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
Claims 1-18 are currently pending. Claims 1-10 have been amended.
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 1-18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
STEP 1
Regarding claim 1, the claim recites a series of steps or acts, including a step (E1) of placing the individual on a seat of the measurement bench. Thus, the claim is directed to a process, which is one of the statutory categories of invention.
STEP 2A, PRONG ONE
The claim is then analyzed to determine whether it is directed to any judicial exception. The steps of:
a step (El) of placing the individual on a seat of the measurement bench;
a step (E2) of moving the seat into a test position, said test position being farther back than a standard position wherein the individual is in contact with a force platform via the at least one lower or upper limb of the individual, said force platform being intended to measure a force generated by said at least one lower or upper limb of the individual;
a step (E3) of locking the seat in the test position;
a step (E4) of loading the seat with a predetermined load;
a step (E5) of unlocking the seat, said seat being driven toward the force platform by the predetermined load;
a step (E6) wherein the individual lands on the force platform;
a step (E7) wherein the individual pushes against the force platform; and
a step (E10) of processing, by a processing software of the measurement bench, data from said acquired signals.
set forth a judicial exception. Steps E1-E7 describe a concept of managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). Step E10 describes a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to Organizing Human Activity and a Mental Process, which are Abstract Ideas.
STEP 2A, PRONG TWO
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Claim 1 recites a step (E10) of processing data from said acquired signals, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The processing of data does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the processed data, nor does the method use a particular machine to perform the Abstract Idea. It is noted that section 2106.05(a) II. of the MPEP states that “…it is important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology.”
STEP 2B
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the Abstract Idea, the claim recites additional step of:
a step (E8) of acquiring, via the force platform and an acquisition device comprised in the measurement bench, signals regarding the force generated by the individual on said force platform during the landing step (E6) and/or the pushing step (E7).
The acquiring step is well-understood, routine and conventional activities for those in the field of medical diagnostics. Further, the providing and recording steps are each recited at a high level of generality such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering and comparing activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the obtaining and comparing steps do not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
The same rationale applies to claim 10.
Regarding claim 10, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited frame, seat, locking/unlocking device, loading device, and processing software are configured to perform the Abstract Idea and the recited force platform and acquisition device are generic sensors configured to perform pre-solutional data gathering activity. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application.
The dependent claims also fail to add something more to the abstract independent claims. Claims 1-9 add to the Abstract Idea and claims 11-18 recites presolutional steps of data gathering or also add to the Abstract Idea. The steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Response to Arguments
Applicant argues that the claims do not recite organizing human activity as steps E1-E7 recite a physical testing method that are physical, mechanical operations. However, how is the seat moved and locked into the test position, loaded with a predetermined load, then unlocked so that the seat is driven toward a force platform? There is no recitation of a structural component that performs these steps. Thus, the Examiner interprets the steps as organizing human activity as these steps are instructions for a user to follow. Even if the steps are performed by structural components, it is unclear if these are just generic components used to perform the Abstract Idea.
Applicant argues that step E10 has been amended to not recite a mental process. However, the processing step could still be interpreted as a mental process as a user could review the acquired signals and mentally process the data. Furthermore, regarding the processing software, according to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application.
Applicant argues that the specific measurement bench, seat, force platform, predetermined load, locking/unlocking mechanism, acquisition device, and processing software cooperate to create a particular physical testing event. However, the recited steps are Abstract Ideas. It is noted that the measurement bench, seat, predetermined load, and locking/unlocking mechanism do not perform any of the recited steps. Although the force platform, acquisition device, and processing software are used to perform steps E8 and E10, step E8 is merely pre-solution activity of data gathering and step E10 is an Abstract Idea, as previously mentioned.
Applicant argues that loading the seat with a predetermined load, unlocking the seat, and thereby causing the seat to be driven toward the force platform is not significant extra-solution activity as it defines how the test condition is created. However, and previously mentioned these steps are Abstract Ideas. It is noted that section 2106.05(a) II. of the MPEP states that “…it is important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology.”
Applicant argues that the method is a specific machine-mediated measurement protocol for determining at least one neuromuscular characteristics. However, and previously mentioned these steps are Abstract Ideas. It is noted that section 2106.05(a) II. of the MPEP states that “…it is important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology.” Furthermore, there is no recitation as to how neuromuscular characteristics are determined. Steps E1-E10 recite Abstract Ideas to measure force from the acquired signals and processing data from the acquired signals. It is unclear how processing data f rom said acquired signals would determine neuromuscular characteristics.
Applicant argues that amended claim 1 is not well-understood, routine, and conventional (WURC). However, as previously mentioned, the recited steps are Abstract Ideas. The ordered combination does not need to be WURC. The recited structures are also not positively recited and are not used to perform any of the steps. Only the force platform, acquisition device, and processing software are positively recited. However, the force platform and acquisition device are recited at high generality and the Examiner interprets these are mere sensors used to perform the pre-solution activity of data gathering. The processing software is a generic computer component used to perform the Abstract Idea.
For the reasons set forth above, the claims recite Abstract Ideas, do not recite any technical improvement, and the additional elements are WURC. As such, the 35 U.S.C. 101 rejection has been maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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 AURELIE H TU whose telephone number is (571)272-8465. The examiner can normally be reached [M-F] 7:30-3:30.
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/AURELIE H TU/ Primary Examiner, Art Unit 3791
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