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 .
Status of claim(s)
Claims 24-34 have been examined. Claims 1-23 have been previously canceled. Claims 24, 33-34 have previously been amended. 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 24-34 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1:
Claim 24 recite(s) a method of musculoskeletal self-delivery, which is within a statutory category (process). Claim 33 recite(s) a system of musculoskeletal self-delivery, which is within a statutory category (machine). Claim 34 recite(s) a storage medium, which is within a statutory category (manufacture)
Step 2A - Prong One:
Regarding Prong One of Step 2A (MPEP2106.04-.07), the claim limitations are to be analyzed to determine whether, under their broadest reasonable interpretation, they “recite” a judicial exception or in other words whether a judicial exception is “set forth” or “described” in the claims. An “abstract idea” judicial exception is subject matter that falls within at least one of the following groupings: a) mathematical concepts, b) certain methods of organizing human activity, and/or c) mental processes.
The limitation of Independent claim 24 recites at least one abstract idea. Specifically, claim 24 recites the steps of
A method of musculoskeletal (MSK) self-care delivery, the method comprising:
receiving, by at least one computing device, at least one first communication from at least one subject device, the at least one computing device being in network communication to a database comprising information on self-remediation of an MSK pathology concern (MPC) of a subject, and the at least one subject device being capable of receiving the information on self-remediation of the MPC;
receiving, by the at least one computing device, at one second communication comprising health statistical information related to the MPC in response to a questionnaire with the at least one subject device, the questionnaire comprising at least one request for health statistical information related to the MPC, wherein the health statistical information comprises a body part of the MPC and a timeline of the MPC;
and
transmitting, by the at least one computing device, the information on self-remediation of the MPC to the at least one subject device, the transmitted information on self-remediation being determined based on the received at least one second communication.
The above limitations, given the broadest reasonable interpretation, cover a mathematical concept and/or a certain method of organizing human activity because it recites mathematical relationships, formulas, equations, and/or mathematical calculations (i.e. health statistical) and/or fundamental economic practices, commercial or legal interactions, and/or managing personal behavior or relationships or interactions between people. Accordingly, the claim is directed toward at least one abstract idea.
Dependent Claims 25-32 add further limitations which are also directed to an abstract idea. For example, claims 25-29 includes request information to indicate the status of musculoskeletal pathology concern, eligible participant under plan sponsor. Dependent claims 30-32 include scheduling the appointment with provider, and communicating with the provider. These claims are directed to a certain method of organizing human activity for the same reason as described in the independent claims..
Furthermore, the abstract idea for claim 33 and claim 34 is identical as the abstract idea for claim 24, because the only difference between claim 33, 34 and claim 24 is that claim 24 recites a method, whereas claims 33 recites a system, and whereas claim 34 recites a storage medium.
Step 2A - Prong Two:
Regarding Prong Two of Step 2A (See MPEP2106.04-07), it must be determined whether the claim, as a whole integrates the abstract idea into a practical application. As noted in MPEP2106.04-07, it must be determined whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception. The courts have indicated that additional elements merely using a computer to implement an abstract idea, adding insignificant extra solution activity, or generally linking use of a judicial exception to a particular technological environment or field of use do not integrate a judicial exception into a “practical application.”
In the present case, the additional limitations beyond the above-noted at least one abstract idea are as follows (where the bolded portions are the “additional limitations” while the underlined portions continue to represent the at least one “abstract idea”):
Claim 24 recites
A method of musculoskeletal (MSK) self-care delivery, the method comprising:
receiving, by at least one computing device, at least one first communication from at least one subject device, the at least one computing device being in network communication to a database comprising information on self-remediation of an MSK pathology concern (MPC) of a subject, and the at least one subject device being capable of receiving the information on self-remediation of the MPC;
receiving, by the at least one computing device, at one second communication comprising health statistical information related to the MPC in response to a questionnaire with the at least one subject device, the questionnaire comprising at least one request for health statistical information related to the MPC, wherein the health statistical information comprises a body part of the MPC and a timeline of the MPC; and
transmitting, by the at least one computing device, the information on self-remediation of the MPC to the at least one subject device, the transmitted information on self-remediation being determined based on the received at least one second communication.
For the following reasons, the Examiner submits that the above identified additional limitations do not integrate the above-noted at least one abstract idea into a practical application.
For the additional bolded limitations of ” receiving, by at least one computing device, at least one first communication from at least one subject device, the at least one computing device being in network communication to a database comprising information on self-remediation of an MSK pathology concern (MPC) of a subject, and the at least one subject device being capable of receiving the information on self-remediation of the MPC; initiating, by the at least one computing device, a questionnaire with the at least one subject device, the questionnaire comprising at least one request for health statistical information related to the MPC, wherein the health statistical information comprises a body part of the MPC and a timeline of the MPC”, this is a pre-solution activity. The examiner submits that this additional limitation does not provide any additional element, but only merely adds insignificant extra-solution activity of gathering data to the at least one abstract idea in a manner of pre- solution activity that does not meaningfully limit the at least one abstract idea
For the additional limitation of ” receiving, by the at least one computing device, at one second communication comprising health statistical information related to the MPC in response to a questionnaire with the at least one subject device, the questionnaire comprising at least one request for health statistical information related to the MPC, wherein the health statistical information comprises a body part of the MPC and a timeline of the MPC; transmitting, by the at least one computing device, the information on self-remediation of the MPC to the at least one subject device, the transmitted information on self-remediation being determined based on the received at least one second communication”, this is a post-solution activity. The examiner submits that this additional limitation does not provide any additional element, but only merely adds insignificant extra-solution activity of gathering data to the at least one abstract idea in a manner of post- solution activity that does not meaningfully limit the at least one abstract idea ((merely data gathering steps as noted, see MPEP 2106.05(g)))
In particular, the recitation of the computing device, subject device , processors , a first and second communication device as in claims 24-33 and 34 is not positively claimed in the claim as it defines the service but is claimed insufficient to a structure or apparatus that it represents mere instructions to implement an abstract idea MPEP 2106.05(f). (Spec. 0070; Para 0029: the segmentation model may utilize one or more machine learning models.)
Thus, taken alone, the additional elements do not integrate the at least one abstract idea into a practical application.
Looking at the additional limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. For instance, there is no indication that the additional elements, when considered as a whole, reflect an improvement in the functioning of a computer or an improvement to another technology or technical field, apply or use the above-noted judicial exception to implement and revise a wellbeing plan, a productivity, implement/use the above-noted judicial exception with a particular machine or manufacture that is integral to the claim, effect a transformation or reduction of a particular article to a different state or thing, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is not more than a drafting effort designed to monopolize the exception (see MPEP § 2106.05).
For these reasons, representative independent claims 24, 33-34 does not recite additional elements that integrate the judicial exceptions into a practical application. (The Examiner notes the mere recitation of a processor, memory, a computing device, a first, second communication devicedoes not take the claim out of the mental process grouping or organizing human activity. Thus, the claim recites an abstract idea)
Thus, taken alone, the additional elements do not integrate the at least one abstract idea into a practical application.
Step 2B:
Regarding Step 2B, independent claims 24, 33-34 do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for the same reasons to those discussed above with respect to determining that the claim does not integrate the abstract idea into a practical application.
For claims 24, 33-34 limit the use of a processor, a computing device, etc.... The specification merely describes the use of these computing components. The Examiner submits that these limitations amount to merely using these computer devices as well-understood, routine, conventional activity (Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018).), and MPEP 2106.05(d)(I)(2). Further the use of generic computer components to perform abstract ideas does not provide a necessary inventive concept. See Alice, 573 U.S. at 223 (“mere recitation of a generic computer cannot transform a patient-ineligible abstract idea into a patent-eligible invention”).
For the reasons stated, the claims fail the Subject Matter Eligibility Test and are consequently rejected under 35 USC 101. Therefore, claims 24-34 are rejected under 35USC101 as being held patent ineligible.
Claim 34 recites a storage medium having encoded executable instruction. The claim constitutes computer programs representing computer listings per se (such as program codes). Such descriptions or expressions of the programs are not physical "things". They are neither computer components nor statutory processes, as they are not "acts" being performed. Such claimed computer programs do not define any structural and functional interrelationships between the computer program and other claimed elements of a computer, which permit the computer program's functionality to be realized. In contrast, a claimed non-transitory computer- readable/storage medium encoded with a computer program is a computer element, which defines structural and functional interrelationships between the computer program and the rest of the computer, that permits the computer program's functionality to be realized, and is thus statutory. See Lowry, 32 F.3d at 1583-84, 32 USPQ2d at 1035.
Furthermore, the broadest reasonable interpretation of a claim drawn to a computer storage medium typically covers form of non-transitory tangible medial and transitory propagating signal per se in when specification is silent. See MPEP 2111.01. When the broadest reasonable interpretation of claim covers a signal per se, the claim must be rejected under 35 U.S.C. 101 as covering non-statutory subject matter. See In re Nuijted, 500 F.3d 1346, 1356-57 (Fed cir 2007) (transitory embodiments are not directed to statutory subject matter) and Interim Examination Instructions for Evaluating Subject Matter Eligibility Under35 U.S.C 101, Aug 24, 2009; p. 2
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 24-34 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sinju Thomas et al. (EP3996107A1 hereinafter Sinju).
With respect to claim 24, Chin teaches a method of musculoskeletal (MSK) self-care delivery, the method comprising:
receiving, by at least one computing device, at least one first communication from at least one subject device, the at least one computing device being in network communication to a database comprising, and the at least one subject device being capable of receiving the information on self-remediation of the MPC (‘107; Para 0017: by disclosure, Sinju describes the method may be performed by a server computer in communication with one or more client devices over a communication network such as, for example, the Internet. In some other embodiments, the method may be performed by one or more of at least one server computer, at least one client device, at least one network device, at least one sensor and at least one actuator. Examples of the one or more client devices and/or the server computer may include, a desktop computer, a laptop computer, a tablet computer, a personal digital assistant, a portable electronic device, a wearable computer, a smart phone, an Internet of Things (IoT) device, a smart electrical appliance, a video game console, a rack server, a super-computer, a mainframe computer, mini-computer, micro-computer, a storage server, an application server (e.g. a mail server, a web server, a real-time communication server, an FTP server, a virtual server, a proxy server, a DNS server etc.), a quantum computer, and so on; Para 0031: system utilizes the patient's self-administered or clinician gathered information to guide the diagnosis, screen for sinister pathologies, and to narrow down the examination.);
receiving, by the at least one computing device, at least one second communication comprising health statistical information related to the MPC in response to a questionnaire with the at least one subject device, the questionnaire comprising at least one request for the health statistical information related to the MPC, wherein the health statistical information comprises a body part of the MPC and a timeline of the MPC (‘107; Para 0044: the CDSS is built by skillfully planned questions to create a feel for virtual interaction with the prospective clinician by incorporating the sophistication of information technology with evidence, experience, and expertise in spine care. Utmost care is taken in designing the CDSS so that the uninterrupted story patient 'wants to share 'is shared and the story each clinician would 'like to hear 'is 'heard'. Both parties mutually agree upon the structured version to pave the way for a well-informed decision-making process. Diagnoses are determined based on the recognition of patterns from history taking which are further verified and confirmed through various physical examinations and later investigations if ambiguity arises. Upon completion of the questionnaires, Therapha delivers a comprehensive clinical summary with actionable recommendations to the patients.; Para 0098: the following are the steps involved in the utility of features associated with Therapha ™ : 1. Extracting Patient Data through a series of questions, 2. Analysis of the data acquired using the Statistical tool (called Discriminant Analysis), 3. Matching the result of the (Discriminant) Analytic data against what is in Knowledge Repository to a specific Clinical condition or group of similar conditions, 4. Identify Risk Factors involved by Ruling In and Out Yellow and Red Flags, 5. Generate differential diagnosis to provide a Provisional diagnosis depending upon the probability prediction, 6. Recommend a treatment-based classification after taking information from the clinician); and
transmitting, by the at least one computing device, the information on self-remediation of the MPC to the at least one subject device, the transmitted information on self-remediation being determined based on the received at least one second communication (‘107; Abstract: accordingly, the clinical decision support system may include a communication device (202), a processing device (204), and a storage device (206). Further, the communication device (202) may be configured for transmitting questions to a first device and receiving responses corresponding to the questions from the first device).
.
Claims 33 and 34 are rejected as the same reason with claim 24.
With respect to claim 25, Sinju teaches the method of claim 24, wherein the at least one computing device is further configured to access a database comprising contact information for at least one consulting staff member, and wherein the method further comprises transmitting, by the at least one computing device, a request for information indicating a status of the MPC to the at least one subject device, the request for a status of the MPC comprising the contact information for the at least one consulting staff member (‘107; Para 0064; Para 0093).
With respect to claim 26, Sinju teaches the method of claim 25, wherein, in response to receiving, by the at least one computing device, at least one second subject electronic communication comprising the information indicating the status of the MPC, determining whether the status of the MPC has improved or has not improved (‘107; Para 0071).
With respect to claim 27, Sinju teaches the method of claim 26, wherein, in response to determining that the status of the MPC has not improved, connecting the at least one subject device with a device of a consulting staff member of the at least one consulting staff member (‘107; Paras 0062, 0108).
With respect to claim 28, Sinju teaches the method of claim 24, wherein the at least one computing device is further configured to access a database comprising identifying information for eligible participants under a plan sponsor, and wherein the method further comprises determining the subject is an eligible participant under the plan sponsor (‘107; Para 0031).
With respect to claim 29, Sinju teaches the method of claim 28, further comprising, in response to determining the subject is an eligible participant under the plan sponsor, referring the subject to a healthcare provider (‘107; Para 0031).
With respect to claim 30, Sinju teaches the method of claim 29, wherein the referring comprises scheduling at least one appointment with the healthcare provider and communicating information based on the at least one appointment to the subject (‘107; Para 0109).
With respect to claim 31, Sinju teaches the method of claim 29, wherein the healthcare provider comprises a specialist trained in evaluating the MPC (‘107; Paras 0026, 0055).
With respect to claim 32, Sinju teaches the method of claim 24, wherein a transmission method of any number of the at least one first communication and the at least one second communication comprises text, email, voice, or a combination thereof (‘1078; Paras 0017-0018, 0094).
Response to Arguments
Applicant's arguments filed 01/30/2026 with respect to claim rejection under 35USC101,have been fully considered but they are not persuasive.
In the Remark filed 01/30/2026, the Applicant argued that, for claim rejection under 5USC 101, claim 24 recites meaningful limits on the scope of the claim, improves an existing technology, and thus integrates any identifiable abstract idea into a practical application. Independent claim 24 integrates any identifiable abstract idea into a practical application including a process for "receiving, by at least one computing device, at least one first communication from at least one subject device, the at least one computing device being in network communication to a database comprising information on self-remediation of an MSK pathology concern (MPC) of a subject, "receiving...at least one second communication comprising health statistical information related to the MPC in response to a questionnaire.. comprising at least one request for health statistical information related to the MPC, wherein the health statistical information comprises a body part of the MPC and a timeline of the MPC."
In response to the Applicant’s argument, the Examiner respectfully disagrees. The Applicant asserts that Independent claim 24 integrates any identifiable abstract idea into a practical application including a process for "receiving, by at least one computing device, at least one first communication from at least one subject device, the at least one computing device being in network communication to a database comprising information on self-remediation of an MSK pathology concern (MPC) of a subject. However, the claim when analyzed as whole are directed to the analysis of patient’s musculoskeletal pathology concern using patient device in communication to client communication device which provides the health statistics. And thus, the claim falls within the certain method of organizing human activity and mathematical grouping of abstract ideas. Furthermore, communication devices are merely used to implement this abstract idea by responding a questionnaire with the at least one subject device to provide musculoskeletal pathology concern on the body of a subject. The application of these technologies, which are recited at a high level of generality, does not detract from the recitation of an abstract idea. Further the use of these devices and computer are amounts to the mere instruction to apply the abstract idea using general purpose computer. And thus, the improvement fails to integrate the abstract idea into a practical application.
For claim rejection under35USC103, the new claim rejectionunder 35USC103 with respect to claim(s) 124, 33-34 have been considered but are moot because the new ground of claim rejection under 35USC102 are currently used of reference of Sinju reference.
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.
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/HIEP V NGUYEN/
Primary Examiner, Art Unit 3686