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 .
Applicant’s amendments dated 9/17/26 are hereby entered.
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 1-6, 8-9, 12, 16-17 and 24-26 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 1-6, 8-9, 12, 16-17 and 24-26 are directed to an abstract idea without significantly more. The claims recite a mental process that can be performed by a human being and/or a method of organizing human activity and/or training/employing a machine learning model.
In regard to Claims 1 and 17, the following limitations can be performed as a mental process by a human being in terms of claiming collecting data, analyzing that data, and providing outputs based on that analysis which has been held by the CAFC to be an abstract idea in decisions such as, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential); and/or recite a method of organizing human activity in terms of claiming the teaching/training/evaluation of a human subject’s which has been identified by MPEP 2106.04(a)(2)(II) as being a method of organizing human activity, in terms of the Applicant claiming:
[a] method for generating an audio feedback for a user interacting with a smart ball, the method comprising:
playing an audio sequence comprising a beat during an interaction session of the user with the smart ball;
receiving ball data [regarding] the smart ball […] the ball data being representative of an interaction session of the user with the smart ball, the ball data comprising multi-axis acceleration values;
processing the ball data […] to detect a foot-contact by evaluating whether a calculated norm of the multi-axis acceleration values surpasses a predetermined threshold;
for each detection of the foot-contact, processing the ball data […] to generate one or more ball indicators for the detected foot-contact, the one or more ball indicators comprising a timing of the occurrence of the foot-contact;
determining […] an average contact frequency with the ball based on a plurality of timings of occurrence of the foot-contact;
comparing […] the average contact frequency with the ball with the beat of the audio sequence to generate a performance indicator representative of a synchronization of the execution of the interaction session by the user with the beat of the audio sequence;
determining […] an audio feedback for the user based at least on the performance indicator, the audio feedback providing a feedback to the user on the synchronization of the execution of the interaction session by the user with the beat of the audio sequence; and
transmitting the audio feedback […].
In regard to the dependent claims, they also claim training/employing a machine learning model in a particular technological environment, which has been held by the CAFC in, e.g., Recentive Analytics to be an abstract idea under Mayo.
In regard to the dependent claims, they also claim an abstract idea to the extent that they merely claim further limitations that likewise could be performed as a mental process by a human being and/or a method of organizing human activity and/or training employing a machine learning model.
Furthermore, this judicial exception is not integrated into a practical application because to the extent that additional elements are claimed either alone or in combination such as, e.g., a computing device with a processing unit and a wireless communication interface; an audio device; a non-transitory computer readable medium containing instructions embodying Applicant’s abstract idea as computer code; and/or a smart ball comprising a ball, a wireless communication interface, at least one sensor including a high-range accelerometer, and a processing unit; and/or training/employing a machine learning model, these are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., data gathering), to embody the abstract idea on a general purpose computer, and/or do no more than generally link the use of a judicial exception to a particular technological environment or field of use. In this regard, see MPEP 2106.04(d)(I) in regard to “courts have also identified limitations that did not integrate a judicial exception into a practical application…”
Furthermore, the claims do not include additional elements that taken individually, and also taken as an ordered combination, are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g., a computing device with a processing unit and a wireless communication interface; an audio device; a non-transitory computer readable medium containing instructions embodying Applicant’s abstract idea as computer code; and/or a smart ball comprising a ball, a wireless communication interface, at least one sensor including a high-range accelerometer, and a processing unit; and/or training/employing a machine learning model, these are well-understood, routine, and conventional elements and are claimed for the well-understood, routine, and conventional functions of collecting and processing data and/or providing an analysis/outputs based on that processing. To the extent that an apparatus is claimed as an additional element said apparatus fails to qualify as a “particular machine” to the extent that it is claimed generally, merely implements the steps of Applicant’s claimed method, and is claimed merely for purposes of extra-solution activity or field of use. See MPEP 2106.05(b). As evidence that these additional elements are well-understood, routine, and conventional, Applicant’s specification discloses the support for these elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See, e.g., F1-3 in Applicant’s PGPUB and text regarding same; see, e.g., p74 specifically regarding employing a high-range accelerometer; and see, e.g., p92-93 regarding training/employing a machine learning model.
Response to Arguments
Applicant argues on page 7 of its Remarks in regard to the rejections made under 35 USC 101:
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Applicant’s argument is not persuasive. Applicant includes limitations that are not alleged in the 101 rejection as being part of the abstract idea (“hardware sensor processing”, “real time”, “digital audio track”). What is more, embodying Applicant’s abstract idea as computer software that then executes in “real time” does not render patent eligible subject matter, as every computer program has that ability:
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Trinity Info Media v. Covalent, slip. op., page 17.
What is more, for example, the representative claim that was invalidated by the CAFC in Electric Power Group as being directed to a mental process included limitations that the data streams were processed in “real time” in order to generate certain claimed metrics, likewise as in Applicant’s claims:
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Id., slip. op., pages 3-4; emphasis added.
Applicant further argues that it has not claimed a “method of organizing human activity”, however, Applicant’s argument is unpersuasive because Applicant’s claimed invention may be characterized as a method of teaching/training a human being a skill, which has been identified as an example of this abstract idea. See MPEP 2106.04(a)(2)(II).
Applicant further argues on page 9 of its Remarks that because its abstract idea when embodied as computer software does not require human interaction that it has claimed patent eligible subject matter. Improving a human being’s experience of using a computer, however, does not render patent eligible subject matter. See USAA v. PNC Bank.
Applicant further argues on pages 9-10 of its Remarks in regard to the rejections made under 35 USC 101:
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Applicant’s argument is not persuasive because the “ordered combination” analysis is performed in regard to the elements claimed in addition to the abstract idea, and does not include the abstract idea itself. “Pathway C: Claims taken as a whole that fall within a statutory category (Step 1: YES), are directed to a judicial exception (Step 2A: YES), and recite additional elements either individually or in an ordered combination that amount to significantly more than the judicial exception (Step 2B: YES) are eligible at Pathway C”, emphasis added. MPEP 2106(III). Applicant claims, in addition to its abstract idea, e.g., embodying that abstract idea as computer code executing on a generic processor, sampling data with a sensor, and providing an output. Whether considered alone or in combination these do not add “significantly more” to Applicant’s abstract idea. See the CAFC’s opinions in, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician, where the same elements were likewise claimed in addition to the abstract idea and the Court held that the subject matter to be patent ineligible under the Mayo test.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee 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 Mike Grant whose telephone number is 571-270-1545. The Examiner can normally be reached on Monday through Friday between 8:00 a.m. and 5:00 p.m., except on the first Friday of each bi-week.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's Supervisory Primary Examiner, Peter Vasat can be reached at 571-270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C GRANT/Primary Examiner, Art Unit 3715
