DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Claims 1, 4-32, 35, 36, 38, and 39 are currently pending. Claims 255-32, 35, and 36 remain withdrawn. Claims 2, 3, 33, and 34 have been cancelled. Claims 38 and 39 have been added. Claims 1, 23, and 24 have been amended.
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, 23, and 24 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. Claims 4-22, 38, and 39 are further rejected due to their dependency to claim 1.
Claims 1, 23, and 24 recite “during subsequent virtual motor exam of the virtual motor exam type, automatically adjusting, by the wearable user device, a sampling rate of the first sensor based on the beginning and the end of the context window comprising instructing the first sensor to capture data at the first sampling rate…” (emphasis added). It is unclear what comprises instructing the first sensor to capture data at the first sampling rate (the automatically adjusting step, sampling rate, or context window). Clarification is requested.
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, 4-24, 38 and 39 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
STEP 1
Regarding claim 1, the claim recites a series of steps or acts, including accessing, by a wearable device, exam information. Thus, the claim is directed to a process, which is one of the statutory categories of invention.
STEP 2A, PRONG ONE
The claim is then analyzed to determine whether it is directed to any judicial exception. The steps of:
accessing, by a wearable user device, exam information identifying: (i) a first timing indicator associated with a first time, (ii) a second timing indicator associated with a second time, and (iii) a virtual motor exam type of a virtual motor exam;
accessing, by the wearable user device, signal data obtained by the wearable user device during a time period bounded by the first time and the second time;
determining, by the wearable user device and based on the virtual motor exam type, a first signal data type for segmenting the signal data, the first signal data of the first signal data type being output by a first sensor of the wearable user device during the time period;
determining, by the wearable user device, a context window within the time period by at least:
selecting a historical signal profile of the first signal data type, the historical signal profile derived from previous occurrences of the virtual motor exam; and
comparing the first signal data to the historical signal profile to identify a third time corresponding to a beginning of the context window and a fourth time corresponding to an end of the context window of the context window;
segmenting, by the wearable user device, a portion of the signal data received during the context window;
generating, by the wearable user device, a virtual motor exam data package based on the portion of the signal data and the exam information; and
during subsequent virtual motor exam of the virtual motor exam type, automatically adjusting, by the wearable user device, a sampling rate of the first sensor based on the beginning and the end of the context window comprising instructing the first sensor to capture data at the first sampling rate outside the context window and instructing the first sensor to capture data at a second sampling rate within the context window, wherein the second sampling rate is greater than the first sampling rate.
set forth a judicial exception. These steps describe a concept of managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions) and a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to Organizing Human Activity and a Mental Process, which are Abstract Ideas.
STEP 2A, PRONG TWO
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Claim 1 recites generating, by the wearable user device, a virtual motor exam data package based on the portion of the signal data and the exam information, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The generating of the virtual motor exam does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the generated virtual motor exam, nor does the method use a particular machine to perform the Abstract Idea.
STEP 2B
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the Abstract Idea, the claim recites additional element of the wearable user device and the first sensor configured to capture the signal data at a fist sampling rate during the time period. The wearable user device and the first sensor is well-understood, routine and conventional activities for those in the field of medical diagnostics (see art rejection below). Further, the first sensor is recited at a high level of generality such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the obtaining and comparing steps do not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
Regarding claims 23 and 24, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited memory performs well-understood, routine, and conventional storing and the pre-solution activity of data gathering and the one or more processors is configured to perform the Abstract Idea. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application.
The dependent claims also fail to add something more to the abstract independent claims. Claims 4-22, 38, and 39 merely recite steps that add to the Abstract Idea. The steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Claim Rejections - 35 USC § 103
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.
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.
Claims 1, 11, 13, 14, 17, 19, and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Nathan et al. ‘085 (US Pub No. 2015/0190085 – previously cited) in view of Morris et al. ‘533 (US Pub No. 2014/0257533 – previously cited) further in view of Kahn et al. ‘221 (US Pub No. 2009/0319221).
Regarding claim 1, Nathan et al. ‘085 teaches a computer-implemented method, (Fig. 7) comprising:
accessing, by a wearable user device, exam information identifying: (i) a first timing indicator associated with a first time (Fig. 7 step 702 and [0094]; “time interval”), (ii) a second timing indicator associated with a second time (Fig. 7 step 702 and [0094]; “time interval” has a first time and a second time), and (iii) a virtual motor exam type of a virtual motor exam (Fig. 7 and [0093] “detecting seizures by measuring motion” is interpreted as a virtual motor exam);
accessing, by the wearable user device, signal data obtained by the wearable user device during a time period bounded by the first time and the second time (Fig. 7 step 702 and [0094]; “the sensor data is obtained by a time based sampling of the motion”);
the first signal data of the first signal data type being output by a first sensor of the wearable user device during the time period (Fig. 7 step 702 and [0094]);
determining, by the wearable user device, a context window within the time period by at least:
selecting a historical signal profile of the first signal data type, the historical signal profile derived from previous occurrences of the virtual motor exam (Fig. 7 step 706 and [0096], [0105]); and
comparing the first signal data to the historical signal profile to identify a third time corresponding to a beginning of the context window and a fourth time corresponding to an end of the context window of the context window (Fig. 7 step 706 and [0096]);
segmenting, by the wearable user device, a portion of the signal data received during the context window ([0108]); and
generating, by the wearable user device, a virtual motor exam data package based on the portion of the signal data and the exam information (Fig. 7 step 710).
Nathan et al. ‘085 teaches all of the elements of the current invention as mentioned above except for determining, by the wearable user device and based on the virtual motor exam type, a first signal data type for segmenting the signal data, the first sensor configured to capture signal data at a first sampling rate during the time period.
Morris et al. ‘533 teaches determining time intervals where the user is actively engaged in a physical activity (Fig. 3 step 304 and [0023]-[0025]). Method 300 includes receiving signal information from a sensor array (Fig. 3 step 302 and [0022]). It is noted that one of ordinary skill would understand that the measured signals are measured at a sampling rate, which is interpreted as the first sampling rate.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Nathan et al. ‘085 to include determining, by the wearable user device and based on the virtual motor exam type, a first signal data type for segmenting the signal data, the first sensor configured to capture signal data at a first sampling rate during the time period as Morris et al. ‘533 teaches that this will aid in more accurately determining physical activity or exercise of a user ([0019]).
Nathan et al. ‘085 in view of Morris et al. ‘533 teaches all of the elements of the current invention as mentioned above except for during a subsequent virtual motor exam of the virtual motor exam type, automatically adjusting, by the wearable user device, a sampling rate of the first sensor based on the beginning and the end of the context window comprising instructing the first sensor to capture data at the first sampling rate outside the context window and instructing the first sensor to capture data at a second sampling rate within the context window, wherein the second sampling rate is greater than the first sampling rate.
Kahn et al. ‘221 teaches the sampling rate of the inertial sensor is increased to ensure that acceleration is monitored to detect periodic human motions. In entry mode 515, periodic human motions appropriate to all identifiable user activities may be monitored. Therefore, in one embodiment, the sampling rate is sufficiently high to properly detect the fastest possible activity ([0091]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Nathan et al. ‘085 in view of Morris et al. ‘533 to include during a subsequent virtual motor exam of the virtual motor exam type, automatically adjusting, by the wearable user device, a sampling rate of the first sensor based on the beginning and the end of the context window comprising instructing the first sensor to capture data at the first sampling rate outside the context window and instructing the first sensor to capture data at a second sampling rate within the context window, wherein the second sampling rate is greater than the first sampling rate as Kahn et al. ‘221 teaches that this will aid in the sampling rate being sufficiently high to properly detect the fastest possible activity.
Regarding claim 11, Nathan et al. ‘085 teaches generating the exam information as part of conducting the virtual motor exam during the time period (Step 710 is part of method 700.).
Regarding claim 13, Nathan et al. ‘085 teaches wherein each of the first and second timing indicators comprises a data tag including a corresponding timestamp (Fig. 8 horizontal axis 804 and [0108]).
Regarding claim 14, Nathan et al. ‘085 teaches wherein the signal data comprises signal data collected from a plurality of sensors of the wearable user device ([0033]).
Regarding claim 17, Nathan et al. ‘085 teaches wherein the portion of the signal data comprises at least a portion of the first signal data (The motion sensor data measured in step 702 is part of the first signal data.).
Regarding claim 19, Nathan et al. ‘085 teaches wherein the first sensor comprises at least one of a gyroscope, an accelerometer, a photoplethysmography sensor, or a heart rate sensor ([0030]).
Regarding claim 21, Nathan et al. ‘085 teaches generating results of the virtual motor exam that include the portion of the signal data ([0034]); and
outputting a portion of the result, wherein outputting the portion of the results comprises at least one of presenting the portion of the results at a display of the wearable user device or sending the portion of the results to a remote computing device ([0034]).
Regarding claim 22, Nathan et al. ‘085 teaches wherein the virtual motor exam is conducted during the time period (Fig. 8 graph 800 and [0107]), and wherein associating the portion of the signal data with the virtual motor exam comprises tagging the portion of the signal data with the beginning of the context window and the end of the context window within the time period in which the virtual motor exam is conducted (The time indicated by horizontal axis 804 is interpreted as tagging the beginning and the end of the context window.).
Regarding claim 23, Nathan et al. ‘085, as modified by Morris et al. ‘533 and Kahn et al. ‘221, teaches a computer-readable medium comprising processor-executable instructions that, when executed by one or more processors of a wearable user device, cause the wearable user device to perform operations as claimed.
Regarding claim 24, Nathan et al. ‘085, as modified by Morris et al. ‘533 and Kahn et al. ‘221, teaches a wearable user device, as claimed.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Nathan et al. ‘085 in view of Morris et al. ‘533 further in view of Kahn et al. ‘221 further in view of Glenn et al. ‘553 (US Patent No. 10,383,553 – previously cited).
Regarding claim 20, Nathan et al. ‘085 in view of Morris et al. ‘533 further in view of Kahn et al. ‘221 teaches all of the elements of the current invention as mentioned above except for wherein the virtual motor exam comprises a series of tasks to evaluate motor function of a wearer of the wearable user device.
Glenn et al. ‘553 teaches a test management module is configured for creating and managing tests that are designed to assess one or more cognitive capabilities (e.g., intelligence, learning ability, reasoning aptitude, cognitive development, memory, attention etc.), motor skills (e.g., coordination of a certain group of muscle movement, synchronization of hands and fingers, speed), and/or correlations between cognitive, emotional, and motor functions of a user, and is one means for performing these functions. Tests can be tasks that require the users' to respond by completing the tasks using physical inputs to the client device, such as touches, taps, drags, using one or more fingers. A user's input response is measured and analyzed to assess the user's cognitive aptitude, motor skills, and/or correlations between cognitive, emotional, and motor functions in completing the task (Column 5 Lines 35-52).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the virtual motor exam of Nathan et al. ‘085 in view of Morris et al. ‘533 further in view of Kahn et al. ‘221 to include a series of tasks to evaluate motor function of a wearer of the wearable user device as Glenn et al. ‘553 teaches that this will aid in assessing one or more cognitive abilities.
Response to Arguments
Applicant argues that claim 1 recites a judicial exception and has been amended into claim 1 and that the capturing signal data and adjusting steps do not involved organizing human behavior and cannot be performed in the human mind. It is noted that the capturing step is seen as pre-solutional activity of data gathering necessary to perform the Abstract Idea. The adjusting step could be seen as organizing human activity as this could be a user adjusting the settings of the sensor to increase the sampling rate from the first sampling rate to the second sampling rate.
Applicant argues that the amended claim 1 integrates the alleged judicial exception into a practical application. Examiner respectfully disagrees, as the newly amended limitations merely recite adjusting a sampling rate. There is no clear indication as to how adjusting the sampling rate would improve the system. Furthermore, it is noted that section 2106.05(a) II. of the MPEP states that “…it is important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology.” Examiner suggests to amend the claim to include how the adjusting of the sampling rate improves the system as a whole.
Applicant’s arguments with respect to the 35 U.S.C. 103 rejections have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 AURELIE H TU whose telephone number is (571)272-8465. The examiner can normally be reached [M-F] 7:30-3:30.
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/AURELIE H TU/ Primary Examiner, Art Unit 3791
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