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 .
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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:
Claim 1: an input reception unit, a feature parameter calculation unit, and a distance calculation unit.
Claim 2: a heel index calculation unit
Claims 5 and 8-10: a measurement unit, and a 3D data generation unit.
All of which are described in at least paragraphs [0029-0030] and [0072] of the specification.
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 § 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 1-11 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.
Specifically, Claim 1 recites:
A foot shape measurement system comprising:
an input reception unit configured to receive an input of 3D data representing a three- dimensional shape of a foot; and
a feature parameter calculation unit configured to calculate a feature parameter of the foot based on the 3D data,
wherein the feature parameter calculation unit includes a distance calculation unit configured to calculate a distance between a protrusion point that protrudes most within a heel range and a retraction point that retracts most within an Achilles tendon range in a foot length direction for a rear portion of the foot viewed from a lateral direction.
Claim 6 recites:
A foot shape measurement method that is a measurement method for acquiring a shape feature of a foot, the foot shape measurement method comprising:
a protrusion point specifying step of specifying a protrusion point that protrudes most within a heel range for a rear portion of the foot viewed from a lateral direction;
a retraction point specifying step of specifying a retraction point that retracts most within an Achilles tendon range for the rear portion of the foot viewed from the lateral direction; and
a distance measuring step of measuring a distance between the protrusion point and the retraction point in a foot length direction.
The claim limitations in the abstract idea have been highlighted in bold above; the remaining limitations are “additional elements”.
Under the Step 1 of the eligibility analysis, we determine whether the claims are to a statutory category by considering whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C. 101: Process, machine, manufacture, or composition of matter. The above claims are considered to be in a statutory category (machine and process, respectively).
Under the Step 2A, Prong One, we consider whether the claim recites a judicial exception (abstract idea). In the above claim, the highlighted portion constitutes an abstract idea because, under a broadest reasonable interpretation, it recites limitations that fall into/recite an abstract idea exceptions. Specifically, under the 2019 Revised Patent Subject matter Eligibility Guidance, it falls into the grouping of subject matter when recited as such in a claim limitation, that covers mathematical concepts (mathematical relationships, mathematical formulas or equations, mathematical calculations) and mental processes – concepts performed in the human mind including an observation, evaluation, judgement, and/or opinion.
For example, steps of “calculate a feature parameter of the foot based on the 3D data,
wherein the feature parameter calculation includes calculate a distance between a protrusion point that protrudes most within a heel range and a retraction point that retracts most within an Achilles tendon range in a foot length direction for a rear portion of the foot viewed from a lateral direction (determination by subtraction of position values)” are treated by the Examiner as belonging to both mathematical concept grouping and mental process grouping, while the steps of “a protrusion point specifying step of specifying a protrusion point that protrudes most within a heel range for a rear portion of the foot viewed from a lateral direction (choosing a point);
a retraction point specifying step of specifying a retraction point that retracts most within an Achilles tendon range for the rear portion of the foot viewed from the lateral direction (choosing a point)” are treated as belonging to mental process grouping.
Next, under the Step 2A, Prong Two, we consider whether the claim that recites a judicial exception is integrated into a practical application.
In this step, we evaluate whether the claim recites additional elements that integrate the exception into a practical application of that exception.
The above claims comprise the following additional elements:
Claim 1: A foot shape measurement system comprising: an input reception unit configured to receive an input of 3D data representing a three- dimensional shape of a foot; and a feature parameter calculation unit, wherein the feature parameter calculation unit includes a distance calculation unit;
Claim 6: A foot shape measurement method that is a measurement method for acquiring a shape feature of a foot.
The additional element in the preamble of “A foot shape measurement system/method” is not qualified for a meaningful limitation because it only generally links the use of the judicial exception to a particular technological environment or field of use. Receive an input of 3D data representing a three- dimensional shape of a foot represents a mere data gathering step and only adds an insignificant extra-solution activity to the judicial exception. An input reception unit, a feature parameter calculation unit, and a distance calculation unit (generic processors) are generally recited and are not qualified as particular machines.
In conclusion, the above additional elements, considered individually and in combination with the other claim elements do not reflect an improvement to other technology or technical field, and, therefore, do not integrate the judicial exception into a practical application. Therefore, the claims are directed to a judicial exception and require further analysis under the Step 2B.
However, the above claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception (Step 2B analysis).
The claims, therefore, are not patent eligible.
With regards to the dependent claims, claims 2-5 and 7-11 provide additional features/steps which are part of an expanded algorithm, so these limitations should be considered part of an expanded abstract idea of the independent claims.
Claim Rejections - 35 USC § 103
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.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 5, and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mcinnis et al. (US 20180253079 A1), hereinafter “Mcinnis”.
Regarding Claim 1, Mcinnis teaches a foot shape measurement system comprising:
an input reception unit configured to receive an input of 3D data representing a three- dimensional shape of a foot (Mcinnis [0035] the dimensions of foot 12 may be obtained by scanning foot 12 with scanner 30, as shown in FIG. 4. In some embodiments, scanner 30 comprises a 3D scanner. In some embodiments, the raw scan data from scanner 30 comprises one or more point clouds.); and
a feature parameter calculation unit configured to calculate a feature parameter of the foot based on the 3D data, wherein the feature parameter calculation unit includes a distance calculation unit (Mcinnis [0039] In some embodiments, foot dimension field 43 displays dimensions of customer's foot 12 based on the scan. In some embodiments, foot model field 44 displays an orthogonal view (e.g., top view, bottom view, side view, etc.) of the model of customer's foot 12. See [0040] In some embodiments, foot model field 44 displays indications 46 of foot dimensions. For example, indications 46 may be overlaid on the model of customer's foot 12. In some embodiments, indications 46 comprise a line between two points (i.e., landmarks) that show how a certain dimension is being measured. For example, FIG. 5 shows indication 46 that extends along a longitudinal axis from the heel of the model of customer's foot 12 to the toe that extends the farthest.).
Mcinnis does not explicitly teach wherein the distance calculation unit is configured to calculate a distance between a protrusion point that protrudes most within a heel range and a retraction point that retracts most within an Achilles tendon range in a foot length direction for a rear portion of the foot viewed from a lateral direction.
However, Mcinnis teaches multiple views of the measured foot (Mcinnis [0040] foot model field 44 displays an orthogonal view (e.g., top view, bottom view, side view, etc.) of the model of customer's foot 12.), measuring the distance between two points of the measured foot (Mcinnis [0040] indications 46 comprise a line between two points (i.e., landmarks) that show how a certain dimension is being measured.), and the ability to choose the points for measurement (Mcinnis [0041] user input controls 45 may include a button to edit landmarks (i.e., the points that define a certain dimension, such as the rearmost point of foot 12), which may assist a user in ensuring accurate measurements.).
It would have been obvious to one of ordinary skill in the art, prior to the effective filing date of the instant application to modify Mcinnis to explicitly teach to calculate a distance between a protrusion point that protrudes most within a heel range and a retraction point that retracts most within an Achilles tendon range in a foot length direction for a rear portion of the foot viewed from a lateral direction, by assigning the landmarks of the foot measurement data when the distance from heel to Achilles is desired, so that the distance between the two points can be calculated (see MPEP 2143(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success. Choosing two points of interest will yield the distance between those chosen points.).
Regarding Claim 5, Mcinnis (as stated above) further teaches a measurement unit configured to measure the three-dimensional shape of the foot; and a 3D data generation unit configured to generate the 3D data representing the three- dimensional shape of the foot based on data measured by the measurement unit, wherein the input reception unit receives an input of the 3D data generated by the 3D data generation unit (Mcinnis [0035] the dimensions of foot 12 may be obtained by scanning foot 12 with scanner 30, as shown in FIG. 4. In some embodiments, scanner 30 comprises a 3D scanner. In some embodiments, the raw scan data from scanner 30 comprises one or more point clouds.).
Regarding Claim 6, Mcinnis teaches a foot shape measurement method that is a measurement method for acquiring a shape feature of a foot, the foot shape measurement method comprising:
a protrusion point specifying step of specifying a protrusion point that protrudes most within a heel range for a rear portion of the foot viewed from a lateral direction (Mcinnis [0041] In some embodiments, user input controls 45 may include a button to edit landmarks (i.e., the points that define a certain dimension, such as the rearmost point of foot 12), which may assist a user in ensuring accurate measurements.); and
a distance measuring step of measuring a distance between specified points (Mcinnis [0039] In some embodiments, foot dimension field 43 displays dimensions of customer's foot 12 based on the scan. See [0040] indications 46 comprise a line between two points (i.e., landmarks) that show how a certain dimension is being measured.)
Mcinnis does not explicitly teach a retraction point specifying step of specifying a retraction point that retracts most within an Achilles tendon range for the rear portion of the foot viewed from the lateral direction; and
a distance measuring step of measuring a distance between the protrusion point and the retraction point in a foot length direction.
However, Mcinnis teaches multiple views of the measured foot (Mcinnis [0040] foot model field 44 displays an orthogonal view (e.g., top view, bottom view, side view, etc.) of the model of customer's foot 12.), measuring the distance between two points of the measured foot (Mcinnis [0040] indications 46 comprise a line between two points (i.e., landmarks) that show how a certain dimension is being measured.), and the ability to choose the points for measurement (Mcinnis [0041] user input controls 45 may include a button to edit landmarks (i.e., the points that define a certain dimension, such as the rearmost point of foot 12), which may assist a user in ensuring accurate measurements.).
It would have been obvious to one of ordinary skill in the art, prior to the effective filing date of the instant application to modify Mcinnis to explicitly teach a retraction point specifying step of specifying a retraction point that retracts most within an Achilles tendon range for the rear portion of the foot viewed from the lateral direction by assigning one of the measurement points/landmarks to as the specific point of the Achilles tendon, when it is desired as a measurement point, which would inherently lead to a distance measuring step of measuring a distance between the protrusion point and the retraction point in a foot length direction, the disclosure of Mcinnis measures the distance between two specified points on the model of the foot (see MPEP 2143(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success. Choosing two points of interest will yield the distance between those chosen points.).
The Examiner notes that there are currently no prior art rejections for claims 2-4, and 7-11. Specifically, the cited Mcinnis reference does not seem to fairly teach or suggest a heel index calculation unit configured to calculate a heel index that is a ratio of the distance to the foot length, or ratios of any of the measured distances between the various points of the foot.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Xia et al. (US 20120197161 A1) discloses a Footcare Product Dispensing Kiosk.
Pantazi et al. ("3D imaging capture of the foot and data processing for a database of anthropometric parameters." International Conference on Advanced Materials and Systems (ICAMS). The National Research & Development Institute for Textiles and Leather-INCDTP, 2016.) discloses a Database of Anthropometric Parameters.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTIAN T BRYANT whose telephone number is (571)272-4194. The examiner can normally be reached Monday-Thursday and Alternate Fridays 7:00-4:30.
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/CHRISTIAN T BRYANT/Examiner, Art Unit 2857
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