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 1-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claims 1-11 are all within at least one of the four categories.
The independent claim 1 recites:
interpolate interpolation data into a period in which sensor data is lost; and
calculate a gait parameter by using the sensor data obtained by interpolating the interpolation data
The independent claim 10 recites:
interpolating interpolation data into a period in which sensor data is lost; and
calculating a gait parameter by using the sensor data obtained by interpolating the interpolation data
The independent claim 11 recites:
interpolating interpolation data into a period in which sensor data is lost; and
calculating a gait parameter by using the sensor data obtained by interpolating the interpolation data
The above claim limitations constitute an abstract idea that is part of the Mathematical Concepts and/or Mental Processes group identified in the 2019 Revised Patent Subject Matter Eligibility Guidance published in the Federal Register (84 FR 50) on January 7, 2019. See footnotes 14 and 15.
“A mathematical relationship is a relationship between variables or numbers. A mathematical relationship may be expressed in words ….” October 2019 Update: Subject Matter Eligibility, II. A. i. “[T]here are instances where a formula or equation is written in text format that should also be considered as falling within this grouping.” Id. at II. A. ii. “[A] claim does not have to recite the word “calculating” in order to be considered a mathematical calculation.” Id. at II. A. iii. See for example, SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163-65 (Fed. Cir. 2018) (performing a resampled statistical analysis to generate a resampled distribution).
The claimed steps of interpolating and calculating can be practically performed in the human mind using mental steps or basic critical thinking, which are types of activities that have been found by the courts to represent abstract ideas.
Examples of ineligible claims that recite mental processes include:
a claim to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group, LLC v. Alstom, S.A.;
claims to “comparing BRCA sequences and determining the existence of alterations,” where the claims cover any way of comparing BRCA sequences such that the comparison steps can practically be performed in the human mind, University of Utah Research Foundation v. Ambry Genetics Corp.
a claim to collecting and comparing known information (claim 1), which are steps that can be practically performed in the human mind, Classen Immunotherapies, Inc. v. Biogen IDEC.
See p. 7-8 of October 2019 Update: Subject Matter Eligibility.
With respect to the pending claims, for example, a physician can perform the claimed step of interpolating by mentally interpolating data into a time period. The experienced physician can then calculate a gait parameter by looking at the sensor data obtained. Thus, the claims can be readily interpreted as being a mere application of a mental process on a computer.
Regarding the dependent claims, the dependent claims are directed to either 1) steps that are also abstract or 2) additional data output that is well-understood, routine and previously known to the industry. For example, dependent claims 2-9 recite steps (e.g. interpolating and executing) that can be performed in the mind. Although the dependent claims are further limiting, they do not recite significantly more than the abstract idea. A narrow abstract idea is still an abstract idea and an abstract idea with additional well-known equipment/functions is not significantly more than the abstract idea.
This judicial exception (abstract idea) in claims 1-10 is not integrated into a practical application because:
The abstract idea amounts to simply implementing the abstract idea on a computer. For example, the recitations regarding the generic computing components for acquiring, interpolating, calculating, transmitting, stopping, performing, inserting, executing, displaying merely invoke a computer as a tool.
The data-gathering step (acquiring) and the data-output step (displaying) do not add a meaningful limitation to the method as they are insignificant extra-solution activity.
There is no improvement to a computer or other technology. “The McRO court indicated that it was the incorporation of the particular claimed rules in computer animation that "improved [the] existing technological process", unlike cases such as Alice where a computer was merely used as a tool to perform an existing process.” MPEP 2106.05(a) II. The claims recite a computer that is used as a tool for acquiring, interpolating, calculating, transmitting, stopping, performing, inserting, executing, displaying.
The claims do not apply the abstract idea to effect a particular treatment or prophylaxis for a disease or medical condition. Rather, the abstract idea is utilized to determine a relationship among data to provide information about gait.
The claims do not apply the abstract idea to a particular machine. “Integral use of a machine to achieve performance of a method may provide significantly more, in contrast to where the machine is merely an object on which the method operates, which does not provide significantly more.” MPEP 2106.05(b). II. “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 provide significantly more.” MPEP 2106.05(b) III. The pending claims utilize a computer for acquiring, interpolating, calculating, transmitting, stopping, performing, inserting, executing, displaying. The claims do not apply the obtained data to a particular machine. Rather, the data is merely output in an post-solution step.
The additional elements are identified as follows: a first memory; a first processor; a sensor including acceleration sensor and angular velocity sensor; a data processing device; a second memory; a second processor; and a terminal device.
Those in the relevant field of art would recognize the above-identified additional elements as being well-understood, routine, and conventional means for data-gathering and computing, as demonstrated by
Applicant’s background in the specification;
Applicant' s specification (para [0050]-[0051], [0096], [0110]-[0120]) which discloses that sensors, terminal device, memory, processor and data processing device comprise generic computer components that are configured to perform the generic computer functions (e.g. acquiring, transmitting, displaying) that are well-understood, routine, and conventional activities previously known to the pertinent industry; and
the patent publications cited herewith:
Wilson (US 11158422 B1)
See Fig. 1
the non-patent literature cited herewith:
Jasiewicz, Jan M., et al. "Gait event detection using linear accelerometers or angular velocity transducers in able-bodied and spinal-cord injured individuals." Gait & posture 24.4 (2006): 502-509.
see Fig. 1 and Section 2: Methods
Thus, the claimed additional elements “are so well-known that they do not need to be described in detail in a patent application to satisfy 35 U.S.C. § 112(a).” Berkheimer Memorandum, III. A. 3.
Furthermore, the court decisions discussed in MPEP § 2106.05(d)(lI) note the well-understood, routine and conventional nature of such additional elements as those claimed. See option III. A. 2. in the Berkheimer memorandum.
When considered in combination, the additional elements (i.e. the generic computer functions and conventional equipment/steps) do not amount to significantly more than the abstract idea. Looking at the claim limitations 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 or improves any other technology. Their collective functions merely provide conventional computer implementation.
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)(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 1-5 and 8-11 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Wilson (US 11158422 B1).
With respect to claim 1, Wilson discloses a gait measurement device (see Fig. 1-2 and col 10 lines 26-27, measurement and testing system generally seen as #100 with a data acquisition/data processing device #104), comprising:
a first memory storing instructions (see col 12 lines 39-61, data acquisition/data processing device #104 has a memory #104b); and
a first processor connected to the first memory (see col 12 lines 39-61, data acquisition/data processing device #104 has a microprocessor #104a connected to memory #104b) and configured to execute the instructions to:
acquire sensor data related to a motion of a foot (see col 12 lines 39-61 and col 14 lines 56-67, force measurement assembly #102 comprises sensors that acquire data related to motion of subject’s foot);
interpolate interpolation data into a period in which the sensor data is lost (see col 3 lines 43-54 and col 64 lines 37-67 and col 65 lines 55-col 66 line 15 and see Fig. 1-2: the identification of time stamps that have missing values such as in the second measurement device IMU which has lower sampling frequency than the first measurement device which is the force plate where filling in the missing data for the second measurement device will utilize interpolation);
calculate a gait parameter by using the sensor data obtained by interpolating the interpolation data (see col 51 lines 34-47 and col 52 lines 5-col 53 line 54 and col 54 lines 9-24, the determination of different events and phases of a gait cycle such as a double stance phase; and see col 3 lines 43-54 and col 64 lines 37-67 and col 65 lines 55-col 66 line 15 and see Fig. 1-2, the identification of the time stamps that have missing values are utilized to calculate stance phases using interpolation for the missing values of second measurement device); and
transmit the gait parameter (see col 66 lines 27-47, data is transmitted).
With respect to claim 2, all limitations of claim 1 apply in which Wilson further discloses wherein the first processor is configured to execute the instructions to stop the acquisition of the sensor data in a communication period of the gait parameter (see col 69 lines 9-15, the stop start feature allows microcontroller to send samples when digital time reference signal is zero), and interpolate loss of the sensor data in the communication period (see col 68 lines 1-63, interpolation function is interpolating the loss of sensor data).
With respect to claim 3, all limitations of claim 2 apply in which Wilson further discloses wherein the first processor is configured to execute the instructions to perform linear interpolation between the sensor data acquired immediately before and immediately after the communication period (see col 68 lines 1-63 and see col 69 lines 9-15, interpolation function is interpolating the loss of sensor data linearly before and after a start stop feature).
With respect to claim 4, all limitations of claim 2 apply in which Wilson further discloses wherein the first processor is configured to execute the instructions to interpolate the loss of the sensor data in the communication period by using the sensor data acquired immediately before or immediately after the communication period (see col 68 lines 1-63 and see col 69 lines 9-15, interpolation function is interpolating the loss of sensor data linearly before and after a start stop feature).
With respect to claim 5, all limitations of claim 4 apply in which Wilson further discloses wherein the first processor is configured to execute the instructions to insert the sensor data acquired immediately before or immediately after the communication period as the sensor data in the communication period (see col 68 lines 1-63 and see col 69 lines 9-15, interpolation function is interpolating the loss of sensor data linearly before and after a start stop feature and insert that into the curve).
With respect to claim 8, all limitations of claim 1 apply in which Wilson further discloses a gait measurement system (see Fig. 1), comprising:
the gait measurement device according to claim 1 (see claim 1 above; and see Fig. 1, #104); and
a data processing device (see col 12 lines 62-67 – col 13 lines 1-20, remote computing device #136) comprising
a second memory storing instructions (see col 12 lines 62-67 – col 13 lines 1-20,#136 also includes memory); and
a second processor connected to the second memory (see col 12 lines 62-67 – col 13 lines 1-20, #136 includes microprocessor with memory) and configured to execute the instructions to:
acquire the gait parameter transmitted by the gait measurement device installed in a foot portion of a user (see col 21 lines 11-46 and Fig. 1, #136 acquires data from #100 where #100 has force plates on which a user stands on), and
execute data processing related to a body condition of the user by using the gait parameter (see col 12 lines 62-67 – col 13 lines 1-20, #136 runs measurement and testing software program to execute data processing related to a condition of a user using the acquired data from #100).
With respect to claim 9, all limitations of claim 8 apply in which Wilson further discloses wherein the data processing device of the second processor is configured to execute the instructions to cause information related to the body condition of the user obtained by the data processing using the gait parameter to be displayed on a screen of a terminal device visually recognizable by the user (see col 20 lines 51-67- col 21 lines 1-45, virtual display #130 shows a user the data processed in a visual graphical snapshot; and see col 12 lines 62-67 – col 13 lines 1-20).
With respect to claim 10, Wilson discloses a gait measurement method performed by a computer (see Fig. 1-2 and col 10 lines 26-27, measurement and testing system generally seen as #100 with a data acquisition/data processing device #104), comprising:
acquiring sensor data regarding a motion of a foot (see col 12 lines 39-61 and col 14 lines 56-67,force measurement assembly #102 comprises sensors that acquire data related to motion of subject’s foot);
interpolating interpolation data into a period in which the sensor data is lost (see col 3 lines 43-54 and col 64 lines 37-67 and col 65 lines 55-col 66 line 15 and see Fig. 1-2: the identification of time stamps that have missing values such as in the second measurement device IMU which has lower sampling frequency than the first measurement device which is the force plate where filling in the missing data for the second measurement device will utilize interpolation);
calculating a gait parameter by using the sensor data obtained by interpolating the interpolation data (see col 51 lines 34-47 and col 52 lines 5-col 53 line 54 and col 54 lines 9-24, the determination of different events and phases of a gait cycle such as a double stance phase; and see col 3 lines 43-54 and col 64 lines 37-67 and col 65 lines 55-col 66 line 15 and see Fig. 1-2, the identification of the time stamps that have missing values are utilized to calculate stance phases using interpolation for the missing values of second measurement device); and
transmitting the calculated gait parameter (see col 66 lines 27-47, data is transmitted).
With respect to claim 11, Wilson discloses a non-transitory recording medium storing a program (see Fig. 1-2 and col 10 lines 26-27, measurement and testing system generally seen as #100 with a data acquisition/data processing device #104; see col 12 lines 39-61, #104 has memory #104b) causing a computer to execute:
a process of acquiring sensor data related to a motion of a foot (see col 12 lines 39-61 and col 14 lines 56-67,force measurement assembly #102 comprises sensors that acquire data related to motion of subject’s foot);
a process of interpolating interpolation data into a period in which the sensor data is lost (see col 3 lines 43-54 and col 64 lines 37-67 and col 65 lines 55-col 66 line 15 and see Fig. 1-2: the identification of time stamps that have missing values such as in the second measurement device IMU which has lower sampling frequency than the first measurement device which is the force plate where filling in the missing data for the second measurement device will utilize interpolation);
a process of calculating a gait parameter by using the sensor data obtained by interpolating the interpolation data (see col 51 lines 34-47 and col 52 lines 5-col 53 line 54 and col 54 lines 9-24, the determination of different events and phases of a gait cycle such as a double stance phase; and see col 3 lines 43-54 and col 64 lines 37-67 and col 65 lines 55-col 66 line 15 and see Fig. 1-2, the identification of the time stamps that have missing values are utilized to calculate stance phases using interpolation for the missing values of second measurement device); and
a process of transmitting the calculated gait parameter (see col 66 lines 27-47, data is transmitted).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claims 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Wilson in view of Ahn (US 20160074272 A1).
With respect to claim 6, all limitations of claim 4 apply in which Wilson does not disclose wherein the first processor is configured to execute the instructions to insert an average value of the sensor data acquired immediately before and immediately after the communication period as the sensor data in the communication period.
Ahn teaches inserting an average value of sensor data (see paragraph 0082-0083, average of sensed data with respect to gait patterns is calculated).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Wilson with the teachings of Ahn to have inserted an average value of sensor data before and after a communication period because it would have resulted in the predictable result of normalizing the data for interpolation (Ahn: see [0082]-[0083], [0104], [0149]) to reduce error (Ahn: see [0083]).
With respect to claim 7, all limitations of claim 1 apply in which Wilson does not specifically disclose a sensor that includes an acceleration sensor that measures accelerations in three axial directions and an angular velocity sensor that measures angular velocities around three axes.
Ahn teaches a sensor that includes an acceleration sensor (see paragraph 0011 and 0077, acceleration data sensed by an inertial measurement sensor that measures in three axial directions) and an angular velocity sensor (see paragraph 0011 and 0077, angular velocity data sensed in three axes).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Wilson with the teachings of Ahn to have includes sensors because it would have resulted the predictable result of detecting plurality of gait patterns using acceleration data and angular velocity data (Ahn: see [0077]) as it is known in the art to use acceleration sensor and angular velocity sensor to measure gait (Ahn: [0098]).
Conclusion
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/N.N.P./Examiner, Art Unit 3791
/MATTHEW KREMER/Primary Examiner, Art Unit 3791