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 .
Information Disclosure Statement
The Information Disclosure Statement filed on June 10, 2024 has been considered. An initialed copy of the Form 1449 is enclosed herewith.
Claim Objections
Claims 1-8 are objected to because of the following informalities: typographical errors.
Claims 1, 3-5 and 7-8 are objected to because they fail to use the conjunction “and” between the last clause and the second to last clause of their respective claim. The Examiner reasonably believes this is a typographical error. For the purpose of examination, the Examiner will reasonably interpret the claims with the conjunctions between the last clause and the second to last clause of the respective claims. Appropriate correction is required. Claims 2 and 6 are also objected to based on their respective dependencies to claim 1.
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 1-8 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 1 – “Statutory Category Identification”
Claim 1 is directed to “a system” (i.e. “a machine”), and claim 5 is directed to “a computer-implemented method” (i.e. “a process”), hence the claims are directed to one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter). In other words, Step 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 1 “Abstract Idea Identification”
However, the claims are drawn to an abstract idea of “learning a task,” either in the form of “certain methods of organizing human activity,” in terms of managing personal behavior or relationships or interactions between people (including social activities, teaching and following rules or instructions), or reasonably in the form of “mental processes,” in terms of processes that can be performed in the human mind (including an observation, evaluation, judgement or opinion). Regardless, the claims are reasonably understood as either “certain methods of organizing human activity” or “mental processes,” which require the following limitations:
Per claim 1:
“collecting… at least one data associated with performance of the task;
analyzing… the at least one data to determine at least one first insight;
providing… at least one first feedback based on the at least one first insight.”
Per claim 5:
“collecting… at least one data associated with performance of the task;
analyzing… the at least one data to determine at least one first insight;
providing… at least one first feedback based on the at least one first insight.”
These limitations simply describe a process of data gathering and manipulation, which is analogous to “collecting information, analyzing it, and displaying certain results of the collection analysis” (i.e. Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016)). Hence, these limitations are akin to an abstract idea which has been identified among non-limiting examples to be an abstract idea. In other words, Step 2A, Prong 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 2 – “Practical Application”
Furthermore, the applicants claimed element of “a wearable device including: at least one processor, and at least one memory” is merely claimed to generally link the use of a judicial exception (e.g., pre-solution activity of data gathering and post-solution activity of presenting data) to (1) a particular technological environment or (2) field of use, per MPEP §2106.05(h); and are applying the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea, per MPEP §2106.05(f). In other words, the claimed “learning a task,” is not providing a practical application, thus Step 2A, Prong 2 of the subject-matter eligibility analysis is “No.”
Step 2B – “Significantly More”
Likewise, the claims do not include additional elements that either alone or in combination are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g. “a wearable device including: at least one processor, and at least one memory,” are claimed, these are generic, well-known, and conventional data gather computing elements. As evidence that these are generic, well-known, and a conventional data gathering computing elements (or an equivalent term), as a commercially available product, or in a manner that indicates that the additional elements are sufficiently well-known, the Applicant’s specification discloses these 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), per MPEP § 2106.07(a) III (a). As such, this satisfies the Examiner’s evidentiary burden requirement per the Berkheimer memo.
Specifically, the Applicant’s claimed “a wearable device including: at least one processor, and at least one memory,” as described in the “Summary of the Invention” at para. [0007] of the Applicant’s written description as originally filed, provides the following:
“[0007] In one aspect of the present invention, a system for learning a task is disclosed. The system can include a wearable device which includes a plurality of sensors, feedback device, at least one processor, and at least one memory storing instructions that when executed cause the at least one processor to perform a method. The method performed by the system can include collecting, by the plurality of sensors of the wearable device, at least one data associated with performance of the task being learned. The collected data can then be analyzed by the wearable device utilizing one or more algorithms to determine at least one insight. In embodiments, the algorithms can include machine learning and/or artificial intelligence algorithms for determining insights from the data collected. Based on the at least one insight determined by the algorithms the wearable device can provide at least one feedback.”
As such, “a wearable device including: at least one processor, and at least one memory,” is broadly and reasonably interpreted to be any generic, well-known, and conventional data gathering computing element. Therefore, the Applicant’s own specification is disclosing ubiquitous standard equipment that is (1) generic, routine, conventional, and/or commercially available; and (2) does not provide anything significantly more. Thus, Step 2B, of the subject-matter eligibility analysis is “No.”
In addition, dependent claims 2-4 and 6-8 do not provide a practical application and are insufficient to amount to significantly more than the judicial exception. As such, dependent claims 2-4 and 6-8 are also rejected under 35 U.S.C. § 101, based on their respective dependencies to claim 1. Therefore, claims 1-8 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject-matter.
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 1-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Matsimanis, et al., (hereinafter referred to as “Matsimanis,” US 2024/0207682).
Regarding claim 1, and substantially similar limitations in claim 5, Matsimanis discloses a system for learning a task, comprising: a wearable device including: at least one processor, and at least one memory storing instructions that when executed cause the at least one processor to perform a method (see para. [0015]: In some embodiments, a non-transitory computer-readable storage medium stores one or more programs configured for execution by a computing device (e.g., a wrist-wearable device or a head-wearable device, or another connected device, such as a smartphone or desktop or laptop computer that is configured to coordinate operations at the wrist-wearable device and the head-wearable device), having one or more processors, memory, and, optionally, a display. The one or more programs include instructions for performing (or causing performance of) any of the methods described herein (e.g., the methods 900, 1000, 1100, and 1200 described below;
see para. [0219]: FIG. 10 shows a flow diagram of a method 900 for determining an adaptive adjustment to a physical activity being performed by a user wearing a wearable electronic device in accordance with some embodiments. The method 900 is performed at a computing system (e.g., a wearable device or intermediary device) having one or more processors and memory. In some embodiments, the memory stores one or more programs configured for execution by the one or more processors. At least some of the operations shown in FIG. 8 correspond to instructions stored in a computer memory or a computer-readable storage medium (e.g., the memory 6080 of the computer system 6060 or the wearable device 304). In some embodiments, the computing system is a wearable device, such as the wrist-wearable device 102. In some embodiments, the computing system is, or includes, an intermediary device such as a smartphone, personal computer, or video game console), the method comprising: collecting, by the wearable device, at least one data associated with performance of the task (see para. [0221] (A1) The method 900 includes detecting (902), using one or more sensors located at a wearable electronic device (e.g., the wrist-wearable device 102), that a user is performing a physical activity at a particular activity rate. For example, in FIG. 1A, the wrist-wearable device indicates, via the user interface 107, that the user 101 is performing bicep curls. The display 104 of the wrist-wearable device 102 is also indicating that the user 101 has a baseline level of exertion (via the exertion indicator 118). In some embodiments, the detection that the user is performing the physical activity is based on one or more neuromuscular-signal sensors (e.g., the neuromuscular-signal sensors 192), which can be the same neuromuscular-signal sensors described below with respect to other operations of the method 900. In some embodiments, the detecting is performed continuously (or periodically) while the user is performing the physical activity. In some embodiments, a first subset of the sensors are used continuously, and power is provided to other sensors based on the data detected by the first subset. For example, in FIG. 1B, the graph 193 indicates that the sensor channels 199-1 and 199-4 are being used to detect exertion of the user 101 while they are performing bicep curls);
analyzing, by the wearable device, the at least one data to determine at least one first insight (see para. [0223]: The method 900 includes, based on (906) a determination that the level of exertion is different than baseline level of exertion by at least a threshold amount (e.g., a peak performance threshold value based on historical user data), determining an adjustment to the particular activity rate while the user is performing the physical activity (e.g., by adjusting a number of repetitions to be performed and/or a duration for performing the physical activity). For example, in FIG. 1C, the display 104 of the wrist-wearable device 102 includes user interface elements indicating that the user 101 has lower than normal exertion and suggests that the user perform more repetitions during the next set of the physical activity);
providing, by the wearable device, at least one first feedback based on the at least one first insight (see para. [0223]: The method 900 includes, based on (906) a determination that the level of exertion is different than baseline level of exertion by at least a threshold amount (e.g., a peak performance threshold value based on historical user data), determining an adjustment to the particular activity rate while the user is performing the physical activity (e.g., by adjusting a number of repetitions to be performed and/or a duration for performing the physical activity). For example, in FIG. 1C, the display 104 of the wrist-wearable device 102 includes user interface elements indicating that the user 101 has lower than normal exertion and suggests that the user perform more repetitions during the next set of the physical activity).
Regarding claim 2, and substantially similar limitations in claim 6, Matsimanis discloses wherein the analyzing is performed by one or more machine learning algorithms pre-loaded on the wearable device (see para. [0244]: (A19) In some embodiments of any of A1-A18, the threshold amount (and/or the baseline level) is based on a plurality of contextual criterion associated with the user. In some embodiments, the threshold amount (and/or the baseline level) is determined based on inputting one or more of the plurality of contextual criterion into a machine-learning model. In some embodiments, data from two or more neuromuscular-signal channels are used as feature vectors to train the machine-learning model. In some embodiments, one feature vector is EMG data, and another feature vector is IMU data. In some embodiments, one or more additional feature vectors are generated based on a combination of two or more different types of sensors. For example, the machine-learning model can include one or more feature vectors based on a combination of the neuromuscular-signal sensor channels 199-1 and 199-4 based on the user's performance of bicep curls in FIGS. 1A-1M.
See para. [0272] (B20) In some embodiments of any of B1-B19, detecting the physical activity being performed includes detecting one or more user movements. And the method 1000 further includes: (i) determining whether the one or more user movements comprise an involuntary user movement, and (ii) in accordance with a determination that the one or more user movements comprise the involuntary user movement, providing a notification including information about the involuntary user movement. In some embodiments, determining whether the one or more user movements comprise the involuntary user movement includes using a machine-learning model (e.g., providing the one or more user movements to the machine-learning model for analysis). For example, the alert corresponding to the alert gesture 372 performed in FIG. 3I can be initiated automatically, without the alert gesture 372 having been performed by the user 301, based on the wrist-wearable device 102 detecting an involuntary gesture performed by the user 301 during performance of the rowing activity).
Regarding claim 3, and substantially similar limitations in claim 3-4 and 7-8, Matsimanis discloses transmitting, to a remote device, the at least one data; analyzing, by the remoted device, the at least one data to determine at least one second insight; determining, by the remote device, at least one second feedback based on the at least one second insight; transmitting, to the wearable device, the at least one second feedback (see para. [0065]: FIG. 2E shows the user 101 performing an alert gesture 252 while the barbell 211 is on the user's chest, e.g., the user 101 is unable to raise the barbell 211. In some embodiments, in response to detecting the alert gesture 252, the wrist-wearable device 102 sends a notification to a remote device to notify a remote person that the user 101 is in a dangerous situation. In some embodiments, the notification is sent to a remote device previously selected by the user 101 (e.g., a remote device selected as an emergency contact). In some embodiments, the notification is sent to nearby remote devices (e.g., the notification is broadcast to nearby devices via Bluetooth and/or Wi-Fi protocol). In some embodiments, the notification is sent to emergency responders (e.g., a police department, gym security, a fire department, and/or medical personnel). In some embodiments, the notification includes context information of the user 101, such as the user's biometric data, the user's location, an image captured by the wrist-wearable device or another device of the user, and/or audio data captured by the wrist-wearable device or another device of the user. In some embodiments, based on the user 101 performing the alert gesture 252 in conjunction with the contextual information that the user is located at a public gym facility, a notification can be provided to another user (e.g., a user that has subscribed to the alert service associated with the alert gesture) that is located at the same public gym facility. In accordance with some embodiments, the wrist-wearable device 102 in FIG. 2E is presenting a notification 254 to the user 101, e.g., indicating that no repetition was detected and/or that an alert gesture was recognized. In some embodiments, user interface elements related to the particular physical activity are caused to be subdued based on detecting the alert gesture).
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.
Claims 1-4 and 6-8 are rejected under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1 recites “a system for learning a task” and “a method.” Per M.P.E.P. § 2173.05(p): A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. See In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303 (Fed. Cir. 2011). In Katz, a claim directed to “A system with an interface means for providing automated voice messages...to certain of said individual callers, wherein said certain of said individual callers digitally enter data” was determined to be indefinite because the italicized claim limitation is not directed to the system, but rather to actions of the individual callers, which creates confusion as to when direct infringement occurs. In re Katz, 639 F.3d at 1318 (citing IPXL Holdings v. Amazon.com, Inc., 430 F.2d 1377, 1384, 77 USPQ2d 1140, 1145 (Fed. Cir. 2005), in which a system claim that recited “an input means” and required a user to use the input means was found to be indefinite because it was unclear “whether infringement... occurs when one creates a system that allows the user [to use the input means], or whether infringement occurs when the user actually uses the input means.”); < Ex parte Lyell, 17 USPQ2d 1548 (Bd. Pat. App. & Inter. 1990) (claim directed to an automatic transmission workstand and the method of using it held ambiguous and properly rejected under 35 U.S.C. 112, second paragraph).
In Applicant’s case, claim 1 is reciting “a system for learning a task” and “a method.” Because Applicant is claiming two separate statutory classes together in a single claim, claim 1 is deemed indefinite. Therefore, claim 1 is rejected under 35 U.S.C. § 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. Claims 2-4 and 6-8 are also rejected under 35 U.S.C. § 112(b), based on their respective dependency to claim 1.
Claims 6-8 recite “the method of claim 4,” in the preamble. The preamble of claim 4 refers to “the system of claim 1,” wherein “a system” is originally introduced in claim 1. As such, the subsequent limitations are either (1) not following antecedent basis (i.e. “the system of claim 4”); or (2) are intended to be new limitations which ambiguously conflict with the previous limitation of claim 4. Therefore, claims 6-8 are rejected under 35 U.S.C. § 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT P. BULLINGTON whose telephone number is (313) 446-4841. The examiner can normally be reached on Monday through Friday from 8 A.M. to 4 P.M. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Peter Vasat, can be reached on (571) 270-7625. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://portal.uspto.gov/external/portal. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at (866) 217-9197 (toll-free).
/Robert P Bullington, Esq./ Primary Examiner, Art Unit 3715