Status under America Invents Act
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 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.
Objection to the Drawings
The drawings (Figure 2, filed November 27,2023) are objected to under 37 CFR 1.84 (b)(1) because black and white photographs are not ordinarily permitted in utility applications because they reproduce poorly. Conventional drawings are a practical medium for illustrating the claimed invention.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Rejection based on 35 U.S.C. 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 1-7, 14 and 15 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.
In determining patent subject matter eligibility under 35 U.S.C. 101 the U.S. Patent Office issued guidance on January 7, 2019 that was then updated in October 2019. That guidance has since been incorporated into the Ninth Edition, Revision R-07.2022 of the Manual of Patent Examination Procedure (MPEP), particularly Sections 2103 through 2106.07(c). The Step 1, Step 2A Prong One, Step 2A Prong Two, and Step 2B determinations set forth in the Patent Office guidance and MPEP are addressed below.
35 U.S.C. 101 – Step 1 – Determination as to whether claims are directed to a statutory category specified in 35 U.S.C. 101 (MPEP 2106.03) - Claims 1-7 are directed to a “processing unit for an oral care device” and are interpreted as requiring a physical device for processing data that falls within the “machine” and/or article of “manufacture” statutory classes of 35 U.S.C. 101. Claim 14 is directed to a method where data is received and interpreted/processed and is interpreted as falling within the “useful process” statutory class of 35 U.S.C. 101. Claim 15 directed to a “computer program product comprising code means configured, when executed on a processor” when given its broadest reasonable interpretation consistent with the written description includes within its scope a transitory signal and consequently does not fall within any of the four statutory classes (process, machine, manufacture or composition) of 35 U.S.C. 101 and is ineligible as patentable subject matter. Finally, to be thorough, it is noted that claims 8-13 directed to an oral care device fall within the statutory classes of machine or manufacture.
35 U.S.C. 101 – Step 2A Prong One - Determination as to whether the claims recite a Judicial Exception including an abstract idea, law of nature, or natural phenomenon (MPEP 2106.04). Claims 1-7, 14 and 15, as a whole, are directed to the Judicial Exception (MPEP 2106.04) of an abstract idea (MPEP 2106.04(a)). The claimed invention is directed to a mental process – concepts that are capable of being performed in the human mind – including observations, evaluations and judgements (MPEP 2106.04(a)(2)).
More particularly, with respect to independent claim 1, the “processing unit” steps of “receive one or more sensor signals”; “obtain position and/or motion information . . . based on the received one or more sensor signals”; and “determine one or more oral surface characteristics based on the cleaning element position and/or motion information” may be performed mentally (e.g. a person receives data and determines position and/or motion information based on the data and then determines oral surface characteristics based on the determined position and/or motion information in the person’s head or with paper and pencil). Dependent claims 2-7, likewise set forth additional steps (determining, accessing, generate a data representation, compile a historical dataset) that may be performed in the human mind.
Likewise with respect to independent claims 14 and 15, the steps of “receiving one or more sensor signals”; “obtaining cleaning element position and/or motion information . . . based on the received one or more sensor signals”; and “determining one or more oral surface characteristics based on the cleaning element position and/or motion information” may be performed mentally (e.g. a person receives data and determines position and/or motion information based on the data and then determines oral surface characteristics based on the determined position and/or motion information in the person’s head or with paper and pencil).
35 U.S.C. 101 – Step 2A Prong Two requires a determination as to whether the claims as a whole integrates the Judicial Exception into a Practical Application of that exception (MPEP 2106.04(d)). The limitation of claim 1-7 requiring a “processing unit” amounts to an “additional element” beyond the abstract idea, however, the performance of a mental process on a generic computer “processing unit” fails to integrate the Judicial Exception into a Practical Application of the exception (see MPEP 2106.04(a)(2)(III)(C)). There is no disclosure that the method steps/computer instructions improve the manner in which the “processing unit” operates (see MPEP 2106.04(d)(1)). The claims do not go beyond generally linking the judicial exception to a computer environment. The claims do not require that the method be implemented by a particular machine (see MPEP 2106.05(b)), nor do the claims require the method to particularly transform a particular article (see MPEP2106.05(c)). The claims as whole fail to integrate the abstract idea (the “judicial exception”) into a practical application of that abstract idea.
Additionally, with respect to dependent claim 4, requiring the use of a “machine learning algorithm” it has recently been held that “patents that do no more than claim the application of generic machine learning to new data environments, without disclosing improvements to the machine learning models to be applied, are patent ineligible under § 101” Recentive Analytics, Inc. v. Fox Corp, Fed Cir, April 21, 2025. The claimed generic use of a machine learning algorithm fails to integrate the Judicial Exception of an abstract idea into a practical application.
As a matter of thoroughness, it is noted that in dependent claims 8-13, the further limitations requiring an oral care device with positively claimed cleaning elements and sensors are interpreted as additional elements that integrate the Judicial Exception of an abstract idea into a practical application.
In regard to claims 14 and 15 (claim 15 interpreted as a transitory signal), no additional elements are set forth beyond the abstract idea in which to integrate the abstract idea into a practical application.
In summary, claims 1-7 (and claim 15 if interpreted as requiring a non-transitory computer program product) are directed solely to a digital virtual environment where data is received and processed (obtain position/motion information from the received data and then determinations are made based on the position/motion information) – there are no additional elements integrating the judicial exception into a practical solution – the “processing unit” (or “computer program product”) is not used to operate a manufacturing device, the computer method is not used to improve the functioning of a computer/processor, the computer method is not used to transform a particular article into a different state or thing – there is no meaningful limitation beyond generally linking the use of the judicial exception to a particular technological environment and consequently fails to integrate the Judicial Exception into a Practical Application.
35 U.S.C. 101 – Step 2B requires a determination as to whether the claims amount to Significantly More than the Judicial Exception (MPEP 2106.05). As set forth above with respect to Step 2A Pong One the claimed “processing unit” (claims 1-7) and “computer program product” (claim 15 if interpreted as requiring a non-transitory element) are all capable of being performed mentally and represent nothing more than concepts related to performing observations, evaluations and judgements which fall within the judicial exception. The “processing unit” requires at most a generic general-purpose computer. There is no disclosure in the written description that the “processing unit” is anything more than a generic component, nor is there any disclosure that the method steps improve the manner in which the “processing unit” operates. The mere recitation in the claims of a generic conventional computer processor that is intended to be used in a conventional manner to perform conventional computer functions that are well understood and routine does not amount to "significantly more" than the judicial exception. The claims do not go beyond inputting (“receiving”), and processing data with a standard generic computer.
The analysis of data in a particular field and the stating those functions in general terms, without limiting them to technical means for performing the functions is an abstract idea and does not meet the requirements of 35 U.S.C. 101. The claims do not require that the method be implemented by a particular machine and they do not require that the method particularly transform a particular article. The claims set forth a process of presenting information of a specific content and are not directed to any particularly asserted inventive
technology for performing those functions. Nothing in the claims or specification requires anything more than a conventional prior art computer for analyzing numbers according to a mathematical algorithm. The claimed system and method fall with the judicial exception to patent eligible subject matter of an abstract idea without significantly more. See Elec. Power Grp., LLC v. Alstom S.A., 119 USPQ2d 1739 (Fed. Cir. 2016) for further guidance.
Allowable Subject Matter
Claims 8-13 are objected to as being dependent on a rejected base claim, but would be allowable if rewritten in independent form to include all of the limitations of the claims from which they depend.
The prior art of record fails to disclose or reasonably suggest to one of ordinary skill in the art an oral care device having flexible cleaning elements, one or more sensors for generating signals indicative of the force or deflection of the cleaning elements and then a processing unit that receives the sensor signals, obtains position or motion information of the flexible cleaning elements in a sample period based on the sensor signals, and then obtains one or more oral surface characteristic based on the cleaning element position/motion information that includes a measure of the surface friction as it is specifically set forth in the limitations of claim 8 and claim 1 (from which claim 8 depends). In general, the prior art as evidenced by for example by Meginniss (US 6,425,295), Miller (US 2015/0297327), Richter et al (US 10,064,711) and Farrell (US 2022/0192355) teach the use of an oral care device (toothbrush) with flexible cleaning elements (bristles) and sensors that generate signals indicative of the force (pressure) of the bristles when brushing the user’s teeth, however, these prior art references fail to teach using the generated pressure signals over a sampling period to determine at least a measure of the surface friction.
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/RALPH A LEWIS/Primary Examiner, Art Unit 3772 (571) 272-4712