the video analysis. This is a technical improvement over previous systems. The human mind cannot automatically modify code. Therefore, claim 14 integrates the judicial exception into a practical application and is patent eligible.”
The Examiner respectfully disagrees. First, the Applicant’s argument is conclusory and fails to provide any evidence supporting that the Applicant’s claims provide “a technical improvement over previous systems.”
Second, the Applicant’s claims are not considered a “Practical Application,” because the claims do not provide any of the following:
An improvement in the functioning of a computer, or an improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
Applying or using the judicial exception in some other 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, as discussed in MPEP § 2106.05(e).
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Furthermore, there are also several factors that reasonably explain that the Applicant’s claims are not indicative of integration into a practical application, which include:
Merely reciting the words "apply it" (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f);
Adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g); and
Generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
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Here, the Applicant’s claims are not providing any technological advancement as described in the first five bulleted factors and, as described above in the rejection, the Applicant’s claims are merely claimed to use a computer as a tool to perform an abstract idea and to generally link the use of a judicial exception to a particular technological environment or field of use. The Applicant is merely automating what is done in the analog. As such, the argument is not persuasive.
Finally, actual mental performance of the abstract idea is not required, Further, the MPEP § 2106.04(a)(2)(III)(C) states that “claims can recite a mental process even if they are claimed as being performed on a computer” and that “examiners should review the specification to determine if the claimed invention is described as a concept that is performed in the human mind and Appellant is merely claiming that concept performed 1) on a generic computer, or 2) in a computer environment, or 3) is merely using a computer as a tool to perform the concept. In these situations, the claim is considered to recite a mental process.” In the present case, the claim limitations perform steps that are performed on a generic computer and/or computer environment, and merely uses a computer as a tool to perform the concept. As such, the arguments are not persuasive.
The Applicant respectfully argues “Independent claim 1 similarly recites in response to the input satisfying the threshold, automatically modifying computer code of the software program that changes the physical therapy digital home exercise plan at runtime to have a second configuration; wherein the second configuration modifies at least one of the exercise technique, the exercise speed, and the rest duration. This is a similar technical improvement as in claim 14. For similar reasons, claim 1 integrates the judicial exception into a practical application and is patent eligible.”
The Examiner respectfully disagrees. The Applicant’s conclusory argument is just as unpersuasive as previously presented with regard to claim 14. Likewise, the Applicant’s independent claim 1 s are not providing any technological advancement as described above in the rejection. The Applicant’s claims are merely claimed to use a computer as a tool to perform an abstract idea and to generally link the use of a judicial exception to a particular technological environment or field of use. The Applicant is merely automating what is done in the analog. As such, the argument is not persuasive. Therefore, the rejections under 35 U.S.C. §101 are not withdrawn.
ll. Claims 1, 10 and 14 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mason, et al., (hereinafter referred to as “Mason,” US 2021/0138304).
The Applicant respectfully argues “Mason fails to teach or suggest the amended claim. For example, Mason fails to teach or suggest “automatically modifying computer code of the software program” (that is being executed and provides the exercise plan) “in response to the input satisfying the threshold. Rather, Mason changes mechanical settings of an exercise bicycle 104 to control its motor 122 and bike pedals 110 via couplings 124 (see Mason FIG. 1).
Mason states: “The processing device may control the electric motor 122 to individually drive the left or right radially-adjustable couplings 124 rotationally coupled to the one or more pedals 110 at a controlled speed...” (Mason [0104]); “The processing device may modify the positions of the pedals 110” (Mason [0112)). Therefore, the references, individually or in combination, fail to teach or suggest each and every element of claim 1. The references fail to establish a prima facie anticipation or obviousness rejection. Thus, claim 1 patentably distinguishes over the references and is in condition for allowance.
The Examiner respectfully agrees. As such, the argument is persuasive. Therefore, the rejections under 35 U.S.C. §102 are withdrawn.
Conclusion
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 extension fee 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 date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT P BULLINGTON whose telephone number is (313)446-4841. The examiner can normally be reached on Mon.-Fri. 8:00-4:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Vasat, can be reached on (571) 270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Robert P Bullington, Esq./
Primary Examiner, Art Unit 3715