DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Drawings
The drawings are objected to because in Figure 1B, the reference numerals do not match the reference numerals that discuss Figure 1B in paragraphs 31, 32 and 34 of the Specification. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: Reference numeral 226 first mentioned in the specification at paragraph 44 in discussing Figure 2B. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Per step 1 of the Subject Matter Eligibility Test (See MPEP 2106), claim 1 is directed to an apparatus, which falls within a statutory category (See MPEP 2106.03).
Per step 2A, prong 1, claim 1 recites based on motion data obtained from a sensor worn by a user, detecting arm swing peaks and bounce peaks in the motion data; and calculating a step frequency of the user during a time period based on at least one of the arm swing peaks or the bounce peaks in the motion data. Detecting arm swing peaks and bounce peaks may be accomplished by a human observing the data to see peaks, which is a mental process, or by comparing the data to established thresholds (See MPEP 2106.04(a)(2), subsection III), which is a mathematical process (See MPEP 2106.04(a)(2), subsection I). Calculating a step frequency is also a mathematical process. Therefore, claim 1 recites an abstract idea that falls into the mathematical concepts grouping and the mental processes grouping.
The additional elements are a housing configured to be worn on an appendage of a user, comprising: a processor; a sensor configured to capture motion data of the user; and a non-transitory computer-readable medium.
Per step 2A, prong 2, The abstract idea is not integrated into a practical application. The housing is specified at a high level of generality and does not amount to more than a mere general linking of the abstract idea to a field of use (See MPEP 2106.05(h)). The processor and the non-transitory computer-readable medium are generic computer components and amount to instructions to implement the abstract idea on a computer, which doesn’t amount to more than instructions to apply the exception (See MPEP 2106.05(f)). The sensor recitation is mere data gathering in conjunction with the abstract idea which is insignificant extra-solution activity (See 2106.05(g)). When considered in combination, the additional elements are elements of the “unitary apparatus” and do not amount to more than mere than generally linking the abstract idea to a field of use because it is specified at a high level of generality (See MPEP 2106.05(h)). Due to the lack of details claim 1 fails to rise to the level of a “particular machine”, e.g. see MPEP 2106.05(b): noting that “The particularity or generality of the elements of the machine or apparatus, i.e., the degree to which the machine in the claim can be specifically identified (not any and all machines,” is a factor when evaluating whether the claim rises to the level of a “particular machine.”
Per step 2B, claim 1 does not include additional elements that are sufficient to amount to significantly more than the judicial exception for the same reasons. Further, with regard to the recitation of the sensor, the courts have recognized that data gathering in various manners is well-understood, routine and conventional (See MPEP 2106.05(d), subsection II).
Claims 2-8 depend from claim 1. Claims 2-8 recite further details of the abstract idea and do not recite any further additional elements. Therefore claims 2-8 are rejected for the same reason.
Claim 9 depends from claim 1. Claim 9 recites further details of the abstract idea. Claim 9 also recites a further additional element in the claim limitation for displaying the accumulated energy expenditure value on the display of the unitary apparatus. The displaying step is simply outputting the result of the abstract idea and is insignificant extra solution activity. Considered in combination with the other additional elements, the additional elements are elements of the “unitary apparatus” and do not amount to more than mere than generally linking the abstract idea to a field of use because it is specified at a high level of generality. Therefore, claim 9 is rejected for the same reason.
Per step 1 of the Subject Matter Eligibility Test (See MPEP 2106), claim 10 is directed to an non-transitory computer readable medium, which is a product and falls within a statutory category (See MPEP 2106.03).
Per step 1 of the Subject Matter Eligibility Test (See MPEP 2106), claim 16 is directed to a method, which is a process and falls within a statutory category (See MPEP 2106.03).
Per step 2A, prong 1, claim 10, and similarly claim 16, recites based on motion data obtained from a sensor worn by a user, detecting appendage swing instances and bounce instances in the motion data from the sensor worn on the appendage; and calculating a step frequency of the user during a time period based on at least one of the appendage swing instances or the bounce instances in the motion data. As discussed above with regard to claim 1, these limitations recite activity that falls within the mathematical processes grouping and the mental processes grouping.
Claims 10 and 16 do not recite any additional elements.
Per step 2A, prong 2, since claims 10 and 16 do not recite any additional elements the claims are not integrated into a practical application.
Per step 2B, since claims 10 and 16 do not recite any additional elements, the claims do not recite any additional elements that are significantly more than the abstract idea.
Claims 11 depends from claim 10. Claims 17 depends from claim 16. Claims 11 and 17 only recite further details of the abstract idea and do not recite any further additional elements. Therefore, claims 11 and 17 are rejected for the same reason.
Claim 12 depends from claim 11, and claim 18 depends from claim 17. Claims 12 and 18 recite further details of the abstract idea. Claims 12 and 18 both also recite a further additional element for displaying the accumulated energy expenditure value on a display of a device configured to be worn by the user during collection of the motion data. The displaying step is simply outputting the result of the abstract idea and is insignificant extra solution activity. The displaying step is recited at a high level of generality and does not integrate the abstract idea into a practical application and is not significantly more than the abstract idea.
Claims 13-15 depend from claim 12. Claims 19 and 20 depend from claim 18. Claims 13-15, 19 and 20 only recite further details of the abstract idea and do not recite any further additional elements. Therefore claims 13-15, 19 and 20 are rejected for the same reason.
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 9 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.
Claim 9 recites the limitation "the display" in line 8. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claim(s) 1-10, 13-16, 19 and 20 is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by the article “The Development of the SenseWear armband, a Revolutionary Energy Assessment Device to Assess Physical Activity and Lifestyle” by Andre et al. (Andre).
Claim 1
Andre teaches a housing configured to be worn on an appendage of a user (Figs. 1, 2), comprising:
a processor (page 2, lines 13-19; page 7, lines 15-30);
and a sensor configured to capture motion data of the user (Figs. 1, 2, accelerometer 1).
With regard to a non-transitory computer-readable medium comprising computer-executable instructions that when executed by the processor perform at least: based on motion data obtained from a sensor worn by a user, detecting arm swing peaks and bounce peaks in the motion data; Andre teaches a SensorWear Armband that includes using the accelerometer data to detect arm swings and walking and stepping, which corresponds to bounce (page 10, last paragraph to page 11, 1st paragraph; page 12, Section III).
With regard to calculating a step frequency of the user during a time period based on at least one of the arm swing peaks or the bounce peaks in the motion data, Andre teaches using algorithms that capture peaks and steps (page 5, The SenseWear Pro2 Armband, lines 5-9, and using different algorithms to account for the activity (page 9, first paragraph), which corresponds to using arm swings or bounce swings.
Claim 2
Andre teaches receiving a metabolic equivalence value corresponding to classified data from the computer-readable medium on the unitary apparatus, wherein the metabolic equivalence value is utilized to calculate an energy expenditure value (page 6, second paragraph to page 7, The Algorithms section).
Claim 3
Andre teaches that the calculation of the energy expenditure value comprises combining energy expenditure values of classified activities and energy expenditure values of unclassified activities (page 6, second paragraph to page 7, The Algorithms section).
Claim 4
Andre teaches that the sensor comprises an accelerometer (Fig. 1, accelerometer), and the non-transitory computer-readable medium of the unitary apparatus comprises further instructions that when executed by the processor, perform at least:
determining accelerometer magnitude vectors from the accelerometer for a time frame (page 5, lines 10-13; page 5, The SenseWear Pro2 Armband section, pars. 1, 2);
calculating an average value from magnitude vectors for the time frame (page 5, lines 10-13; page 5, The SenseWear Pro2 Armband section, pars. 1, 2; average and variance); and
determining whether the magnitude vectors for the time frame meet an acceleration threshold and be used to quantify steps for at least the time frame (page 5, lines 10-13; page 5, The SenseWear Pro2 Armband section, pars. 1, 2; page 6, pars. 1, 2).
Claim 5
Andre teaches determining that the magnitude vectors for the time frame did not meet an acceleration threshold and therefore are not used to quantify steps for at least the time frame (page 6, par. 6, pages 6-7, The Algorithms section); and
utilizing the data that did not meet the acceleration threshold in a calculation of an energy expenditure value (page 6, par. 6, pages 6-7, The Algorithms section).
Claim 6
Andre teaches determining that at least a portion of the data meets the acceleration threshold and in response, placing acceleration data within an analysis buffer (page 6, par. 2, pages 6-7, The Algorithms section);
calculating a mean acceleration value of the analysis buffer to create a search range of acceleration frequencies related to an expected activity (page 5, The SenseWear Pro2 Armband, pars. 1, 2; page 6, par. 6, pages 6-7, The Algorithms section; page 10, last paragraph to first paragraph on page 11).
analyzing frequencies of the acceleration data within the search range to identify at least one bounce peak and one appendage swing peak (page 6, par. 6, pages 6-7, The Algorithms section; page 10, last paragraph to first paragraph on page 11); and
determining whether to utilize at least one of the bounce peak and the appendage swing peak to quantify steps (page 6, par. 6, pages 6-7, The Algorithms section; page 10, last paragraph to first paragraph on page 11)
Claim 7
Andre teaches that the search range comprises an appendage swing range and a bounce range (page 6, second paragraph; pages 6-7, The Algorithms section; page 10, last paragraph to page 11, first paragraph), and wherein the non-transitory computer-readable medium of the unitary apparatus comprises further instructions that when executed by the processor, perform at least analyzing frequencies within the acceleration data by:
identifying a first frequency peak as an appendage swing peak if the first frequency peak is within the appendage swing range and meets an appendage swing peak threshold ((page 6, par. 6, pages 6-7, The Algorithms section; page 10, last paragraph to first paragraph on page 11); and
identifying a second frequency peak as a bounce peak if the second frequency peak is within the bounce range and meets a bounce peak threshold (page 6, par. 6, pages 6-7, The Algorithms section; page 10, last paragraph to first paragraph on page 11).
Claim 8
Andre teaches quantifying a number of appendage swing peaks and bounce peaks ((page 6, par. 6, pages 6-7, The Algorithms section; page 10, last paragraph to first paragraph on page 11); and
utilizing the quantification of appendage swing peaks and bounce peaks in a calculation to select a step frequency and step magnitude (page 6, par. 6, pages 6-7, The Algorithms section; page 10, last paragraph to first paragraph on page 11).
Claim 9
Andre teaches that the time period is a first time period, and the non-transitory computer-readable medium of the unitary apparatus comprises further instructions that when executed by the processor, perform at least:
based on the motion data, assigning an energy expenditure value for the first time period (page 6, par. 6, pages 6-7, The Algorithms section; page 10, last paragraph to first paragraph on page 11);
combining the energy expenditure value for the first time period with an energy expenditure value from a second time period to calculate an accumulated energy expenditure value (page 6, par. 6, pages 6-7, The Algorithms section; page 10, last paragraph to first paragraph on page 11); and
displaying the accumulated energy expenditure value on the display of the unitary apparatus page 12, Internal Validation Studies on SenseWear Pro2 Armband and Current Algorithms, page15, last paragraph).
Claims 10 and 16
With regard to based on motion data obtained from a sensor worn by a user, detecting appendage swing instances and bounce instances in the motion data from the sensor worn on the appendage; Andre teaches a SensorWear Armband that includes using the accelerometer data to detect arm swings and walking and stepping, which corresponds to bounce (page 10, last paragraph to page 11, 1st paragraph; page 12, Section III).
With regard to calculating a step frequency of the user during a time period based on at least one of the appendage swing instances or the bounce instances in the motion data; Andre teaches using algorithms that capture peaks and steps (page 5, The SenseWear Pro2 Armband, lines 5-9, and using different algorithms to account for the activity (page 9, first paragraph), which corresponds to using arm swings or bounce swings.
Claims 13 and 19
Andre teaches that the obtained motion data of the user is only from one or more sensors that are located on the device (Figs. 1 and 2).
Claims 14 and 20
Andre teaches that all information used to calculate the energy expenditure value is either (a) located on the device before collection of the motion data or (b) derived from the motion data without information external to the device (Figs. 1 and 2; page 5, The SenseWear Pro2 Armband, pars. 1 and 2; Fig. 2).
Claim 15
Andre teaches that the sensor comprises an accelerometer (Figs. 1 and 2, accelerometer).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4, 6-11 and 15-20 of U.S. Patent No. 9,747,411. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of claim 1-20 of the present application are taught in the ‘411 patent. Claims 1-9 of the present application correspond to claims 1, 2, 4, and 6-11, respectively of the ‘411 patent. Claims 10-15, correspond to claims 15-20, respectively of the ‘411 patent. Claims 16-20 correspond to claims 15-19, respectively of the ‘411 patent.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4, 6-10, 12 and 15-20 of U.S. Patent No. 9,996,660. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of claim 1-20 of the present application are taught in the ‘660 patent. Claims 1-9 of the present application correspond to claims 1, 2, 4, 6-10 and 12, respectively of the ‘660 patent. Claims 10-15, correspond to claims 15-20, respectively of the ‘660 patent. Claims 16-20 correspond to claims 15-19, respectively of the ‘660 patent.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim1, 2, 4, 6-10, 12 and 15-20 of U.S. Patent No. 10,734,094. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of claim 1-20 of the present application are taught in the ‘094 patent. Claims 1-9 of the present application correspond to claims 1, 2, 4, 6-10 and 12, respectively of the ‘094 patent. Claims 10-15, correspond to claims 15-20, respectively of the ‘094 patent. Claims 16-20 correspond to claims 15-19, respectively of the ‘094 patent.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4, 6-10, 12 and 15-20 of U.S. Patent No. 11,081,207. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of claim 1-20 of the present application are taught in the ‘207 patent. Claims 1-9 of the present application correspond to claims 1, 2, 4, 6-10 and 12, respectively of the ‘207 patent. Claims 10-15, correspond to claims 15-20, respectively of the ‘207 patent. Claims 16-20 correspond to claims 15-19, respectively of the ‘207 patent.
Claims 1-20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4, 6-10, 12 and 15-20 of U.S. Patent No. 11,990,220. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of claim 1-20 of the present application are taught in the ‘220 patent. Claims 1-9 of the present application correspond to claims 1, 2, 4, 6-10 and 12, respectively of the ‘220 patent. Claims 10-15, correspond to claims 15-20, respectively of the ‘220 patent. Claims 16-20 correspond to claims 15-19, respectively of the ‘220 patent.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MANUEL L BARBEE whose telephone number is (571)272-2212. The examiner can normally be reached M-F: 9-5:30..
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/MANUEL L BARBEE/Primary Examiner, Art Unit 2857