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 .
DETAILED ACTION
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 a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea)
without significantly more.
Claims 1-20 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.
Step 1: Independent claims 1, 13, and 20 recite a computer-implemented system, a method and a non- transitory computer-readable medium storing instructions. Thus, they are directed to statutory categories of invention.
Step 2A, prong 1:
Claims 1, 13 and 20 recite the following claim limitations:
one or more processing devices configured to receive attribute data associated with a user,
determine, based on the attribute data, a first probability of improving a medical condition of the user subsequent to at least one of a medical procedure being performed on the user, a medical treatment being performed on the user, and a medical diagnosis, and
generate, based on the first probability, a treatment plan that includes one or more exercises directed to modifying the first probability; and
a treatment apparatus configured to enable implementation of the treatment plan.
These limitations, under their broadest reasonable interpretation, cover concepts that can be practically performed in the human mind, i.e., using pen and paper. With a plurality of measurements for each physiological variable of a patient, a human could reasonably construct a first probability, and use that probability to generate a treatment plan including exercises directed to modifying the first probability. Thus, the claims recite limitations which fall within the 'mental processes' grouping of abstract ideas.
Step 2A, prong 2:
Claims 1, 13, and 20 recite the following additional elements:
processing devices;
a treatment apparatus
The examiner considers processing devices configured to receive attribute data associated with a user to comprise insignificant pre-solution activity.
A treatment apparatus to implement the treatment plan is merely insignificant post-solution activity (See MPEP 2106.05(g)).
Computer readable storage media merely instructs the processing device to carry out the steps of the method. In other words, the computer components are being used as a tool to carry out the method (See MPEP 2106.05(f)).
Thus, the abstract idea is not integrated into a practical application. The combination of these additional elements is no more than insignificant extra solution activity, and mere instructions to apply the exception using generic computer components (the processing device and computer-readable medium). Accordingly, even in combination, these additional elements do not integrate the abstract idea into a practical application. Claims 1, 13, and 20 are directed to an abstract idea.
Step 2B
Claims 1, 13, and 20 do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed with respect to Step 2A Prong Two, the additional elements in claims 1, 13, and 20 amount to no more than insignificant extra solution activity and mere instructions to apply the exception using a generic computer component. The same analysis applies here in 2B and does not provide an inventive concept.
For the treatment apparatus to implement the treatment plan that was considered insignificant extra-solution activity in Step 2A Prong Two, it has been re-evaluated in Step 2B and determined to be well-understood, routine, conventional activity in the field.
The courts have recognized the following laboratory techniques as well-understood, routine, conventional activity in the life science arts when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See MPEP MPEP 2106.05(d) II.
Using a treatment apparatus to implement the treatment plan is conventional exercise machinery in the exercise arts related to physical activity. A treatment apparatus represents a high level of generality for describing an exercise machine.
The following evidence supports such a determination:
electronically Storing and retrieving information in memory, Versata Dev. Group, Inc. V. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
For these reasons, there is no inventive concept. The claims 1, 13, and 20 are not patent
eligible. Even when viewed as a whole, nothing in these claims adds significantly more to the
abstract idea.
Dependent claims
Regarding claims 2 and 14, the attribute data includes data associated with a medical health of the user recites limitations that further define the type of data collected.
Regarding claims 3 and 15, the one or more processing devices are configured to execute an attribute data model, and wherein, to generate the selected set of the attribute data, the attribute model is configured to at least one of assign weights to the attribute data, rank the attribute data, and filter the attribute data recites limitations that further define how the data is manipulated.
Regarding claims 4 and 16, the one or more processing devices are configured to execute a probability model, wherein the probability model is configured to determine the first probability recites limitations that further define how the data is manipulated.
Regarding claims 5 and 17, the one or more processing devices are configured to execute a treatment plan model, wherein the treatment plan model is configured to generate the treatment plan to modify the first probability recites limitations that further define how the data is manipulated.
Regarding claims 6 and 18, the one or more processing devices are further configured, based on the selected set of the attribute data, to generate a second probability that the user will be eligible for the at least one of the medical procedure and the medical treatment recites a mathematical calculation. See MPEP 2106.04(a)(2).
Regarding claims 7 and 19, using the one or more processing devices, at least one of (i) generating the treatment plan further to modify the second probability and (ii) generating a recommendation of whether the user should undergo the at least one of the medical procedure and the medical treatment recites limitations that further define how the data is manipulated and post solution activity.
Regarding claim 8, subsequent to implementing the treatment plan using the treatment apparatus, the one or more processing devices are configured, based on the recommendation, to modify the treatment plan recite limitations that further define how the data is manipulated.
Regarding claim 9, the one or more processing devices are configured to transmit the modified treatment plan to cause the treatment apparatus to implement at least one modified exercise of the modified treatment plan recite limitations that further define post solution activity.
Regarding claim 10, while the user performs the treatment plan, the one or more processing devices are configured to initiate a telemedicine session between a computing device of the user and a computing device of a healthcare professional, limitations that further define how the data is manipulated and post solution activity.
Regarding claim 11, the one or more processing devices are configured, based on a respiratory exertion threshold associated with dyspnoea experienced by the user, to modify the treatment plan, limitations that further define how the data is manipulated and post solution activity.
Regarding claim 12, the one or more processing devices are configured, based on performance information indicative of characteristics of the user measured while the user performs the treatment plan, to modify the respiratory exertion threshold, limitations that further define how the data is manipulated and post solution activity.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 11,887,717. Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims are directed to an obvious broadening of the system and method to receive attribute data, determine probabilities, and generate treatment plans and to implement treatment plans where the feature of a pulmonary condition of a user is eliminated from claims 1-24 of U.S. Patent No. 11,887,717.
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 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Dias et al (US 2018/0060494).
Regarding claims 1, 13 and 20, Dias discloses a computer-implemented system, method and instructions, comprising:
one or more processing devices 134 configured to receive attribute data associated with a user, see paragraph [0039].
Dias teaches maximizing the probability that a patient 442 will maintain adherence to a personalized patient care plan, see paragraph [0063].
One of ordinary skill in the art would have found it obvious to determine, based on the attribute data, a first probability of improving a medical condition of the user subsequent to at least one of a medical procedure being performed on the user, a medical treatment being performed on the user, and a medical diagnosis because Dias teaches a medical treatment guideline may specify that for female diabetes patients that are in the age range of 40 to 60 years old, the patient should follow a low sugar diet and have at least 30 minutes of stressful exercise per day, see paragraph [0040].
The skilled artisan would have found it an obvious consequence of these teachings in Dias to generate, based on the first probability, a treatment plan that includes one or more exercises directed to modifying the first probability; and
a treatment apparatus configured to enable implementation of the treatment plan, see paragraph [0146].
Regarding claims 2 and 14, Dias discloses the attribute data includes data associated with a medical health of the user, see paragraph [0040].
Regarding claims 3 and 15, Dias discloses the one or more processing devices 134 are configured to execute an attribute data model, and wherein, to generate the selected set of the attribute data, the attribute model is configured to at least one of assign weights to the attribute data, rank the attribute data, and filter the attribute data, see paragraph [0017].
Regarding claims 4, 5, 16 and 17, Dias discloses the one or more processing devices 134 are configured to execute a treatment plan model, wherein the treatment plan model is configured to generate the treatment plan to modify the first probability, see paragraph [0040].
Regarding claims 6 and 18, Dias discloses the one or more processing devices 134 are further configured, based on the selected set of the attribute data, to generate a second probability that the user will be eligible for the at least one of the medical procedure and the medical treatment, see paragraphs [0063] to [0065]. The examiner is interpreting a second probability to be associated with a second treatment plan.
Regarding claims 7 and 19, Dias discloses the one or more processing devices 134 are configured to generate the treatment plan further to modify the second probability.
The limitations of claims 8 and 9 are to a non-considered option of claim 7.
Regarding claim 10, Dias discloses while the user performs the treatment plan, the one or more processing devices are configured to initiate a telemedicine session between a computing device 132 of the user and a computing device 102 of a healthcare professional, see paragraphs [0092] to [0093].
Regarding claims 11 and 12, Dias discloses the personalized patient care plan (PCP) indicates that if the “environmental breathing difficulty” exogenous factor is at a level of “difficulty” or above, then actions in the personalized PCP for patient P that are associated with strenuous outdoor activity should be modified to eliminate strenuous outdoor activity, see paragraph [0156].
This teaching in Dias renders it desirable to modify a respiratory exertion threshold for strenuous outdoor activity where breathing is difficult. One of ordinary skill in the art to have found it obvious to configure the one or more processing devices 134, based on a respiratory exertion threshold associated with dyspnoea experienced by the user, to modify the treatment plan and based on performance information indicative of characteristics of the user measured while the user performs the treatment plan, to modify the respiratory exertion threshold.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to George Manuel whose telephone number is (571) 272-4952.
The examiner can normally be reached on regular business days.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Klein can be reached on (571) 270-5213. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/George Manuel/
Primary Examiner
Art Unit: 3792
3/9/2026