DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 1-19 of U.S. Patent No. 11,857,862. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the pending application are encompassed by the claims of the Patent.
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.
Claim 20 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter wherein claim 20 recites a computer readable medium that is not claimed as embodied in a non-transitory storage medium. Because Applicant's disclosure is not limited solely to tangible embodiments, the claimed subject matter, given the broadest reasonable interpretation, may be a carrier wave comprising of instructions and is, therefore, non-statutory. The United States Patent and Trademark Office (USPTO) is obliged to give claims their broadest reasonable interpretation consistent with the specification during proceedings before the USPTO. See In re Zletz, 893 F.2d 319 (Fed. Cir. 1989) (during patent examination the pending claims must be interpreted as broadly as their terms reasonably allow). The broadest reasonable interpretation of a claim drawn to a computer readable storage medium typically covers forms of non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer readable storage media, particularly when the specification is silent. (See MPEP 2111.01). When the broadest reasonable interpretation of a 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 Nuijten, 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 Under 35 U.S.C. § 101, Aug. 24, 2009; p. 2).
To overcome this type of rejection, the claims need to be amended to include only the physical computer storage media unassociated with any intangible or non-functional transmission media. Examiner suggests adding the word -- non-transitory -- to the claim. Other word choices will be considered but the one proposed shall overcome the rejection. Appropriate attention is required.
Claim Rejections - 35 USC § 103
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, 6-9, 11-14, 16-18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over US Publication No. 2014/0180451 to Marty (hereinafter “Marty”) in view of US Publication No. 2018/0071599 A1 to Kaspersky et al. (hereinafter “Kaspersky”).
Concerning claim 1, Marty discloses a system for assessing a stroke of a racket hitting a ball (paragraph [0004]), the system comprising:
a sensor device containing one or more sensors capable of detecting parameters of movement of the ball; a processor; and a memory containing programming instructions (paragraph [0006] – computing device with a processor and memory in communication with sensors and detecting parameters of movement of the ball) that are configured to, when executed, cause the processor to:
receive, from the one or more sensors, the detected parameters of movement of the ball as the ball travels through over a court after being hit by the stroke of the racket (paragraph [0077] – receive parameters of movement of a ball after being hit using sensors),
use the detected parameters to measure linear speed and rotational speed of the ball (paragraph [0088]- linear speed and rotational speed are measured of the ball),
use the measurements of linear speed and rotational speed to generate a value for the stroke (paragraphs [0079], [0081] – parameters of the ball are processed and player stroke evaluation is provided via display or audible module), and
output the value via a display or speaker (paragraphs [0079], [0081] – parameters of the ball are processed and player stroke evaluation is provided via display or audible module).
Marty lacks specifically disclosing, however, Kaspersky discloses determining a heaviness value of the ball (paragraphs [0025], [0027], [0043], [0050] – determines the impact of the player on the ball by calculating striking energy in joules – Applicants’ published specification in at least paragraph [0054] describes heaviness of the stroke based on joules of energy).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the heaviness calculation disclosed by Kaspersky in the system of Marty in order to provide a more accurate analysis of a player’s skill in a game.
Concerning claims 2 and 12, Marty discloses wherein the instructions to generate the heaviness value comprise instructions to: identify an interval between a time when the ball contacts a side of an area of the court where the opponent is positioned and a time when the ball contacts a racket of an opponent; and assess the value as that associated with the measurements of linear speed and rotational speed that are received for the interval (paragraphs [0079], [0081], [0088] – values associated with linear and rotational speed are assessed for the ball based on the contact). Marty lacks specifically disclosing, however, Kaspersky discloses determining a heaviness value of the ball (paragraphs [0025], [0027], [0043], [0050] – determines the impact of the player on the ball by calculating striking energy in joules). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the heaviness calculation disclosed by Kaspersky in the system of Marty in order to provide a more accurate analysis of a player’s skill in a game.
Concerning claims 3 and 13, Marty lacks specifically disclosing, however, Kaspersky discloses wherein the instructions to generate the heaviness value comprise instructions to determine, based on the detected parameters, a multiple axis rotational amplitude change of the ball as it travels over the court (paragraphs [0025], [0027], [0043], [0050] – determines the impact of the player on the ball by calculating striking energy in joules based on detected parameters including a multiple axis rotational amplitude change of the ball). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the heaviness calculation disclosed by Kaspersky in the system of Marty in order to provide a more accurate analysis of a player’s skill in a game.
Concerning claims 4 and 14, Marty lacks specifically disclosing, however, Kaspersky discloses wherein the instructions to use the measurements of linear speed and rotational speed to generate the heaviness value comprise instructions to use a function of a translational kinetic energy value and a rotational kinetic energy value of the ball (paragraphs [0025], [0027], [0043], [0050] – determines the impact of the player on the ball by calculating striking energy in joules (i.e., kinetic energy)). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the heaviness calculation disclosed by Kaspersky in the system of Marty in order to provide a more accurate analysis of a player’s skill in a game.
Concerning claims 6 and 16, Marty lacks specifically disclosing, however, Kaspersky discloses wherein the instructions to generate the heaviness value comprise instructions to, in response to also receiving one or more characteristics of a court from which the sensor device collects data, include the one or more characteristics in the function (paragraphs [0025], [0027], [0043], [0050] – determines the impact of the player on the ball by calculating striking energy in joules (i.e., kinetic energy)). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the heaviness calculation disclosed by Kaspersky in the system of Marty in order to provide a more accurate analysis of a player’s skill in a game.
Concerning claims 7 and 17, Marty discloses wherein the instructions to measure linear speed of the ball comprise instructions to, when the one or more sensors comprise a camera: measure a distance that the ball has moved in a plurality of subsequent frames captured by the camera; and use the measured distance and a frame rate of the camera to determine the linear speed of the ball (paragraphs [0077]-[0079], [0081], [0088] – sensors comprise a camera to determine linear speed of the ball).
Concerning claim 8, Marty discloses wherein: the one or more sensors comprise a camera, a radar system, a lidar system or an audio sensor; and the one or more sensors are positioned to detect an area of the court that begins on or before a baseline of the court and extends through and beyond a service line of the court (paragraphs [0077]-[0079], [0081], [0088] – sensors comprise a camera to determine linear speed of the ball).
Concerning claim 9, Marty discloses wherein the one or more sensors comprise a receiver configured to receive signals transmitted by a sensor that is located in the ball (paragraphs [0077]-[0079], [0081], [0088] – sensors can be located in the ball).
Concerning claims 11 and 20, see the rejection of claim 1.
Concerning claim 18, Marty discloses wherein: the one or more sensors are located in the ball; and receiving, from the one or more sensors, the parameters of movement of the ball comprises receiving signals transmitted from the ball (paragraphs [0077]-[0079], [0081], [0088] – sensors can be located in the ball)..
Allowable Subject Matter
Claims 5, 10, 15, and 19 objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure is listed in the PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MALINA D BLAISE whose telephone number is (571)270-3398. The examiner can normally be reached Mon. - Thurs. 7:00 am - 5:00 pm (PT).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Xuan Thai can be reached at 571-272-7147. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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MALINA D. BLAISE
Primary Examiner
Art Unit 3715
/MALINA D. BLAISE/Primary Examiner, Art Unit 3715