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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on December 18, 2024 was considered by the examiner. The IDS submitted on December 14, 2023 was considered by the examiner, except NPL document cite number 3 because it is not legible.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
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 is: a measurement device in claim 8.
Prong 1: “device” is a generic placeholder. See MPEP 2181 §I, subsection A, ¶1.
Prong 2: no transition word is used, followed by functional language:
“a measurement device… measures a spatial acceleration and a spatial angular velocity according to gait of the user”.
Prong 3: there is not sufficient structure to modify the generic placeholder “device”.
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.
The examiner interprets the inertial measurement, such as accelerometer, angular velocity sensor, IMU, vertical gyro, attitude heading, and/or GPS/INS (see specification ¶[0023]) to cover the corresponding structure, materials, or acts described in the specification and equivalents thereof for the measurement device.
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 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.
Claims 1-10 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.
The claims are generally narrative and indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with grammatical and idiomatic errors. That follows are examples of some of the errors in the claims.
Claim 1 recites “generate a gait waveform for each gait cycle” in lines 5-6, but “each gait cycle” is not clear. There is no indication of limit/bounds on any gait cycles recorded in the claim, such that it is not clear what is required in the claim for “each gait cycle”. How many gait cycles, how long is data recorded, etc.? This inconsistency renders claim 1 indefinite.
Claims 2-8 are rejected by virtue of their dependence from claim 1.
Claim 2 recites “the gait phase” in line 6, but it is not clear if this recitation is the same as, related to, or different from the recitation “a gait phase” in claim 1, line 8. The similar phraseology and definite article “the” suggest that they are the same, but the context of the claim suggests that they are different. Claim 1 indicates that the gait waveform is generated for each gait cycle in claim 1, lines 5-6. Therefore, the cut out waveform is utilized in the normalization for each gait cycle as recited in claim 2. However, the gait phase as recited in claim 1 is referring only to the gait phase of the missing section, not normalized gait phases in each of the gait cycles. This suggests that the two recitations are different. This inconsistency renders claim 2 indefinite. For the purposes of examination, these recitations are being interpreted as different.
Claim 3 recites “select, for the missing section included in the time-series data, at least one piece of data of the gait phase included in the missing section from at least one of the gait waveforms in which data of the gait phase included in the missing section is not missing, and generate the interpolation data using data of the selected gait phase” in lines 4-8, which is grammatically awkward and unclear. The indications of gait waveforms are not clear. The relationship between the recitations of “data” in lines 4-5, 6, and 8 are not clear, are they related, the same, or different? The data relating to the missing section, as recited in claim 1, appears to be referencing time stamp information (see specification ¶[0060]). This is consistent with the recitation of data in claim 3, lines 4-5 and 8; however, data in line 6 is referencing the actual gait phase information not time stamps. Thus, the relating of time stamp data to gait phase data as presently recited causes confusion. These inconsistencies render claim 3 indefinite.
Claim 4 is rejected by virtue of its dependence from claim 3.
Claim 4 recites “calculate an average value of data of the gait phase selected from the gait waveforms of a plurality of the gait cycles, and generate the interpolation data using an average value of calculated data of the gait phase” which is grammatically awkward and unclear. It is not clear if “data” in line 4 is the same as, related to, or different from the recitations of “data” in claim 3. It is not clear if “an average value” in line 4 is the same as, related to, or different from the recitation “an average value” in line 6. The similar phraseology suggests that they are the same, but the indefinite article “a” suggests that they are different. If the recitations are the same, the present recitation should be “the average value”. If the recitations are different, the relationship between these recitations should be made clear and they should be clearly distinguished from each other (e.g., when multiple elements have similar or the same labels, distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements). The recitation “calculate an average value of data of the gait phase selected from the gait waveforms of a plurality of the gait cycles” indicates that the average is calculated from the selected waveforms; however, claim 3 indicates that only “at least one of the gait waveforms” may be utilized. It is not clear how an average may be calculated in the situation that only one gait waveform is selected. These inconsistencies render claim 4 indefinite.
Claim 5 recites “the gait period” in line 7, but it is not clear if this recitation is the same as, related to, or different from the recitation “a gait period” in line 4. The similar phraseology and definite article “the” suggest that they are the same, but the context of the claim suggests that they are different (i.e., a gait period when data variation is small and a gait period when data variation is large). If the recitations are different, the relationship between these recitations should be made clear and they should be clearly distinguished from each other (e.g., when multiple elements have similar or the same labels, distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements). For the purposes of examination, these recitations are being interpreted as different.
Claim 6 recites “generate the interpolation data of the missing section based on a representative value of data for each of the gait phases included in the missing section in data of the gait waveforms of a plurality of the gait cycles used for interpolation of the missing section” in lines 4-7 which is grammatically awkward and unclear. In claim 6, “each of the gait phases” indicates multiple phases; however, claim 1, lines 8-9 “calculate a gait phase of the specified missing section” indicates a singular phase. It is not clear if “the gait waveforms” in lines 5-6 is the same as, related to, or different from the recitation “a gait waveform” in claim 1, lines 11-12. The similar phraseology and definite article “the” suggest that they are the same, but the singular (in claim 1) to plural (in claim 6) suggest that they are different. There is confusion as to whether the “data” recited in line 5 are related, and whether it is related to “data” in claim 1, line 10. These inconsistencies render claim 6 indefinite.
Claim 7 recites “generate the interpolation data of the missing section using a deviation value of data for each of the gait phases included in the missing section” in lines 4-5 which is grammatically awkward and unclear. In claim 7, “each of the gait phases” indicates multiple phases; however, claim 1, lines 8-9 “calculate a gait phase of the specified missing section” indicates a singular phase. There is confusion as to whether the “data” recited in line 5 is related to “data” in claim 1, line 11. These inconsistencies render claim 7 indefinite.
Claim 8 recites “an interpolation device” in line 2, but it is not clear if this recitation is the same as, related to, or different from the recitation “an interpolation device” in claim 1, line 1. The similar phraseology and context of the claim suggest that they are the same, but the indefinite article “a” suggests that they are different. If the recitations are the same, the present recitation should be “the interpolation device”. If the recitations are different, the relationship between these recitations should be made clear and they should be clearly distinguished from each other (e.g., when multiple elements have similar or the same labels, distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements). For the purposes of examination, these recitations are being interpreted as the same.
Claim 8 recites “sensor data” in lines 5, 6, and 13, but it is not clear if these recitations are the same as, related to, or different from the recitation “sensor data” in claim 1, line 6. The context of the claim suggests that they are the same/related (measured and then generated data), but the lack of definite article “the” suggests that they are different. This inconsistency renders claim 8 indefinite. Appropriate clarification is required.
Claim 8 recites “time-series data” in line 12, but it is not clear if this recitation is the same as, related to, or different from the recitation “time-series data” in claim 1, line 6. The similar phraseology and context of the claim suggest that they are the same, but the lack of definite article “the” suggests that they are different. If the recitations are the same, the present recitation should be “the time-series data”. If the recitations are different, the relationship between these recitations should be made clear and they should be clearly distinguished from each other (e.g., when multiple elements have similar or the same labels, distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements). For the purposes of examination, these recitations are being interpreted as the same.
Claim 8 recites “a missing section” in lines 12 and 13, but it is not clear if these recitations are the same as, related to, or different from the recitation “a missing section” in claim 1, line 7. The similar phraseology and context of the claim suggest that they are the same, but the indefinite article “a” suggests that they are different. If the recitations are the same, the present recitation should be “the missing section”. If the recitations are different, the relationship between these recitations should be made clear and they should be clearly distinguished from each other (e.g., when multiple elements have similar or the same labels, distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements). For the purposes of examination, these recitations are being interpreted as the same.
Claim 8 recites “a gait waveform” in lines 11 and 13, but it is not clear if these recitations are the same as, related to, or different from the recitation “a gait waveform” in claim 1, line 5. The similar phraseology and context of the claim suggest that they are related, but the indefinite article “a” suggests that they are different. The gait waveforms of claim 8 appear to be related to the gait waveform of claim 1. Furthermore, claim 8, lines 15-16 recite “the acquired gait waveform”; however, claim 8 lines 11-13 indicate acquiring two gait waveforms. It is not clear which acquired gait waveform the recitation of lines 15-16 is referring. These inconsistencies render claim 8 indefinite.
Claim 9 recites “generating a gait waveform for each gait cycle” in line 2, but “each gait cycle” is not clear. There is no indication of limit/bounds on any gait cycles recorded in the claim, such that it is not clear what is required in the claim for “each gait cycle”. How many gait cycles, how long is data recorded, etc.? This inconsistency renders claim 9 indefinite.
Claim 10 recites “generating a gait waveform for each gait cycle” in line 3, but “each gait cycle” is not clear. There is no indication of limit/bounds on any gait cycles recorded in the claim, such that it is not clear what is required in the claim for “each gait cycle”. How many gait cycles, how long is data recorded, etc.? This inconsistency renders claim 10 indefinite.
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 1-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed towards abstract ideas without significantly more.
Claim 1 interpretation: Under the broadest reasonable interpretation (BRI), the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111. Based on the specification, the recitation “generate a gait waveform for each gait cycle by using time-series data of sensor data regarding a movement of a foot” (see specification ¶[0056]-[0057], ¶[0111], and ¶[0124]) is being interpreted as mathematical calculations/evaluations and/or judgements; and “specify a missing section of data in the time-series data” is being interpreted as mathematical calculations/evaluations and/or judgements/observations (see specification ¶[0031] and ¶[0059]-[0060]). The recitation “calculate a gait phase of the specified missing section” is being interpreted as mathematical calculations/evaluations and/or judgements/observations (see specification ¶[0059]-[0060]). The recitation “generate interpolation data for interpolating the missing section by using data of the gait phase of the missing section in a gait waveform with a gait cycle different from a gait cycle including the missing section” is being interpreted as mathematical calculations/evaluations (see specification ¶[0064, ¶[0113], and ¶[0127]-[0130]). The recitation “interpolate the generated interpolation data to the missing section” is being interpreted as mathematical calculations/evaluations (see specification ¶[0067]-[0068]). The recitations are computer-implemented, as indicated in the specification (see specification ¶[0014]-[0015], ¶[0047], ¶[0154]-[0157], and ¶[0161]-[0162]), and in the claim lines 2-4.
Claim 9 interpretation: Under the broadest reasonable interpretation (BRI), the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111. Based on the specification, the recitation “generating a gait waveform for each gait cycle by using time-series data of sensor data regarding a movement of a foot” (see specification ¶[0056]-[0057], ¶[0111], and ¶[0124]) is being interpreted as mathematical calculations/evaluations and/or judgements; and “specifying a missing section of data in the time-series data” is being interpreted as mathematical calculations/evaluations and/or judgements/observations (see specification ¶[0031] and ¶[0059]-[0060]). The recitation “calculating a gait phase of the specified missing section” is being interpreted as mathematical calculations/evaluations and/or judgements/observations (see specification ¶[0059]-[0060]). The recitation “generating interpolation data for interpolating the missing section by using data of the gait phase of the missing section in a gait waveform having a gait cycle different from a gait cycle including the missing section” is being interpreted as mathematical calculations/evaluations (see specification ¶[0064, ¶[0113], and ¶[0127]-[0130]). The recitation “interpolating the generated interpolation data into the missing section” is being interpreted as mathematical calculations/evaluations (see specification ¶[0067]-[0068]). The recitations are computer-implemented, as indicated in the specification (see specification ¶[0014]-[0015], ¶[0047], ¶[0154]-[0157], and ¶[0161]-[0162]), and in the claim line 1.
Claim 10 interpretation: Under the broadest reasonable interpretation (BRI), the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111. Based on the specification, the recitation “generating a gait waveform for each gait cycle by using time- series data of sensor data regarding a movement of a foot” (see specification ¶[0056]-[0057], ¶[0111], and ¶[0124]) is being interpreted as mathematical calculations/evaluations and/or judgements; and “specifying a missing section of data in the time-series data” is being interpreted as mathematical calculations/evaluations and/or judgements/observations (see specification ¶[0031] and ¶[0059]-[0060]). The recitation “calculating a gait phase of the specified missing section” is being interpreted as mathematical calculations/evaluations and/or judgements/observations (see specification ¶[0059]-[0060]). The recitation “generating interpolation data for interpolating the missing section by using data of the gait phase of the missing section in a gait waveform having a gait cycle different from a gait cycle including the missing section” is being interpreted as mathematical calculations/evaluations (see specification ¶[0064, ¶[0113], and ¶[0127]-[0130]). The recitation “interpolating the generated interpolation data into the missing section” is being interpreted as mathematical calculations/evaluations (see specification ¶[0067]-[0068]). The recitations are computer-implemented, as indicated in the specification (see specification ¶[0014]-[0015], ¶[0047], ¶[0154]-[0157], and ¶[0161]-[0162]), and in the claim lines 1-2.
Step 1: This part of eligibility analysis evaluates whether the claim falls within any statutory category. MPEP 2106.03. Claim 1 recites a device and claim 10 recites a non-volatile recording medium, which are directed towards a machine/manufacture (a statutory category of invention). Claim 9 recites a method, which is directed towards a process (a statutory category of invention). Step 1: YES.
Step 2A Prong One: This part of the eligibility analysis evaluates whether the claim recites a judicial exception. As explained in MPEP 2106.04(a)(2)(III). The courts consider a mental process (thinking) that “can be performed in the human mind, or by a human using a pen and paper” to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). The “mental processes” abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgements, and opinions. As discussed in the claim interpretation section, the limitations include, under the BRI, multiple evaluations and/or judgements/observations. Accordingly, the limitations as seen in claims 1 and 9-10 recite judicial exceptions (abstract ideas that fall within the mental process grouping). No limitations are provided that would force the complexity of any of the identified evaluation steps to be non-performable by pen-and-paper practice.
Furthermore, as explained in MPEP 2106.04(a)(2)(I). The courts consider mathematical calculations, when the claim is given its BRI in light of the specification, as falling within the “mathematical concept” grouping of abstract ideas. A claim does not have to recite “calculating” in order to be considered a mathematical calculation. For example, a step of “determining” a variable or number using a mathematical method, or “performing” a mathematical operation, may also be considered a mathematical calculation when the BRI of the claim in light of the specification encompasses a mathematical calculation. As discussed in the claim interpretation section, the limitations include, under the BRI, multiple mathematical calculations/evaluations. Accordingly, the limitations as seen in claims 1 and 9-10 recite judicial exceptions (abstract ideas that fall within the mathematical calculations grouping of mathematical concepts).
Alternatively or additionally, these steps describe the concept of using implicit mathematical formulas (i.e., calculations to determine a likelihood score) to derive a conclusion based on input of data, which corresponds to concepts identified as abstract ideas by the courts (Diamond v. Diehr. 450 U.S. 175, 209 U.S.P.Q. 1 (1981), Parker v. Flook. 437 U.S. 584, 19 U.S.P.Q. 193 (1978), and In re Grams. 888 F.2d 835, 12 U.S.P.Q.2d 1824 (Fed. Cir. 1989)). The concept of the recited limitations identified as mathematical concepts above is not meaningfully different than those mathematical concepts found by the courts to be abstract ideas.
In particular, claim 1 recites the following elements, which are part of the abstract idea (i.e., the algorithm):
generate a gait waveform for each gait cycle by using time-series data of sensor data regarding a movement of a foot and specify a missing section of data in the time-series data;
calculate a gait phase of the specified missing section; and
generate interpolation data for interpolating the missing section by using data of the gait phase of the missing section in a gait waveform with a gait cycle different from a gait cycle including the missing section, and
interpolate the generated interpolation data to the missing section.
Furthermore, claim 9 recites the following elements, which are part of the abstract idea (i.e., the algorithm):
an interpolation method causing:
generating a gait waveform for each gait cycle by using time-series data of sensor data regarding a movement of a foot;
specifying a missing section of data in the time-series data;
calculating a gait phase of the specified missing section;
generating interpolation data for interpolating the missing section by using data of the gait phase of the missing section in a gait waveform having a gait cycle different from a gait cycle including the missing section; and
interpolating the generated interpolation data into the missing section.
In addition, claim 10 recites the following elements, which are part of the abstract idea (i.e., the algorithm):
generating a gait waveform for each gait cycle by using time-series data of sensor data regarding a movement of a foot;
specifying a missing section of data in the time-series data;
calculating a gait phase of the specified missing section;
generating interpolation data for interpolating the missing section by using data of the gait phase of the missing section in a gait waveform having a gait cycle different from a gait cycle including the missing section; and
interpolating the generated interpolation data into the missing section.
Step 2A Prong One: YES.
Step 2A Prong Two: This part of the eligibility analysis evaluates whether the claim as a whole integrates the judicial exceptions into a practical application of the exception. This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exceptions, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exceptions into a practical application. The claims recite additional elements related to a generic computer (i.e., the processor, memory, non-volatile recording medium). The devices/method are merely instructions to implement an abstract idea on a generic computer or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f).
Step 2A Prong Two: NO.
Step 2B: This part of the eligibility analysis evaluates whether the claim as a whole, amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim. MPEP 2106.05. As explained with Step 2A Prong Two, the claims recite additional elements directed towards a generic computer (i.e., the processor, memory, non-volatile recording medium). The devices/method utilizing a generic computer do not qualify as significantly more because these limitations are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no
indication that the combination of elements improves the functioning of a computer, for
example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is
no indication that the combination of elements includes a particular solution to a computer-based
problem or a particular way to achieve a desired computer-based outcome. Rather, the collective
functions of the claimed invention merely provide conventional computer implementation, i.e.,
the computer is simply a tool to perform the process. Step 2B: NO.
Claims 1 and 9-10 are not eligible.
Claims 2-8 depend from claim 1, and merely further define the abstract ideas of claim 1. Claim 8 recites elements directed towards a generic computer (i.e., the processor, memory, non-volatile recording medium). The claims recite no additional element that integrates the judicial exceptions into a practical application. The devices/method are merely instructions to implement an abstract idea on a generic computer or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f). The claims recite no additional element that adds an inventive concept to the claim and/or amounts to significantly more than the recited exception. The method/devices utilizing a generic computer do not qualify as significantly more because these limitations are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Claim 8 recites an additional element directed towards the measurement device that is disposed on footwear of a user. Such elements cannot be seen as integration into a practical application or significantly more because they are simply appending well-understood, routine, conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception. For example, Carbeck et al. (US Patent Application Publication 2013/0185003) teaches a system for monitoring forces that act on a foot or footwear, including sensors positioned about the foot/footwear (see abstract and ¶[0115]; Figs. 2A-2E and 6A-6C), and that the sensors may include a commercially available accelerometers (see ¶[0078]), and that the accelerometers may sense in three axes, which would include the vertical axis (see ¶[0010]-[0012], ¶[0045]-[0048], and ¶[0083]), and movement data may include velocity (see ¶[0135]). Also, Weyand et al. (US Patent Application Publication 2005/0245792) teaches that it is typical to use commercial accelerometers mounted in the shoes of an individual (see ¶[0025]). Also see, Ross (US Patent Application Publication 2015/0351665) teaches the conventional usage of sensors in insoles of shoes (see abstract and ¶[0019]; Figs. 1-4). Therefore, the measurement device cannot be seen as integration into a practical application or significantly more.
Looking at the limitations of each claim as an ordered combination in conjunction with the claims from which they depend (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome.
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.
The succeeding art rejections to the claims under 35 U.S.C. § 103 below are made with the claims as best understood and interpreted in light of the preceding rejections under 35 U.S.C. § 112 above.
Claims 1, 3, 5, and 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Wilson et al. (US Patent 11,158,422), hereinafter Wilson, and in view of Gløersen et al. (“Predicting Missing Marker Trajectories in Human Motion Data Using Marker Intercorrelations”, PLoS ONE 11(3), published March 31, 2016).
Regarding Claims 1 and 9-10, Wilson teaches a measurement and testing system including a first and second measurement device (see abstract and Figs. 1-2), in which the first measurement device is a force plate and the second measurement device comprises inertial measurement units (IMUs) disposed on the limbs of the subject (see col. 3 ln. 5-9, col 51 ln. 26-33, and col. 64 ln. 37 – col. 65 ln. 19; Figs. 1-2), so as to measure/determine phases of gait (see col. 51 ln. 34-47, col. 52 ln. 5 – col. 53 ln. 54, and col. 54 ln. 9-24; Figs. 39-41). Wilson teaches an interpolation method/device (see abstract, col. 3 ln. 43-54, and col. 65 ln. 55 – col. 66 ln. 15; Figs. 1-2) comprising:
a computer including a first memory/non-volatile recording medium having stored therein a program for execution by a first processor (col. 12 ln. 39-61, the local computing device 104 including the microprocessor 104a, the memory 104, and the data storage 104c; Fig. 2) to:
generate a gait waveform for each gait cycle by using time-series data of sensor data regarding a movement of a foot (col. 51 ln. 34-47, col. 52 ln. 5 – col. 53 ln. 54, and col. 54 ln. 9-24, the determination of the different events and phases of the gait cycle, such as double stance phase, col 51 ln. 26-33, the IMU may be on the limbs for a motion capture system, here, as the gait is specifically described as being analyzed, the sensor data would still be regarding the movement of the subject’s foot, which would necessarily move during gait; Figs. 39-41) and
specify a missing section of data in the time-series data (col. 3 ln. 43-54, and col. 65 ln. 55 – col. 66 ln. 15, the identification of the time stamps that have missing values, such as in the second measurement device (IMU) which has a lower sampling frequency than the first measurement device (force plate); Figs. 1-2);
calculate a gait phase of the specified missing section (col. 51 ln. 34-47, col. 52 ln. 5 – col. 53 ln. 54, and col. 54 ln. 9-24, the determination of the different events and phases of the gait cycle, such as double stance phase, col. 3 ln. 43-54, and col. 65 ln. 55 – col. 66 ln. 15, the identification of the time stamps that have missing values, here, the stance phases are identified for time stamps, including those missing for the second measurement device; Figs. 39-41); and
generate interpolation data for interpolating the missing section, and interpolate the generated interpolation data to the missing section (col. 3 ln. 43-54, and col. 65 ln. 55 – col. 66 ln. 15, the missing values for the second measurement device may be interpolated; Figs. 1-2).
Wilson does not specifically teach that the interpolation is implemented by using data of the gait phase of the missing section in a gait waveform with a gait cycle different from a gait cycle including the missing section.
Gløersen teaches the reconstructions of motion capture markers with missing data for a subject (see abstract), in which the markers are placed on various limbs of the subject, including the ankle (see pg. 4 § Performance testing, ¶1 and Fig. 1), in which datasets were utilized and gaps added in, with a matrix utilized comprising all timeframes without gaps in any markers for computing a reconstruction matrix (see pg. 2-4, § Methods § PCA-based reconstruction of a single missing marker - § Reconstruction strategies for gaps in multiple markers, the reconstruction of gaps in single and multiple markers; Figs. 2-3, see also pg. 6 § Results and Figs. 4-5, an example reconstruction compared to known DynaMMo and spline reconstruction), in which the data sets utilized comprise multiple gait cycles (see pg. 4, § Datasets and performance). Here, as the matrix used to construct the reconstruction (i.e., the filled) matrix includes multiple gait cycles from the dataset, and is constructed from time frames without gaps, it would necessarily include gait cycles different from the current gait cycle missing data, such multiple gait cycles utilized would be necessary for usage of such a reconstruction.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the reconstruction strategy of Gløersen as the interpolation of Wilson because (1) it is the application of a known technique to a known device/method ready for improvement to yield predictable results; and/or (2) Wilson requires the usage of an interpolation and Gløersen teaches one such interpolation strategy; and/or (3) the interpolation/reconstruction strategy of Gløersen provides a better reconstruction than the more traditional/routine spline (polynomial) interpolation (see Gløersen also pg. 6 § Results and Figs. 4-5).
Regarding Claim 3, Wilson in view of Gløersen teaches the device of claim 1 as stated above. The modified Wilson further teaches the first processor is configured to execute the instructions to select, for the missing section included in the time-series data, at least one piece of data of the gait phase included in the missing section from at least one of the gait waveforms in which data of the gait phase included in the missing section is not missing, and generate the interpolation data using data of the selected gait phase (see Gløersen pg. 4, § Datasets and performance, the data sets utilized comprise multiple gait cycles). Here, as the matrix used to construct the reconstruction (i.e., the filled) matrix includes multiple gait cycles from the dataset, and is constructed from time frames without gaps, it would necessarily include gait cycles different from the current gait cycle missing data, and that such data from those other gait cycles is utilized in the matrix calculation.
Regarding Claim 5, Wilson in view of Gløersen teaches the device of claim 1 as stated above. The modified Wilson further teaches the first processor is configured to execute the instructions to generate the interpolation data by an analytical method for a gait period in which data variation is small, and generate the interpolation data using data of the gait cycle different from the gait cycle including the missing section for the gait period in which data variation is large (see Gløersen pg. 2-4, § Methods § PCA-based reconstruction of a single missing marker - § Reconstruction strategies for gaps in multiple markers, the reconstruction of gaps in single and multiple markers; Figs. 2-3). Here, the reconstruction algorithm is utilized for both sections of large and small variation. In sections of large variation, other gait cycles would be utilized as described above (see Gløersen pg. 4, § Datasets and performance, the data sets utilized comprise multiple gait cycles). Furthermore, the reconstruction utilized would also be considered an analytical method. The specification of the present application does not specifically describe what the analytical method is, but includes polynomial interpolation (see specification ¶[0033] and Fig. 6). As Gløersen compares polynomial interpolation to the specific PCA-based reconstruction as alternatives (see Gløersen Figs. 4-5), the PCA-based reconstruction is being interpreted as falling within the broadest reasonable interpretation (BRI) of the term analytical method.
Claims 2, 4, and 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Wilson in view of Gløersen as applied to claims 1 and 3 above, and in view of Ahn et al. (US Patent Application Publication 2016/0074272), hereinafter Ahn.
Regarding Claim 2, Wilson in view of Gløersen teaches the device of claim 1 as stated above. The modified Wilson does not specifically teach to normalize the gait cycles, including to cut out a waveform corresponding to one gait cycle from the time-series data, and generate the gait waveform by normalizing the gait phase included in the cut-out waveform.
Ahn teaches methods and apparatuses for detecting a gait pattern based on sensed data (see abstract and Figs. 7-8), including via a plurality of sensors including an IMU for acceleration data and for angular velocity data (see ¶[0077], ¶[0098], and ¶[0118]), in which the gait cycle may be normalized for time and for data, such as based on an average or standard deviation, so that gaits which may have different durations or quantity of motion would be normalized for more efficient data processing (see ¶[0080]-[0083] and ¶[0103]-[0105]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the gait normalization of Ahn with the gaits detected by the modified Wilson because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) the time normalization would make the sizes of the gaits stored in the computer uniform, for more efficient processing (see Ahn ¶[0080]); and/or (3) the data normalization would reduce an error between gait patterns (cycles), such as occurring dur to environmental different (see ¶[0105]).
Regarding Claim 4, Wilson in view of Gløersen teaches the device of claim 3 as stated above. The modified Wilson does not specifically teach to calculate an average value of data of the gait phase selected from the gait waveforms of a plurality of the gait cycles, and generate the interpolation data using an average value of calculated data of the gait phase.
Ahn teaches methods and apparatuses for detecting a gait pattern based on sensed data (see abstract and Figs. 7-8), including via a plurality of sensors including an IMU for acceleration data and for angular velocity data (see ¶[0077], ¶[0098], and ¶[0118]), in which the gait cycle may be normalized for time and for data, such as based on an average or standard deviation, so that gaits which may have different durations or quantity of motion would be normalized for more efficient data processing (see ¶[0080]-[0083] and ¶[0103]-[0105]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the gait normalization of Ahn with the gaits detected by the modified Wilson because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) the time normalization would make the sizes of the gaits stored in the computer uniform, for more efficient processing (see Ahn ¶[0080]); and/or (3) the data normalization would reduce an error between gait patterns (cycles), such as occurring dur to environmental different (see ¶[0105]).
Here, as the modified Wilson teaches to normalize the gait cycle (pattern) data, and such other gait cycles would be utilized in developing the interpolated/reconstructed data, and the normalization may be based on an average of the sensed data with respect to each of the plurality of gait cycles (patterns) (see Ahn ¶[0082]-[0083]), the modified Wilson teaches to generate the interpolation data based on an average value as required by the claim.
Regarding Claim 6, Wilson in view of Gløersen teaches the device of claim 1 as stated above. The modified Wilson does not specifically teach to generate the interpolation data of the missing section based on a representative value of data for each of the gait phases included in the missing section in data of the gait waveforms of a plurality of the gait cycles used for interpolation of the missing section.
Ahn teaches methods and apparatuses for detecting a gait pattern based on sensed data (see abstract and Figs. 7-8), including via a plurality of sensors including an IMU for acceleration data and for angular velocity data (see ¶[0077], ¶[0098], and ¶[0118]), in which the gait cycle may be normalized for time and for data, such as based on an average or standard deviation, so that gaits which may have different durations or quantity of motion would be normalized for more efficient data processing (see ¶[0080]-[0083] and ¶[0103]-[0105]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the gait normalization of Ahn with the gaits detected by the modified Wilson because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) the time normalization would make the sizes of the gaits stored in the computer uniform, for more efficient processing (see Ahn ¶[0080]); and/or (3) the data normalization would reduce an error between gait patterns (cycles), such as occurring dur to environmental different (see ¶[0105]).
Here, the representative value may be a standard deviation (see present application specification ¶[0127]). Furthermore, as the modified Wilson teaches to normalize the gait cycle (pattern) data, and such other gait cycles would be utilized in developing the interpolated/reconstructed data, and the normalization may be based on an average and standard deviation of the sensed data with respect to each of the plurality of gait cycles (patterns) (see Ahn ¶[0082]-[0083]), the modified Wilson teaches to generate the interpolation data based on the standard deviation as required by the claim.
Regarding Claim 7, Wilson in view of Gløersen teaches the device of claim 1 as stated above. The modified Wilson does not specifically teach to generate the interpolation data of the missing section using a deviation value of data for each of the gait phases included in the missing section.
Ahn teaches methods and apparatuses for detecting a gait pattern based on sensed data (see abstract and Figs. 7-8), including via a plurality of sensors including an IMU for acceleration data and for angular velocity data (see ¶[0077], ¶[0098], and ¶[0118]), in which the gait cycle may be normalized for time and for data, such as based on an average or standard deviation, so that gaits which may have different durations or quantity of motion would be normalized for more efficient data processing (see ¶[0080]-[0083] and ¶[0103]-[0105]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the gait normalization of Ahn with the gaits detected by the modified Wilson because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) the time normalization would make the sizes of the gaits stored in the computer uniform, for more efficient processing (see Ahn ¶[0080]); and/or (3) the data normalization would reduce an error between gait patterns (cycles), such as occurring dur to environmental different (see ¶[0105]).
Here, as the modified Wilson teaches to normalize the gait cycle (pattern) data, and such other gait cycles would be utilized in developing the interpolated/reconstructed data, and the normalization may be based on an average and standard deviation of the sensed data with respect to each of the plurality of gait cycles (patterns) (see Ahn ¶[0082]-[0083]), the modified Wilson teaches to generate the interpolation data based on the standard deviation as required by the claim.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Wilson in view of Gløersen as applied to claim 1 above, and in view of Amit et al. (US Patent 11,006,860), hereinafter Amit.
Regarding Claim 8, Wilson in view of Gløersen teaches the device of claim 1 as stated above. Wilson further teaches a gait measurement system (see abstract and Figs. 1-2) comprising:
an interpolation device according to claim 1 (see above claim 1 mapping);
a measurement device that measures inertial data according to gait of the user, generates sensor data based on the measured inertial data, and outputs the generated sensor data to the interpolation device (col. 3 ln. 5-9, col 51 ln. 26-33, and col. 64 ln. 37 – col. 65 ln. 19, the second measurement device that comprises the inertial measurement units (IMUs) disposed on the limbs of the subject, col. 3 ln. 55 – col. 4 ln. 21 and col. 4 ln. 45 – col. 5 ln. 10, the second measurement device (i.e., the IMUs) are configured to output the recorded and time stamped data to the processing device (i.e., the processing device 104) which reconstructs the signals, the electronic data output to the processing device is the generated sensor data, generated from the recorded inertial data; Figs. 1-2); and
a gait measurement device comprising a second memory storing instructions; and a second processor connected to the second memory (col. 12 ln. 39 – col. 13 ln. 20, the remote computing device 136 which also comprises a microprocessor and memory, operatively coupled to the processing device 104 for data transmission; Fig. 2) and configured to execute the instructions to
acquire, from the interpolation device, a gait waveform not including a missing section generated by the interpolation device using time-series data of the sensor data and a gait waveform obtained by interpolating data of a missing section by the interpolation device (col. 12 ln. 39 – col. 13 ln. 20, the remote computing device 136 is operatively coupled to the processing device 104 for data transmission; Fig. 2), measure a gait of the user based on a gait event detected from the acquired gait waveform (col. 51 ln. 34-47, col. 52 ln. 5 – col. 53 ln. 54, and col. 54 ln. 9-24, the determination of the different events and phases of the gait cycle, such as double stance phase; Figs. 39-41), and
output information regarding the measured gait of the user (col. 12 ln. 39 – col. 13 ln. 20, the remote computing device 136 is operatively coupled to the processing device 104 for data transmission, it is inherent that the remote computing device 136 would have a display, as a display is a known and conventional component of a generic computer, col. 10 ln. 26-56 and col. 13 ln. 28-65, the visual display device 106 and/or the operator visual display device 130, col. 25 ln. 27-59, the output of information via the displays, such as the progress reports for the subject, based upon the collected data of the subject, which includes the gait data; Figs. 1-2).
Wilson teaches that the remote computing device 136 may be utilized to generate one or more testing routine (see col. 21 ln. 11-46), but not that the remote computing device specifically performs data processing. However, it would have been within the skill of one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the remote computing device to perform some of the computations of the local computing (processing device 104) based on the needs of the system because changing the data processing from one computer to another is well known in the industry, and that putting more data processing and the remote computer would reduce the computing power needed for the local computer, thus reducing local computer cost and power consumption.
The modified Wilson is silent regarding that the measurement device is disposed on footwear of a user, and that the measurement device that measures a spatial acceleration and a spatial angular velocity, and that such data is utilized in the gait analysis.
Amit teaches a computerized method of receiving sensor data from movement of a user and calculating values from the data including strides, kinematic parameters, and classification of the strides (see abstract and Figs. 2-5), in which the sensor data is monitored from one or more sensors, such as IMUs, within the user’s shoes (see col. 1 ln. 50 – col. 2 ln. 36 and col. 6 ln. 27-48; Figs. 1A-1F), in which the IMUs measure parameters such as acceleration (see col. 6 ln. 27-48 and col. 9 ln. 46) and angular velocity (see col. 8 ln. 10-27), so as to determine gait characteristics, such as type and stride (see generally col. 9 ln. 14 – col. 10 ln. 31), including stance phase determination (see col. 8 ln. 10-40; Fig. 2).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the IMU including acceleration and angular velocity with placement in a shoe of Amit with the system of the modified Wilson because (1) it is the application of a known technique to a known device ready for improvement to yield predictable results; and/or (2) the modified Wilson requires sensor placement on the limbs and Amit teaches one such suitable sensor placement modality; and/or (3) the gait characteristics determination of the modified Wilson would be corroborated/enhanced with the additional gait characteristic determination with the IMU (i.e., the acceleration and angular velocity data) of Amit.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Xu et al. (Chinese Patent Document CN112560002A – citing to translation from Espacenet) teaches a method, apparatus, and device for identification based on gait behavior extracted from inertial data of the subject’s gait (see abstract) including averaging the value of each gait cycle to determine similarity, so as to assess normal and abnormal gait cycles (see ¶[0020]-[0024], and see generally ¶[0084]-[0122]).
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/J.D.M./ Examiner, Art Unit 3791
/JUSTIN XU/ Primary Examiner, Art Unit 3791