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 .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
No limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 7 and 19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 7 recites “wherein the biometric further comprises a fall probability, and wherein the processor is further configured to identify local inflection points in the filtered data, count events based on the local inflection points within a data window, and determine the fall probability based on the events counted” in lines 1-5, which is clearly a computer-implemented recitation. Under the current guidelines of 35 USC 112, the specification fails to support a claim that defines the invention in functional language specifying a desired result when the specification does not sufficiently identify how the invention achieves the claimed function. For there to be sufficient disclosure for a computer-implemented claim limitation, it is not enough that one skilled in the art could write a program to achieve the claimed function. Rather, the specification must disclose the computer and the algorithm (e.g., the necessary steps and/or flowcharts) that performs the claimed function in sufficient detail such that one of ordinary skill can reasonably conclude that the inventor invented the claimed subject matter. See Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, Fed. Reg. Vol. 76, No. 27, February 9, 2011, p. 7162-7175 (“the Supplementary Examination Guidelines”). This claim is rejected under §112, first paragraph, based on lack of written description because the specification fails to provide the algorithm (e.g., the necessary steps and/or flowcharts) that performs the claimed function of determining a fall probability based on the counted events based on the identified local inflection points within a data window. That is, the steps for the determination of a fall probability are not disclosed.
Additionally, the specification does not teach or suggest “wherein the biometric further comprises a fall probability, and wherein the processor is further configured to identify local inflection points in the filtered data, count events based on the local inflection points within a data window, and determine the fall probability based on the events counted” of claim 7, lines 1-5 in a general sense. The teaching of paragraph 0064 of the specification states that the detection and analysis of small, perhaps unnoticed events by pressure, acceleration and rotation measurements in the foot, leg, and torso may provide some insights into fall probability. However, this teaching is simply not the same as actually determining the fall probability based on the counted events based on the identified local inflection points. That is, one parameter (i.e., detection and analysis of small, perhaps unnoticed events by pressure, acceleration and rotation measurements in the foot, leg, and torso) providing insight into a fall probability is not disclosure of how a different parameter (the counted events based on the identified local inflection points) is actually used to determine that probability. Thus, claim 7 is rejected on this grounds as well.
Claim 19 recites “wherein the biometric further comprises a fall probability and wherein the processor is further configured to identify local inflection points in the filtered data, count events based on the local inflection points within a data window, and determine the fall probability based on the events counted” in lines 1-5, which is clearly a computer-implemented recitation. See the Supplementary Examination Guidelines and the above 112(a) rejection of claim 7 for sufficient disclosure for a computer-implemented claim limitation. This claim is rejected under §112, first paragraph, based on lack of written description because the specification fails to provide the algorithm (e.g., the necessary steps and/or flowcharts) that performs the claimed function of determining a fall probability based on the counted events based on the identified local inflection points within the data window. That is, the steps for the determination of a fall probability are not disclosed.
Additionally, the specification does not teach or suggest “wherein the biometric further comprises a fall probability and wherein the processor is further configured to identify local inflection points in the filtered data, count events based on the local inflection points within a data window, and determine the fall probability based on the events counted” of claim 19, lines 1-5 in a general sense. The teaching of paragraph 0064 of the specification states that the detection and analysis of small, perhaps unnoticed events by pressure, acceleration and rotation measurements in the foot, leg, and torso may provide some insights into fall probability. However, this teaching is simply not the same as actually determining the fall probability based on the counted events based on the identified local inflection points. That is, one parameter (i.e., detection and analysis of small, perhaps unnoticed events by pressure, acceleration and rotation measurements in the foot, leg, and torso) providing insight into a fall probability is not disclosure of how a different parameter (the counted events based on the identified local inflection points) is actually used to determine that probability. Thus, claim 19 is rejected on these grounds as well.
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, 5-14, and 17-20 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 “wherein the processor is further configured to generate feedback for a user based on the biometric” in lines 17-19, but it is not clear if this recitation is the same as, related to, or different from “wherein the processor is further configured to control an output module of the wearable device, and based on the biometric, the output module drives a change in a function of the wearable device, wherein the change comprises at least one of… modifying an audio output of the wearable device” of claim 1, lines 11-16. Both recitations refer to the generation of a response to the biometric, but the claim does not link the two concepts together. The relationship between the two recitations should be made clear.
Claims 2 and 5-12 are rejected by virtue of their dependence from claim 1.
Claim 6 recites “wherein the processor is further configured to provide feedback” in lines 1-2, but it is not clear if this recitation is the same as, related to, or different from “wherein the processor is further configured to control an output module of the wearable device, and based on the biometric, the output module drives a change in a function of the wearable device, wherein the change comprises at least one of… modifying an audio output of the wearable device” of claim 1, lines 11-16 and/or “wherein the processor is further configured to generate feedback for a user based on the biometric” in lines 17-19. All of the recitations refer to the generation of a response to the biometric, but the claims do not link these concepts together. The relationship among the recitations should be made clear.
Claim 6 recites “first sensor data” in line 4, but it is not clear if this recitation is the same as, related to, or different from “pressure data” of claim 1, line 3 and/or “filtered data” of claim 1, line 8. All of the recitations refer to types of pressure data, but the claims do not link these concepts together. The relationship among the recitations should be made clear.
Claim 6 recites “a first pressure sensor” in lines 4-5, but it is not clear if this recitation is the same as, a subset of, related to, or different from “a plurality of pressure sensors” of claim 5, lines 2-3. The relationship between the recitations should be made clear.
Claim 6 recites “second sensor data” in line 5, but it is not clear if this recitation is the same as, related to, or different from “pressure data” of claim 1, line 3 and/or “filtered data” of claim 1, line 8. All of the recitations refer to types of pressure data, but the claims do not link these concepts together. The relationship among the recitations should be made clear.
Claim 6 recites “a second pressure sensor” in line 6, but it is not clear if this recitation is the same as, a subset of, related to, or different from “a plurality of pressure sensors” of claim 5, lines 2-3. The relationship between the recitations should be made clear.
Claim 7 recites “a data window” in line 4, but it is not clear if this recitation is the same as, related to, or different from “a data window” of claim 1, line 5. If they are the same, “a data window” in claim 7 should be “the data window”. If they are different, their relationship should be made clear and they should be clearly distinguished from each other (e.g., when multiple elements have similar or the same labels, distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements).
Claim 8 recites “wherein the processor is further configured to provide feedback comprising a suggestion…the suggestion provides an audio prompt” in lines 1-4, but it is not clear if this recitation is the same as, related to, or different from “wherein the processor is further configured to control an output module of the wearable device, and based on the biometric, the output module drives a change in a function of the wearable device, wherein the change comprises at least one of… modifying an audio output of the wearable device” of claim 1, lines 11-16 and/or “wherein the processor is further configured to generate feedback for a user based on the biometric” in lines 17-19. All three recitations refer to the generation of a response to the biometric, but the claims do not link these concepts together. The relationship among the recitations should be made clear.
Claim 8 recites “wherein based on step events, the suggestion provides an audio prompt”, but it is not clear what relationship the step events have with the suggestion providing an audio prompt. Also, the step events are inserted into the claim language but no context is provided such that it is unclear where the step events come from or how they interact with the other elements of the claimed system. These issues render claim 8 indefinite.
Claim 9 recites “wherein the processor is further configured to generate the feedback as at least one of a visual, audio, or tactile alert” in lines 1-3, but it is not clear if this recitation is the same as, related to, or different from “wherein the processor is further configured to control an output module of the wearable device, and based on the biometric, the output module drives a change in a function of the wearable device, wherein the change comprises at least one of… modifying an audio output of the wearable device” of claim 1, lines 11-16 and/or “wherein the processor is further configured to generate feedback for a user based on the biometric” in lines 17-19. There is overlap of meaning among the recitations, but the claims do not link or relate these concepts together. The relationship among the recitations should be made clear.
Claim 10 recites “wherein the processor is further configured to modify a system function of the wearable device based on the biometric to minimize a risk of injury or to improve a gait efficiency” in lines 1-3, but it is not clear if this recitation is the same as, related to, or different from “wherein the processor is further configured to control an output module of the wearable device, and based on the biometric, the output module drives a change in a function of the wearable device, wherein the change comprises at least one of: inflating a portion of the wearable device, deflating the portion of the wearable device, changing a stiffness of the portion of the wearable device, and modifying an audio output of the wearable device” of claim 1, lines 11-16 and/or “wherein the processor is further configured to generate feedback for a user based on the biometric” in lines 17-19. There is overlap of meaning among the recitations, but the claims do not link or relate these concepts together. The relationship among the recitations should be made clear.
Claim 11 is rejected by virtue of its dependence from claim 10.
Claim 11 recites “wherein the processor is configured to select a system function, wherein the system function comprises at least one of a bladder inflation, a material stiffness, and an output of the wearable device” in lines 1-3, but it is not clear if this recitation is the same as, related to, or different from “wherein the processor is further configured to control an output module of the wearable device, and based on the biometric, the output module drives a change in a function of the wearable device, wherein the change comprises at least one of: inflating a portion of the wearable device, deflating the portion of the wearable device, changing a stiffness of the portion of the wearable device, and modifying an audio output of the wearable device” of claim 1, lines 11-16 and/or “wherein the processor is further configured to generate feedback for a user based on the biometric” in lines 17-19. There is overlap of meaning among the recitations, but the claims do not link or relate these concepts together. The relationship among the recitations should be made clear.
Also, in furtherance to the above paragraph, claim 11 recites “a bladder inflation” in lines 2-3, but it is not clear if this recitation is the same as, related to, or different from “inflating a portion of the wearable device” and/or “deflating the portion of the wearable device” in claim 1, lines 13-15. There is overlap of meaning among the recitations, but the claims do not link or relate these concepts together. The relationship among the recitations should be made clear.
Also, in furtherance to the above paragraphs, claim 11 recites “a material stiffness” in line 3, but it is not clear if this recitation is the same as, related to, or different from “a stiffness of the portion of the wearable device” in claim 1, line 15. There is overlap of meaning between the recitations, but the claims do not link or relate these concepts together. The relationship between the recitations should be made clear.
Also, in furtherance to the above paragraph, claim 11 recites “an output of the wearable device” in lines 1-3, but it is not clear if this recitation is the same as, related to, or different from “wherein the processor is further configured to control an output module of the wearable device, and based on the biometric, the output module drives a change in a function of the wearable device, wherein the change comprises at least one of… modifying an audio output of the wearable device” of claim 1, lines 11-16 and/or “wherein the processor is further configured to generate feedback for a user based on the biometric” in lines 17-19. There is overlap of meaning among the recitations, but the claims do not link or relate these concepts together. The relationship among the recitations should be made clear.
Claim 13 recites “generating feedback for the user based on the biometric” in lines 15, but it is not clear if this recitation is the same as, related to, or different from “based on the biometric, using an output module of the wearable device to drive a change in a function of the wearable device, wherein the change comprises at least one of…modifying an audio output of the wearable device” of claim 13, lines 10-14. Both recitations refer to the generation of a response to the biometric, but the claim does not link the two concepts together. The relationship between the two recitations should be made clear.
Claims 14 and 17-20 are rejected by virtue of their dependence from claim 13.
Claim 18 recites “first sensor data” in line 4, but it is not clear if this recitation is the same as, related to, or different from “pressure data” of claim 13, line 2 and/or “filtered data” of claim 13, lines 6-7. All of the recitations refer to types of pressure data, but the claims do not link these concepts together. The relationship among the recitations should be made clear.
Claim 18 recites “a first pressure sensor” in line 4, but it is not clear if this recitation is the same as, a subset of, related to, or different from “a sensor” of claim 13, line 2. The relationship between the recitations should be made clear.
Claim 18 recites “second sensor data” in line 5, but it is not clear if this recitation is the same as, related to, or different from “pressure data” of claim 13, line 2 and/or “filtered data” of claim 13, lines 6-7. All of the recitations refer to types of pressure data, but the claims do not link these concepts together. The relationship among the recitations should be made clear.
Claim 18 recites “a second pressure sensor” in line 5, but it is not clear if this recitation is the same as, a subset of, related to, or different from “a sensor” of claim 13, line 2. The relationship between the recitations should be made clear.
Claim 19 recites “the processor” in line 2 in which there is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites “a data window” in line 4, but it is not clear if this recitation is the same as, related to, or different from “a data window” of claim 13, line 3. If they are the same, “a data window” in claim 19 should be “the data window”. If they are different, their relationship should be made clear and they should be clearly distinguished from each other (e.g., when multiple elements have similar or the same labels, distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements).
Claim 20 depends from claim 15, which is canceled. A claim that depends from a canceled claim is indefinite since the metes and bounds of the scope of the claim cannot be ascertained. For the purposes of examination, claim 20 will be interpreted to depend from claim 13.
Claim 20 recites “wherein the feedback for the user comprises a suggestion…the suggestion provides an audio prompt” in lines 1-4, but it is not clear if this recitation is the same as, related to, or different from “based on the biometric, using an output module of the wearable device to drive a change in a function of the wearable device, wherein the change comprises at least one of…modifying an audio output of the wearable device” of claim 13, lines 10-14. The recitations refer to the generation of a response to the biometric, but the claims do not link these concepts together. The relationship between the recitations should be made clear.
Claim 20 recites “wherein based on step events, the suggestion provides an audio prompt”, but it is not clear what relationship the step events have with the suggestion providing an audio prompt. Also, the step events are inserted into the claim language but no context is provided such that it is unclear where the step events come from or how they interact with the other elements of the claimed method. These issues render claim 13 indefinite.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 20 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, fourth paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 20 depends from claim 15, which is canceled. A claim that depends from a canceled claim is improper. For the purposes of examination, claim 20 will be interpreted to depend from claim 13.
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, 5-14, and 17-20 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. Claims 1-2, 5-14, and 17-20 are directed to a method of processing pressure signals using a computational algorithm, which is an abstract idea. Claims 1-2, 5-14, and 17-20 do not include additional elements that integrate the exception into a practical application or that are sufficient to amount to significantly more than the judicial exception for the reasons provided below which are in line with the 2014 Interim Guidance on Patent Subject Matter Eligibility (Federal Register, Vol. 79, No. 241, p 74618, December 16, 2014), the July 2015 Update on Subject Matter Eligibility (Federal Register, Vol. 80, No. 146, p. 45429, July 30, 2015), the May 2016 Subject Matter Eligibility Update (Federal Register, Vol. 81, No. 88, p. 27381, May 6, 2016), and the 2019 Revised Patent Subject Matter Eligibility Guidance (Federal Register, Vol. 84, No. 4, page 50, January 7, 2019).
The analysis of claim 1 is as follows:
Step 1: Claim 1 is drawn to a machine.
Step 2A – Prong One: Claim 1 recites an abstract idea. In particular, claim 1 recites the following limitations:
[A1] receiving the pressure data from the sensor,
[B1] define a data window over a time period of the pressure data,
[C1] calculate a time-frequency representation of the data window,
[D1] calculate a filter mask based on the time-frequency representation,
[E1] filter the time-frequency representation with the filter mask to provide filtered data,
[F1] identify features in the filtered data, and
[G1] determine the biometric from the features in the filtered data; and
[H1] the biometric comprises a rate of pronation or a rate of supination.
These elements [A1]-[H1] of claim 1 are drawn to an abstract idea since (1) they involve mathematical concepts in the form of mathematical relationships, mathematical formulas or equations, and/or mathematical calculations and/or (2) they involve a mental process that can be practically performed in the human mind including observation, evaluation, judgment, and opinion and using pen and paper.
Step 2A – Prong Two: Claim 1 recites the following limitations that are beyond the judicial exception:
[A2] a wearable device comprising a sensor for receiving a pressure stimulus and generating pressure data;
[B2] a processor in communication with the sensor; and
[C2] control an output module of the wearable device, and based on the biometric, the output module drives a change in a function of the wearable device, wherein the change comprises at least one of: inflating a portion of the wearable device, deflating the portion of the wearable device, changing a stiffness of the portion of the wearable device, and modifying an audio output of the wearable device; and wherein the processor is further configured to generate feedback for a user based on the biometric
These elements [A2]-[B2] of claim 1 do not integrate the exception into a practical application of the exception. In particular, the element [A2] is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering at a higher level of generality - see MPEP 2106.04(d) and MPEP 2106.05(g). Also, the element [B2] is merely an instruction to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f). Further, the element [C2] is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm.
Step 2B: Claim 1 does not recite additional elements that amount to significantly more than the judicial exception itself. In particular, the element [A2] is merely insignificant extrasolution activity to the judicial exception, e.g., mere data gathering in conjunction with the abstract idea that uses conventional, routine, and well known elements. In particular, the wearable device with pressure sensor is conventional as evidenced by U.S. Patent No. 6,377,178 (DeToro), which discloses that pressure sensing devices are typically integrated within the footwear such as shoes (col. 1, lines 15-20 of DeToro).
Further, the element [B2] does not qualify as significantly more because this limitation is simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
The element [C2] is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm using the conventional means of an audio output as evidenced by:
(1) paragraph 0018 of U.S. Patent Application Publication No. 2007/0021269 (Shum) teaching that data from footwear are transmitted to conventional and commercially available electronic audio, video, and/or alphanumeric display devices; and
(2) paragraph 0078 of U.S. Patent Application Publication No. 2009/0209358 (Niegowski) teaching that data from shoes are transmitted to conventional audio/video display devices for display, storage, analysis, further processing, and to provide feedback.
In view of the above, the additional elements individually do not integrate the exception into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
Claims 2 and 5-12 depend from claim 1, and recite the same abstract idea as claim 1. Furthermore, these claims only contain recitations that further limit the abstract idea (that is, the claims only recite limitations that further limit the algorithm), with the following exceptions:
Claims 5-11: further definition of the processor’s functions as it carries out the abstract idea;
Claims 5-6: further defines a plurality of pressure sensors on an insole;
Claim 6: providing feedback comprising a suggestion
Claim 8: providing feedback comprising a suggestion in the nature of an audio prompt;
Claim 9: providing feedback in the form of one of a visual, audio, or tactile alert;
Claims 10-11: the processor is further configured to modify a system function of the wearable device based on the biometric to minimize a risk of injury or to improve a gait efficiency…wherein the processor is configured to select a system function, wherein the system function comprises at least one of a bladder inflation, a material stiffness, and an output of the wearable device.
Each of these claims limitations does not integrate the exception into a practical application. In particular, the processor’s functions of claims 5-11 is merely an instruction to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f). Also, the plurality of pressure sensors on an insole of claims 5-6 is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering at a higher level of generality - see MPEP 2106.04(d) and MPEP 2106.05(g). Furthermore, the feedback of claims 6 and 8-9 and the modification of the output of the wearable device of claims 10-11 is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm.
In addition, the processor’s functions of claims 5-11 do not recite additional elements that amount to significantly more than the judicial exception itself because they are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Also, the plurality of pressure sensors on an insole of claims 5-6 does not recite additional elements that amount to significantly more than the judicial exception itself because it is merely insignificant extrasolution activity to the judicial exception, e.g., mere data gathering in conjunction with the abstract idea that uses conventional, routine, and well known elements. In particular, the wearable device with pressure sensor is conventional as evidenced by U.S. Patent No. 6,377,178 (DeToro), which discloses that pressure sensing devices are typically integrated within the footwear such as shoes (col. 1, lines 15-20 of DeToro).
Furthermore, the feedback of claims 6 and 8-9 and the modification of the output of the wearable device of claims 10-11 do not recite additional elements that amount to significantly more than the judicial exception itself because it is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm using the conventional means of an audio output as evidenced by (1) paragraph 0018 of Shum teaching that data from footwear are transmitted to conventional and commercially available electronic audio, video, and/or alphanumeric display devices and (2) paragraph 0078 of Niegowski teaching that data from shoes are transmitted to conventional audio/video display devices for display, storage, analysis, further processing, and to provide feedback.
In view of the above, the additional elements individually do not integrate the exception into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations of each claim as an ordered combination in conjunction with the claims from which they depend (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process.
The analysis of claim 13 is as follows:
Step 1: Claim 13 is drawn to a process.
Step 2A – Prong One: Claim 13 recites an abstract idea. In particular, claim 13 recites the following limitations:
[A1] 13. A method for determining a biometric, comprising:
[B1] defining a data window over a time period of the pressure data;
[C1] calculating a time-frequency representation of the data window;
[D1] calculating a filter mask based on the time-frequency representation;
[E1] filtering the time-frequency representation with the filter mask to provide filtered data; identifying features in the filtered data;
[F1] determining a biometric from the features in the filtered data; and
[H1] wherein the biometric comprises a rate of pronation or a rate of supination.
These elements [A1]-[H1] of claim 13 are drawn to an abstract idea since (1) they involve mathematical concepts in the form of mathematical relationships, mathematical formulas or equations, and/or mathematical calculations and/or (2) they involve a mental process that can be practically performed in the human mind including observation, evaluation, judgment, and opinion and using pen and paper.
Step 2A – Prong Two: Claim 13 recites the following limitations that are beyond the judicial exception:
[A2] receiving pressure data from a sensor in a wearable device;
[B2] based on the biometric, using an output module of the wearable device to drive a change in a function of the wearable device, wherein the change comprises at least one of: inflating a portion of the wearable device, deflating the portion of the wearable device, changing a stiffness of the portion of the wearable device, and modifying an audio output of the wearable device; and generating feedback for the user based on the biometric.
The element [A2] of claim 13 do not integrate the exception into a practical application of the exception. In particular, the element [A2] is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering at a higher level of generality - see MPEP 2106.04(d) and MPEP 2106.05(g). Further, the element [B2] is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm.
Step 2B: Claim 13 does not recite additional elements that amount to significantly more than the judicial exception itself. In particular, the element [A2] is merely insignificant extrasolution activity to the judicial exception, e.g., mere data gathering in conjunction with the abstract idea that uses conventional. In particular, the wearable device with pressure sensor is conventional as evidenced by U.S. Patent No. 6,377,178 (DeToro), which discloses that pressure sensing devices are typically integrated within the footwear such as shoes (col. 1, lines 15-20 of DeToro).
The element [B2] is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm using the conventional means of an audio output as evidenced by (1) paragraph 0018 of Shum teaching that data from footwear are transmitted to conventional and commercially available electronic audio, video, and/or alphanumeric display devices and (2) paragraph 0078 of Niegowski teaching that data from shoes are transmitted to conventional audio/video display devices for display, storage, analysis, further processing, and to provide feedback.
In view of the above, the additional elements individually do not integrate the exception into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome.
Claims 14 and 17-20 depend from claim 13, and recite the same abstract idea as claim 13. Furthermore, these claims only contain recitations that further limit the abstract idea (that is, the claims only recite limitations that further limit the algorithm) with the following exceptions:
Claim 18: further defines a plurality of pressure sensors on an insole;
Claim 18: providing feedback comprising a suggestion;
Claim 19: providing a processor; and
Claim 20: providing feedback comprising a suggestion in the form of an audio prompt.
Each of these claims limitations does not integrate the exception into a practical application. In particular, the plurality of pressure sensors on an insole of claim 18 is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere data gathering at a higher level of generality - see MPEP 2106.04(d) and MPEP 2106.05(g). Also, the feedback of claims 18 and 20 is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm. Furthermore, the processor of claim 19 is merely an instruction to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f).
In addition, the plurality of pressure sensors on an insole of claim 18 does not recite additional elements that amount to significantly more than the judicial exception itself because it is merely insignificant extrasolution activity to the judicial exception, e.g., mere data gathering in conjunction with the abstract idea that uses conventional, routine, and well known elements. In particular, the wearable device with pressure sensor is conventional as evidenced by U.S. Patent No. 6,377,178 (DeToro), which discloses that pressure sensing devices are typically integrated within the footwear such as shoes (col. 1, lines 15-20 of DeToro).
Also, the feedback of claims 18 and 20 do not recite additional elements that amount to significantly more than the judicial exception itself because it is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm using the conventional means of an audio output as evidenced by (1) paragraph 0018 of Shum teaching that data from footwear are transmitted to conventional and commercially available electronic audio, video, and/or alphanumeric display devices and (2) paragraph 0078 of Niegowski teaching that data from shoes are transmitted to conventional audio/video display devices for display, storage, analysis, further processing, and to provide feedback.
Furthermore, the processor of claim 19 does not recite additional elements that amount to significantly more than the judicial exception itself because it is simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
In view of the above, the additional elements individually do not integrate the exception into a practical application and do not amount to significantly more than the above-judicial exception (the abstract idea). Looking at the limitations of each claim as an ordered combination in conjunction with the claims from which they depend (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome.
Allowable Subject Matter
Claims 1-2, 5-6, 8-14, 17-18, and 20 would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112, second paragraph and 35 U.S.C 101 set forth in this Office action.
Claims 7 and 19 would be allowable if rewritten to overcome the rejections under 35 U.S.C. 11, first paragraph, 35 U.S.C. 11, second paragraph, and 35 U.S.C 101 set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter.
Claims 1 and 13 are allowable for reasons analogous as to why claims 4 and 16 were allowable in the Office Action mailed on 9/17/2025. That is, the prior art (i.e., U.S. Patent Application Publication No. 2008/0275349 (Halperin)(previously cited)) does not teach or suggest “wherein the biometric comprises a rate of pronation or a rate of supination” along with the other features of claim 1 or claim 13.
Claims 2 and 5-12 is allowable by virtue of their dependence from claim 1.
Claims 14 and 17-20 are allowable by virtue of their dependence from claim 13.
Response to Arguments
The Applicant’s arguments filed 3/11/2026 have been fully considered.
35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph
The rejection of claims 5-6, 8, 17-18, and 20 are withdrawn in view of the Applicant’s remarks and in view of the teachings supplied in paragraph 0128 and FIG. 14 of the specification related to providing feedback in the form of suggestions to move the foot strike zone so as to minimize a risk of injury and/or to improve a gait efficiency as a result of a foot strike analysis.
With respect to the rejection of claims 7 and 19, the Applicant asserts:
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These arguments are not persuasive. The teaching of paragraph 0064 of the specification states that the detection and analysis of small, perhaps unnoticed events by pressure, acceleration and rotation measurements in the foot, leg, and torso may provide some insights into fall probability. However, this teaching is simply not the same as actually determining the fall probability based on the counted events based on the identified local inflection points. That is, one parameter (i.e., detection and analysis of small, perhaps unnoticed events by pressure, acceleration and rotation measurements in the foot, leg, and torso) providing insight into a fall probability is not disclosure of how a different parameter (the counted events based on the identified local inflection points) is actually used to determine that probability. Because the specification does not teach how to determine a fall probability based on the counted events based on the identified local inflection points within a data window, the specification does not support the subject matter for “wherein the biometric further comprises a fall probability, and wherein the processor is further configured to identify local inflection points in the filtered data, count events based on the local inflection points within a data window, and determine the fall probability based on the events counted” of claim 7 and “wherein the biometric further comprises a fall probability and wherein the processor is further configured to identify local inflection points in the filtered data, count events based on the local inflection points within a data window, and determine the fall probability based on the events counted” of claim 19. Thus, claims 7 and 19 are properly rejected.
35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph
There are new grounds of claim rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, that were necessitated by the claim amendments filed on 3/11/2026.
35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, fourth paragraph
There are new grounds of claim rejections under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, fourth paragraph, that were necessitated by the claim amendments filed on 3/11/2026.
35 U.S.C. 101
There are new grounds of claim rejections under 35 U.S.C. 101 that were necessitated by the claim amendments filed on 3/11/2026.
The Applicant asserts:
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This argument is not persuasive. In particular, the recitation that the Applicant relies is as follows:
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Such a recitation can reasonably be interpreted as: “wherein the processor is further configured to control an output module of the wearable device, and based on the biometric, the output module drives a change in a function of the wearable device, wherein the change comprises…modifying an audio output of the wearable device”. Such an interpretation can readily read on simply outputting the results of the algorithm by conventional audio means. As such, the recitation does not integrate the exception into a practical application of the exception since it is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm and does not recite additional elements that amount to significantly more than the judicial exception itself since it is merely adding insignificant extra-solution activity to the judicial exception, i.e., mere outputting the results of the algorithm using the conventional means of an audio output as evidenced by (1) paragraph 0018 of Shum teaching that data from footwear are transmitted to conventional and commercially available electronic audio, video, and/or alphanumeric display devices and (2) paragraph 0078 of Niegowski teaching that data from shoes are transmitted to conventional audio/video display devices for display, storage, analysis, further processing, and to provide feedback.
The rejection of claim 13 is proper for similar and/or analogous reasons.
The rejection of claims 2 and 5-12 are proper since the rejection of claim 1 is proper and for the reasons provided above.
The rejection of claims 14 and 17-20 are proper since the rejection of claim 13 is proper and for the reasons provided above.
Prior art rejections
In view of the claim amendments filed on 3/11/2026, the prior art rejections are withdrawn.
Double Patenting Rejection
In view of the claim amendments filed on 3/11/2026, the double patenting rejection is 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 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 MATTHEW KREMER whose telephone number is (571)270-3394. The examiner can normally be reached Monday - Friday 8 am to 6 pm; every other Friday off.
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/MATTHEW KREMER/Primary Examiner, Art Unit 3791
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