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 .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
-“feedback means for providing stimuli” in claim 1 interpreted to be vibrating motors, earbuds, and/or the single-board computer per the specification and Figure 3 and equivalents thereof
-‘wrist-worn device’ with the function of ‘pulse alarms are delivered’ in claim 17 to be the structure 24 shown in Figure 3 as a watch and equivalents thereof
-‘a reference measuring apparatus’ in claim 20 (does not appear to have any disclosed structure)
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being 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 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 ‘a user’ in Line 2, ‘a user’s’ in Line 10, ‘a user’ in Line 12 making it unclear if each recitation refers to the same user or not. For examination purposes they will all be treated as the same user.
Claim 1 recites the limitation "the difference" in Lines 10-11 and “said difference” in Line 12. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the form" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the form" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites ‘auditory feedback’ and is dependent back to claim 2 which recites the same making it unclear if the recitation in claim 3 is meant to refer to that in claim 2 or not. For examination purposes it will be treated as if it recited ‘said auditory feedback’.
Claim 4 recites ‘a user’s’ and is dependent back to claim 1 which recites the same making it unclear if the recitation in claim 4 is meant to refer to that in claim 1 or not. For examination purposes they will all be treated as the same user.
Claim 7 recites the limitation "the form" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites ‘a user’s’ and is dependent back to claim 1 which recites the same making it unclear if the recitation in claim 9 is meant to refer to that in claim 1 or not. For examination purposes they will all be treated as the same user.
Claim 10 recites ‘a user’s’ and is dependent back to claim 1 which recites the same making it unclear if the recitation in claim 10 is meant to refer to that in claim 1 or not. For examination purposes they will all be treated as the same user.
Claim 11 recites the limitation "said modulation " in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites the limitation "the form" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 recites the limitation "said modulation " in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 recites the limitation "the form" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites ‘a user’s’ and is dependent back to claim 1 which recites the same making it unclear if the recitation in claim 13 is meant to refer to that in claim 1 or not. For examination purposes they will all be treated as the same user.
Claim 14 recites the limitation "the form" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 recites the limitation "the form" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 16 recites ‘a user’s’ and is dependent back to claim 1 which recites the same making it unclear if the recitation in claim 16 is meant to refer to that in claim 1 or not. For examination purposes they will all be treated as the same user.
Claim 18 recites ‘a user’ and is dependent back to claim 1 which recites the same making it unclear if the recitation in claim 18 is meant to refer to that in claim 1 or not. For examination purposes they will all be treated as the same user.
Claim 19 recites 'known, uniform pressure' but it is unclear how exactly this is 'known' and to who or what 'known' is relative to.
Claim 19 recites the limitation "said pressure-sensing cells" in Lines 4, 7-8, and 10. There is insufficient antecedent basis for this limitation in the claim. Examiner notes it appears this should read ‘said plurality of pressure-sensing cells’.
Claim 19 recites the limitation "the performance" in Line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "said respective model data" in Line 9. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "said first" in Line 5. There is insufficient antecedent basis for this limitation in the claim. It appears this should read ‘said first data set’.
Claim 20 recites the limitation "said second data sets" in Lines 5-6. There is insufficient antecedent basis for this limitation in the claim. It appears this should read ‘said second data set’.
Claim 20 recites the limitation "the accuracy" in Line 7. There is insufficient antecedent basis for this limitation in the claim.
Claim limitation “reference measuring apparatus” in claim 20 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The term ‘reference measuring apparatus’ does not appear to be used in the specification and therefore it is unclear exactly what structures are meant to be linked to this term. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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.
Step 1
The claimed invention in claims 1-20 are directed to statutory subject matter as the claims recite a system (claims 1-18) and methods (claims 19-20).
Step 2A, Prong One
Regarding claims 1 and 19 and 20, the recited steps are directed mental process of performing concepts in a human mind or by a human using a pen and paper (see MPEP 2106.04(a)(2) subsection (III)).
Specifically from claim 1
determine a user's actual running speed in real time and to calculate the difference, if any, between said actual running speed and a targeted running speed; and
providing stimuli to a user responsive to said difference, if any, between said actual running speed and said targeted running speed.
Specifically from claim 19
recording a respective output for each of said pressure-sensing cells in response to pressure exerted on said instrumented insole during the performance of step (ii);
iv) applying a plurality of fitting functions to said respective output of each of said pressure-sensing cells, thereby obtaining a plurality of respective model data; and
v) applying cross validation to said respective model data to obtain a calibration model for each of said pressure-sensing cells.
Specifically from claim 20
ii) recording a first data set from said instrumented insole and a second data set from said reference measuring apparatus;
iii) computing center of pressure trajectories from said first and said second data sets;
iv) validating the accuracy of said center of pressure trajectories using one or more regression models; and
These limitations describe a mental process (including an observation, evaluation, judgment, opinion) under the broadest reasonable standard, as a skilled practitioner is capable of performing the recited limitations and making a mental assessment thereafter. Examiner notes that nothing from the claims suggests that the limitations cannot be practically performed by a medical, biomedical or engineering professional with the aid of a pen and paper; their knowledge gained from education, background, or experience; or by using a generic computer as a tool to perform mental process steps in real time. Examiner additionally notes that nothing from the claims suggests and undue level of complexity that the mental process steps cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform the mental process steps.
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.
Step 2A, Prong Two
This judicial exceptions (abstract ideas) in claims 1-19 are 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 performing the abstract ideas merely invoke a computer as a tool.
•The data-gathering steps 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 performing the abstract ideas.
•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 a medical measurement.
•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 to perform the abstract ideas. The claims do not apply the obtained response measurement to a particular machine. Rather, the data is merely output in a post-solution step.
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.
Step 2B
The additional elements are identified as follows: “at least one insole module for placement in a shoe of a user, each of said at least one insole module including an array of force-sensitive resistors and an inertial measurement unit; a logic module communicatively coupled to said array of force-sensitive resistors and to said inertial measurement unit; a transmission unit; a computing unit communicatively coupled to said array of force-sensitive resistors and to said inertial measurement unit via said transmission unit” in claim 1, “) providing an instrumented insole having a plurality of pressure-sensing cells; ii) exerting known, uniform pressure on said instrumented insole;” in claim 19, “i) providing an instrumented insole and a reference measuring apparatus;” and “v) calibrating said instrumented insole via said first and said second data sets.” n claim 20, ‘earbuds’ in claim 13, ‘vibrotactile feedback’ in claims 14-15, ‘pulse alarms’ in claims 15-18, ‘wrist-worn device’ in claim 17, ‘vibrating motors’ in claim 18.
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 and data output, as demonstrated by
Applicant’s Specification (Paragraph 0053)
Applicant's specification (Paragraphs 0032-0042) which discloses that the processor and memory comprise generic computer components that are configured to perform the generic computer functions that are well-understood, routine, and conventional activities previously known to the pertinent industry; and
The prior art provided by the Applicant in the IDS and by the Examiner in PTO-892 which disclose each of the elements as being known and conventional in the art elements;
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)(ll) note the well-understood, routine and conventional nature of such additional elements as those claimed. See option III. A. 2. in the Berkheimer memorandum.
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 integrate a judicial exception into a practical application or provide significantly more. See Bilski, 561 U.S. at 610, 95 USPQ2d at 1009 (citing Parker v. Flook, 437 U.S. 584, 590, 198 USPQ 193, 197 (1978)), and CyberSource v. Retail Decisions, 654 F.3d 1366, 1370, 99 USPQ2d 1690 (Fed. Cir. 2011). See MPEP 2106.05(b). The insole and use of said insole merely indicates field of use. The vibratory feedback is merely considered field-of-use as well as alternative ways to provide data output. The calibrating of the insoles appears to merely be outputting of data and thus constitutes merely data output which does no provide significantly more.
Regarding the dependent claims, 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 or 3) further recite additional elements at a high level of generality which are conventional in the art.
Claims 2-18 is additional data output or additional elements at a high level of generality which are conventional in the art used for data output
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.
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.
Claim(s) 1-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sarrafzadeh et al. (US 2013/0096466) in view of Pauws et al. (US 2008/0188354).
Regarding claim 1, Sarrafzadeh teaches a biofeedback system for training runners (Abstract; Paragraphs 0054 and 0060), comprising:
at least one insole module (Figure 2; 144) for placement in a shoe of a user (Figure 2; Paragraph 0056), each of said at least one insole module including an array of force-sensitive resistors (146 including 148/106; Paragraphs 0056-0057) and an inertial measurement unit (108, 120; Paragraph 0054);
a logic module (124; Figure 1) communicatively coupled to said array of force-sensitive resistors and to said inertial measurement unit (Figure 1; Paragraph 0053);
a transmission unit (122);
a computing unit (114) communicatively coupled to said array of force-sensitive resistors and to said inertial measurement unit via said transmission unit (Paragraph 0053),
Sarrafzadeh is silent on the determining of the user’s running speed and comparing it to a targeted running speed and further the feedback means.
Pauws teaches said computing unit being adapted to determine a user's actual running speed in real time and to calculate the difference, if any, between said actual running speed and a targeted running speed (Paragraph 0075; measures running speed and also compares to user training goal which could be a target running speed; Paragraph 0078; “Pace influencing: music tempo is sped up/slowed down to motivate the exerciser to speed up/slow down in the same manner by synchronizing her steps with the music. In this case, the goal is to arrive at a performance level as defined in the training program.”); and
feedback means for providing stimuli to a user responsive to said difference, if any, between said actual running speed and said targeted running speed (Paragraph 0075; “Dependent on the required mode of motivation, music playback is adapted to the current user performance or current training goal.”; Paragraph 0078: “Pace influencing: music tempo is sped up/slowed down to motivate the exerciser to speed up/slow down in the same manner by synchronizing her steps with the music. In this case, the goal is to arrive at a performance level as defined in the training program.”; Further see at least Paragraph 0080).
It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 2, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein said stimuli is in the form of auditory feedback (Paragraphs 0023 and 0026). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 3, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein auditory feedback is in the form of music (Paragraphs 0023 and 0026 and 0077-0080). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 4, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein said music is delivered to a user's audio senses (Paragraph 0023). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 5, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein said music is selected from a database of songs determined by music genre and tempo (Paragraphs 0036-0039 and 0077-0080). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 6, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein said music is adapted for continuous modulation (Paragraph 0038 and 0077-0080). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 7, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein said music is in the form of an existing soundtrack (Paragraph 0075; pre-selected music). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 8, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein said soundtrack has parameters, including playback rate, volume and pitch (Paragraphs 0079 and 0082). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 9, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein said parameters are modified in real time in response to a user's performance during a training session (Paragraph 0075 and 0077-0080). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 10, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein said tempo is selected in response to a user's average natural cadence (Paragraph 0075 and 0077-0080). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Regarding claim 11, Sarrafzadeh is silent on the feedback means. Pauws teaches wherein said modulation is in the form of playback rate modulation (Paragraph 0023 and 0077-0080). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh with Pauws because it allows for feedback that results in the most beneficial performance of the user (Paragraph 0007 of Pauws) and provides motivation to achieve their goals (Paragraphs 0024-0025 and 0075-0079 of Pauws).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sarrafzadeh et al. (US 2013/0096466) in view of Pauws et al. (US 2008/0188354) in further view of Bennett et al. (US 2019/0099134).
Regarding claim 12, Sarrafzadeh in view of Pauws is silent on noise amplitude modulation. Bennett teaches wherein said modulation is in the form of noise amplitude modulation (Paragraph 0105). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh in view of Pauws with Bennett because Bennett teaches this as one of many ways to adjust audio feedback (Paragraph 0105) and thus one of ordinary skill in the art would understand through routine experimentation the different ways to adjust the audio feedback to yield predictable results.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sarrafzadeh et al. (US 2013/0096466) in view of Pauws et al. (US 2008/0188354) in further view of Chan et al. (US 2010/0114256).
Regarding claim 13, Sarrafzadeh in view of Pauws is silent on the earbuds. Chan teaches wherein said music is delivered to a user's ears via earbuds (Paragraph 0049). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh in view of Pauws with Chan because this is a conventional way to deliver audio to a user (Paragraph 0049 of Chan) and thus doing so would yield predictable results.
Claim(s) 14-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sarrafzadeh et al. (US 2013/0096466) in view of Pauws et al. (US 2008/0188354) in further view of Aibara et al. (US 2015/0081061).
Regarding claim 14, Sarrafzadeh is silent on the feedback means. Aibara teaches wherein said stimuli is in the form of vibrotactile feedback (Paragraphs 0208 and 0248-0249). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh in view of Pauws with Aibara because Pauws alludes to the use of tactile feedback (Paragraphs 0008 and 0114 of Pauws) and because Aibara teaches that vibration and acoustic feedback have equivalent functions of notifying/providing feedback to a user (Paragraph 0231 of Aibara) and thus it would only require the routine skill of simple substitution of one known element for another to obtain predictable results (MPEP 2143 I. B.) in this case the feedback means of Sarrafzadeh in view of Pauws with that of Aibrara.
Regarding claim 15, Sarrafzadeh is silent on the feedback means. Aibara teaches wherein said vibrotactile feedback is in the form of pulse alarms (Paragraphs 0208 and 0248-0249). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh in view of Pauws with Aibara because Pauws alludes to the use of tactile feedback (Paragraphs 0008 and 0114 of Pauws) and because Aibara teaches that vibration and acoustic feedback have equivalent functions of notifying/providing feedback to a user (Paragraph 0231 of Aibara) and thus it would only require the routine skill of simple substitution of one known element for another to obtain predictable results (MPEP 2143 I. B.) in this case the feedback means of Sarrafzadeh in view of Pauws with that of Aibrara.
Regarding claim 16, Sarrafzadeh is silent on the feedback means. Aibara teaches wherein said pulse alarms are delivered to a user's wrist (Paragraphs 0208 and 0248-0249). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh in view of Pauws with Aibara because Pauws alludes to the use of tactile feedback (Paragraphs 0008 and 0114 of Pauws) and because Aibara teaches that vibration and acoustic feedback have equivalent functions of notifying/providing feedback to a user (Paragraph 0231 of Aibara) and thus it would only require the routine skill of simple substitution of one known element for another to obtain predictable results (MPEP 2143 I. B.) in this case the feedback means of Sarrafzadeh in view of Pauws with that of Aibrara.
Regarding claim 17, Sarrafzadeh is silent on the feedback means. Aibara teaches wherein said pulse alarms are delivered via a wrist-worn device (Paragraphs 0208 and 0248-0249). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh in view of Pauws with Aibara because Pauws alludes to the use of tactile feedback (Paragraphs 0008 and 0114 of Pauws) and because Aibara teaches that vibration and acoustic feedback have equivalent functions of notifying/providing feedback to a user (Paragraph 0231 of Aibara) and thus it would only require the routine skill of simple substitution of one known element for another to obtain predictable results (MPEP 2143 I. B.) in this case the feedback means of Sarrafzadeh in view of Pauws with that of Aibrara.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sarrafzadeh et al. (US 2013/0096466) in view of Pauws et al. (US 2008/0188354) and Aibara et al. (US 2015/0081061) in further view of Czaja (US 2017/0225033)
Regarding claim 18, Sarrafzadeh is silent on the feedback means. Aibara teaches the vibrating motors (Paragraph 0071) but is silent on the motors being in the insole module. Czaja teaches wherein said pulse alarms are delivered to a user via vibrating actuators housed in said at least one insole module (Paragraph 0152). It would have been obvious to one of ordinary skill in the art to have modified Sarrafzadeh in view of Pauws and Aibara with Czaja because Pauws alludes to the use of tactile feedback (Paragraphs 0008 and 0114 of Pauws) and because Aibara teaches that vibration and acoustic feedback have equivalent functions of notifying/providing feedback to a user (Paragraph 0231 of Aibara) and thus it would only require the routine skill of simple substitution of one known element for another to obtain predictable results (MPEP 2143 I. B.) in this case the vibrating feedback means of Sarrafzadeh in view of Pauws with that of Aibara and Czaja and further it would have been obvious since it has been held that rearranging parts of an invention involves only routine skill in the art MPEP 2144.04 VI. (C).
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 19 and 20 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1 and 19 of prior U.S. Patent No. 11439325. This is a statutory double patenting rejection.
Instant Application 18/244,847
Conflicting US Patent No. 11439325
19. A method for calibrating a gait measurement system, comprising the steps of:
i) providing an instrumented insole having a plurality of pressure-sensing cells;
ii) exerting known, uniform pressure on said instrumented insole;
iii) recording a respective output for each of said pressure-sensing cells in response to pressure exerted on said instrumented insole during the performance of step (ii);
iv) applying a plurality of fitting functions to said respective output of each of said pressure-sensing cells, thereby obtaining a plurality of respective model data; and
v) applying cross validation to said respective model data to obtain a calibration model for each of said pressure-sensing cells.
1. A method for calibrating a gait measurement system, comprising the steps of:
i) providing an instrumented insole having a plurality of pressure-sensing cells;
ii) exerting a fixed, uniform pressure on said instrumented insole;
iii) recording a respective output for each of said pressure-sensing cells in response to pressure exerted on said instrumented insole during the performance of step (ii);
iv) applying a plurality of fitting functions to said respective output of each of said pressure-sensing cells, thereby obtaining a plurality of respective model data; and
v) applying cross validation to said plurality of respective model data to obtain a calibration model for each of said pressure-sensing cells.
20. A method for calibrating a gait measurement system, comprising the steps of:
i) providing an instrumented insole and a reference measuring apparatus;
ii) recording a first data set from said instrumented insole and a second data set from said reference measuring apparatus;
iii) computing center of pressure trajectories from said first and said second data sets;
iv) validating the accuracy of said center of pressure trajectories using one or more regression models; and
v) calibrating said instrumented insole via said first and said second data sets.
19. A method for calibrating a gait measurement system, comprising the steps of:
i) providing an instrumented insole and a reference source;
ii) recording a first data set from said instrumented insole and a second data set from said reference source;
iii) computing center of pressure trajectories from said first data set and said second data set;
iv) validating said center of pressure trajectories using one or more regression models; and
v) calibrating said instrumented insole via said first data set and said second data set.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. DeBerandinis et al. (Reference U on PTO-892; January 2018) for Claim 19 and Choi et al. (Reference V on PTO-892; December 2018) for Claim 20.
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/PATRICK FERNANDES/Primary Examiner, Art Unit 3791