DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim 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 not directed to patent eligible subject matter. Based upon consideration of all of the relevant factors with respect to the claim as a whole, the claims are determined to be directed to a judicial exception, specifically an abstract idea, without significantly more.
Step 1
The claimed inventions in claims 1-20 are directed to statutory subject matter as the claim(s) recite(s) a method and system for cycling data analysis and injury prediction.
Step 2A, Prong One
Claims 1, 11, and 20 recite the following steps or instructions for “measuring data…”, “determining one or more cycling phases and data…”, “measuring expected measure and general impact measure…to determine an injury probability…”; and “recommending…at least…change and activity” , which is grouped as a mental process in MPEP 2106.04(a)(2)(III) or a certain method of organizing human activity in MPEP 2106.04(a)(2)(II) or mathematical concept in MPEP 2106.04(a)(2)(I).
For example, the limitations concern data collection, data analysis and providing a recommendation based on that analysis. These are nothing more than a medical professional receiving data of a workout, using mathematical concepts to analyze the physiologic and exercise data, based on that data determining the probability for an injury, and finally recommending a change in activity to the individual.
Accordingly, each of the above-identified claims recites an abstract idea as in MPEP 2106.04(a).
In addition, the claims recite additional elements of “one or more sensors”, “memory”, and “at least one processor”.
Step 2A, Prong Two
The above-identified abstract idea in each of independent Claims 1, 11, and 20 (and respective dependent claims 2-10 and 12-19) is not integrated into a practical application under MPEP 2106.04(d) because the additional elements (identified above in independent Claims 1, 11, and 20), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use according to MPEP 2106.05(h) and appear to be extra solution activity where data to be analyzed by the abstract idea is acquired or obtained.
More specifically, the additional elements of a “memory” and “processor” are generically recited computer elements in independent Claims 1, 11, and 20 (and respective dependent claims 2-10 and 12-19) which do not improve the functioning of a computer, or any other technology or technical field according to MPEP 2106.04(d)(1) and 2106.05(a). Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine according to MPEP 2106.05(b), effect a transformation according to MPEP 2106.05(c), provide a particular treatment or prophylaxis according to MPEP 2106.04(d)(2) or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception according to MPEP 2106.04(d)(2) and 2106.05(e). Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer in accordance with MPEP 2106.05(f). For at least these reasons, the abstract idea identified above in independent Claims 1, 11, and 20 (and respective dependent claims 2-10 and 12-19) is not integrated into a practical application in accordance with MPEP 2106.04(d).
Moreover, the above-identified abstract idea is not integrated into a practical application in accordance with MPEP 2106.04(d) because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and using mathematical concepts) using rules (e.g., computer instructions) executed by a computer (e.g., “memory” and “processor” as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer according to MPEP 2106.05(f). Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims according to MPEP 2106.05(a). That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1, 11, and 20 (and respective dependent claims 2-10 and 12-19) is not integrated into a practical application under MPEP 2106.04(d)(I).
Accordingly, Claims 1, 11, and 20 (and respective dependent claims 2-10 and 12-19) are each directed to an abstract idea according to MPEP 2106.04(d).
Step 2B
Claims 1, 11, and 20 (and respective dependent claims 2-10 and 12-19)do not include additional elements that are sufficient to amount to significantly more than the abstract idea in accordance with MPEP 2106.05 for at least the following reasons:
These claims require the additional elements of a “memory” and “processor”. These above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, MPEP 2106.05(d)(II) along with Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Per Applicant’s specification:
A “sensor” is described in the disclosure as a component that is generic and conventionally used and known in the art: “a mobile phone, a notebook, etc., a wearable device includes at least one of, but not limited to, a wristband, a wristwatch, an augmented reality glasses, smart glasses, or any other electronic device that can be worn as an accessory, implanted in the user's body, embedded in clothing, or tattooed on the skin, and a personal audio device includes at least one of, but not limited to, earbuds, headphones, earphones, hearing aids, head-worn audio devices, shoulder- or body-worn acoustic devices.” [37 – published app].
The examiner notes that these devices and their function are well understood routine and conventional in the art. Accordingly, in light of Applicant’s specification, “one or more sensors” and their function are considered well-understood routine and conventional in the art, performing presolution activities that are merely data gathering steps for the abstract idea in Claim 1.
Additionally, the claimed term “memory” and/or “processor” is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process. See MPEP 2106.05(f).
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the “memory” and “processor”. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see MPEP 2106.05(d)(I)(2) and 2106.07(a)(III)). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications along with MPEP 2106.05(d)(I)).
The recitation of the above-identified additional limitations in Claims 1, 11, and 20 (and respective dependent claims 2-10 and 12-19) amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See MPEP 2106.05(f) along with Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. See MPEP 2106.05(a) along with McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, per MPEP 2106.05(a), the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the method and device of Claims 1, 11, and 20 (and respective dependent claims 2-10 and 12-19) are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself or providing a technical solution to a problem in a technical field according to MPEP 2106.05(a), or (ii) providing meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e).
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in Claims 1, 11, and 20 (and respective dependent claims 2-10 and 12-19) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment according to MPEP 2106.05(h). When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment according to MPEP 2106.05(h). When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e). Moreover, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity according to MPEP 2106.05(g). As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application as required by MPEP 2106.05.
Regarding dependent claims 2-10 and 12-19, the limitations of these claims further define limitations directed to the abstract idea. As such, claim 1-20 when analyzed as a whole, do not appear to be patent eligible for the reasons set forth above.
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 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 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 –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ackland et al. (US 2016/0263439; hereinafter “Ackland”).
Regarding claim 1, Ackland teaches a method for mitigating cycle related injury by a device, the method comprises: measuring data including at least one of gait pattern, cognitive pattern, and one or more physiological parameters of a user using one or more sensors (e.g. ¶¶ 2 – where the examiner considers leg turnover and/or stroke rate to be “gait pattern” and “speed” is indicated in the specification of this application as a type of “cognitive pattern”); determining one or more cycling phases and data related to the one or more cycling phases based on the measured data (e.g. ¶¶ 197, 207-208 – “Activity Types”); measuring expected measure (speed) and general impact measure for an injury of the user during cycling session to determine an injury probability of the user based on the expected measure and the general impact measure (e.g. ¶¶ 347; 375 – where the examiner considers “too much speedwork” to indicate the measured speed parameter as the “expected measure” as claimed; ¶¶ 229 – where the examiner considers “cardiovascular fatigue detected” to be the “general impact measure”); and recommending at least one of a phase change and at least one activity to the user based on the determined injury probability (e.g. ¶¶ 355 – “The following advice would be given: ‘Too much Up Tempo speedwork, this can overtrain you or cause injury. Discontinue Up Tempo training.’”; ¶¶ 375 – “If the user did 72 meters or more then the following advice would be given: “Too much Hill work, this can overtrain you or cause injury. Discontinue Hill Training””).
Regarding claim 11, Ackland discloses a device for mitigating cycle related injury, the device comprising: memory storing instructions; and at least one processor (e.g. ¶¶ 689) configured to, when executing the instructions, cause the device to perform operations comprising: measuring data including at least one of gait pattern, cognitive pattern, and one or more physiological parameters of a user using one or more sensors (e.g. ¶¶ 2 – where the examiner considers leg turnover and/or stroke rate to be “gait pattern” and “speed” is indicated in the specification of this application as a type of “cognitive pattern”); determining one or more cycling phases and data related to the one or more cycling phases based on the measured data (e.g. ¶¶ 197, 207-208 – “Activity Types”); measuring expected measure and general impact measure for an injury of the user during cycling session to determine an injury probability of the user based on the expected measure and the general impact measure (e.g. ¶¶ 347; 375 – where the examiner considers “too much speedwork” to indicate the measured speed parameter as the “expected measure” as claimed; ¶¶ 229 – where the examiner considers “cardiovascular fatigue detected” to be the “general impact measure”); and recommending at least one of a phase change and at least one activity to the user based on the determined injury probability (e.g. ¶¶ 355 – “The following advice would be given: ‘Too much Up Tempo speedwork, this can overtrain you or cause injury. Discontinue Up Tempo training.’”; ¶¶ 375 – “If the user did 72 meters or more then the following advice would be given: “Too much Hill work, this can overtrain you or cause injury. Discontinue Hill Training””).
Regarding claim 20, Ackland discloses a non-transitory computer readable storage medium storing instructions which, when executed by at least one processor of a device, cause the device to perform operations comprising: measuring data including at least one of gait pattern, cognitive pattern, and one or more physiological parameters of a user using one or more sensors (e.g. ¶¶ 2 – where the examiner considers leg turnover and/or stroke rate to be “gait pattern” and “speed” is indicated in the specification of this application as a type of “cognitive pattern”); determining one or more cycling phases and data related to the one or more cycling phases based on the measured data (e.g. ¶¶ 197, 207-208 – “Activity Types”); measuring expected measure and general impact measure for an injury of the user during cycling session to determine an injury probability of the user based on the expected measure and the general impact measure (e.g. ¶¶ 347; 375 – where the examiner considers “too much speedwork” to indicate the measured speed parameter as the “expected measure” as claimed; ¶¶ 229 – where the examiner considers “cardiovascular fatigue detected” to be the “general impact measure”); and recommending at least one of a phase change and at least one activity to the user based on the determined injury probability (e.g. ¶¶ 355 – “The following advice would be given: ‘Too much Up Tempo speedwork, this can overtrain you or cause injury. Discontinue Up Tempo training.’”; ¶¶ 375 – “If the user did 72 meters or more then the following advice would be given: “Too much Hill work, this can overtrain you or cause injury. Discontinue Hill Training””).
Regarding claims 2 and 12, Ackland discloses the one or more cycling phases include at least one of: a warm-up phase, an intense phase, and a break phase, and the data related to the one or more cycling phase includes: speed and duration of each cycling phase and are notified to the user using standard recommendations or derived recommendations depending on deviation calculation of pre-cycling state with respect to baseline condition of the user (e.g. ¶¶ 376 – “multiple segments of the Easy Activity Type were produced in this workout. If we include a warm up and a warm down and count Easy segments between other Activity Types the number of Easy Activity Type segments is 6.”; ¶¶ 134-137 – “coaching advice is defined by automatically generated commentary based on biomechanical technique, control of effort, Activity Plan and workout compliance, and performance measures.”).
Regarding claims 3 and 13, Ackland discloses the pre-cycling state includes: the data of the user measured from the one or more sensors before cycling session, and the baseline condition includes standard values of the data for the user (e.g. ¶¶ 136, 182, 225, 236, etc. – where heart rate variability and heart rate analysis is based on the condition and baseline of the patient).
Regarding claims 4 and 14, Ackland discloses the expected measure is taken based on a plurality of factors including at least one of terrain, speed, posture, and health vitals, with respect to a scenario, and is measured by determining deviation in each factor and taking into account specified weight assigned to each factor (e.g. ¶¶ 128, 210, etc.).
Regarding claims 5 and 15, Ackland discloses the general impact measure is used to determine base injury irrespective of precautionary measures taken by the user, and is measured by summing general impact for each factor (e.g. ¶¶ 228, 375, 484+, etc.).
Regarding claims 6 and 16, Ackland discloses the injury possibility of the user is calculated by summing the expected measure and the general impact measure (e.g. ¶¶ 134-137 – “coaching advice is defined by automatically generated commentary based on biomechanical technique, control of effort, Activity Plan and workout compliance, and performance measures.”).
Regarding claims 7 and 17, Ackland discloses the recommended phase change is selected from one of phases including a break phase, a recovery phase, and a warm- up phase (e.g. ¶¶ 376 – “multiple segments of the Easy Activity Type were produced in this workout. If we include a warm up and a warm down and count Easy segments between other Activity Types the number of Easy Activity Type segments is 6.”).
Regarding claims 8 and 18, Ackland discloses determining an impact of the phase change based on physiological parameters of the user; and modifying the recommended phase change based on the impact of the phase change (e.g. ¶¶ 355-380 – where it is clear the phase of the workout is critical in the analysis).
Regarding claims 9 and 19, Ackland discloses determining a safe cycling index based on remaining injury possibility during post cycling session; and providing at least one post cycling recommendation based on the safe cycling index (e.g. ¶¶ 356 – “if the planned duration matches within + or −10% (e.g 4 mins+/−24 secs) the real time comment is “Excellent, your rep duration was correct”.”; ¶¶ 422 and following table – “Excellent, keep it up! Your legs are getting stronger!”).
Regarding claim 10, Ackland discloses the remaining injury possibility is determined based on at least one of the gait pattern, the cognitive pattern, and the physiological pattern of the user, during the post cycling session (e.g. ¶¶ 347).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael D’Abreu whose telephone number is (571) 270-3816. The examiner can normally be reached on 7AM-4PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Hamaoui can be reached at (571) 270-5625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL J D'ABREU/Primary Examiner, Art Unit 3796