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
In response to the Preliminary Amendment, claims 1, 3-9, 12, and 14-20 are amended. No claims are cancelled and no new claims are added. Claims 1-20 are pending.
Claim Objections
Claim 1 is objected to because of the following informalities:
“motion date” in line 5 should be “motion data” for clarity.
Claim 12 is objected to because of the following informalities:
“motion date” in line 9 should be “motion data” for clarity.
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 1-20 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 recites the limitation “the rehabilitation or exercise program” in line 8 of the claim. There is insufficient basis for this limitation in the claim. The lack of antecedent basis causes the meaning of the claim to be unclear. A lack of clarity arises because it is unclear as to which earlier recited element (if any) the limitations reference. For the purposes of examination, the limitations are interpreted as not referring to any earlier recited elements.
Claims 2-11 are rejected by virtue of dependence on claim 1 and because they inherit and do not remedy the deficiencies of claim 1.
Claim 12 recites the limitation “the rehabilitation or exercise program” in line 12 of the claim. There is insufficient basis for this limitation in the claim. The lack of antecedent basis causes the meaning of the claim to be unclear. A lack of clarity arises because it is unclear as to which earlier recited element (if any) the limitations reference. For the purposes of examination, the limitations are interpreted as not referring to any earlier recited elements.
Claims 13-20 are rejected by virtue of dependence on claim 12 and because they inherit and do not remedy the deficiencies of claim 12.
Claim 14 recites “cause the apparatus to: at least one of a range of motion” in line 5 of the claim which causes a lack of clarity as there is no positive action/function/capability of what the apparatus is doing. This causes the meaning of the claim to be unclear. For the purposes of examination, it will be interpreted that the apparatus is determining.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claims 1-20 are all within at least one of the four categories.
The independent claim 1 recites:
deriving an attribute from sensor fata including at least one of EMG data or motion date of the subject, the sensor data being obtained from at least one limb of the subject;
deriving information indicating that how the subject is responding to the rehabilitation or exercise program based on the attribute; and
determining the frailty score of the subject based on the information indicating that how the subject is responding to the rehabilitation or exercise program.
The independent claim 12 recites:
deriving an attribute from sensor fata including at least one of EMG data or motion date of the subject, the sensor data being obtained from at least one limb of the subject;
deriving information indicating that how the subject is responding to the rehabilitation or exercise program based on the attribute; and
determining the frailty score of the subject based on the information indicating that how the subject is responding to the rehabilitation or exercise program.
The above claim limitations constitute an abstract idea that is part of the Mathematical Concepts and/or Mental Processes group identified in the 2019 Revised Patent Subject Matter Eligibility Guidance published in the Federal Register (84 FR 50) on January 7, 2019. See footnotes 14 and 15.
“A mathematical relationship is a relationship between variables or numbers. A mathematical relationship may be expressed in words ….” October 2019 Update: Subject Matter Eligibility, II. A. i. “[T]here are instances where a formula or equation is written in text format that should also be considered as falling within this grouping.” Id. at II. A. ii. “[A] claim does not have to recite the word “calculating” in order to be considered a mathematical calculation.” Id. at II. A. iii. See for example, SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163-65 (Fed. Cir. 2018) (performing a resampled statistical analysis to generate a resampled distribution).
The claimed steps of deriving and determining can be practically performed in the human mind using mental steps or basic critical thinking, which are types of activities that have been found by the courts to represent abstract ideas.
Examples of ineligible claims that recite mental processes include:
a claim to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group, LLC v. Alstom, S.A.;
claims to “comparing BRCA sequences and determining the existence of alterations,” where the claims cover any way of comparing BRCA sequences such that the comparison steps can practically be performed in the human mind, University of Utah Research Foundation v. Ambry Genetics Corp.
a claim to collecting and comparing known information (claim 1), which are steps that can be practically performed in the human mind, Classen Immunotherapies, Inc. v. Biogen IDEC.
See p. 7-8 of October 2019 Update: Subject Matter Eligibility.
With respect to the pending claims, for example, a physician can perform the claimed step of deriving by mentally calculating an attribute from obtained data and further derive information that indicates how a subject is responding to a treatment. The physician can then further determine a frailty score based the information gathered on how a subject is responding to treatment. Thus, the claims can be readily interpreted as being a mere application of a mental process on a computer.
Regarding the dependent claims 2-11 and 13-20, the dependent claims are directed to either 1) steps that are also abstract or 2) additional data output that is well-understood, routine and previously known to the industry. For example, dependent claims recite steps (e.g. deriving, determining, obtaining, receiving, sending, extracting, quantitatively processing and remotely assisting) that can be performed in the mind. Although the dependent claims are further limiting, they do not recite significantly more than the abstract idea. A narrow abstract idea is still an abstract idea and an abstract idea with additional well-known equipment/functions is not significantly more than the abstract idea.
This judicial exception (abstract idea) in claims [ ] is not integrated into a practical application because:
The abstract idea amounts to simply implementing the abstract idea on a computer. For example, the recitations regarding the generic computing components for deriving, determining, receiving, sending, extracting, quantitatively processing and remotely assisting merely invoke a computer as a tool.
The data-gathering step (receiving and obtaining) and the data-output step (sending) do not add a meaningful limitation to the method as they are insignificant extra-solution activity.
There is no improvement to a computer or other technology. “The McRO court indicated that it was the incorporation of the particular claimed rules in computer animation that "improved [the] existing technological process", unlike cases such as Alice where a computer was merely used as a tool to perform an existing process.” MPEP 2106.05(a) II. The claims recite a computer that is used as a tool for deriving, determining, receiving, sending, extracting, quantitatively processing and remotely assisting.
The claims do not apply the abstract idea to effect a particular treatment or prophylaxis for a disease or medical condition. Rather, the abstract idea is utilized to determine a relationship among data to provide information about how a subject is responding to a rehabilitation or exercise program.
The claims do not apply the abstract idea to a particular machine. “Integral use of a machine to achieve performance of a method may provide significantly more, in contrast to where the machine is merely an object on which the method operates, which does not provide significantly more.” MPEP 2106.05(b). II. “Use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not provide significantly more.” MPEP 2106.05(b) III. The pending claims utilize a computer for deriving, determining, receiving, sending, extracting, quantitatively processing and remotely assisting. The claims do not apply the obtained data to a particular machine. Rather, the data is merely output in an post-solution step.
The additional elements are identified as follows: at least one processor; and at least one memory including computer code.
Those in the relevant field of art would recognize the above-identified additional elements as being well-understood, routine, and conventional means for data-gathering and computing, as demonstrated by
Applicant' s specification (para [0113]-[0123] and Fig. 12) which discloses that the processor and memory comprise generic computer components that are configured to perform the generic computer functions (e.g. deriving, determining, obtaining, receiving, sending, extracting, quantitatively processing and remotely assisting) that are well-understood, routine, and conventional activities previously known to the pertinent industry; and
the non-patent literature cited by applicant:
Latham, Nancy K., et al., "A randomized, controlled trial of quadriceps resistance exercise and vitamin D in frail older people: the Frailty Interventions Trial in Elderly Subjects (FITNESS)", Journal of the American Geriatrics Society, 2003.02.20, Volume 51, Issue 3, 291-299 pp. 292-296
Brown, Marybeth, et al., "Physical and performance measures for the identification of mild to moderate frailty", The Journal of Gerontology, 2000.06.01, Vol. 55A, No. 6, M350-M355
Thus, the claimed additional elements “are so well-known that they do not need to be described in detail in a patent application to satisfy 35 U.S.C. § 112(a).” Berkheimer Memorandum, III. A. 3.
Furthermore, the court decisions discussed in MPEP § 2106.05(d)(lI) note the well-understood, routine and conventional nature of such additional elements as those claimed. See option III. A. 2. in the Berkheimer memorandum.
When considered in combination, the additional elements (i.e. the generic computer functions and conventional equipment/steps) do not amount to significantly more than the abstract idea. Looking at the claim limitations as a whole adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3, 8-12, 14 and 17-20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Slepian (US 20220378349 A1).
With respect to claim 1, Slepian discloses
a method of determining a frailty score of a subject (see paragraph 0006, systems and method for measuring muscular function and fatigue; and see paragraph 0005, slowness and weakness of movements are marker of frailty and frailty can be measured and determined by muscle fatigue), the method comprising:
deriving an attribute from sensor data including at least one of EMG data or motion date of the subject (see paragraph 0036, motion sensor #100 measures movements of one or more muscles of a body of a user where motion sensor #100 comprises an electromyogram (EMG) for measuring an electrical activity in response to stimulation of the one or more muscles of the body to generate an EMG signal and transmit that EMG signal to a computing device #300 where computing device #300 measures and derives various parameters over a time interval for muscular fatigue including an increase in a mean absolute value of the EMG signal, an increase in an amplitude of the EMG signal, a change in ratio of average value), the sensor data being obtained from at least one limb of the subject (see paragraph 0036, the motion sensor #100 may attach to the body of the user; and see paragraph 0045, sensor attached to forearm of user which is interpreted to be on a limb of a user);
deriving information indicating that how the subject is responding to the rehabilitation or exercise program based on the attribute (see paragraph 0048-0049, ball compression progress is tracked and the wearable sensor monitors target muscle fatigue during ball compression via EMG with biochemical and physical changes utilized to track how subject is responding to the exercise); and
determining the frailty score of the subject based on the information indicating that how the subject is responding to the rehabilitation or exercise program (see paragraph 0045, EMG and motion tracking data were quantitively analyzed for frailty detection).
With respect to claim 3, all limitations of claim 1 apply in which Slepian further discloses wherein the information indicating that how the subject is responding to the rehabilitation or exercise program includes at least one of a range of motion of the subject or velocity of movement of the subject (see paragraph 0036, angular velocity of movement of user), muscle strength, similarity score of an injured limb and an uninjured limb.
With respect to claim 8, all limitations of claim 1 apply in which Slepian further discloses wherein the step of deriving an attribute from the sensor data comprises extracting features (see paragraph 0043, the signals comprise physical biomarkers).
With respect to claim 9, all limitations of claim 1 apply in which Slepian further discloses wherein the information indicating that how the subject is responding to the rehabilitation or exercise program includes an exercise program (see paragraph 0048-0049, ball compression progress is tracked and the wearable sensor monitors target muscle fatigue during ball compression via EMG with biochemical and physical changes utilized to track how subject is responding to the exercise where ball compression is an exercise program).
With respect to claim 10, all limitations of claim 1 apply in which Slepian further discloses remotely assisting the exercise program of the subject (see paragraph 0048, a cellphone is used to assist the ball compression progress).
With respect to claim 11, all limitations of claim 1 apply in which Slepian further discloses sending the frailty score wirelessly (see paragraph 0036, transmitting signals to computing device #300).
With respect to claim 12, Slepian discloses
an apparatus of determining a frailty score of a subject (see paragraph 0006, systems and method for measuring muscular function and fatigue; and see paragraph 0005, slowness and weakness of movements are marker of frailty and frailty can be measured and determined by muscle fatigue; and see paragraph 0038, system with computing device #300), the apparatus comprising:
at least one processor (paragraph 0038, computing device #300 comprises processor #303); and at least one memory including computer program code (paragraph 0038, computing device #300 comprises processor #303 that executes computer readable instructions stored on memory component #302);
the at least one memory and the computer program code configured to, with at least one processor, cause the apparatus at least to:
derive an attribute from sensor data including at least one of EMG data or motion date of the subject (see paragraph 0036, motion sensor #100 measures movements of one or more muscles of a body of a user where motion sensor #100 comprises an electromyogram (EMG) for measuring an electrical activity in response to stimulation of the one or more muscles of the body to generate an EMG signal and transmit that EMG signal to a computing device #300 where computing device #300 measures and derives various parameters over a time interval for muscular fatigue including an increase in a mean absolute value of the EMG signal, an increase in an amplitude of the EMG signal, a change in ratio of average value), the sensor data being obtained from at least one limb of the subject see paragraph 0036, the motion sensor #100 may attach to the body of the user; and see paragraph 0045, sensor attached to forearm of user which is interpreted to be on a limb of a user);
derive information indicating how the subject is responding to the rehabilitation or exercise program based on the attribute (see paragraph 0048-0049, ball compression progress is tracked and the wearable sensor monitors target muscle fatigue during ball compression via EMG with biochemical and physical changes utilized to track how subject is responding to the exercise); and
determine the frailty score of the subject based on the information indicating that how the subject is responding to the rehabilitation or exercise program see paragraph 0045, EMG and motion tracking data were quantitively analyzed for frailty detection).
With respect to claim 14, all limitations of claim 12 apply in which Slepian further discloses
wherein the at least one memory and the computer program code configured to, with at least one processor, cause the apparatus at least to: at least one of a range of motion of the subject or velocity of movement of the subject (see paragraph 0036, angular velocity of movement of user), muscle strength, similarity score of an injured limb and an uninjured limb.
With respect to claim 17, all limitations of claim 12 apply in which Slepian further discloses wherein the at least one memory and the computer program code configured to, with at least one processor, cause the apparatus at least to: extract features to derive an attribute from the sensor data (see paragraph 0043, the signals comprise physical biomarkers).
With respect to claim 18, all limitations of claim 12 apply in which Slepian further discloses wherein the at least one memory and the computer program code configured to, with at least one processor, cause the apparatus at least to: quantitatively process the attribute that involves an exercise program (see paragraph 0048-0049, ball compression progress is tracked and the wearable sensor monitors target muscle fatigue during ball compression via EMG with biochemical and physical changes utilized to track how subject is responding to the exercise where ball compression is an exercise program being quantitatively processes).
With respect to claim 19, all limitations of claim 12 apply in which Slepian further discloses wherein the at least one memory and the computer program code configured to, with at least one processor, cause the apparatus at least to: send the frailty score wirelessly (see paragraph 0036, transmitting signals to computing device #300).
With respect to claim 20, all limitations of claim 12 apply in which Slepian further discloses wherein the at least one memory and the computer program code configured to remotely assist the exercise program of the subject (see paragraph 0048, a cellphone is used to assist the ball compression progress).
Claim Rejections - 35 USC § 103
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 2 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Slepian in view of Lin (US 20210378853 A1).
With respect to claim 2, all limitations of claim 1 apply in which Slepian does not specifically disclose obtaining the sensor data from at least a quadriceps of the subject, and wherein the frailty score indicates an objective quadriceps muscle strength.
Lin teaches obtaining sensor data from at least a quadriceps of a subject (see paragraph 0071 and 0076, monitor physiological activity of a wearer’s quadriceps) and wherein a frailty score indicates an objective quadriceps muscle strength (see paragraph 0083, assess the frailty level of the rehabilitator).
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 Slepian with the teachings of Lin to have obtained sensor data from at least a quadriceps of a subject because it would have resulted in the predictable result of facilitating lower limb muscle rehabilitation (Lin: [0076]) and providing a rehabilitation system for users with frailty (Lin: [0082]).
With respect to claim 13, all limitations of claim 12 apply in which Slepian does not specifically disclose wherein the at least one memory and the computer program code configured to, with at least one processor, cause the apparatus at least to: obtain the sensor data from at least a quadriceps of the subject, and wherein the frailty score indicates an objective quadriceps muscle strength.
Lin teaches obtaining sensor data from at least a quadriceps of a subject (see paragraph 0071 and 0076, monitor physiological activity of a wearer’s quadriceps) and wherein a frailty score indicates an objective quadriceps muscle strength (see paragraph 0083, assess the frailty level of the rehabilitator).
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 Slepian with the teachings of Lin to have obtained sensor data from at least a quadriceps of a subject because it would have resulted in the predictable result of facilitating lower limb muscle rehabilitation (Lin: [0076]) and providing a rehabilitation system for users with frailty (Lin: [0082]).
Claims 4 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Slepian in view of Johanning (US 20190192013 A1; cited by applicant).
With respect to claim 4, all limitations of claim 1 apply in which Slepian does not specifically disclose receiving time taken for the subject to get up from a sitting position, and wherein the information indicating that how the subject is responding to the rehabilitation or exercise program is derived based on the time taken for the subject to get up from the sitting position.
Johanning teaches receiving time taken for a subject to get up from a sitting position (see paragraph 00213, TUG test measures the time in second for a person to rise from sitting to standing) and the information indicating that how the subject is responding to the rehabilitation or exercise program is derived based on the time taken for the subject to get up from the sitting position (see paragraph 0023, the TUG test is indicative of a subjects ambulatory abilities, balance and risk of falling).
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 Slepian with the teachings of Johanning to have received time taken for a subject to get up from a sitting position because it would have resulted in the predictable result of assessing a subject’s ambulatory abilities, balance and risk of falling (Johanning: see [0023]).
With respect to claim 15, all limitations of claim 12 apply in which Slepian does not specifically disclose wherein the at least one memory and the computer program code configured to, with at least one processor, cause the apparatus at least to: receive time taken for the subject to get up from a sitting position, wherein the apparatus is derived based on the time taken for the subject to get up from the sitting position.
Johanning teaches receiving time taken for a subject to get up from a sitting position (see paragraph 00213, TUG test measures the time in second for a person to rise from sitting to standing) and the apparatus is derived based on the time taken for the subject to get up from the sitting position (see paragraph 0023, the TUG test is indicative of a subject’s ambulatory abilities, balance and risk of falling).
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 Slepian with the teachings of Johanning to have received time taken for a subject to get up from a sitting position because it would have resulted in the predictable result of assessing a subject’s ambulatory abilities, balance and risk of falling (Johanning: see [0023]).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Slepian in view of Johanning (US 20190192013 A1; cited by applicant) and Najafi (US 20150332004 A1).
With respect to claim 5, all limitations of claim 1 apply in which Slepian does not specifically disclose receiving data indicating an amount of muscle contraction of the subject during getting up from a sitting position, wherein the information indicating that how the subject is responding to the rehabilitation or exercise program is derived based on repeated movement to get up from the sitting position, or predetermined period of time or a predetermined number of repetition to get up from sitting position.
Johanning teaches receiving time taken for a subject to get up from a sitting position (see paragraph 00213, TUG test measures the time in second for a person to rise from sitting to standing) and the information indicating that how the subject is responding to the rehabilitation or exercise program is derived based on the time taken for the subject to get up from the sitting position (see paragraph 0023, the TUG test is indicative of a subjects ambulatory abilities, balance and risk of falling).
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 Slepian with the teachings of Johanning to have received time taken for a subject to get up from a sitting position because it would have resulted in the predictable result of assessing a subject’s ambulatory abilities, balance and risk of falling (Johanning: see [0023]).
Slepian and Johanning do not specifically teach measuring an amount of muscle contraction.
Najafi teaches meaning an amount of muscle contraction (see paragraph 0081, measuring muscle activation pattern during contraction).
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 Slepian and Johanning with the teachings of Najafi to have measured muscle contraction because it would have resulted in the predictable result of characterizing frailty (Najafi: see [0081]) during an exercise or rehabilitation movement for early intervention (Najafi: see [0083]).
Claims 6-7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Slepian in view Najafi.
With respect to claim 6, all limitations of claim 1 apply in which Slepian does not specifically disclose receiving time taken for the subject to perform at least one of quadriceps contraction task and knee extension from a sitting position or supine position.
Najafi teaches receiving time taken for a subject to perform a knee extension from a sitting position (see paragraph 0049, rise-time is determined for an extension; and see paragraph 0084, knee flexion/extension may be tested).
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 Slepian with the teachings of Najafi to have measured time taken for subject to perform a knee extension from a sitting position because it would have resulted in the predictable result of characterizing frailty (Najafi: see [0044]) during an exercise or rehabilitation movement for early intervention (Najafi: see [0083]) as rise-time is a marker of frailty (Najafi: see [0044]).
With respect to claim 7, all limitations of claim 1 apply in which Slepian does not specifically disclose receiving data indicating the amount of muscle contraction and level of knee extension or quadriceps contraction task of the subject, wherein the information indicating that how the subject is responding to the rehabilitation or exercise program is derived based on the data indicating the amount of muscle contraction and the level of knee extension or quadriceps contraction task during a predetermined period of time or a predetermined number of repetition.
Najafi teaches receiving data indicating the amount of muscle contraction and level of knee extension (see paragraph 0047-0048, angle of flexion/extension of joint is measured; see paragraph 0049, rise-time is determined for an extension; and see paragraph 0084, knee flexion/extension may be tested) wherein the information indicating that how the subject is responding to the rehabilitation or exercise program is derived based on the data indicating the amount of muscle contraction and the level of knee extension or quadriceps contraction task during a predetermined period of time or a predetermined number of repetition (see paragraph 0081, frailty is characterized by measuring muscle activation during contraction; and see paragraph 0047, predetermined period of time for muscle flexion/extension)
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 Slepian with the teachings of Najafi to have received data indicating the amount of muscle contraction and level of knee extension because it would have resulted in the predictable result of characterizing frailty (Najafi: see [0044]) during an exercise or rehabilitation movement for early intervention (Najafi: see [0083]) as rise-time is a marker of frailty (Najafi: see [0044]).
With respect to claim 16, all limitations of claim 12 apply in which Slepian does not disclose wherein the at least one memory and the computer program code configured to, with at least one processor, cause the apparatus at least to: receive data indicating a level of knee extension or quadriceps contraction task of the subject, wherein the apparatus is derived based on the received data indicating the level of knee extension or quadriceps contraction task.
Najafi teaches receiving data indicating a level of knee extension or quadriceps contraction task of the subject (see paragraph 0047-0048, angle of flexion/extension of joint is measured; see paragraph 0049, rise-time is determined for an extension; and see paragraph 0084, knee flexion/extension may be tested) wherein the apparatus is derived based on the received data indicating the level of knee extension or quadriceps contraction task (see paragraph 0081, frailty is characterized by measuring muscle activation during contraction; and see paragraph 0047, predetermined period of time for muscle flexion/extension)
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 Slepian with the teachings of Najafi to have received data indicating the level of knee extension because it would have resulted in the predictable result of characterizing frailty (Najafi: see [0044]) during an exercise or rehabilitation movement for early intervention (Najafi: see [0083]) as rise-time is a marker of frailty (Najafi: see [0044]).
Conclusion
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/N.N.P./Examiner, Art Unit 3791
/MATTHEW KREMER/Primary Examiner, Art Unit 3791