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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claims 15-20 are objected to because of the following informalities: Claims 15-20 are dependent from claim 14, wherein claim 14 is an apparatus claim and claims 15-20 recite being directed to a method. Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception, such as abstract ideas like mathematical calculations and mental processes, without significantly more.
Each of the claims 1-20 have been analyzed to determine if the claims are directed to any judicial exceptions.
Step 2A, Prong 1 per MPEP 2106.04(a)
Each of the claims 1-20 recites steps or instructions for comparing images and making selections based on the compared images, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) or mathematical concepts in MPEP 2106.04(a)(2)(I). Accordingly, claims 1-20 each recites an abstract idea.
First, claim 1 recites a method of operating an apparatus for determining patellar dislocation that determines a joint disease in a pet, the method comprising:
an operation of obtaining a back view image including a hind leg area of the pet (observation, e.g. by veterinarian or other professional, which is grouped as a mental process in MPEP 2106.04(a)(2)(III)); and
an operation of outputting information on patellar dislocation in the pet using the back view image as an input to a pre-trained patellar dislocation prediction model (judgement or evaluation, e.g. by a veterinarian or other professional, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical concepts in MPEP 2106.04(a)(2)(I)),
wherein the patellar dislocation prediction model includes:
an operation of outputting first dislocation information of the pet when the back view image is a first back view image including first diagnostic angle information relative to the patella of the pet (judgement or evaluation, e.g. by a veterinarian or other professional, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical concepts in MPEP 2106.04(a)(2)(I))); and
an operation of outputting second dislocation information of the pet when the back view image is a second back view image including information on a second diagnostic angle that is different from the first diagnostic angle (judgement or evaluation, e.g. by a veterinarian or other professional, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical concepts in MPEP 2106.04(a)(2)(I))).
Second, claim 14 recites an apparatus for determining patellar dislocation comprising:
a memory (additional element); and
at least one processor that executes instructions stored in the memory (additional element),
wherein the processor acquires a back view image including a hind leg area of a pet (observation, e.g., by a veterinarian or other professional, which is grouped as a mental process in MPEP 2106.04(a)(2)(III))), and outputs information on patellar dislocation in the pet using the back view image as an input to a pre-trained patellar dislocation prediction model (judgement or evaluation, e.g. by a veterinarian or other professional, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical concepts in MPEP 2106.04(a)(2)(I))), and
the patellar dislocation prediction model outputs first dislocation information of the pet when the back view image is a first back view image including first diagnostic angle information related to a patella of the pet (evaluation or extra-solution activity), and outputs second dislocation information of the pet when the back view image is a second back view image including information on a second diagnostic angle that is a different angle from the first diagnostic angle (judgement or evaluation, e.g. by a veterinarian or other professional, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or mathematical concepts in MPEP 2106.04(a)(2)(I))).
As indicated above, each of the independent claims and their respective dependent claims recites at least one step or instruction involving a judgement or evaluation, mathematical calculation, and/or observation. Therefore, each of the claims recites an abstract idea.
Furthermore, dependent claims 2-13 and 15-20 merely include limitations that either define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to nothing more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the claimed functions/steps are performed.
Accordingly, as indicated above, each of the above-mentioned claims recites an abstract idea as in MPEP 2106.04(a).
Step 2A, Prong 2 per MPEP 2106.04(d)
The above-identified abstract ideas in each of independent claims 1 and 14 and their respective dependent claims are not integrated into a practical application under MPEP 2106.04(d) because claims 1 to 13 recite no additional elements and the additional elements of a memory and at least one processor of claim 14 and the respective dependent claims are generically recited computer elements which do not improve the function of a computer or any other technology or technical field according to the MPEP 2106.04(d)(1) and 2106.05(a). The above-identified additional elements, either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use according to MPEP 2106.05(h) or represent insignificant extra-solution activity according to MPEP 2106.05(g). Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine according to MPEP 2106.05(b), effect a transformation according to MPEP 2106.05(c), provide a particular treatment or prophylaxis according to MPEP 2106.04(d)(2) or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception according to MPEP 2106.04(d)(2) and 2106.05(e). Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer in accordance with MPEP 2106.05(f). For at least these reasons, the abstract idea identified above in independent Claims 1 and 14 (and their respective dependent claims) is not integrated into a practical application in accordance with MPEP 2106.04(d).
Moreover, the above-identified abstract idea is not integrated into a practical application in accordance with MPEP 2106.04(d) because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and mathematical concept) using rules (e.g., computer instructions) executed by a computer (e.g., memory and processor as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer according to MPEP 2106.05(f). Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims according to MPEP 2106.05(a). That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1 and 14 (and their respective dependent claims) is not integrated into a practical application under MPEP 2106.04(d)(I).
Accordingly, independent Claims 1 and 14 (and their respective dependent claims) are each directed to an abstract idea according to MPEP 2106.04(d).
Step 2B per MPEP 2106.05
Claims 1 to 20 do not include additional elements that are sufficient to amount to significantly more than the abstract idea in accordance with MPEP 2106.05 for at least the following reasons:
Claims 1 to 20 require the additional elements of a memory and a processor. These additional elements are generically claimed computer components which enable the above-identified abstract ideas to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g. at a high level of generality) or as insignificant extra-solution activity. See MPEP 2106.05(d)(II) along with Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Per the applicant’s specification, the user terminal 200 is a user terminal device used by a user who wants to diagnose the presence and degree of patellar dislocation in a pet, and as the user terminal 200, a smartphone, a tablet PC, a laptop, a desktop, etc., may be used. The user terminal 200 is connected to the apparatus 100 for determining patellar dislocation through various known wired and wireless communication networks such as wireless fidelity (WiFi), long term evolution (LTE), and 5th generation (5G), and transmits and receives various data necessary in the process of diagnosing a degree of patellar dislocation in a pet, including back images obtained by capturing the back of the pet, and diagnostic results (for example see page 13 lines 20 to 28).
Further, the apparatus 100 for determining patellar dislocation may refer to a virtual machine or container provisioned on one or more cloud nodes or the apparatus 100 for determining patellar dislocation may be implemented through one or more on-premise physical servers. The apparatus 100 for determining patellar dislocation may store definition data of a patellar dislocation prediction model previously generated through machine learning. A machine learning runtime (ML runtime), which is software for executing the patellar dislocation prediction model, may be installed (for example see page 14 lines 8 to 15). More specifically, the apparatus 100 for determining patellar dislocation includes a communication unit 110, a memory unit 120, and a processor 130 (for example see page 15 lines 3 and 4). The communication unit 110 is a module that performs communication with the user terminal 200… The communication may be achieved through various known wired and wireless communication methods such as WI-FI, Ethernet, LTE, and 5G (see page 15 lines 5 to 12). The memory unit 120 is implemented using memory elements such as random access memory (RAM), read-only memory (ROM), electrically erasable programmable read-only Memory (EEPROM), and flash memory, and may store various operating systems (OS), middleware, platforms, program codes for diagnosing patellar dislocation based on an image of a pet, and various applications (for example see page 15 lines 13 to 17). The processor 130 uses information stored in the memory unit 120 to process the back image of the pet received from the user terminal 200 and diagnose the presence or absence and degree of patellar dislocation in a pet in an image (for example see page 15 lines 24 to 26).
Accordingly, in light of Applicant’s specification, the claimed terms memory and processor are reasonably construed as generic computing devices. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available technology, with their already available basic functions, to use as tools in executing the claimed process. See MPEP 2106.05(f).
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the memory or processor. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements 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) (see MPEP 2106.05(d)(I)(2) and 2106.07(a)(III)). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications along with MPEP 2106.05(d)(I)).
The recitation of the above-identified additional limitations in claims 1 to 20 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See MPEP 2106.05(f) along with Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. See MPEP 2106.05(a) along with McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, per MPEP 2106.05(a), the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the apparatuses and methods of claims 1 to 20 are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself or providing a technical solution to a problem in a technical field according to MPEP 2106.05(a), or (ii) providing meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e).
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent claims 1 and 14 (and their respective dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment according to MPEP 2106.05(h). When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment according to MPEP 2106.05(h). When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e). Moreover, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity according to MPEP 2106.05(g). As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application as required by MPEP 2106.05.
Therefore, for at least the above reasons, none of the claims 1 to 20 amounts to significantly more than the abstract idea itself. Accordingly, claims 1 to 20 are not patent eligible and rejected under 35 U.S.C. 101.
Claim Rejections - 35 USC § 102
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 4, and 14 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Heo (U.S. Publication 2024/0371519).
Regarding claims 1 and 4:
Heo disclose a method comprising:
(claim 1) an operation of obtaining a back view image including a hind leg area of a pet (for example see paragraphs 63 and 158; for example see Figure 8C)
(claim 1) an operation of outputting information on patellar dislocation in the pet using the back view image as input to a pre-trained patellar dislocation prediction model (for example see abstract, paragraph 1, and paragraph 13; location of the patella is a form of patellar dislocation)
(claim 1) wherein the patellar dislocation predication model includes
(claim 1) an operation of outputting first dislocation information of the pet when the back view image is a first back view image including first diagnostic angle information relative to a patella of the pet (for example see paragraphs 16-19 and paragraphs 85-93)
(claim 1) an operation of outputting second dislocation information of the pet when the back view image is a second back view image including information on a second diagnostic angle that is a different angle from the first diagnostic angle (frames of movement, i.e. images, of at least one leg angle is analyzed from a first frame/image through multiple frames/images using at least one leg angle from the first frame and a second leg angle different from the first leg angle due to movement of the leg from another frame to generate results data regarding the joint of the pet)
(claim 4) wherein the dislocation information includes at least one of a probability of presence of dislocation, a degree of dislocation progression, and a dislocation position visualization image (for example see paragraphs 31, 65, 66, 69, 73; 148; for example the data may show an abnormality, i.e. a probability of the presence of a dislocation, such as 100%)
Regarding claim 14:
Heo discloses a device comprising:
(claim 14) a memory (for example see paragraphs 181-182)
(claim 14) at least one processor that executes instruction stored in the memory (for example see paragraphs 27, 60, 122 and claim 15)
(claim 14) wherein the processor acquires a back view image including a hind leg area of a pet (for example see paragraphs 63 and 158; for example see Figure 8C)
(claim 14) wherein the processor outputs information on patellar dislocation in the pet using the back view image as an input to a pre-trained patellar dislocation predication model (for example see abstract, paragraph 1, and paragraph 13; location of the patella is a form of patellar dislocation)
(claim 14) wherein the patellar dislocation prediction model outputs first dislocation information of the pet when the back view image is a first back view image including first diagnostic angle information related to a patella of the pet(for example see paragraphs 16-19 and paragraphs 85-93)
(claim 14) wherein the patellar dislocation prediction model outputs second dislocation of the pet when the back view image is a second back view image including information on a second diagnostic angle that is different from the first diagnostic angle (frames of movement, i.e. images, of at least one leg angle is analyzed from a first frame/image through multiple frames/images using at least one leg angle from the first frame and a second leg angle different from the first leg angle due to movement of the leg from another frame to generate results data regarding the joint of the pet)
Allowable Subject Matter
Claims 1-20 are rejected under 35 U.S.C. 101 as discussed above. However, claims 2, 3, 5-13, and 15-20 could not be rejected with prior art. Therefore, claims 2, 3, 5-13, and 15-20 would be allowable over the prior art if rewritten in independent form including all of the limitations of the base claim and any intervening claims and amended to overcome the rejections under 35 U.S.C. 101 as discussed above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 for cited references the examiner felt were relevant to the application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nicholas Woodall whose telephone number is (571) 272-5204. The examiner can normally be reached on Monday-Friday 8am to 5:30pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Kevin Truong, at (571)272-4705. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICHOLAS W WOODALL/Primary Examiner, Art Unit 3775