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 Rejections - 35 USC § 112
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 5 is 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.
Regarding Claim 5, the limitation “set the standby time for each of a plurality of measurement opportunities” recited in line 6 of the claim lacks proper antecedent basis as “a plurality of measurement opportunities” was not previously recited in Claim 1 or Claim 5. This limitation is being interpreted to mean “set a standby time for each of a plurality of measurement opportunities”.
Additionally, the limitation “set the standby time” recited in line 10 of the claim is unclear which “standby time” this limitation is being applied. Is it referring to “the standby time” recited in Claim 1 that “is sensed at a measurement opportunity” or is it referred to the “standby time for each of the plurality of measurement opportunities” recited earlier in Claim 5. It is being interpreted to mean “set the standby time for each of the plurality of measurement opportunities at which”.
Furthermore, the limitation “the standby time” recited in second to last line of the claim is unclear which “standby time” this limitation is being applied. It is being interpreted to mean “at least one of the standby times of the plurality of measurement opportunities is included”.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 2 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 1 has been amended wherein the last six lines of the claim contain limitations that encompass every element recited in Claim 2 and are narrower than the limitations recited in Claim 2. Specifically, Claim 1 recites the limitation “to maximize measurement success probability while minimizing power consumption in the related measurement time zone” which was not recited in Claim 2 or expanded upon. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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.
Claims 1-3, 6-7, and 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Johnny Ross'679 (U.S. Patent Publication 20150257679 – previously cited) in view of Shattuck’311 (U.S. Patent 12100311) and further in view of Darley et. al.'947 (U.S. Patent 6876947 – previously cited).
Regarding Claim 1, Johnny Ross’679 discloses a first memory storing instructions and a first processor connected to the first memory (Paragraph [0034] - A portable electronic device is provided having a computer processor and a computer memory for receiving the data transmitted from the transmitter of the sensor insole. A monitoring program operably installed in the computer memory of the portable electronic device performs the following steps) configured to execute the instructions to:
acquire measurement success/failure information indicating success/failure of measurement of a physical quantity related to a motion of a foot, the measurement being executed by a measurement device installed at a foot portion of a user at a measurement opportunity included in a target measurement time zone (Paragraph [0195] - This information also enables the determination of the runner's actual cadence, and compared with a desired cadence that is desired by the person (as desired by the person, or by his or her doctor, trainer, etc.). For example, a runner may determine a selected cadence for his or her run, at different points in a race (e.g., a given slower speed at the start and end, with a faster cadence through the middle of the race). The portable electronic device 140 can then determine if the actual cadence measured matches the desired cadence, and report back (after the race, or even during the race, such as with audible and/or visual feedback)); and
set, based on the measurement success/failure information in the target measurement time zone, a measurement condition including a standby time from when a gait is sensed at a measurement opportunity included in a related measurement time zone related to the target measurement time zone to when measurement is started (Paragraph [0194] - In one embodiment, the data is gathered for a predetermined number of seconds (or strides), starting a predetermined period of time following the start of the protocol. For a 100 yard dash, data collection may start after a second or two, and proceed through the entire run (given the short length of the run). For longer races, the data collection may be for predetermined periods (e.g., 10 second) at particular times during the run. Those skilled in the art may determine different intervals for each given exercise, and the data collected may be reviewed by one skilled in the art to determine if the runner's stride is correct).
Johnny Ross’679 fails to disclose setting, based on statistical analysis of temporal failure data accumulated over multiple target measurement time zones to identify recurring failure patterns and predict optimal measurement timing in the measurement success/failure information in the target measurement time zone, a measurement condition including a standby time. Johnny Ross’679 further fails to disclose wherein the measurement success/failure information includes temporal failure data indicating specific time points and frequency of measurement failures within individual measurement opportunities of the target measurement time zone and the standby time is automatically optimized through iterative adjustment based on accumulated measurement failure patterns to maximize measurement success probability. Shattuck’311 teaches a wearable device configured to set recording delay times based on learned individualized temporal movement times during a target measurement time zone (Column 30 Lines 20-36 - For example, the tabled or graphic results may include, but are not limited to, the number of repetitions completed within or outside the set parameters, the degree to which the reference data (e.g., the position) was achieved, statistics regarding the mean accuracy per set and total session in achieving the position, the direction of the error (e.g., dysmetria, the overshoot or undershoot of the performance movement relative to the position), to what degree and frequency overshoots and undershoots might be, or the like. The display screens, produced by the KAT application software 158, that present the results may be configured to convey with graphics alone, statistics alone, and/or combined graphics and statistics overlaid on a picture. In this regard, real-time or nearly real-time results (e.g., taking into consideration processing lag, in one non-limiting example) may be displayed on the user interface 154; Column 31 Lines 10-22 - By way of another example, the cues may include, but are not limited to, the Repetitions Delay. For example, the cue may be the delay time between when individual repetitions start. In one non-limiting example, the cue may be a fixed or constant delay. In another non-limiting example, the cue may be a periodic, variable delay. It is noted herein a variable repetition delay rate may be set by the user or the wearer before a practice session. Here, the user or the wearer may first press a Set Structure triggering key on the KAT 102. Then the wearer performs the repetitive movement at a specific pace, and the KAT 102 will measure and learn the Cues and timing delays from the setting session, which may be stored on a per-athlete basis and/or a per-movement basis; Column 33 Lines 35-39 - The controller 108 and/or the controller 146 defines the allowable range of parameters gathered by the one or more sensors 120 for each of the positions using a median filter and empirically predetermined standard errors and statistics measured during the capture session). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the device of Johnny Ross’679 to include a “delay time” setting in order to obtain optimal recordings of a subjects’ movements and deliver optimal feedback to the user based on the recordings as seen in Shattuck’311 (Column 34 Lines 22-25 - the enhanced analytic methods may be utilized to predict and track object/person kinematic patterns over time for use in optimal feedback delivery based on prior performance).
Johnny Ross’679 further fails to disclose maximizing power consumption in the related measurement time zone. Darley et. al.'947 teaches conserving power by adjusting a standby power mode based on failed attempts to identify a motion (Column 44 Lines 37-41 - When, during the "toe-off event?" routine 1404, a toe-off event 704 is not identified within a pre-determined period of time, the primary routine 1400 proceeds to a step 1418, wherein an "activity flag" is set to false to indicate a lack of activity of the user 112; Column 44 Lines 42-45 - After the step 1418, the primary routine 1400 proceeds to a step 1426, wherein the various timers used to measure the foot contact time (Tc), foot-air time (Ta), and step time (Ts) are reset because of the identified lack of activity; Column 45 Lines 36-47 - Following either of the steps 1412 or 1426, the primary routine 1400 proceeds to a routine 1414 wherein a determination is made whether the foot-mounted unit 102 should remain powered on, should be powered down, or should be temporarily set to a low-power "sleep" mode. As explained in more detail below in connection with FIG. 25, based upon the level of activity detected (i.e., whether and for how long the "activity flag" has been false), the "check activity?" routine 1414 may take appropriate action. For example, it may cause the foot-mounted unit 102 to enter a temporary, low-power sleep mode, or may set a flag that will cause the foot-mounted unit 102 to power down completely.). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the system of Johnny Ross’679 in view of Shattuck’311 to include adjusting a degree in which a standby power mode is applied based on a recorded number of flagged or failed motion attempts in order to preserve power and limit recordings to necessary motions by the user as seen in Darley et. al.’947.
Regarding Claim 2, the sections of Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 cited above disclose a condition setting device as disclosed in Claim 2.
Regarding Claims 9 and 10, the sections of Johnny Ross’679 cited above disclose a condition setting method as disclosed in claim 9 and a non-transitory recording medium a disclosed in Claim 10.
Regarding Claim 3, Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 discloses the system outlined in Claim 1 above, but fails to disclose wherein the first processor is configured to execute the instructions to set the standby time at a measurement opportunity included in the related measurement time zone of the same time zone subsequent to the target measurement time zone based on the measurement success/failure information in the target measurement time zone. Shattuck’311 teaches continuously calibrating and calculating standby times for measurements (Column 31 Lines 10-22 - By way of another example, the cues may include, but are not limited to, the Repetitions Delay. For example, the cue may be the delay time between when individual repetitions start. In one non-limiting example, the cue may be a fixed or constant delay. In another non-limiting example, the cue may be a periodic, variable delay. It is noted herein a variable repetition delay rate may be set by the user or the wearer before a practice session. Here, the user or the wearer may first press a Set Structure triggering key on the KAT 102. Then the wearer performs the repetitive movement at a specific pace, and the KAT 102 will measure and learn the Cues and timing delays from the setting session, which may be stored on a per-athlete basis and/or a per-movement basis). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the system of Johnny Ross’679 to include calibrating future motion-related measurement times such as a delay in motion recording in order to acquire more accurate data that represents and captures desirable motions produced by a user as seen in Shattuck’311.
Regarding Claim 6, Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 discloses the system outlined in Claim 1 above. Johnny Ross’679 further discloses a sensor that measures a spatial acceleration and a spatial angular velocity (Paragraph [0018] - Using walking as one example, the sensors (the accelerometer 43, the gyroscope 44, and the compass 45) determine the acceleration, velocity, and position of each foot); and
a controller configured to generate sensor data based on the spatial acceleration and the spatial angular velocity measured by the sensor, the controller being activated at least one measurement opportunity included in a measurement time zone based on a measurement condition set by the condition setting device (Paragraph [0108] – entire paragraph - Because the force sensors 30 are located in several places on each foot, the alignment of the foot may be determined. The force sensors 30 may determine if the user is stepping too hard or soft, fast or slow, if their rhythm is correct, if there is a systematic drift during the course of the activity, and more).
Regarding Claim 7, Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 discloses the system outlined in Claim 1 above. Johnny Ross’679 further discloses a second memory storing instructions; and a second processor connected to the second memory (Paragraph [0076] - The processor 42 and the memory 46 may be any form of processor or processors, memory chip(s)) and configured to execute instructions to:
receive input information according to an operation of a user (Paragraph [0100] - Here, the user could adjust settings, program routines, select exercises, etc.);
receive sensor data regarding a motion of a foot measured by a measurement device installed at a foot portion of the user (Paragraph [0081] - The integrated motion tracker provides data on the linear acceleration in three linear dimensions, roll, pitch, yaw, position, bearing, and heading. These nine coordinate measurements provide a complete description of the motion and position of the user's foot);
generate a gait waveform that is time-series data of the sensor data; sense a gait event from the gait waveform (Paragraph [0141] - In one embodiment, the power measurement program 150 may determine a waveform using total acceleration on the Y and Z axes of the accelerometers; determine an average time from peak to peak of the waveform and extrapolate that over a period of time to determine a cadence);
execute a data process using the gait (Paragraph [0203] - he power may be calculated a power based upon the actual cadence and the force data received from the force sensors, and the power calculated may be outputted as discussed above. The flight time and the ground contact time may also be determined from the waveform); and
transmit the input information (Paragraph [0150] - Selected data, such as the force data, may be transmitted in real time);
a measurement condition set by the condition setting device to the measurement device installed at the foot portion of the user (Paragraph [0100] - Here, the user could adjust settings, program routines, select exercises, etc. Various user input devices 168 which may be integrated with present invention, for interfacing with the monitoring program 150 or the sensor insoles 10, should be considered equivalent and within the scope thereof).
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Johnny Ross'679 (U.S. Patent Publication 20150257679 – previously cited) in view of Shattuck’311 (U.S. Patent 12100311), further in view of Darley et. al.'947 (U.S. Patent 6876947 – previously cited), as applied to Claim 1 above, and further in view of Shigeta et. al.'112 (U.S. Patent Publication 20190204112 – previously cited).
Regarding Claim 4, Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 discloses the system outlined in Claim 1 above, but fails to disclose wherein the first processor is configured to execute the instructions to calculate a probability of success in measurement at least one measurement opportunity included in the target measurement time zone based on the measurement success/failure information in the target measurement time zone, and set the standby time in which the probability of success exceeds a threshold value as the standby time at a measurement opportunity included in the related measurement time zone related to the target measurement time zone. Shigeta et. al.'112 teaches calculating a probability of successful motions performed and recorded by a user within a target time zone and adjusts recording based on if the thresholds are met (Paragraph [0054] - The acquiring unit 110 may acquire sensor signals in time periods each having a predetermined length or in units of a predetermined data amount. The acquiring unit 110 desirably acquires data corresponding to a period which is at least long enough the user to walk a few steps; Paragraph [0057] - Note that if extreme values of a sensor signal are not detected, the estimating unit 120 may determine that the user is standing still, and may not estimate periods about the time region; Paragraph [0076] - the pedometer device 100 allows reduction of false counts of the user's step counts by comparing an extracted feature quantity with each of a non-walking motion model which represents non-walking motions like those mentioned above, and a walking motion model). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the system of Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 to include a probability of motion threshold that is based on successful motions in order to limit the type of recordings and data that a user experiences while in motion as seen in Shigeta et. al.'112.
Regarding Claim 5, Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 discloses the system outlined in Claim 1 above, but fails to disclose wherein the first processor is configured to execute the instructions to calculate a probability of success in measurement at least one measurement opportunity included in the target measurement time zone based on the measurement success/failure information in the target measurement time zone; set standby times at a plurality of measurement opportunities included in the related measurement time zone related to the target measurement time zone to different times based on the measurement success/failure information in the target measurement time zone, and set at least one of the standby times at which the probability of success in measurement at least one measurement opportunity included in the related measurement time zone is maximum as at least one of the standby times at a measurement opportunity included in the measurement time zone related to the related measurement time zone. Shigeta et. al.'112 teaches highlighting areas with high probability of detecting motion and limiting false readings (Paragraph [0054] - The acquiring unit 110 may acquire sensor signals in time periods each having a predetermined length or in units of a predetermined data amount. The acquiring unit 110 desirably acquires data corresponding to a period which is at least long enough the user to walk a few steps; Paragraph [0057] – entire paragraph - Note that if extreme values of a sensor signal are not detected, the estimating unit 120 may determine that the user is standing still, and may not estimate periods about the time region; Paragraph [0076] - the pedometer device 100 allows reduction of false counts of the user's step counts by comparing an extracted feature quantity with each of a non-walking motion model which represents non-walking motions like those mentioned above, and a walking motion model). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the system of Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 to include data that indicates maximum probability and motion as a way to adjust when motion is being recorded in order to avoid receiving false motions/negatives and ensure that a user is monitored during those highly probable times as seen in Shigeta et. al.’112.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Johnny Ross'679 (U.S. Patent Publication 20150257679 – previously cited) in view of Shattuck’311 (U.S. Patent 12100311), further in view of Darley et. al.'947 (U.S. Patent 6876947 – previously cited), as applied to Claim 1 above, and further in view of Shin et. al.'771 (U.S. Patent Publication 20190082771 – previously cited).
Regarding Claim 8, Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 discloses the system outlined in Claim 1 above. Johnny Ross’679 further discloses a case where standby times included in the measurement conditions of the measurement devices installed at left and right feet of the user deviate beyond a prescribed value (Paragraph [0194] - This data may further include ground time 670, with indicia 672 and 674 for the left foot and the right foot, and flight time 680, with indicia 682 and 684 for the left foot and the right foot. Each of these may be determined using algorithms that detect steps based upon patterns in the force data. It may take a few seconds of running to obtain accurate data, so these measurements are preferably taken at preselected intervals during a run. In one embodiment, the data is gathered for a predetermined number of seconds (or strides), starting a predetermined period of time following the start of the protocol), but fails to disclose change a standby time of at least one of the measurement devices installed at the left and right feet of the user, and reduces a deviation between the standby times of the measurement devices installed at the left and right feet of the user. Shin et. al.'771 teaches adjusting a time deviation between a left and right foot of a user (Paragraphs [0196-0198] – entire paragraphs - The rate of the time spent in each of the left and right smart shoes 100 supporting the ground, which is measured by the motion sensor 343, may be set as the reference. The deviation between the reference and the rate of the on-signal time of the left and right smart shoes 100 sensed by the pressure sensor 346 may calibrated…The controller 380 may analyze the rate of the ground supporting time via the 3D motion of the left and right smart shoes 100 measured by the motion sensor 343 including the acceleration sensor 344 and the gyro sensor 345 (S102). The controller 380 may analyze the rate of the time spent while the threshold pressure value or more is activated on the left and right smart shoes 100, which is measured by the pressure sensor 346 (S103)). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the system of Johnny Ross’679 in view of Shattuck’311 and further in view of Darley et. al.’947 to include adjusting and accounting for time deviation between a left and right foot a user in order to better calibrate motions associated with each foot as seen in Shin et. al.’771.
Response to Arguments
Applicant's arguments filed 28 January 2026 have been fully considered and they are not entirely persuasive.
Applicant’s amendments have overcome the prior claim objections.
Applicant’s amendments have overcome some of the prior 35 U.S.C. 112b rejections, but a new 112b rejection has been addressed in Paragraph 3 above. Additionally, a new 112d rejection has been addressed in Paragraph 4 above.
Claims 1-10 are rejected under 35 U.S.C. 103 as necessitated by amendments, as discussed in Paragraphs 5-7 above. It is to be noted that Claims 1, 6-7, and 9-10 that were once rejected under 35 U.S.C. 102 are now rejected under 35 U.S.C. 103 as necessitated by amendments, as discussed in Paragraph 5 above.
The examiner has considered the applicant's arguments regarding the lack of motivation to combine Johnny Ross’679 with other prior art to teach “predicting optimal measurement timing” but these arguments were not found entirely persuasive. However, the examiner has cited additional prior art based on the amendments that are believed to address these concerns as well as provide proper motivation to combine.
Additionally, it is to be noted by the examiner that the applicant has referred to Johnny Ross’679 as a “static” measurement device, but the examiner respectfully disagrees. Johnny Ross’679 discloses an adjustable memory-based system that records data over time, compares data across databases, and responds to new inputs (Paragraph [0100] - the user could adjust settings, program routines, select exercises, etc. Various user input devices 168 which may be integrated with present invention, for interfacing with the monitoring program 150 or the sensor insoles 10, should be considered equivalent and within the scope thereof ; Paragraph [0115] - The measured values may be sent via the wires 60 to the PCB 40 and ultimately the processor 42 and the memory 46. The processor 42 may further process the data, or it may send it to the transceiver 48 for transmission to the portable electronic device 140. Additionally, the data may be sent to other computers or electronic devices capable of receiving the transmitted data. The monitoring program 150 of the portable electronic device may receive the data and process it further, with the monitoring program 150 converting the measured acceleration data into a change in angle, which may be used independently or compared with the data from the gyroscope 44, which provides a more direct measure of the orientation of the foot; Paragraph [0145] - The monitoring program 267 provides information not included in the monitoring program 150, for example diagnosis of conditions and suggestions for treatment, or comparison of results with other patients either in real-time or by accessing the database 248 of the remote computer 240).
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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH ANN WESTFALL whose telephone number is (571) 272-3845. The examiner can normally be reached Monday-Friday 7:30am-4:30pm EST.
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, Jennifer Robertson can be reached at (571) 272-5001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SARAH ANN WESTFALL/Examiner, Art Unit 3791
/ETSUB D BERHANU/Primary Examiner, Art Unit 3791
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