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 .
Procedural Summary
This is responsive to the claims filed 1/23/2024.
Claims 1-6 are pending.
Signed copies of the IDS’ are attached.
The Drawings filed 1/23/2024 are noted.
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 non-statutory subject matter.
Step 1:
The claims are drawn to process categories.
Thus, initially, under Step 1 of the analysis, it is noted that the claims are directed towards eligible categories of subject matter
Step 2A:
Prong 1: Does the Claim recite an Abstract idea, Law of Nature, or Natural Phenomenon?
Representative Claim 1 is analyzed below, with italicized limitations indicating recitations of an abstract idea:
Claim 1: “A health and fitness monitoring method for automatically detecting a cycling activity, comprising: receiving a speed data stream at a background distance filter and a background accuracy filter; determining that an individual is likely engaged in a cycling activity; adjusting the distance filter to a tracking distance filter; adjusting the accuracy filter to a tracking accuracy filter; determining that the individual is not engaged in a cycling activity; and reverting to the background distance filter and background accuracy filter.”
The italicized limitations fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG1:
“Mental processes”, concepts performed in the human mind (including an observation, evaluation, judgment, opinion)
“Certain methods of organizing human activity”, managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)
The claims are drawn to monitoring cycling activity. The claims require steps including detecting a user is cycling, tracking speed and distance, determining a user is not cycling and standing by for a user to resume cycling.
These claim steps represent an abstract mental process because the can be performed by a human observing a user, determining that the user is cycling and tracking speed and distance. The claim steps also represent managing interactions between people, i.e., monitoring a person cycling.
Prong 2: Does the Claim recite additional elements that integrate the exception in to a practical application of the exception?
Although the claims recite additional limitations, these limitations do not integrate the exception into a practical application of the exception. For example, the claims require additional limitations including a GPS and related tracking circuitry.
These additional limitations do not represent an improvement to the functioning of a computer, or to any other technology or technical field, (MPEP 2106.05(a)). Nor do they apply the exception using a particular machine, (MPEP 2106.05(b)). Furthermore, they do not effect a transformation. (MPEP 2106.05(c)). Rather, these additional limitations amount to an instruction to “apply” the judicial exception using a computer as a tool to perform the abstract idea.
Step 2B:
Under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they amount to conventional computer implementation.
For example, as pointed out above, the claimed invention recites additional elements facilitating implementation of the abstract process. However, these elements viewed individually and as a whole, are indistinguishable from conventional computing elements known in the art. Therefore, the additional elements fail to supply additional elements that yield significantly more than the underlying abstract idea.
Regarding the Berkheimer decision, the prior art relied on in the anticipation rejection, infra, shows the conventionality of GPS devices and activity-tracking circuitry. These elements fail to supply additional elements that yield significantly more than the underlying abstract idea. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Additionally, Applicant’s Specifications acknowledge that generic devices including mobile phones are used to implement the claimed invention.2
Looking at the limitations as an ordered combination 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 provide conventional computer implementation of an abstract process.
Moreover, the claims do not recite improvements to another technology or technical field. Nor, do the claims improve the functioning of the underlying computer itself -- they only recite generic computing elements. Furthermore, they do not effect a transformation of a particular article to a different state or thing: the underlying computing elements remain the same.
Concerning preemption, the Federal Circuit precedent controls3:
The Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability. Alice, 134 S. Ct at 2354 (“We have described the concern that drives this exclusionary principal as one of pre-emption”). For this reason, questions on preemption are inherent in and resolved by the § 101 analysis. The concern is that “patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity.” Id. (internal quotations omitted). In other words, patent claims should not prevent the use of the basic building blocks of technology—abstract ideas, naturally occurring phenomena, and natural laws. While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. In this case, Sequenom’s attempt to limit the breadth of the claims by showing alternative uses of cffDNA outside of the scope of the claims does not change the conclusion that the claims are directed to patent ineligible subject matter. Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot. (Emphasis added.)
For these reasons, it appears that the claims are not patent-eligible under 35 USC §101.
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 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Eastman (U.S. Pub. No.: 2018/0056126 A1) in view of Jayalth et al. (U.S. Pub. No.: 2014/0142459 A1).
Regarding Claim 1: Eastman discloses a health and fitness monitoring method (Abstract) for automatically detecting a cycling activity, (¶¶ 128, 129), comprising: receiving a speed data stream at a background distance filter and a background accuracy filter, (¶¶ 59, 61, 69, the filtering of anomalies to effectively discern between cycling and non-cycling {other} activity); determining that an individual is likely engaged in a cycling activity, (¶¶ 59, 61, 69); determining that the individual is not engaged in a cycling activity, (¶¶ 59, 61, 69).
Eastman discloses the invention substantially but does not make explicit, adjusting the distance filter to a tracking distance filter; adjusting the accuracy filter to a tracking accuracy filter; and reverting to the background distance filter and background accuracy filter. However, in a related invention, Jayalth teaches adjusting and filtering when and how activity is tracked to conserve power resources: Specifically, Jayalth makes explicit switching between low power modes and tracking modes depending on threshold levels of activity being sensed, (e.g., Jayalth, ¶ 76).
It would have been obvious to a person of ordinary skill in the art at the time of Applicant’s filing to have provided Jayalth’s tracking adjustment and filtering in the system of Eastman for the purpose of conserving device battery-life and reducing the need for frequent recharging of a mobile tracking device.
Regarding Claim 2: Eastman discloses wherein the speed data stream is a GPS speed data stream, (¶ 38).
Regarding Claim 3: Eastman discloses wherein determining that the individual is likely engaged in a cycling activity comprises: receiving data corresponding to a speed of the individual; categorizing the speed of the individual as less than cycling activity, more than cycling activity, cycling activity, and possibly cycling activity; determining, based on the categorization, whether the individual is engaging in cycling activity; and determining, based on the categorization, whether a cycling activity should be categorized as a cycling workout, (¶¶ 59, 61, 69.)
Regarding Claim 4: Eastman discloses wherein determining that the individual is likely engaged in a cycling activity comprises: converting the data corresponding to the speed of the individual into time-stamped speed segments; organizing the time-stamped speed segments into speed characterizations for a portion of a given minute; and comparing the speed characterizations of a given minute such that if a significant portion of the minute falls into a cycling speed characterization, identifying that a cycling activity is occurring at that minute. (¶¶ 59, 61, 69.)
Regarding Claim 5: Eastman discloses wherein the cycling speed characterizations are automatically updated in response to one of the individual's historical data, machine learning algorithms, and individual confirmation of historical data, (Figs. 8a/b ¶ 82).
Regarding Claim 6: Eastman discloses determining that a minimum time active has elapsed between determining the individual has likely engaged in a cycling activity and determine an individual is not engaged in a cycling activity; and indicating that a cycling workout has occurred. (¶¶ 59, 61, 69.)
Conclusion
Additional Relevant References: See 892
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OMKAR A DEODHAR whose telephone number is (571)272-1647. The examiner can normally be reached on M-F, generally 9am-5:30 pm.
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/OMKAR A DEODHAR/Primary Examiner, Art Unit 3715
1 See MPEP 2106
2 Specifications: [0162] In embodiments, an electronic device 400 according to the present invention can be formed, for example, by attaching a dongle (e.g., a small hardware device that protects software) to a conventional phone, a music file player, a personal digital assistant, etcetera. The dongle includes, for example, downloadable software that implements some or all of the sport functions described herein. In an embodiment, the software includes a sport user interface written in the Java programming language. In an embodiment, the software includes drivers, for example, that enable the software to be used with any ultra low power Bluetooth communications protocol compatible device. Other embodiments are compatible with other communications protocol compatible devices. (Emphasis Added.) Specifications: [0205] Program products, methods, and systems of the present invention can include any software application executed by one or more electronic devices 400. An electronic device 400 can be any type of computing device having one or more processors. For example, the electronic device 400 can be a workstation, mobile device (e.g., a mobile phone, personal digital assistant, tablet computer, or laptop), computer, server, compute cluster, server farm, game console, set-top box, kiosk, embedded system, a gym machine, a retail system or retail enhancement system or other device having at least one processor and memory. Embodiments of the present invention may be software executed by a processor, firmware, hardware or any combination thereof in a computing device. (Emphasis Added.)
3: Ariosa Diagnostics, Inc., V. Sequenom, Inc., (Fed Cir. June 12, 2015)