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 .
Response to Amendment
The amendments filed 4th November 2025 have been entered. Claims 1-2 are pending. Claim 3 has been canceled. Applicant’s amendments to the claims have overcome each and every objection to the claims, and every rejection under 35 U.S.C. 112(a). Applicant’s amendments have not addressed some of the rejections under 35 U.S.C. § 112(b) from the prior office action dated 4th June 2025, therefore the rejections are applied again below.
Response to Arguments
Applicant’s arguments, with respect to the rejection under 35 U.S.C. § 112(a) have been fully considered and are persuasive. The rejection has been withdrawn.
Regarding Applicant’s arguments to the rejection under 35 U.S.C. § 101, Applicant appears to argue that the invention is not directed to an abstract idea but fails to particularly point out any alleged error they believe the Examiner made in the Examiner’s determination of Step 2A in the rejection. Instead the Applicant states ‘the present invention is a method detecting a concussive event by using a simple and unobtrusive wearable EMG detection device to communicate with a computer to provide stimuli and measure feedback. The present invention as claimed cannot, therefore be described as “merely abstract” pursuant to Step 2A’. This argument asserts language that is not represented in the claims, nor does it point out any alleged error made pursuant to Step 2A made by the Examiner. This argument is not persuasive.
Applicant further argues ‘the present invention includes non-computer hardware elements that cannot be said to be “merely abstract” and the present invention could not simply be “performed in the mind” due to the necessary speed required to be measured, thus requiring sensors and a computer to arrive at the intended results of the present invention.’. It is worth noting that the Examiner did not determine any additional elements as abstract, rather the additional elements are emphasized in bold in the rejection to highlight that the additional elements are structure and are being considered in the Examiner’s determination in Step 2A & Step 2B. The additional elements are generically recited in the claims, and the specification is consulted in order to reaffirm this. Further the emphasized bold limitations involving the generically recited additional elements are to highlight extra-solutionary activity requiring the additional elements, These bolded portions are not stated to be an abstract idea by the Examiner. The abstract ideas are underlined in the rejection below, with required updates due to amendments. The determination in Step 2A by the Examiner is correct. This argument is not persuasive.
Applicant further argues that the present invention provides additional elements that amount to significantly more than the judicial exception, restating ‘the tangible hardware elements (e.g. wearable EMG sensor device) provide elements that provide significantly more than a merely abstract concept’. The Applicant’s claims, as established in the rejection, contain additional elements that are generically recited, used to automate an abstract idea. The claims have been amended, appearing to attempt to take corrective action, however, the corrective action is an abstract idea in and of itself. For example, Claim 1, line 8 ‘detect a loss of muscle tone (LoMT) resulting from a decrease in EMG from said skeletal muscle as detected by said wearable sensor device’, which is merely data gathering and thus is not patent eligible. Merely stating that the present invention provides significantly more than an abstract idea via a generically recited additional element is not enough to convince the Examiner that the determination in Step 2B made by the Examiner is incorrect. There is nothing in the claims to suggest that the wearable sensor device provides significantly more than the judicial exception.
Applicant further argues that the additional elements integrate a judicial exception into a practical application because the present invention provides an improvement to technology or a technical field. Applicant states ‘the present invention is providing a simple, fast, non-invasive way of quickly determining if a concussive event has occurred through a failsafe detection of Loss of Muscle Tone via the detection of a loss of EMG within a skeletal muscle about which the wearable EMG sensor is place.’.
It is important to note that according to MPEP 2106.05(a), the judicial exception alone cannot provide the improvement. The improvement can be provided by one or more additional elements. See the discussion of Diamond v. Diehr, 450 U.S. 175, 187 and 191-92, 209 USPQ 1, 10 (1981)) in subsection II, below. In addition, the improvement can be provided by the additional element(s) in combination with the recited judicial exception. See MPEP § 2106.04(d) (discussing Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303-04, 125 USPQ2d 1282, 1285-87 (Fed. Cir. 2018)). Thus, it is important for examiners to analyze the claim as a whole when determining whether the claim provides an improvement to the functioning of computers or an improvement to other technology or technical field.
The evaluation of whether the claim as a whole integrates the recited judicial exception into a practical application of the exception or whether the claim is ‘directed to’ the judicial exception is performed by identifying additional elements recited in the claim beyond the judicial exception and evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. See MPEP 2106.04(d). The claims recite the additional elements of a wearable sensor device, a computing device (CPU), and data storage. The limitations as underlined in the rejection below are mere data gathering, manipulating, and outputting recited at a high level of generality and thus are insignificant extra-solutionary activity. See MPEP 2106.05(g) (“whether the limitation is significant”). In addition, all uses of the recited judicial exceptions require such data gathering and output, and as such, these limitations do not impose any meaningful limits on the claim. These limitations amount to necessary data gathering and outputting. See MPEP 2106.05.
Further, the limitations are executed on a CPU, data storage, and a wearable sensor device, which are additional elements recited at a high level of generality, used to perform an abstract idea, such that it amounts to no more than mere instructions to apply the exception using a generic computer. See MPEP 2106.05(f). There is no indications that the claims as a whole includes an improvement to a computer or to a technological field. See MPEP 2106.04(d)(1).
Applicant's arguments regarding the rejection under 35 U.S.C. § 102 fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
In response to Applicant’s argument that ‘the present invention overcomes what is taught by Brokaw as it applies to actually detecting concussive events’, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Claim Objections
Claims 1-2 objected to because of the following informalities:
Claim 1 ‘a decrease in EMG’ should likely read ‘a decrease in EMG activity’, further ‘said decrease in EMG’ should likely read ‘said decrease in EMG activity’.
Claim 2 ‘A method for the detection and identification …’ should read ‘A method for detecting and identifying …’.
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 1-2 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 1, line 7 ‘configured to said wearable sensor device’, it is unclear as to what function or relationship is being described, rendering Claim 1 indefinite. In the previous office action, this indefinite limitation was, for examination purposes, interpreted to mean that the computing device is configured to communicate with the wearable sensor to receive EMG data. However, the exact function (e.g., receiving, processing, etc.) was ambiguous. Applicant was invited to amend the Claim to provide clarity as to the specific configuration intended. The amendments to Claim 1 have not resolved this indefinite issue, and thus the rejection is reapplied.
Claim 1 further recites ‘wherein said wearable sensor device communicates said (LoMT) based upon said decrease in EMG indicative of a concussive event to said computing device as processed data’, the term ‘processed data’ is unclear as to whether the data received from the wearable sensor by the computing device is raw data and the computing device is processing raw data, or if the wearable sensor is preprocessing data to be received by the computing device.
Claims 1 ‘a concussive event …’ in lines 1-2, and ‘a concussive event’ in line 12, it is unclear whether ‘a concussive event’ as recited in line 8 is the same ‘a concussive event’ as recited in lines 1-2 or a new, secondary concussive event. Examiner interprets the second iteration of ‘a concussive event’ in line 8 to mean ‘the concussive event’ or ‘said concussive event’.
Claim 2 further recites ‘a concussive event’ in line 1, and later recites ‘a concussive event …’ in line 10, it is unclear if this second iteration of ‘a concussive event’ is intending to refer back to the ‘a concussive event’ as recited in line 1 or if it is intending a secondary concussive event, rendering Claim 2 indefinite. Examiner interprets the second iteration of ‘a concussive event’ to mean ‘the concussive event’ or ‘said concussive event’.
Claim 2 ‘the purpose‘ in line 11. There is insufficient antecedent basis for this limitation in this 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 1-2 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.
Each of Claims 1-2 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1-2 recites at least one step or instruction for ‘generating electromyographic data from a body’, ‘communicating a loss of muscle tone indicative of a concussive event’, ‘processing data’, ‘analyzing data against a dataset’, ‘generate a warning upon the detection and identification of a concussive event or sub-concussive event’, which is grouped as a mental process under the 2019 PEG or a certain method of organizing human activity under the 2019 PEG. Accordingly, each of Claims 1-2 recites an abstract idea.
Specifically, Claim 1-2 recite (underlined are observations, judgements, evaluations or opinions, which are grouped as a mental process, mathematical concept, or organizing human activity under the 2019 PEG); (additional elements bolded, see Step 2A, prong 2);
Claim 1
A system for detecting and identifying a concussive event, the system comprising: a wearable sensor device for generating electromyographic (EMG) data from a body,
said wearable sensor device configured to be placed about a skeletal muscle of said body;
a computing device comprising a CPU and data storage,
said computing device in communication with said wearable sensor device such that said computing device is configured to said wearable sensor device;
said wearable sensor device configured to detect a loss of muscle tone (LoMT) resulting from a decrease in EMG from said skeletal muscle (data gathering, observation; mental process) as detected by said wearable sensor device;
wherein said wearable sensor device communicates said LoMT based upon said decrease in EMG indicative of a concussive event (Analysis of data; observation, judgement; mental process) to said computing device as processed data; and
said computing device further configured to generate a warning upon the detection and identification of said concussive event (data outputting; observation, judgement; mental process).
Claim 2
A method for the detection and identification of a concussive event, the method comprising:
sensing and recording electromyographic (EMG) data via a wearable sensor (insignificant extra-solutionary data gathering via additional element recited at a high level of generality) placed on a body about a skeletal muscle of said body;
detecting a loss of muscle tone (LoMT) (data gathering/analysis; observation, judgement; mental process.) with said wearable sensor, said LoMT resulting from a decrease in EMG from said skeletal muscle as detected by said wearable sensor;
processing in real-time said EMG data with a computing device comprising a CPU and data storage, thereby identifying episodes of loss of muscle tone (LoMT) indicative of a concussive event and generating results (real-time analysis, storing data, making a determination from data; generating results based on data; observation, judgement, evaluation; mental process); and
storing said results for the purpose of aiding concussion diagnosis (storing data; observation; mental process) by said computing device.
Step 2A, Prong 2
The above-identified abstract idea in each of independent Claims 1-2 are not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claims 1-2), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use. More specifically, the additional elements of:
A wearable sensor/wearable sensor device: generic electromyographic (EMG) sensor used for receiving data, recited at a high level of generality without specific technical improvements to the recited sensor. Performing data collection and transmission, considered insignificant extra-solution activities.
Generating/sensing/recording EMG data: EMG sensor functions of data gathering, recited at a high level of generality without specific technical improvements.
A computing device / CPU / data storage: generic computer component performing routine processing, transmission, and display functions, considered insignificant post-solution activity.
The additional elements are generically recited computer elements in independent Claims 1-2 which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea identified above in independent Claims 1-2 are not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer (e.g., a computing device / CPU / data storage as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1-2 are not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claims 1-2 are each directed to an abstract idea under 2019 PEG.
Step 2B
None of Claims 1-2 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: a wearable sensor, a computing device, a CPU, and data storage as recited in independent Claims 1-2.
The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Per Applicant’s specification, ‘wearable sensor 20 including a surface electrode 22 for EMG’, ‘The analysis computer 30 includes a CPU and data storage 32, the analyzed data 34 which is created from the raw data 26 received from the sensor 20’, ‘CPU analyzes the data 42 to generate analyzed data 34.’, ‘Data Storage: Highly analyzed EMG data will be uploaded to a remote server for storage’.
Accordingly, in light of Applicant’s specification, the claimed term computing device is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the computing device. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements 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) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs ‘‘well understood, routine, conventional activit[ies]’ previously known to the industry’ will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1-2 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Further, the claims must reflect any asserted improvement. See MPEP 2106.05(a).
For at least the above reasons, the system and methods of Claims 1-2 are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself, or (ii) providing a technical solution to a problem in a technical field. None of Claims 1-2 provides meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1-2 do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1-2 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1-2 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1-2 are not patent eligible and rejected under 35 U.S.C. 101.
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.
Claim(s) 1-2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 9974478 B1 to Brokaw et al. (hereinafter, Brokaw).
Regarding Claim 1, Brokaw discloses a system for detecting and identifying a concussive event (Brokaw: Col. 5, lines 43-49; Col. 15, lines 3-5; Note: able to monitor abnormal head movements in relation to TBI thus constituting concussive events),
the system comprising: a wearable sensor device for generating electromyographic (EMG) data from a body (Brokaw: Col. 49, lines 16-17 ‘EMG electrodes or other sensors 0605 worn by the subject’; Col. 20, lines 47-49 & line 57),
said wearable sensor device configured to be placed about a skeletal muscle of said body (Brokaw: Col. 33, lines 37-47 ‘typical sensors may include …EMG electrodes …The various sensors can be placed on any part of the subject's body …The sensors acquire their respective signals and transmit those signals to the electronic components of the portable therapy system or device.’);
a computing device comprising a CPU and data storage (Brokaw: Col. 49, lines 33-35 ‘EMG data may also be stored on the on board memory and downloaded to a computer or database’),
said computing device in communication with said wearable sensor device such that said computing device is configured to said wearable sensor device (Brokaw: Col. 49, lines 33-35; Col. 23, line 5-16; Col. 23 lines);
said wearable sensor device configured to detect a loss of muscle tone (LoMT) resulting from a decrease in EMG from said skeletal muscle as detected by said wearable sensor device (Brokaw: Col. 57, lines 10-13 ‘Abnormal muscle tone ... symptom variables may include but are not limited to range of motion and EMG amplitude.’);
wherein said wearable sensor device communicates said LoMT based upon said decrease in EMG indicative of a concussive event to said computing device as processed data (Brokaw: Col 55, lines 56-62 ‘predict or detect movement impairment or symptomatic movement based on the measured movement data …also correlate the subject's continuously recorded movement data with a central database 1420 to determine a custom cueing and/or treatment protocol.’ ; Col. 5, lines 43-49; Col. 15, lines 3-5; Note: able to monitor abnormal head movements in relation to TBI thus constituting concussive events); and
said computing device further configured to generate a warning upon the detection and identification of said concussive event (Brokaw: Col. 60, line 57-Col. 61, line 4 ‘the system may output recommended exercises, treatment plans, commands, warnings, or other such messages to give the subject 2105 more guidance in how to best react to the cue or stimulus.’; Col. 5, lines 43-49; Col. 15, lines 3-5; Note: able to monitor abnormal head movements in relation to TBI thus constituting concussive events.).
Regarding Claim 2, Brokaw discloses a method for the detection and identification of a concussive event (Brokaw: Col. 14, lines 42-46 ‘FIG. 23. Flow chart describing steps of method … whereby a subject's movement is measured continuously …to predict or determine impaired or symptomatic movement…’; Fig. 23; Col. 5, lines 43-49; Col. 15, lines 3-5; Note: able to monitor abnormal head movements in relation to TBI thus constituting concussive events), the method comprising:
sensing and recording electromyographic (EMG) data via a wearable sensor placed on a body about a skeletal muscle of said body (Brokaw: Col. 49, lines 16-17 ‘EMG electrodes or other sensors 0605 worn by the subject’; Col. 20, lines 47-49 & line 57; Col. 33, lines 37-47 ‘typical sensors may include …EMG electrodes …The various sensors can be placed on any part of the subject's body …The sensors acquire their respective signals and transmit those signals to the electronic components of the portable therapy system or device.’);
detecting a loss of muscle tone (LoMT) with said wearable sensor, said LoMT resulting from a decrease in EMG from said skeletal muscle as detected by said wearable sensor (Brokaw: Col. 57, lines 10-13 ‘Abnormal muscle tone ... symptom variables may include but are not limited to range of motion and EMG amplitude.’; Col 55, lines 56-62 ‘predict or detect movement impairment or symptomatic movement based on the measured movement data …also correlate the subject's continuously recorded movement data with a central database 1420 to determine a custom cueing and/or treatment protocol.’ ; Col. 5, lines 43-49; Col. 15, lines 3-5; Note: able to monitor abnormal head movements in relation to TBI thus constituting concussive events);
processing in real-time said EMG data with a computing device comprising a CPU and data storage, thereby identifying episodes of loss of muscle tone (LoMT) indicative of a concussive event and generating results (Brokaw: Col. 4, line 67-Col. 5, line 1 ‘device with sensors and include real-time kinematic analysis of movement characteristics’; Col. 23, line 37 ‘storing that data to memory, uploading data to a computer‘; Col. 57, lines 10-14 ‘Abnormal muscle tone ... symptom variables may include but are not limited to range of motion and EMG amplitude.’); and
storing said results for the purpose of aiding concussion diagnosis by said computing device (Brokaw: Col. 55, lines 30-34 ‘transmitting and storing the subject's newly recorded movement data and cuing data, … and determining an optimized and custom cueing and/or treatment protocols for the subject.’).
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 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 SHAWN CURTIS BROUGHTON whose telephone number is (571)272-0732. The examiner can normally be reached Monday - Friday, 8am-4pm EST..
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/SHAWN CURTIS BROUGHTON/Examiner, Art Unit 3791 /ALEX M VALVIS/Supervisory Patent Examiner, Art Unit 3791