DETAILED ACTION
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 28, 33, 35, 43, 45, and 46 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 28 is currently dependent on itself. For purposes of examination, it is understood to depend on claim 27.
Claims 33 and 44 recites the limitation "a target motion" in line 3. It is unclear whether this is the same target motion found in the independent claims or a separate target motion.
Claim 35 recites “a sensor” in line 4. It is unclear whether this is the same sensor of claim 27.
Claim 43 is currently dependent on itself. For purposes of examination, it is understood to depend on claim 42.
Claim 45 is currently dependent on itself. For purposes of examination, it is understood to depend on claim 44.
Claim 46 recites “a sensor associated with the patient”. It is unclear whether this is the same sensor of claim 38 or not. In addition, while claim 38 recites that the biomechanical data is measured using a sensor, claim 46 recites that the computer system is configured to measure the biomechanical data.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 27-47 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. 10,448,888 in view of Montgomery (US 2010/0075806).
As to claims 27-47, the ‘888 patent recites similar subject matter with the exception of analyzing the biomechanical data to determine an accuracy of motion for repetitive movement relative to a target motion and modifying the rhythmic audio content as a function of both the entrainment parameter and the accuracy of motion. Montgomery teaches the evaluation of a movement of a user and providing biofeedback by providing a rhythm to the user and modifying it in response to the user’s movement to a reference movement, which would be an assessment of the accuracy of the repetitive movement relative to a target movement ([0063]). Accordingly, it would have been obvious to modify the above patent with Montgomery to also utilize the accuracy of the movement to provide feedback to the user.
Claims 27-47 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of U.S. Patent No. 11,779,274 in view of Montgomery (US 2010/0075806).
As to claims 27-47, the ‘888 patent recites similar subject matter with the exception of analyzing the biomechanical data to determine an accuracy of motion for repetitive movement relative to a target motion and modifying the rhythmic audio content as a function of both the entrainment parameter and the accuracy of motion. Montgomery teaches the evaluation of a movement of a user and providing biofeedback by providing a rhythm to the user and modifying it in response to the user’s movement to a reference movement, which would be an assessment of the accuracy of the repetitive movement relative to a target movement ([0063]). Accordingly, it would have been obvious to modify the above patent with Montgomery to also utilize the accuracy of the movement to provide feedback to the user.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Cassily (USP #7,122,004) teaches enhancing a user’s learning capacity by generating a guidance signal which is a function between the generation of a reference signal and user’s manipulation of a trigger (col. 4 lines 1-9).
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CHRISTIAN JANG
Primary Examiner
Art Unit 3791
/CHRISTIAN JANG/Primary Examiner, Art Unit 3791 7/30/26
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