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 .
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.
Claim Objections
Claim 10 is objected to because of the following informalities: “fall risk score” (line 14) appears that it should be “a fall risk score.”
Claim 11 is objected to because of the following informalities: “fall risk score” (line 26) appears that it should be “a fall risk score.”
Appropriate correction is required.
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.
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: “a module for determining an item of data, referred to as profile score, based on data representative of characteristics specific to the individual,” in claims 1 and 11, which corresponds to “a software element, a subset of a software program, which can be compiled separately, either for independent use or to be assembled with other modules of a program, or a hardware element, or a combination of a hardware element and a software subroutine. Such a hardware element can comprise an application-specific integrated circuit (ASIC) or a field-programmable gate array (FPGA) or a digital signal processor (DSP) or any equivalent hardware or any combination of said hardware. Generally, a module is thus an element (software and/or hardware) which makes it possible for a function to be performed” (see page 19, line 26 – page 20, line 7 of Applicant’s specification as originally filed); “a module for computing data, referred to as motive indices, based on the measurements provided by said plurality of sensors and representative of the activity of the individual over a predetermined time interval,” in claims 1 and 11, which corresponds to “a software element, a subset of a software program, which can be compiled separately, either for independent use or to be assembled with other modules of a program, or a hardware element, or a combination of a hardware element and a software subroutine. Such a hardware element can comprise an application-specific integrated circuit (ASIC) or a field-programmable gate array (FPGA) or a digital signal processor (DSP) or any equivalent hardware or any combination of said hardware. Generally, a module is thus an element (software and/or hardware) which makes it possible for a function to be performed” (see page 19, line 26 – page 20, line 7 of Applicant’s specification as originally filed); “a module for computing an item of data, referred to as fall risk score, based on said motive indices and on said profile score,” in claims 1 and 11, which corresponds to “a software element, a subset of a software program, which can be compiled separately, either for independent use or to be assembled with other modules of a program, or a hardware element, or a combination of a hardware element and a software subroutine. Such a hardware element can comprise an application-specific integrated circuit (ASIC) or a field-programmable gate array (FPGA) or a digital signal processor (DSP) or any equivalent hardware or any combination of said hardware. Generally, a module is thus an element (software and/or hardware) which makes it possible for a function to be performed” (see page 19, line 26 – page 20, line 7 of Applicant’s specification as originally filed); “a module for determining a risk of falling, based on a variation in said fall risk score beyond a predetermined threshold over a predetermined time interval,” in claims 1 and 11, which corresponds to “a software element, a subset of a software program, which can be compiled separately, either for independent use or to be assembled with other modules of a program, or a hardware element, or a combination of a hardware element and a software subroutine. Such a hardware element can comprise an application-specific integrated circuit (ASIC) or a field-programmable gate array (FPGA) or a digital signal processor (DSP) or any equivalent hardware or any combination of said hardware. Generally, a module is thus an element (software and/or hardware) which makes it possible for a function to be performed” (see page 19, line 26 – page 20, line 7 of Applicant’s specification as originally filed); and “a radio module configured to be able to transmit the data determined and computed by said processing unit to a remote server,” in claim 7, which corresponds to “a software element, a subset of a software program, which can be compiled separately, either for independent use or to be assembled with other modules of a program, or a hardware element, or a combination of a hardware element and a software subroutine. Such a hardware element can comprise an application-specific integrated circuit (ASIC) or a field-programmable gate array (FPGA) or a digital signal processor (DSP) or any equivalent hardware or any combination of said hardware. Generally, a module is thus an element (software and/or hardware) which makes it possible for a function to be performed” (see page 19, line 26 – page 20, line 7 of Applicant’s specification as originally filed).
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 the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim(s) 1-3 and 7-11 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
For claim 1, the claim language “determining an item of data, referred to as profile score, based on data representative of characteristics specific to the individual” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of determining an item of data, referred to as profile score, based on data representative of characteristics specific to the individual, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 1, the claim language “computing an item of data, referred to as a fall risk score, based on said motive indices and on said profile score” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of computing an item of data, referred to as a fall risk score, based on said motive indices and on said profile score, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 2, the claim language “wherein said module for determining said profile score of said individual comprises an automatic computing model trained to determine a profile score, this computing model, referred to as first model, having been trained using a training database, referred to as profile bank, which comprises data representative of specific characteristics of a plurality of individuals associated with detected fall occurrences for said plurality of individuals” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of determining said profile score of said individual, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. The term “automatic computing model” is treated as a black box and the specification does not describe the specifics of how to achieve the above-recited function(s) with this algorithm. For example, how many and what types of layers are there? How is the data propagated? What logics are programmed to help the machine learning algorithm make a decision? Is the training supervised or unsupervised? What are the weightings? Are other training concepts used such as regression? What strategies are employed to minimize the loss function? How is the clustering problem solved? It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 10, the claim language “determining an item of data, referred to as profile score, based on data representative of characteristics specific to the individual” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of determining an item of data, referred to as profile score, based on data representative of characteristics specific to the individual, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 10, the claim language “computing an item of data, referred to as a fall risk score, based on said motive indices and on said profile score” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of computing an item of data, referred to as a fall risk score, based on said motive indices and on said profile score, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 11, the claim language “determining an item of data, referred to as profile score, based on data representative of characteristics specific to the individual” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of determining an item of data, referred to as profile score, based on data representative of characteristics specific to the individual, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
For claim 11, the claim language “computing an item of data, referred to as a fall risk score, based on said motive indices and on said profile score” does not appear to be described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. A claim may lack written description when the specification does not disclose the computer and the algorithm (i.e., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor invented the claimed subject matter. See MPEP 2161.01(I). Here, the claim recites the function of computing an item of data, referred to as a fall risk score, based on said motive indices and on said profile score, but the specification never discloses the necessary steps and/or flowcharts of how this occurs. It is not enough that a skilled artisan could devise a way to accomplish the function because this is not relevant to the issue of whether the inventor has shown possession of the claimed invention. See MPEP 2161.01(I). Therefore, adequate disclosure is needed.
Dependent claim(s) 1-3 and 7-9 fail to cure the deficiencies of independent claim 1, thus claim(s) 1-3 and 7-11 is/are rejected under 35 U.S.C. 112(a).
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(s) 1-3 and 7-11 is/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.
For claim 1, the claim term “a predetermined time interval” (lines 22-23 and 27) is ambiguous. Claim 1, already recites “a predetermined time interval.” Therefore, it is unclear whether the same predetermined time interval is being referred to or whether these are different predetermined time intervals. The claim is examined under the former interpretation.
For claim 10, the claim term “a predetermined time interval” (lines 17 and 21) is ambiguous. Claim 1, already recites “a predetermined time interval.” Therefore, it is unclear whether the same predetermined time interval is being referred to or whether these are different predetermined time intervals. The claim is examined under the former interpretation.
For claim 11, the claim term “a predetermined time interval” (lines 30 and 34) is ambiguous. Claim 1, already recites “a predetermined time interval.” Therefore, it is unclear whether the same predetermined time interval is being referred to or whether these are different predetermined time intervals. The claim is examined under the former interpretation.
For claim 11, the claim language “the posture and/or movements of the individual” (line 14) lacks antecedent basis. The claim is examined as this being a newly introduced claim term.
For claim 11, the claim language “the activity of the individual” (line 23) lacks antecedent basis. The claim is examined as this being a newly introduced claim term.
Dependent claim(s) 1-3 and 7-9 fail to cure the ambiguity of independent claim 1, thus claim(s) 1-3 and 7-11 is/are rejected under 35 U.S.C. 112(b).
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.
Claim(s) 1-3 and 7-11 is/are rejected under 35 U.S.C. 101 because the claimed invention, considering all claim elements both individually and in combination as a whole, do not amount to significantly more than a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea).
Claim 1 is a claim to a process, machine, manufacture, or composition of matter and therefore meets one of the categorical limitations of 35 U.S.C. 101. However, claim 1 meets the first prong of the step 2A analysis because it is directed to a/an abstract idea, as evidenced by the claim language of “processing the measurements provided by said plurality of sensors,” “determining an item of data, referred to as profile score, based on data representative of characteristics specific to the individual, by assigning a respective weighting to each of a plurality of characteristics specific to the individual,” “computing data, referred to as motive indices, based on the measurements provided by said plurality of sensors and representative of an activity of the individual over a predetermined time interval,” “computing an item of data, referred to as a fall risk score, based on said motive indices and on said profile score,” and “determining a risk of falling, based on a variation in said fall risk score beyond a predetermined threshold over a predetermined time interval” and “wherein said motive indices computed by said computing module are selected from the group consisting of: indices representative of an average activity of the individual over a predetermined time interval T, referred to as SMA indices, computed from the measurements provided by each of the sensors housing in said casing … indices representative of a current activity of the individual computed from the measurements provided by each of the sensors housed in said casing … indices representative of an energy of said individual, referred to as HA indices, computed as a variation in said current activity over said predetermined time interval T … indices representative of a harmony of an activity of the individual, referred to as HM indices, over said predetermined time interval T … indices representative of an irregularity in a frequency range during the activities of the individual over said predetermined time interval T, referred to as HC indices ….” This claim language, under the broadest, reasonable interpretation, encompasses subject matter that may be performed by a human using mental steps or with pen and paper that can involve basic critical thinking, which are types of activities that have been found by the courts to represents abstract ideas (i.e., the mental comparison in Ambry Genetics, or the diagnosing an abnormal condition by performing clinical tests and thinking about the results in Grams). The claim language also meets prong 2 of the step 2A analysis because the above-recited claim language does not integrate the abstract idea into a practical application. That is, there appears to be no tangible improvement in a technology, effect of a particular treatment or prophylaxis, a particular machine or manufacture that is integrated, or transformation/reduction of a particular article to a different state or thing as a result of this claimed subject matter. As a result, step 2A is satisfied and the second step, step 2B, must be considered.
With regard to the second step, the claim does not appear to recite additional elements that amount to significantly more. The additional elements are “a casing configured to be able to be worn by an individual, said casing comprising a plurality of sensors for acquiring measurements representative of the posture and/or movements of the individual, including at least one accelerometer, magnetometer and gyroscope,” “a unit,” and “a module.” However, these elements are not “significantly more” because they are well-known, routine, and/or conventional as evidenced by para [0049] of U.S. Patent Application Publication No. 2018/0279803 to Bailliard et al. (hereinafter “Bailliard”) and the “unit” and “module” are generic computer structure according to Alice v. CLS. Therefore, these elements do not add significantly more and thus the claim as a whole does not amount to significantly more than a judicial exception.
Additionally, the ordered combination of elements do not add anything significantly more to the claimed subject matter. Specifically, the ordered combination of elements do not have any function that is not already supplied by each element individually. That is, the whole is not greater than the sum of its parts.
In view of the above, independent claim 1 fails to recite patent-eligible subject matter under 35 U.S.C. 101. Independent claim(s) 10 and 11 fail to recite patent-eligible subject matter for similar, if not the exact same, reasoning as that of independent claim 1. Dependent claim(s) 2-7 fail to cure the deficiencies of independent claim1 by merely reciting further abstract ideas and/or further limitations on abstract ideas already recited. Dependent claim 8 fails to cure the deficiencies of independent claim 1 by failing to recite significantly more in view of para [0054] of U.S. Patent Application Publication No. 2022/0157145 to Panneer et al. (hereinafter “Panneer”). Dependent claim 9 fails to cure the deficiencies of independent claim 1 by failing to recite significantly more in view of page 17, lines 20-24 of Applicant’s specification as originally filed. Thus, claim(s) 1-3 and 7-11 is/are rejected under 35 U.S.C. 101.
Allowable Subject Matter
Claim(s) 1-3 and 7-11 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(a), 35 U.S.C. 112(b), and 35 U.S.C. 101, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant’s arguments filed 8/10/26 have been fully considered.
With respect to the objection to the specification, Applicant’s amendments and arguments are persuasive and the objection is withdrawn.
With respect to the 112(a) rejections, the arguments will be treated in the order they were presented. With respect to the first argument, the assigning of respective weights doesn’t make a determination. That is, the profile score is determined by just giving weights to different characteristics. There still has to be a mathematical operation that happens such as, for example, multiple each characteristic by its corresponding weight, summing all the weighted characteristics, and dividing them by the total number of characteristics. Whatever that process is still does not appear to be described as the examiner could not find any evidence of possession in the specification as filed. With respect to the second argument, the determination of the fall risk score suffers from a same deficiency. Further describing the motive indices, and amending the claims to further define the scope of the motive indices, does not solve how the determination is made based on those motive indices. That is, adding further detail to the motive indices itself doesn’t further describe how the fall risk score is based on those motive indices. With respect to the third argument, describing the inputs and the weights still don’t give the architecture of the models themselves. An analogy would be like describing the data and the coefficients of a function, but never describing what the function actually is. Claim 2 suffers from the same deficiency in that what is being put into the black box doesn’t describe what is actually inside of the black box.
With respect to the 112(b) rejections, most of the rejections have been withdrawn in view of Applicant’s amendments and arguments. The rejections that are maintained appear to just address typos or unintentional formalities that are still at issue with the claims. The examiner anticipates that these will be addressed in the next response.
With respect to the 101 rejection(s), the “technical process that improves fall-management technology by predicting a fall before it occurs … by adapting the fall-detection threshold to the individual” is not an improved in a technology, but instead an improvement to an abstract idea and/or an improvement to math. That is, a “technical process” is not a technology and adapting a “fall-detection threshold” is not a technology either. These are both just optimizations in workflow and optimization in applied mathematics, which are just better ways for processes that can be performed in the human mind. As a result, the claims still fail to pass muster under 35 U.S.C. 101.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL LEE CERIONI whose telephone number is (313) 446-4818. The examiner can normally be reached M - F 8:00 AM - 5:00 PM PT.
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/DANIEL L CERIONI/Primary Examiner, Art Unit 3791
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