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 .
Election/Restrictions
Claims 2-5, 7, 9-12, and 14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on April 23, 2026.
Applicant's election with traverse of claims 1, 6, 8, and 13 (i.e., Group I) in the reply filed on April 23, 2026 is acknowledged. The traversal is on the ground(s) that “it should be no undue burden on the Examiner to consider all claims in the single application.” This is not found persuasive because Applicant’s position is not provided with substantiating remarks or evidence. As delineated in the Requirement for Restriction/Election dated March 6, 2026, each of the four identified groupings of inventions possess distinct methods of estimating a state of a participant’s muscle.
The requirement is still deemed proper and is therefore made FINAL.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
Claim 1: “circumference measuring means,” which is best understood to refer to a “circumference sensor 2” in Applicant’s disclosure, and whose corresponding structure is “for example, a known wearable device that is worn around a body part such as the upper arm in the form of a band and measures the circumference of the muscle concerned by sensing changes in the length of a material made of stretchable fiber, rubber, or the like can be used” (Paragraph 0022).
Claim: “myopotential measuring means,” which is best understood to refer to a “myopotential sensor 3” in Applicant’s disclosure, and whose corresponding structure is “a commercially available wearable device that includes two electrodes positioned on a muscle run in a body part such as the upper arm and measures the action potential that appears during muscle activity as a potential difference between the above electrodes, namely myopotential, can be used” (Paragraph 0023).
Claim 1: “muscle state evaluation means,” which is best understood to refer to “muscle state estimation unit 4” in Applicant’s disclosure, and whose corresponding structure is “composed of a central processing unit, CPU, operated by a predetermined program” (Paragraph 0024).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 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, 8, and dependent claims thereof 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.
Re. Claims 1 and 8: Claim 1 is deficient in multiple ways regarding scope and clarity of the invention.
The claim limitation “the deviation of the circumference measured by the circumference measuring means from the circumference model” is unclear. Applicant’s Specification at Paragraph 0029 states “the muscle state estimation unit 4 compares the circumference measured in the step S1a with a circumference model prepared in advance.” It is unknown how a measured circumference is compared to a model, since one is a physical quantity and the other is an abstract equation [emphasis added]. Examiner presently identifies two possible interpretations of the identified limitation, and requests clarity as to which interpretation is claimed:
In a first interpretation, a measured circumference is compared to a circumference output by a circumference model [emphasis added]. This is in agreement with Applicants Fig. 2, where step S2a recites “comparison with circumference model circumference…” However, it is unknown how the “circumference model circumference” is extracted from the model. Applicant’s Specification teaches that a first known model from Murai may be used as the first example of a circumference model (Paragraph 0031); however, it is not understood how a circumference is extracted from this model, nor is it clear what parameters are input for the quasi-static muscle deformation described, and whether or not these parameters are those identified from the muscle of a subject being analyzed by the claimed invention. Applicant’s Specification further teaches that a second known model from Yamamura may be used as a circumference model (Paragraph 0032); however, this is a finite element simulation, and similar to the previously cited model, it is unclear how a circumference is extracted from this model. Applicant’s Specification further describes “the circumferential model” differently from the “muscle deformation model and the FEM model described above,” and vaguely describes how the model operates without providing clear detail, steps, formula, or equations therefor; thus, it is unclear whether the “circumferential model” is the circumference model which produces a circumference to compare against a measure a circumference, and it is further unclear how a circumference is extracted from such a model, and it is further unclear how the circumference model is implemented – whether with parameters of a subject being analyzed by the claimed invention or with parameters predetermined or derived from population data.
In a second interpretation, a measured circumference is input into a circumference model to identify deviation from model parameters; however, this process is not explicitly described in Applicant’s Specification or shown in the figures. [emphasis added]. Summarily, the action of comparison with a circumference model circumference is unclear, and the steps by which a circumference model circumference is extracted is unclear.
The claim limitation of “the deviation of the electric potential measured by the myopotential measuring means from the muscle tension model” is unclear. Applicant’s Specification teaches that “the well-known hill-type muscle model can be used as a model of muscle tension? (Paragraph 0037); however, again, it is unclear how an electric potential is compared against a muscle tension model or its outputs. In the field of Biomechanics, the Hill model calculates a muscle’s mechanical response by using mechanical equations for aa contractile element in series with a spring element and in parallel with another elastic element. It is unclear how an electric potential is compared to any portion of this model. Steps to represent the electric potential as a possible parameter which may be compared to that of the Hill model is not described. Steps to extract a parameter which may be compared to an electric potential are not described. While Paragraph 0036 and Applicant’s Fig. 2 at step 2B describe that muscle tension is a product of muscle activity multiplied with a 1) function of muscle length and force, 2) a function of muscle velocity, and 3) a function maximum muscle tension, none of these functions are provided with a representative formula or clearly described. Even further, no explanation is provided as to how such functions are obtained from the Hill Model. Paragraph 0040 and provides an equation which shows “[measured muscle activity] – [muscle activity calculated from muscle tension model].’ However, the claim does not state that the myopotential is converted to a value of muscle activity comparable to a measure of muscle activity calculated from the muscle tension model. Additionally, Applicant’s Specification does not provide an explanation as to how “muscle activity” is quantified from the Hill model; no other model is descried in Applicant’s disclosure for a “muscle tension model.” Summarily, it is not explained how a myopotential may be converted to a parameter that may be compared against a model (or its outputs) to obtain a deviation therebetween.
Claim 8 recites limitations of claim 1 mutatis mutandis as a method claim.
Thus, both 1) the claimed models and 2) how parameters of such models are compared to measured values are indefinite, rendering each of claims 1, 8, and dependent claims thereof indefinite.
Thus, with respect to the limitations:
“a muscle state evaluation means for that calculates the muscle state such that an evaluation function, of which variables are the deviation of the circumference measured by the circumference measuring means from the circumference model that defines the relationship between the muscle state and the circumference and the deviation of the electric potential measured by the myopotential measuring means from the muscle tension model that defines the relationship between the muscle state and the electric potential, is minimized.”
The claim is instead interpreted as requiring:
“a muscle state evaluation means which analyzes a circumference of a muscle and an electric potential of a muscle to assess a muscle state.”
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, 6, 8, and 13 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more. Each claim has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of the claims recites steps or instructions for ascertaining and processing data to assess quality of sleep of subject, which is grouped as a mental process. Accordingly, each of the claims recites an abstract idea.
Independent claim 1 recites:
a circumference measuring means that measures the circumference of the muscle (additional element; extra-solution data-gathering);
a myopotential measuring means that measures the electric potential generated by the activity of the muscle (additional element; extra-solution data-gathering); and
a muscle state evaluation means for that calculates the muscle state such that an evaluation function, of which variables are the deviation of the circumference measured by the circumference measuring means from the circumference model that defines the relationship between the muscle state and the circumference and the deviation of the electric potential measured by the myopotential measuring means from the muscle tension model that defines the relationship between the muscle state and the electric potential, is minimized (additional element; abstract idea).
Independent claim 8 recites limitations mutatis mutandis those of claim 1 as a method claim; thus, the analysis patent eligibility of claim 8 proceeds similarly to the analysis of claim 1.
As indicated above, the independent claim recites at least one step or instruction grouped as a mental process. Therefore, each of the independent claims recites an abstract idea. Each limitation, aside from language reciting a generic computer components, can be grouped as a mental process (see italicized portions above), and is addressed as follows:
Firstly, the claim possesses multiple issues of indefiniteness. For purposes of examination, the limitations claimed as being out by the muscle state evaluation means will be interpreted as follows:
“a muscle state evaluation means that calculates a muscle state such that an evaluation function an evaluation function is minimized,
wherein the evaluation function comprises variables of:
a deviation between a circumference measured by the circumference measuring means and a circumference of a cirmodel that defines the relationship between the muscle state and the circumference and
a deviation of the electric potential measured by the myopotential measuring means from a muscle tension model that defines the relationship between the muscle state and the electric potential, is minimized”
Notwithstanding issues regarding indefiniteness, the limitations carried out by the muscle state evaluation means encompass an individual observing data from requisite data-gathering elements (i.e., the circumference measuring means, and mypotential measuring means), and a series of evaluations either mentally or by pen-and-paper practice. Since both models are not limited in how they are implemented, a circumference model may be as simple as identifying an average circumference of a muscle from a population; similarly, a muscle tension model may be as simple as identifying the range of muscle tension for a population via strength measurements. Identifying a deviation from such simplistic models requires no more than a process of subtraction. Entering such deviations into a formula which may be minimized could include a repeating measurements until a measured circumference and muscle activity do not largely deviate from simplistic model outputs, or identifying inherent constraints in the simplistic models themselves that cause them to produce a minimized output, or identifying constraints for constants that multiply such deviations, or performing regression analysis on multiple measured values or model inputs/outputs.
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.
Alternatively or additionally, these steps describe the concept of using implicit mathematical formula(s) (i.e., evaluation and/or minimization of models) to derive a conclusion based on input of medical data, which corresponds to concepts identified as abstract ideas by the courts, such as in 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 steps above is not meaningfully different than those mathematical concepts found by the courts to be abstract ideas.
The dependent claims merely include limitations that either further define the abstract idea.
Thus, these concepts are similar to court decisions of abstract ideas of itself: collecting, displaying, and manipulating data (Int. Ventures v. Cap One Financial), collecting information, analyzing it, and displaying certain results of the collection and analysis (Electric Power Group), collection, storage, and recognition of data (Smart Systems Innovations).
Step 2A, Prong 2
The above-identified abstract idea is not integrated into a practical application because the additional elements, either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use.
More specifically:
Independent claim 1 recites the additional elements of:
a circumference measuring means;
a myopotential measuring means;
a muscle state evaluation means;
Such additional elements are generically recited elements which do not improve the functioning of a computer or any other technology or technical field. The claim recites merely acquiring data from generically recited circumference measuring means and myopotential measuring means having no operative connection to the evaluation means besides communication of obtained data, which amounts to insignificant, extra-solution activity in the form of mere data gathering, which does not constitute an integration into a practical application. Although the sensors may imply particular structure, their use in the mental process is merely extra-solution. See MPEP 2106.05(b).III:
“Use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not integrate a judicial exception or provide significantly more. See Bilski, 561 U.S. at 610, 95 USPQ2d at 1009 (citing Parker v. Flook, 437 U.S. 584, 590, 198 USPQ 193, 197 (1978)), and CyberSource v. Retail Decisions, 654 F.3d 1366, 1370, 99 USPQ2d 1690 (Fed. Cir. 2011) (citations omitted)”
The muscle state evaluation means are recited at a high-level of generality (i.e., as a generic processors and memory performing a generic computer function of performing calculations and storing data, respectively) such that it amounts no more than mere instructions to apply the exception using a generic computer component.
Thus, such additional elements do not serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation 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. Furthermore, the above-identified generically recited elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea is not integrated into a practical application.
Moreover, the above-identified abstract idea is not integrated into a practical application under because the claimed method and system merely implements the above-identified abstract idea using rules (e.g., computer instructions) executed by a computer (e.g., muscle state evaluation means 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. 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. 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. Examiner notes that the abstract idea alone cannot provide the improvement. Additional elements which provide requisite data gathering for the judicial exception amount to no more than adding insignificant extra-solution activity to the judicial exception, and cannot considered as providing an improvement in combination with the judicial exception. See MPEP 2106.04(d)(1) and MPEP 2105.05(a).
Thus, for these additional reasons, the abstract ideas identified above in the independent claims (and their respective dependent claims) are not integrated into a practical application.
Claim 8 does not recite any additional elements and is entirely abstract.
Accordingly, the claims are each directed to an abstract idea.
Step 2B
None of the claims include additional elements that, when viewed as a whole, are sufficient to amount to significantly more than the abstract idea for at least the following reasons:
Independent claim 1 recites:
a circumference measuring means;
a myopotential measuring means;
a muscle state evaluation means;
Applicant’s Specification demonstrates that each of the above cited means is considered a well-understood, routine, and conventional element.
As per Applicant’s Paragraph 0022, a circumference measuring means is described as “a known wearable device that is worn around a body part such as the upper arm in the form of a band and measures the circumference of the muscle…” [emphasis added].
As per Applicant’s Paragraph 0023, a myopotential measuring means is described as “a commercially available wearable device” [emphasis added].
As per Applicant’s Paragraph 0024, a muscle state evaluation means is described as “composed of a central processing unit, CPU, operated by a predetermined program,” which is reasonably construed as a generic computing device.
For each the above additional elements, Applicant’s disclosure is not particular regarding their structure. No special programming or algorithms are indicated for how such elements operate. 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 medical technology arts. Thus, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the medical technology industry or medical technology arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional element because it describes such an additional element in a manner that indicates that the additional element is 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 Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
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 and merely utilize already available computers and known sensors with their already available basic functions to use as tools in executing the claimed process.
Dependent claims 6 and 13 do not recite any additional elements.
The recitation of the above-identified additional limitations in the claims amount to mere instructions to implement the abstract idea on a computer, receiving data from known sensor elements. 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 does not provide significantly more. See 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.
For at least the above reasons, the claims are directed to applying an abstract idea on a general purpose computer without (i) improving the performance of the computer itself, or (ii) providing a technical solution to a problem in a technical field. In other words, none of the claims provide 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.
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 the independent claims do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment (processing of sensor data). That is, 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. 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. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. As such, the above-identified additional elements, when viewed as whole, 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. Thus, the claims merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself, or (ii) provide a technical solution to a problem in a technical field.
Therefore, none of the claims recite significantly more than the abstract idea itself.
Accordingly, the claims are not patent eligible and rejected under 35 U.S.C. 101 as being directed to abstract ideas implemented on a generic computer in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al.
Claim Rejections - 35 USC § 102
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.
Claims 1, 6, 8, and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by:
Obma (US 20160242646 A1) (hereinafter – Obma).
Re. Claims 1 and 8: Obma teaches a muscle state estimation device for estimating the state of a participant's muscle (Paragraph 0003: “In the context of the present invention, certain physical and physiological parameters can be derived from monitoring… muscles that are disposed at the hypodermis or deeper, i.e., subcutaneously;” Paragraph 0010: muscle activity monitoring; Paragraph 0012: atrophy monitoring),
comprising:
a circumference measuring means that measures the circumference of the muscle (Paragraph 0012: “For example, one such wearable and wearable sensing device could be used to monitor leg swelling or sense a change in the circumference of a patient's leg, either of which could be an indicator of one of several deleterious post-operative complications;” paragraph 0024: “…(b) limb circumference monitoring electronics in the form of longitudinally-extendable wires woven into the fabric of the wearable, or other design expediencies that would allow for measurement of such limb circumference, including a length of non-extendable material, the ends of which would be secured within a sensor having a stretch sensor, for example…;” Paragraph 0058: oxygen saturation sensor to detect circumference changes; Paragraph 0078: “Alternatively, the band 22 could also comprise a plurality of longitudinally-extendable wires woven into the fabric of the wearable 10, or other design expediencies that would allow for the detection of changes in limb circumference at that point of the patient's thigh T. The lower portion 14 similarly comprises a similar structure 24. Other placements for the circumferential sensors 22, 24 are within the scope of the present invention”);
a myopotential measuring means that measures the electric potential generated by the activity of the muscle (Paragraph 0010: “…EMG, which is non-invasive and where skin surface electrodes assess muscle activity from the skin surface immediately above or atop the subcutaneous muscle;” Paragraph 0066: “This EMG technology can likewise be built into a wearable in accordance with the present invention;” Paragraphs 0073, 0074, 0079, 0095).
Regarding the limitations:
“a muscle state evaluation means for that calculates the muscle state such that an evaluation function, of which variables are the deviation of the circumference measured by the circumference measuring means from the circumference model that defines the relationship between the muscle state and the circumference and the deviation of the electric potential measured by the myopotential measuring means from the muscle tension model that defines the relationship between the muscle state and the electric potential, is minimized.”
Pursuant to the interpretation provided in the rejection of the claims under 35 U.S.C. 112(b), for purposes of examination, the claim is interpreted as requiring:
“a muscle state evaluation means which analyzes a circumference of a muscle and an electric potential of a muscle to assess a muscle state.”
Obma teaches the combined use of circumference sensing and electric potential sensing (Paragraph 0074: “Limb circumference measurements and EMG can also track muscle atrophy and activity. Based on these parameters, the physical therapist can adjust exercises. Alternatively, a mobile application (or “app”) can be used to customize a rehab protocol based on joint function and muscle activity received;” Figs. 1, 2, 17, 20: each reciting differing sensing devices (i.e., circumference and EMG measurements) to transfer to a computing device for analysis, with output provided at Figs. 21-32).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Song et al. (KR 20210157203 A)
Yoo et al. (KR 20210064806 A)
Carkner et al. (US 20090227903 A1)
Each of the above references teaches the use of a circumference measuring means and a myopotential measuring means to analyze a state of a muscle.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUSTIN XU whose telephone number is (571)272-6617. The examiner can normally be reached Mon-Fri 7:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander Valvis can be reached at (571) 272-4233. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JUSTIN XU/ Primary Examiner, Art Unit 3791
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