DETAILED ACTION
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 Claims
This office action is in response to arguments and amendments entered on August 22, 2025 for the patent application 18/516,841 originally filed on November 21, 2023. Claims 1, 7, 8 and 12 are amended. Claims 1-22 are pending. The first office action of April 24, 2025 is fully incorporated by reference into this Final Office 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 1-22 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 – “Statutory Category Identification”
Claims 1, 8 and 12 are directed to “a method” (i.e. “a process”), hence the claims are directed to one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter). In other words, Step 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 1 “Abstract Idea Identification”
However, the claims are drawn to the abstract ideas of “to obtain a protein-carbohydrate composition for the user,” per claim 1; “determining an activity-based dose of a nutrient composition … and… sending a notification to a user,” per claim 8; and “obtaining an optimal dose for each of the plurality of nutrient products… creating a combination product,… and providing the combination product to the user,” per claim 12, either in the form of “certain methods of organizing human activity,” in terms of managing personal behavior or relationships or interactions between people (including social activities, teaching and following rules or instructions), or reasonably in the form of “mental processes,” in terms of processes that can be performed in the human mind (including an observation, evaluation, judgement or opinion). Regardless, the claims are reasonably understood as either “certain methods of organizing human activity” or “mental processes,” which require the following limitations:
Per claim 1:
“receiving movement data of a user, the movement data being representative of activity levels of the user over a specified number of days, wherein the movement data is measured;
receiving user data including height, weight, age, and gender;
determining a total active calorie burn using the movement data;
determining an activity score using the total active calorie burn and the user data;
determining a carbohydrate dose based on the activity score; and
adding the carbohydrate dose determined using the total active calorie burn and the user data;
adding a protein dose;
mixing the carbohydrate dose with the protein dose until homogeneity is achieved to obtain a protein-carbohydrate composition for the user; and
providing the protein-carbohydrate composition to the user.”
Per claim 8:
“receiving historical movement data of a user, the historical movement data being representative of activity levels of the user over a specified number of days, wherein the historical movement data is measured;
determining a historical active calorie burn rate using the historical movement data;
receiving real-time current movement data from the user, the real-time current movement data being representative of an activity of the user, the real-time current movement data received within a specified time window of the activity occurring, wherein the real-time current movement data is measured;
determining a current active calorie burn using the real-time current movement data;
determining an activity-based dose of a nutrient composition comprising a protein dosage based on the historical active calorie burn rate and the current active calorie burn; and
responsive to receiving the real-time current movement data, sending a notification to the user, the notification including the activity-based dose for the user to ingest within the specified time window.”
Per claim 12:
“receiving a first assessment including a first measurement of a first biomarker of a user;
receiving a second assessment including a second measurement of a second biomarker of the user or a first health goal of the user;
querying a database using the first assessment and the second assessment to:
obtain a plurality of first reference ranges for a first nutrient associated with the first assessment, wherein the plurality of first reference ranges is associated with corresponding first efficacies and corresponding first weights of the first nutrient for the first assessment;
obtain a plurality of second reference ranges for the first nutrient associated with the second assessment, wherein the plurality of second reference ranges is associated with corresponding second efficacies and corresponding second weights of the first nutrient for the second assessment; and
obtain one or more additional references ranges for one or more other nutrients;
determining a first dosage bound for the first nutrient of the first assessment using the plurality of first reference ranges and the corresponding first weights of the first nutrient for the first assessment;
determining a second dosage bound for the first nutrient of the second assessment using the plurality of second reference ranges and the corresponding second weights of the first nutrient for the second assessment;
generating a dosage vector including a dose value for each of a plurality of nutrient products including the first nutrient and the one or more other nutrients;
generating a score matrix that includes a nutrient-assessment score for each nutrient for each assessment, wherein the nutrient-assessment score is dependent on the dose value for the nutrient relative to a dosage bound for the nutrient;
optimizing the dosage vector by optimizing a total score across nutrients and assessments, thereby obtaining an optimal dose for each of the plurality of nutrient products,
wherein the total score is determined using the score matrix and an efficacy for the nutrient for each reference range for each assessment;
creating a combination product that includes a protein product and the optimal dose for each of the plurality of nutrient products; and
providing the combination product to the user.”
These limitations simply describe a process of data gathering and manipulation, which is partially analogous to “collecting information, analyzing it, and displaying certain results of the collection analysis” (i.e. Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016)). Hence, these limitations are akin to an abstract idea which has been identified among non-limiting examples to be an abstract idea. In other words, Step 2A, Prong 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 2 – “Practical Application”
Furthermore, the applicants claimed elements of “a computing system” “one or more user devices,” “at least one sensor,” “a network,” and “a mixer machine (or a mixing machine),” are merely claimed to generally link the use of a judicial exception (e.g., pre-solution activity of data gathering and post-solution activity of presenting data) to (1) a particular technological environment or (2) field of use, per MPEP §2106.05(h); and are applying the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea, per MPEP §2106.05(f). In other words, the claimed “to obtain a protein-carbohydrate composition for the user,” per claim 1; “determining an activity-based dose of a nutrient composition … and… sending a notification to a user,” per claim 8; and “obtaining an optimal dose for each of the plurality of nutrient products… creating a combination product,… and providing the combination product to the user,” per claim 12, is not providing a practical application, thus Step 2A, Prong 2 of the subject-matter eligibility analysis is “No.”
Step 2B – “Significantly More”
Likewise, the claims do not include additional elements that either alone or in combination are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g.
“a computing system” “one or more user devices,” “at least one sensor,” “a network,” and “a mixer machine (or a mixing machine),” are claimed, these are generic, well-known, and conventional data gather computing elements. As evidence that these are generic, well-known, and a conventional data gathering computing elements (or an equivalent term), as a commercially available product, or in a manner that indicates that the additional elements are sufficiently well-known, the Applicant’s specification discloses these in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a), per MPEP § 2106.07(a) III (a). As such, this satisfies the Examiner’s evidentiary burden requirement per the Berkheimer memo.
Specifically, the Applicant’s claimed “a computing system” and “a network,” as described in paras. [0174] and [0175] of the Applicant’s written description as originally filed, provides the following: “[0174] Any of the computer systems mentioned herein may utilize any suitable number of subsystems. Examples of such subsystems are shown in FIG. 10 in computer system 10. In some embodiments, a computer system includes a single computer apparatus, where the subsystems can be the components of the computer apparatus. In other embodiments, a computer system can include multiple computer apparatuses, each being a subsystem, with internal components. A computer system can include desktop and laptop computers, tablets, mobile phones and other mobile devices.”
“[0175] The subsystems shown in FIG. 10 are interconnected via a system bus 75. Additional subsystems such as a printer 74, keyboard 78, storage device(s) 79, monitor 76 (e.g., a display screen, such as an LED), which is coupled to display adapter 82, and others are shown. Peripherals and input/output (I/O) devices, which couple to I/O controller 71, can be connected to the computer system by any number of means known in the art such as input/output (I/O) port 77 (e.g., USB, FireWire©). For example, I/O port 77 or external interface 81 (e.g., Ethernet, Wi-Fi, etc.) can be used to connect computer system 10 to a wide area network such as the Internet, a mouse input device, or a scanner.” As such, the Applicant’s “a computing system” is reasonably interpreted as a generic, well-known, and conventional data gathering computing device using a generic, well-known, and conventional data environment.
Likewise, the Applicant’s claimed “one or more user devices,” and “at least one sensor,” as described in paras. [0030] and [0165] of the Applicant’s written description as originally filed, provides the following: “[0030] The movement data 104 can be obtained from the one or more user devices (e.g., smart watch).”
“[0165] One or more user devices can be used to measure movement data (e.g., real-time activity data) to determine ideal carbohydrate dosage for the smart protein. The real-time activity data can be detected and transmitted within a specified time constraint, e.g., seconds, minutes or hours. The real-time activity data can also be used to determine ideal activity-based doses, or smart protein doses a user takes after different activities. The one or more user devices can identify the ideal post-workout recovery window based on each recorded activity (i.e., movement data). By using the real time activity data from the one or more user devices, embodiment can give a recommendation of activity-based doses the user can take after the activity. Historical active movement data, or a collection of real time activity data over a period of time, can be used to determine the ideal carbohydrate dosage of the smart protein. Examples of such user devices that can measure movement data include: a watch, a phone, a bicycle, glasses, a wristband, treadmill, elliptical machine (or any other cardio machine), and the like. Such measurements can be performed using an inertial motion sensor, such as an accelerometer and/or a gyrometer.” As such, the Applicant’s “one or more user devices,” and “at least one sensor,” are also reasonably interpreted as a generic, well-known, and conventional data gathering computing device.
Finally, the Applicant’s claimed “a mixer machine (or a mixing machine),”as described in paras. [0035] and [0036] of the Applicant’s written description as originally filed, provides the following:
“[0035] The assembling module 110 can then add the appropriate dosage of the ingredient to a mixer machine, which can mix the ingredients. The different dosages of different ingredients can be then mixed in the mixer machine until they become homogenous (i.e., reach homogeneity).”
“[0036] Once the ingredients are well mixed and homogenous, the ingredients can then be filled into a bag to create the smart protein 112. The smart protein can be a composition of at least one of the ingredients (e.g., protein, carbohydrate, micronutrients, and flavor). For example, a protein dose and a carbohydrate dose can be added to the mixer machine. The protein dose and the carbohydrate dose can then be mixed in the mixer machine until they become homogenous to determine the smart protein with protein-carbohydrate composition.” As such, the Applicant’s “mixer machine,” is reasonably interpreted as a generic, well-known, and conventional, commercially available product/appliance.
Therefore, the Applicant’s own specification discloses ubiquitous standard equipment within modern computing and appliances, which does not provide anything significantly more. Therefore, Step 2B, of the subject-matter eligibility analysis is “No.”
In addition, dependent claims 2-7, 9-11 and 13-22 do not provide a practical application and are insufficient to amount to significantly more than the judicial exception. As such, dependent claims 2-7, 9-11 and 13-22 are also rejected under 35 U.S.C. § 101, based on their respective dependencies to claim 1, 8 or 12. Therefore, claims 1-22 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject-matter.
Response to Arguments
The Applicant’s arguments filed on August 22, 2025 related to claims 1-22 are fully considered, but are not persuasive.
Claim Rejections under 35 U.S.C. § 101
Claim 1
Step 2A, Prong One
The Applicant respectfully argues “First, the rationale relied on by the Office Action, as shown above, unfairly characterizes the claim. The Office Action alleges the claim elements “simply describe a process of data gathering and manipulation, which is partially analogous to ‘collecting information, analyzing it, and displaying certain results.” Based on the Office Action’s rationale, the Office Action does not seem to have taken into consideration at least the claim elements of Examined claim 1 that recited “determining, by the computing system, a carbohydrate dose based on the activity score; and mixing the carbohydrate dose with a protein dose to obtain a protein-carbohydrate composition for the user.” The above elements of examined claim 1 do not reflect collecting information, analyzing it, and displaying certain results. The above claim elements and the elements of amended claim 1 are substantially more limiting.”
The Examiner respectfully disagrees. The Examiner did take into consideration all of the steps of claim 1. Further, “collecting information,” is on point with the claimed steps of “receiving…” Likewise, “analyzing it,” is on point with the claimed steps of “determining…” Finally, “displaying certain results of the collection analysis” are reasonably understood as a results output of the previously described “analysis.” The claimed step of “mixing the carbohydrate dose with a protein dose to obtain a protein-carbohydrate composition for the user,” is just post-solution activity using the results output of the previously described “analysis” (i.e. “determining” steps) to achieve the desired result, which in this case is “to obtain a protein-carbohydrate composition for the user.” As such, the argument is not persuasive.
The pending claims do not recite a mental process
The Applicant respectfully argues “Whether some of the claimed steps can be performed in the human mind is not determinative, the question is whether the claimed invention could or “could not, as a practical matter, be performed entirely in the human mind.” (SiRF Tech., Inc. v. Int’! Trade Comm’n, 601 F.3d 1319, 94 USPQ2d 1607 (Fed. Cir. 2010), Emphasis Added).
Amended claim 1 recites “adding, to a mixer machine, the carbohydrate dose determined using the total active calorie burn and the user data; adding a protein dose to the mixer machine; mixing the carbohydrate dose with the protein dose in the mixer machine until homogeneity is achieved to obtain a protein-carbohydrate composition for the user; and providing the protein-carbohydrate composition to the user,” among other elements. None of the steps of “adding, to a mixer machine, the carbohydrate dose determined using the total active calorie burn and the user data,” “adding a protein dose to the mixer machine,” “mixing the carbohydrate dose with the protein dose in the mixer machine until homogeneity is achieved to obtain a protein-carbohydrate composition for the user,” and “providing the protein- carbohydrate composition to the user” can be performed mentally. Therefore, amended claim 1 does not recite a mental process.”
The Examiner respectfully disagrees. Actual mental performance of the abstract idea is not required, Further, the MPEP § 2106.04(a)(2)(III)(C) states that “claims can recite a mental process even if they are claimed as being performed on a computer” and that “examiners should review the specification to determine if the claimed invention is described as a concept that is performed in the human mind and Appellant is merely claiming that concept performed 1) on a generic computer, or 2) in a computer environment, or 3) is merely using a computer as a tool to perform the concept. In these situations, the claim is considered to recite a mental process.” In the present case, the claim limitations perform steps that are performed on a generic computer and/or computer environment, and merely uses a computer as a tool to perform the concept. As such, the argument is not persuasive.
The Applicant respectfully argues “During the Examiner interview, the Examiner alleged that since a person may manually mix a carbohydrate dose and a protein dose to a mixer, then the steps recite a mental process since a person would necessarily have to think about the physical steps of mixing. Any mental activities performed by a person to control the muscles in a huma body does not change the physical acts to being mental steps. Mental steps relate to acts that are purely thoughts, and thus the allegation that anything done by a person (regardless of how tangible or physical) is a mental step simply has no basis in the law or in the MPEP. The use of a mind to control a body does not cause the physical actions to be mental processes. A person cannot mentally, without physical action, cause ingredients to be added and/or mixed together.”
The Examiner respectfully disagrees. The Applicant’s argument is misguided. THe actual “mixing” is just post-solution activity. However, arguably, a user in the analog would have to mentally determine how much of an ingredient is needed to be mixed in order to achieve the desired amount sought. After making that “determination,” a user would then consciously decided to physically engage with products to carry out precisely what was determined. Specifically, “a mixer machine” is not going to load contents into itself, or commence mixing, without the direction of the user. The user would then have to make that determination to carry out the mixing process, and observe once “until homogeneity is achieved,” in order “to obtain a protein-carbohydrate composition for the user.” As such, the argument is not persuasive.
The Applicant respectfully argues “Additionally, if this rationale was valid (namely that any physical actions by a person were subsumed under mental steps as the mind controls the body), then the administering of a treatment under Vanda would also be part of an abstract idea and could not be an additional limitation. But the Federal Circuit held that a step of administering a treatment is an additional limitation. Accordingly, the Examiner’s assertions are not consistent with case law of the MPEP.
Therefore, “adding, to a mixer machine, the carbohydrate dose determined using the total active calorie burn and the user data; adding a protein dose to the mixer machine; mixing the carbohydrate dose with the protein dose in the mixer machine until homogeneity is achieved to obtain a protein-carbohydrate composition for the user; and providing the protein- carbohydrate composition to the user,” does not recite a mental process.”
The Examiner respectfully disagrees. The Applicant is mischaracterizing “Vanda.” Specifically, it is unclear as to what “particular treatment or prophylaxis for disease or medical condition,” as noted in Vanda, the Applicant is referring to. As such, the argument is not persuasive.
The pending claims do not recite certain methods of organizing human activity
The Applicant respectfully argues “Amended claim 1 recites a method that involves “adding, to a mixer machine, the carbohydrate dose determined using the total active calorie burn and the user data,” “adding a protein dose to the mixer machine,” and “mixing the carbohydrate dose with the protein dose in the mixer machine until homogeneity is achieved to obtain a protein-carbohydrate composition Jor the user; and providing the protein-carbohydrate composition to the user,” among other elements. None of the above elements included in amended claim 1 are an economic practice, commercial or legal interaction, or a method of managing personal behavior or relationships or interactions between people. The claim elements do not recite managing personal behavior because mixing the carbohydrate dose with the protein dose is a technical process and does not influence or change how a person acts such as diet choices, exercise routines, motivation, or habits. The claimed method does not recite steps that involve managing how someone behaves on their own or with others. Since the steps do not depend on a user intent or behavior modification, they do not include concepts relating to managing personal behavior or relationships or interactions between people.”
The Examiner respectfully disagrees. The Applicant’s claims clearly read on “managing personal behavior” to “obtain a protein-carbohydrate composition for the user.” Likewise, the user would have to be “following rules or instructions,” to “obtain a protein-carbohydrate composition for the user.” As such, the argument is not persuasive.
Step 2A, Prong Two
The Applicant respectfully argues “Assuming arguendo that the claims did recite a judicial exception, Prong Two involves evaluating whether the claim as a whole integrates the recited judicial exception into a practical application of the exception. Limitations the courts have found indicative that an additional element (or combination of elements) may have integrated the exception into a practical application include:
* An improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
* Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2).
Amended claim 1 integrates any alleged judicial exception into a practical application at least because claim 1 includes additional elements that integrate any alleged judicial exception into a practical application. As described above, “adding, to a mixer machine, the carbohydrate dose determined using the total active calorie burn and the user data,” “adding a protein dose to the mixer machine,” “mixing the carbohydrate dose with the protein dose in the mixer machine until homogeneity is achieved to obtain a protein-carbohydrate composition for the user; and providing the protein-carbohydrate composition to the user,” and “providing the protein- carbohydrate composition to the user” are not a mental process or a certain method of organizing human activity. Therefore, the above claim elements are additional elements.”
The Examiner respectfully disagrees. The Applicant’s claims are not applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment. The Applicant’s claims at best are merely using off-the shelf technology to alleviate any burdensome activities normally performed by a human. No new advancements in technology are present. As such, the argument is not persuasive.
The Applicant respectfully argues “First, the additional elements and the combination of claim elements result are directed at an improvement to the technical field of supplementation since the claim elements produce a tangible protein-carbohydrate composition for a user. “Although there are many protein supplements out in the market, only few protein supplements are personalized. Even the few protein supplements that are personalized do so at a high level of abstraction, i.e., based only on a questionnaire such as gender, age, weight, etc. While these data points yield the ability to create a more personalized product than no data points, they are still far from being truly and fully personalized.” (Specification at [0002]). The claimed embodiments address this problem by mixing a protein does and a carbohydrate dose to obtain a personalized composition based on factors such as movement data, height, weight, age, and gender.
Second, correct ratios of macronutrients are often used to prevent disease and/or health issues. For example, studies have shown that dietary patterns can influence cardiovascular disease risks. As another example, diabetics closely monitor how much sugar (a carbohydrate) they intake because glucose levels can further affect health issues. Accordingly, embodiments enabling obtaining and providing a personalized protein-carbohydrate composition to a user, can prevent disease and/or health issues. Therefore, enabling obtaining and providing a personalized protein-carbohydrate composition to a user is prophylaxis for a disease or medical condition.”
The Examiner respectfully disagrees. The Applicant’s argument is misguided as to the proper analysis of a “Practical Application” as required under Step 2A, Prong 2. Specifically, the Applicant’s argument appears to describe claimed utility, which is not the test. Instead, the Applicant’s claims are not considered a “Practical Application,” because the claims do not provide any of the following:
An improvement in the functioning of a computer, or an improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
Applying or using 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 more than a drafting effort designed to monopolize the exception, as discussed in MPEP § 2106.05(e).
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Furthermore, there are also several factors that reasonably explain that the Applicant’s claims are not indicative of integration into a practical application, which include:
Merely reciting the words "apply it" (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f);
Adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g); and
Generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
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Here, the Applicant’s claims are not providing any technological advancement as described in the first five bulleted factors and, as described above in the rejection, the Applicant’s claims are merely claimed to use a computer as a tool to perform an abstract idea and to generally link the use of a judicial exception to a particular technological environment or field of use. The Applicant is merely automating what is done in the analog. As such, the argument is not persuasive.
The Applicant respectfully argues “Third, the claim integrates any alleged judicial exception into a practical application for similar reasons as explained with respect to eligible Example 49, claim 2 of the July 2024 Subject Matter Eligibility Examples.
Example 49, claim 2 of the USPTO’s July 2024 Subject Matter Eligibility Examples depended from ineligible claim 1, and in combination, recites:
A post-surgical fibrosis treatment method comprising:
(a) collecting and genotyping a sample from a glaucoma patient to a provide a genotype dataset;
(b) identifying the glaucoma patient as at high risk of post-implantation inflammation (PI) based on a weighted polygenic risk score that is generated from informative single-nucleotide polymorphisms (SNPs) in the genotype dataset by an AI model that uses multiplication to weight corresponding alleles in the dataset by their effect sizes and addition to sum the weighted values to provide the score; and
(c) administering an appropriate treatment to the glaucoma patient at high risk of PI after microstent implant surgery, wherein the appropriate treatment is Compound X eye drops.
The July 2024 Subject Matter Eligibility Examples explained that the bolded claim language causes the claim to include eligible subject matter because under step 2A, Prong 2, the bolded claim language uses the abstract idea to identify the patient as belonging to a specific patient population and then administering the patient with a specific treatment (compound X eyedrops) instead of any common treatment. The July 2024 Subject Matter Eligibility Examples explained that the bolded claim elements integrate the judicial exception into a practical application.
Similarly, the elements of claim 1 recite “receiving, by a computing system, movement data from one or more user devices of a user, the movement data being representative of activity levels of the user over a specified number of days, wherein the movement data is measured by the one or more user devices; receiving, by the computing system, user data including height, weight, age, and gender; determining, by the computing system, a total active calorie burn using the movement data; determining, by the computing system, an activity score using the total active calorie burn and the user data,’ which is similar to identifying a patient belonging to a specific patient population.”
The Examiner respectfully disagrees. First, although “the examples” consist of hypothetical cases that may parallel Supreme Court decisions and Federal Circuit decisions, the examples are not considered precedential and are not fully considered as binding precedent on the USPTO. As such, the Appellant's argument with regard to “Example 49” does not super cede the Examiner’s subject-matter eligibility analysis using precedential Supreme Court decisions and Federal Circuit decisions. Furthermore, Example 49 is not even on point consider the Appellant is not claiming “an artificial intelligence model that is designed to assist in personalizing medical treatment to the individual characteristics of a particular patient.” As such, the argument is not persuasive.
The Applicant respectfully argues “Further, the elements of claim 1 recite “mixing the carbohydrate dose with the protein dose in the mixer machine until homogeneity is achieved to obtain a protein- carbohydrate composition for the user; and providing the protein-carbohydrate composition to the user,” which is similar to relying on the specific patient population to administer a specific treatment for the patient because the claim recites using specific details of the user (e.g., movement data, height, age, weight, and gender) to obtain and provide a protein-carbohydrate composition to the user.”
The Examiner respectfully disagrees. It is unclear as to how “a protein-carbohydrate composition,” qualifies as a “particular treatment or prophylaxis for disease or medical condition”as noted in Vanda. As such, the argument is not persuasive.
Step 2B
The Applicant respectfully argues “Lastly, under step 2B of the subject matter eligibility analysis, “another consideration when determining whether a claim recites significantly more than a judicial exception is whether the additional element(s) are well-understood, routine, conventional activities previously known to the industry ... If the additional element (or combination of elements) is a specific limitation other than what is well-understood, routine and conventional in the field, for instance because it is an unconventional step that confines the claim to a particular useful application of the judicial exception, then this consideration favors eligibility.’ (MPEP at 2106.05(d), Emphasis Added).
The Office Action alleges that the claims do not include additional elements sufficient to amount to significantly more than the judicial exception. (Office Action at Page 5). Applicant respectfully disagrees because the claim recites additional elements sufficient to amount to significantly more than the judicial exception. As described above, “adding, to a mixer machine, the carbohydrate dose determined using the total active calorie burn and the user data,” and “mixing the carbohydrate dose with the protein dose in the mixer machine until homogeneity is achieved to obtain a protein-carbohydrate composition for the user,” are not a mental process or a certain method of organizing human activity. Therefore, the above claim elements are additional elements.”
The Examiner respectfully disagrees. The Applicant is misguided as to Step 2B of the subject-matter eligibility analysis. Specifically, any discussion of “a mental process or a certain method of organizing human activity,” is purely unqualified at this point of the analysis. The Examiner respectfully recommends the Applicant to review MPEP §2106.05 to better familiarize oneself whether, or not, a claim amounts to be “significantly more” under Step 2B. As such, the argument is not persuasive.
The Applicant respectfully argues “Further, the additional elements are not conventional. The Specification makes clear that “although there are many protein supplements out in the market, only few protein supplements are personalized. Even the few protein supplements that are personalized do so at a high level of abstraction, i.e., based only on a questionnaire such as gender, age, weight, etc. While these data points yield the ability to create a more personalized product than no data points, they are still far from being truly and fully personalized.” (Specification at [0002]). It is not conventional to physically add a carbohydrate dose determined using the total active calorie burn and the user data and mix the carbohydrate dose and a protein dose. Thus, the combination of additional elements is different than what is well-understood, routine and conventional in the field.”
The Examiner respectfully disagrees. Again, the Applicant’s claims are simply automating the protein-carbohydrate composition process and alleviating any burden on mankind by doing so. As such, the argument is not persuasive.
The Applicant respectfully argues “For the above reasons claim 1 recites patent eligible subject matter. Dependent claims 2- 6 depend from independent claim 1 and are believed to be in condition for allowance for at least the same reasons as independent claim 1, and for the additional elements they recite.”
The Examiner respectfully disagrees, for the reasons stated here and above. Therefore, the rejections under 35 U.S.C. §101 are not withdrawn.
The Applicant respectfully continues to leverage the same arguments with respect to independent claims 8 and 12. These arguments have been sufficiently asked and answered above with respect to claim 1. Again, the Examiner respectfully disagrees with these same arguments pertaining to independent claims 8 and 12 and dependent claims 9-11 and 13-22. As such, the arguments are not persuasive. Therefore, the rejections under 35 U.S.C. §101 are not withdrawn.
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 extension fee 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 date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT P BULLINGTON whose telephone number is (313)446-4841. The examiner can normally be reached on Mon.-Fri. 8:00-4:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Vasat, can be reached on (571) 270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Robert P Bullington, Esq./
Primary Examiner, Art Unit 3715