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 .
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.
Claim Objections
Claim 1 is objected to because of the following informalities: “anormal” (line 13) appears that it should be “anomaly.”
Claim 4 is objected to because of the following informalities: “display recommendation” (line 3) appears that it should be “display a recommendation.”
Claim 9 is objected to because of the following informalities: “generate” (line 5) appears that it should be “generating.”
Claim 9 is objected to because of the following informalities: “anormal” (line 11) appears that it should be “anomaly.”
Claim 10 is objected to because of the following informalities: “generate” (line 5) appears that it should be “generating.”
Claim 10 is objected to because of the following informalities: “anormal” (line 11) appears that it should be “anomaly.”
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “a data acquisition device … configured to measure a space acceleration and a space angular velocity, generate the sensor data based on the space acceleration and the space angular velocity having been measured, and transmit the sensor data having been generated to the anomaly detection device,” in claim 8, which corresponds to “an acceleration sensor and an angular velocity sensor” (see para [0018] of Applicant’s specification as originally filed).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim(s) 1-10 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
For claim 1, the claim language “estimate a hallux valgus angle formed by a center line of a first metatarsal bone and a center line of a first proximal phalanx of a foot of a pedestrian wearing the footwear based on the gait feature amount having been extracted” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of estimating a hallux valgus angle formed by a center line of a first metatarsal bone and a center line of a first proximal phalanx of a foot of a pedestrian wearing the footwear based on the gait feature amount having been extracted, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 5, the claim language “estimate a progression state of the hallux valgus angle by using a model in which machine learning has been performed using training data where a progression state of the hallux valgus angle is used as a label and the gait feature amount characteristic in gait wearing the footwear is used as input data, and the gait feature amount having been extracted” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of estimating a progression state of the hallux valgus angle by using a model in which machine learning has been performed using training data where a progression state of the hallux valgus angle is used as a label and the gait feature amount characteristic in gait wearing the footwear is used as input data, and the gait feature amount having been extracted, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. The term “a model in which machine learning has been performed” is treated as a black box and the specification does not describe the specifics of how to achieve the above-recited function(s) with this algorithm. For example, how many and what types of layers are there? How is the data propagated? What logics are programmed to help the machine learning algorithm make a decision? Is the training supervised or unsupervised? What are the weightings? Are other training concepts sed such as regression? What assumptions are being made regarding the perception of the model? It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 6, the claim language “estimate an angle formed by a center line of a first metatarsal bone and a center line of a first proximal phalanx by using a model in which machine learning is performed using training data where an angle formed by a center line of the first metatarsal bone and a center line of the first proximal phalanx is used as a label and the gait feature amount characteristic in gait wearing the footwear is used as input data, and the gait feature amount having been extracted” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of estimating an angle formed by a center line of a first metatarsal bone and a center line of a first proximal phalanx by using a model in which machine learning is performed using training data where an angle formed by a center line of the first metatarsal bone and a center line of the first proximal phalanx is used as a label and the gait feature amount characteristic in gait wearing the footwear is used as input data, and the gait feature amount having been extracted, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 9, the claim language “estimating a hallux valgus angle formed by a center line of a first metatarsal bone and a center line of a first proximal phalanx of a foot of a pedestrian wearing the footwear based on the gait feature amount having been extracted” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of estimating a hallux valgus angle formed by a center line of a first metatarsal bone and a center line of a first proximal phalanx of a foot of a pedestrian wearing the footwear based on the gait feature amount having been extracted, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 10, the claim language “estimating a hallux valgus angle formed by a center line of a first metatarsal bone and a center line of a first proximal phalanx of a foot of a pedestrian wearing the footwear based on the gait feature amount having been extracted” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of estimating a hallux valgus angle formed by a center line of a first metatarsal bone and a center line of a first proximal phalanx of a foot of a pedestrian wearing the footwear based on the gait feature amount having been extracted, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
Dependent claim(s) 2-8 fail to cure the deficiencies of independent claim 1, thus claim(s) 1-10 is/are rejected under 35 U.S.C. 112(a).
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.
Claim(s) 1-10 is/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.
For claim 1, the claim terms “a pedestrian” (line 6) and “a pedestrian” (lines 16-17) are ambiguous. It is unclear whether the same or different pedestrians are being referred to. The claim is examined under the former interpretation.
For claim 1, the claim terms “a foot” (line 13) and “a foot” (line 16) are ambiguous. It is unclear whether the same or a different foot is being referred to. The claim is examined under the former interpretation.
For claim 5, the claim language “the gait feature amount characteristic in gait wearing the footwear is used as input data” is ambiguous. It appears that the word “pedestrian” should be somewhere in this clause because the phrase is hard to understand otherwise.
For claim 5, the claim terms “a progression state” (line 3) and “a progression state” (line 5) are ambiguous. It is unclear whether the same or different progression states are being referred to. The claim is examined under the former interpretation.
For claim 6, the claim terms “an angle” (line 3) and “an angle” (line 5) are ambiguous. It is unclear whether the same or different progression states are being referred to. The claim is examined under the former interpretation.
For claim 6, the claim language “the gait feature amount characteristic in gait wearing the footwear is used as input data” is ambiguous. It appears that the word “pedestrian” should be somewhere in this clause because the phrase is hard to understand otherwise.
For claim 7, the claim language “the content” (line 3) lacks antecedent basis. The claim is examined as this being a newly introduced claim term.
For claim 7, the claim language “optimized for healthcare use” is ambiguous. It is unclear what is meant by “optimized” for healthcare use. That is, a skilled artisan would not understand an objective mete and bounds for the scope of an “optimized” use for healthcare. What characteristics or features of the “content related to the gait” quality it was “optimized for healthcare use” versus not being “optimized for healthcare use”? The claim is examined as meaning “transmit the content related to the gait of the pedestrian for health use to the mobile terminal used by the pedestrian.”
For claim 8, the claim term “a footwear” (line 3) is ambiguous. Claim 1, from which claim 8 depends, already recites “footwear.” Therefore, it is unclear whether the same or different footwear is being referred to. The claim is examined under the former interpretation.
For claim 8, the claim term “a pedestrian” (lines 3-4) is ambiguous. Claim 1, from which claim 8 depends, already recites “a pedestrian.” Therefore, it is unclear whether the same or a different pedestrian is being referred to. The claim is examined under the former interpretation.
For claim 8, the claim term “a space acceleration” (line 4) is ambiguous. Claim 1, from which claim 8 depends, already recites “space acceleration.” Therefore, it is unclear whether the same or different space acceleration is being referred to. The claim is examined under the former interpretation.
For claim 8, the claim term “a space angular velocity” (lines 4-5) is ambiguous. Claim 1, from which claim 8 depends, already recites “space angular velocity.” Therefore, it is unclear whether the same or different space angular velocity is being referred to. The claim is examined under the former interpretation.
For claim 9, the claim terms “a pedestrian” (line 4) and “a pedestrian” (lines 14-15) are ambiguous. It is unclear whether the same or different pedestrians are being referred to. The claim is examined under the former interpretation.
For claim 9, the claim terms “a foot” (line 11) and “a foot” (line 14) are ambiguous. It is unclear whether the same or a different foot is being referred to. The claim is examined under the former interpretation.
For claim 10, the claim terms “a pedestrian” (line 4) and “a pedestrian” (lines 14-15) are ambiguous. It is unclear whether the same or different pedestrians are being referred to. The claim is examined under the former interpretation.
For claim 10, the claim terms “a foot” (line 11) and “a foot” (line 14) are ambiguous. It is unclear whether the same or a different foot is being referred to. The claim is examined under the former interpretation.
Dependent claim(s) 2-8 fail to cure the ambiguity of independent claim 1, thus claim(s) 1-10 is/are rejected under 35 U.S.C. 112(b).
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(s) 1-10 is/are rejected under 35 U.S.C. 101 because the claimed invention, considering all claim elements both individually and in combination as a whole, do not amount to significantly more than a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea).
Claim 1 is a claim to a process, machine, manufacture, or composition of matter and therefore meets one of the categorical limitations of 35 U.S.C. 101. However, claim 1 meets the first prong of the step 2A analysis because it is directed to a/an abstract idea, as evidenced by the claim language of “acquire sensor data including space acceleration and space angular velocity from a sensor installed in footwear worn by a pedestrian,” “generate time series data of the space acceleration and the space angular velocity,” “generate gait waveform data that is waveform data for one gait cycle by using the time series data of the space acceleration and the space angular velocity,” “extract, from the gait waveform data, the spatial acceleration and the spatial angular velocity of a future site where an anormal of a foot appears as a gait feature amount,” “estimate a hallux valgus angle formed by a center line of a first metatarsal bone and a center line of a first proximal phalanx of a foot of a pedestrian wearing the footwear based on the gait feature amount having been extracted,” and “execute instructions to … display information related to the hallux valgus angle of the pedestrian on a screen of a mobile terminal used by the pedestrian.” This claim language, under the broadest, reasonable interpretation, encompasses subject matter that may be performed by a human using mental steps or with pen and paper that can involve basic critical thinking, which are types of activities that have been found by the courts to represents abstract ideas (i.e., the mental comparison in Ambry Genetics, or the diagnosing an abnormal condition by performing clinical tests and thinking about the results in Grams). The claim language also meets prong 2 of the step 2A analysis because the above-recited claim language does not integrate the abstract idea into a practical application. That is, there appears to be no tangible improvement in a technology, effect of a particular treatment or prophylaxis, a particular machine or manufacture that is integrated, or transformation/reduction of a particular article to a different state or thing as a result of this claimed subject matter. As a result, step 2A is satisfied and the second step, step 2B, must be considered.
With regard to the second step, the claim does not appear to recite additional elements that amount to significantly more. The additional elements are “a memory storing instructions,” and “a processor connected to the memory and configured to execute the instructions.” However, these elements are not “significantly more” because they are well-known, routine, and/or conventional because Alice has held that generic computer structures do not transform an otherwise patent-ineligible claim into an eligible one. Therefore, these elements do not add significantly more and thus the claim as a whole does not amount to significantly more than a judicial exception.
Additionally, the ordered combination of elements do not add anything significantly more to the claimed subject matter. Specifically, the ordered combination of elements do not have any function that is not already supplied by each element individually. That is, the whole is not greater than the sum of its parts.
In view of the above, independent claim 1 fails to recite patent-eligible subject matter under 35 U.S.C. 101. Independent claim(s) 9 and 10 fail to recite patent-eligible subject matter for similar, if not the exact same, reasoning as that of independent claim 1. Dependent claim(s) 2-7 fail to cure the deficiencies of independent claim 1 by merely reciting additional abstract ideas and/or further limitations on abstract ideas already recited. Dependent claim 8 fails to cure the deficiencies of independent claim 1 because a “data acquisition device” is well-known, routine, and conventional as evidenced by para [0005] of U.S. Patent Application Publication No. 2019/0204112 to Shigeta et al. Thus, claim(s) 1-10 is/are rejected under 35 U.S.C. 101.
Allowable Subject Matter
Claim(s) 1-10 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(a), 35 U.S.C. 112(b), and 35 U.S.C. 101 set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
JP 2019-150229 to Yamashita et al. (hereinafter “Yamashita”) discloses an anomaly detection device (Abstract) comprising: a memory storing instructions (“computer,” para [0042]) (also see 20D); and a processor connected to the memory (“computer,” para [0042]) and configured to execute the instructions to: acquire sensor data from a sensor (1-7 and NS) (para [0006]-[0008]) installed in footwear (“shoe,” para [0006]) worn by a pedestrian (para [0001]-[0002]); determine a progression state of hallux valgus of the foot of the pedestrian wearing the footwear based on the sensor data (para [0044] and [0077]); and display content related to the progression state of hallux valgus of the pedestrian on a screen (30) (Fig. 1) of a mobile terminal used by the pedestrian (para [0041]).
U.S. Patent Application Publication No. 2015/0100105 to Kiani et al. (hereinafter “Kiani”) discloses that sensor data includes space acceleration (“foot acceleration,” Abstract) (also see Figs. 12A-B to show that it is in space) and space angular velocity (“foot angular velocity,” Abstract) (also see Figs. 12A-B to show that it is in space); generate time series data of the space acceleration and the space angular velocity (see, Fig. 13, x-axis is time); generate gait waveform data (as can be seen in Fig. 13) that is waveform data for one gait cycle by using the time series data of the space acceleration and the space angular velocity (any can be seen in Fig. 13, one cycle including the zero-crossing from positive amplitude to negative amplitude, or vice versa); and extract, from the gait waveform data, the spatial acceleration and the spatial angular velocity of a future site where an anormal of a foot appears as a gait feature amount (para [0161], i.e., when the threshold is met); and that a determination is based on the gait feature amount having been extracted (para [0161]) (also see para [0158]).
However, the prior art of record does not disclose and would not have rendered obvious the ordered combination of elements recited in the claims.
Conclusion
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/DANIEL L CERIONI/Primary Examiner, Art Unit 3791