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 .
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 1-16, 20 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.
Claim 1, 20 (2-16 by dependency) recite “a second audio portion”. An audio portion of what? For the purposes of examination, Examiner assumes the limitation to read “a second audio portion of the acoustic waveform”.
Claim 16 is depending on Claim 16. The scope of the claim is unclear. Examiner assumes the claim to be dependent on 15.
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 an abstract idea without significantly more. The claim(s) recite(s) comparing the first audio portion with a second audio portion; and based on the comparison, identifying at least one difference between the first audio portion and the second audio portion. The abstract idea is part of the Mental Process group(s) identified in the Ninth Edition, Revision 10.2019 (revised June 2020) of the Manual of Patent Examination Procedure (MPEP). This judicial exception is not integrated into a practical application because they amount to simply implementing the abstract idea on a computer; data-gathering steps do not add a meaningful limitation to the method as they are insignificant extra-solution activity; there is no improvement to a computer or other technology; does not apply the abstract idea to effect a particular treatment or prophylaxis for a disease or medical condition; does not apply the abstract idea with, or by use of, a particular machine. The additional elements are identified as follows: a computing device and a microphone. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements, when considered both individually and as a whole, do not amount to significantly more than the abstract idea. The additional computer and data-gathering elements, which are recited at a high level of generality, provide conventional computer and data-gathering functions that do not add meaningful limitations to practicing the abstract idea.
Those in the relevant field of art would recognize the above-identified additional elements as being well-understood, routine, and conventional means for data-gathering and computing, as demonstrated by Wang et al. Estimation of Temporal Gait Parameters Using a Wearable Microphone-Sensor-Based System; Sensors 2016, 16, 2167. Thus, the claimed additional elements “are so well-known that they do not need to be described in detail in a patent application to satisfy 35 U.S.C. § 112(a).” Berkheimer Memorandum, III. A. 3.
When considered in combination, the additional elements (generic computer functions and conventional equipment/steps) do not amount to significantly more than the abstract idea. The Federal Circuit has held that combining additional elements for data-gathering with abstract ideas does not make a claim patent-eligible. Looking at the claim limitations as a whole 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 merely provide conventional computer implementation.
Regarding the dependent claims, the dependent claims are directed to either 1) steps that are also abstract or 2) additional data gathering that is well-understood, routine and previously known to the industry. Although the dependent claims are further limiting, they do not recite significantly more than the abstract idea. A narrow abstract idea is still an abstract idea and an abstract idea with additional well-known data-gathering equipment/functions is not significantly more than the abstract idea.
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) 17-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Altaf et al. (Acoustic Gaits: Gait Analysis With Footstep Sounds; IEEE TRANSACTIONS ON BIOMEDICAL ENGINEERING, VOL. 62, NO. 8, AUGUST 2015), hereinafter Altaf.
Regarding Claim 17, Altaf teaches: A method comprising:
at a computing device (section III), accessing a first acoustical waveform from a microphone, the acoustical waveform including an audio portion of a footfall of a mammal (section II); and
identifying a gait characteristic of the mammal from the audio portion of the first footfall of the mammal, wherein the gait characteristic is based on at least one of an amplitude, a timing, a shape, a width, or an area of the audio portion of the first acoustical waveform (figure 4).
Regarding Claim 18, Altaf teaches: The method of claim 17 further comprising identifying at least one peak in the audio portion of the first acoustical waveform, and from the at least one peak, identifying the gait characteristic as toe first, flat footed or heal first (section II).
Regarding Claim 19, Altaf teaches: The method of claim 17 further comprising accessing a second audio portion of a second footfall of the mammal, and identifying the gait characteristic of the mammal from a comparison of the audio portion of the footfall with the second audio portion of the second footfall, and wherein the audio portion is of a footfall of a first limb of the mammal and the second audio portion is of a footfall of a second limb of the mammal or the audio portion is of a footfall of a first limb of the mammal and second audio portion is of a footfall of the first limb of the mammal later in time from the first audio portion (section IV; figure 4; table I and II).
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.
The factual inquiries 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.
Claim(s) 1-4, 6, 7, 9-14, 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schon et al. (WO 2013152754 A1 – cited by Applicant) in view of Altaf et al. (Acoustic Gaits: Gait Analysis With Footstep Sounds; IEEE TRANSACTIONS ON BIOMEDICAL ENGINEERING, VOL. 62, NO. 8, AUGUST 2015), hereinafter Altaf.
Regarding Claim 1, Schon teaches: An acoustic gait assessment method (title) comprising:
with a computing device (element 7; figure 1), accessing a first audio portion of an acoustic waveform of a ground surface impact of a first limb of a mammal (figure 2; paragraph 0055-0056);
comparing the first audio portion with a second audio portion (paragraph 0056). Schon does not explicitly mention based on the comparison, identifying at least one difference between the first audio portion and the second audio portion.
Altaf teaches based on the comparison, identifying at least one difference between the first audio portion and the second audio portion (section IV ACOUSTIC GA; TABLE 1 and TABLE 2). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the method to include identifying at least one difference between the first audio portion and the second audio portion in order to determine gait symmetry/health of a subject.
Regarding Claim 2, Schon in view of Altaf teaches: The method of claim 1, wherein the second audio portion is of a ground impact of a second limb of the mammal (Schon - paragraph 0055-0056; Altaf – figure 4).
Regarding Claim 3, Schon in view of Altaf teaches: The method of claim 2, wherein the acoustic waveform is obtained from a single microphone and the acoustic waveform further includes the second audio portion, and further wherein the first audio portion and the second audio portion are each associated with the respective first limb and the second limb (Schon - paragraph 0053-0054; Altaf - figure 4).
Regarding Claim 4, Schon in view of Altaf teaches: The method of claim 1, wherein the second audio portion is of a ground surface impact of the first limb of the mammal taking later in time from the first audio portion (paragraph 0052-0053; 0058).
Regarding Claim 6, Schon in view of Altaf teaches: The method of claim 1, wherein the at least one difference between the first audio portion and the second portion is an amplitude difference (Schon - paragraph 0026; Altaf – figure 4).
Regarding Claim 7, Schon in view of Altaf teaches: The method of claim 6, wherein the amplitude difference is based on a first peak in the first audio portion and a second peak in the second audio portion (paragraph 0026; Altaf – figure 4; table I and II).
Regarding Claim 9, Schon in view of Altaf teaches: The method of claim 1, wherein the second audio portion is of a footfall associated with a second limb of the animal opposing the first limb of the mammal, wherein the at least one difference indicates the first audio portion is of lesser amplitude than the second audio portion indicating the first limb is being favored by the mammal (paragraph 0055-0056; 0026; Altaf – section IV).
Regarding Claim 10, Schon in view of Altaf teaches: The method of claim 1, further comprising a third audio portion of a footfall associated with a third limb of the mammal and a fourth audio portion of a footfall associated with a fourth limb of the mammal, wherein the first limb and the second limb are either a left front leg and a right front leg or a left rear leg and a right rear leg (paragraph 0020 – four steps recorded).
Regarding Claim 11, Schon in view of Altaf teaches: The method of claim 1, further comprising:
generating a display of the first audio portion and the second audio portion, the at least one difference represented in an amplitude difference of the first audio portion and the second audio signal portion (figures 1-5; paragraph 0053-0058).
Regarding Claim 12, Schon in view of Altaf teaches: The method of claim 1, wherein the at least one difference is a difference of a shape, width, or area of the first audio portion compared to a shape, width, or area of the second audio portion, wherein the first audio portion and the second audio portion are obtained from a microphone (paragraph 0055-0058; Altaf, section II.A; figure 2A figure 4).
Regarding Claim 13, Schon in view of Altaf teaches: The method of claim 1, wherein the first audio signal includes a first peak amplitude and the second audio signal includes a second peak amplitude, wherein the at least one difference is represented by a difference of the first peak amplitude compared to the second peak amplitude, wherein the first peak amplitude being greater than the second peak value indicates that the mammal loads the first limb more than the second limb, wherein the second peak amplitude being greater than the first peak amplitude indicates that the mammal loads the second limb more than the first limb (paragraph 0026-0027; Altaf section IV).
Regarding Claim 14, Schon in view of Altaf teach: The method of claim 1. Schon does not mention wherein a video signal is synchronized with the first audio portion and the second audio portion, the method further comprising displaying the video signal including a visual depiction of the footfall associated with the first limb of the mammal and of the footfall associated with the second limb of the mammal, wherein the visual depiction of the footfall associated with the first limb of the mammal is correlated to the first audio signal portion, wherein the visual depiction of the footfall associated with the second limb of the mammal is correlated to the second audio signal portion. Altaf teaches wherein a video signal is synchronized with the first audio portion and the second audio portion, the method further comprising displaying the video signal including a visual depiction of the footfall associated with the first limb of the mammal and of the footfall associated with the second limb of the mammal, wherein the visual depiction of the footfall associated with the first limb of the mammal is correlated to the first audio signal portion, wherein the visual depiction of the footfall associated with the second limb of the mammal is correlated to the second audio signal portion (section III A). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the method wherein a video signal is synchronized with the first audio portion and the second audio portion, the method further comprising displaying the video signal including a visual depiction of the footfall associated with the first limb of the mammal and of the footfall associated with the second limb of the mammal, wherein the visual depiction of the footfall associated with the first limb of the mammal is correlated to the first audio signal portion, wherein the visual depiction of the footfall associated with the second limb of the mammal is correlated to the second audio signal portion to facilitate annotating the signals.
Regarding Claim 20, Schon teaches: A system for assessing a gait characteristic of a mammal using acoustic information, the apparatus comprising:
a microphone positioned to obtain an acoustic waveform of the mammal locomoting on a surface (figure 1; element 5); and
a computing device configured to process the acoustic waveform (figure 1), the computing device including computer executable instructions configured to:
analyze at least one signal attribute of a first audio portion of the acoustic waveform of a ground surface impact of a first limb of the mammal locomoting on the surface (paragraph 0055-0056);
comparing the at least one signal attribute of the first audio portion with a corresponding attribute of a second audio portion (paragraph 0055-0056). Schon does not explicitly mention based on the comparison, identifying at least one difference between the at least one attribute of first audio portion and the corresponding attribute of the second audio portion.
Altaf teaches based on the comparison, identifying at one difference between the at least one attribute of first audio portion and the corresponding attribute of the second audio portion (section IV ACOUSTIC GA; TABLE 1 and TABLE 2). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the method to include identifying at least one difference between the at least one attribute of first audio portion and the corresponding attribute of the second audio portion in order to determine gait symmetry/health of a subject.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schon in view of Altaf, in view of Herbold (Gait analysis following Total Knee Arthroplasty during Inpatient Rehabilitation: Can findings predict LOS, ambulation device, and discharge disposition?; 2017; Doctoral dissertation. Nova Southeastern University. Retrieved from NSUWorks, College of Health Care Sciences - Physical Therapy Department).
Regarding Claim 5, Schon in view of Altaf teaches: The method of claim 4, but do not mention wherein the acoustic waveform including the first audio portion is taken prior to at least one of a training, physical therapy, pharmacologic or surgical intervention of the mammal and the second audio portion is after the at least one of the training, physical therapy, pharmacologic or surgical intervention of the mammal.
Herbold teaches gate analysis before and after rehab to predict LOS, ambulation device, and discharge disposition (page 47; title). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the method wherein the acoustic waveform including the first audio portion is taken prior to at least one of a training, physical therapy, pharmacologic or surgical intervention of the mammal and the second audio portion is after the at least one of the training, physical therapy, pharmacologic or surgical intervention of the mammal to determine a subjects recovery and discharge disposition.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schon in view of Altaf, in view of Uri et al. (US 20020055691 A1), hereinafter Uri.
Regarding Claim 8, Schon in view of Altaf teach: The method of claim 2, further comprising accessing a third audio portion corresponding to a third foot of the mammal impacting the surface and a fourth audio portion corresponding to a fourth foot of the mammal impacting the surface (Schon – paragraph 0020); but does not explicitly mention further comparing the third audio portion with the fourth audio portion; and based on the comparisons, identifying a stride timing difference between at least one of the first portion, the second audio portion, the third audio portion and the fourth audio portion.
Uri teaches analyzing the gate of a 4 legged animal including analysis of signals from all 4 legs (paragraph 0029, 0058-60; Table 2 and 3). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the method to include comparing the third audio portion with the fourth audio portion; and based on the comparisons, identifying a stride timing difference between at least one of the first portion, the second audio portion, the third audio portion and the fourth audio portion to get a more comprehensive assessment of a 4-legged animals gait.
Claim(s) 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schon in view of Altaf, in view of Schab et al. (US 20180263220 A1 – cited by Applicant), hereinafter Schab.
Regarding Claim 15, Schon in view of Altaf teach: The method of claim 1, wherein the first audio portion is received from a microphone (figure 1) but does not mention that the microphone is attached to the mammal.
Schab teaches that a microphone can be attached to the subject for animal monitoring (abstract; paragraph 0172). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the method to include wherein the microphone is attached to the mammal so that the microphone is close to the subject at all times.
Regarding Claim 16, Schon in view of Altaf in view of Schab teaches: The method of claim 16, wherein the mammal is a horse (Schon - figure 1) and wherein the microphone is attached to a ventral portion of a surcingle that is attached to the horse (Schab – paragraph 0172).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAY B SHAH whose telephone number is (571)272-0686. The examiner can normally be reached M-F 8-5.
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JAY SHAH
Primary Examiner
Art Unit 3791
/JAY B SHAH/Primary Examiner, Art Unit 3791