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 .
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 63,472,551 fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. The provisional does not support claims 6, 8, 9, 10, 12, 15, 19 and 20 as it does not disclose the specific equations claimed.
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 1-37 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim recites determining muscle fatigue using an active compartment (M_A) model representing individual motor units (MUs) generating force at full capacity, a resting compartment (M_R) model representing inactive MUs capable of rapid activation into force production, a centrally fatigued compartment (M_FC) model representing fatigued MUs due to a central mechanism dominant at zero or near-zero joint velocities, with rapid recovery, and a peripherally fatigued compartment (M_FP) model representing fatigued MUs due to a peripheral mechanism dominant at higher velocities, with slow recovery.
The limitation of M_A, M_R, M_FC and M_FP model, as drafted, is a process that, under its broadest reasonable interpretation, covers mathematical structures but for the recitation of generic computer components. That is, other than reciting “computer-implemented” and outputting digital data (all of which include or involve generic computer components), the claims are direct to concepts falling under “Mathematical Concepts” abstract idea grouping. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mathematical Concept” grouping of abstract ideas. Accordingly, the claim recites an abstract idea.
This judicial exception is not integrated into a practical application. In particular, the claim recites using velocity or load data possibly from a sensor. These detectors involve mere data gathering and amount to insignificant extra-solutional activity, specifically pre-solutional activity. Additionally the computer and implied output device are recited at a high-level of generality such that it amounts no more than mere instructions to apply the exception using generic computer components. Accordingly, these additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. Similarly the dependent claims do not include additional elements that amount to significantly more. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept and well-understood, routine and conventional activity is not sufficient to amount to significantly more than the abstract idea itself. The claim is not patent eligible.
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 1-37 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. It is unclear what is considered a “near-zero” velocity. The specification at ¶34 discloses zero to a small positive integer but small is also a relative term so this does not provide any clarification.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter: The closest prior art is Xia et al. “A theoretical approach for modeling peripheral muscle fatigue and recovery,”. Xia discloses 1 a computer-implemented method of predicting muscle fatigue in a subject, wherein the method comprises: receiving data related to muscle fatigue in a muscle of the subject ([pg. 3046, second column][FIG3] joint angles and velocity are measured); feeding the data into an algorithm to predict the muscle fatigue, wherein the algorithm comprises at least the following models for predicting the muscle fatigue: an active compartment (M_A) model representing individual motor units (MUs) generating force at full capacity ([pg. 3047, basic three compartment fatigue model] Ma is modeled by equation 1), a resting compartment (M_R) model representing inactive MUs capable of rapid activation into force production [pg. 3047, basic three compartment fatigue model] Mr is modeled by equation 1), and a peripherally fatigued compartment (M_FP) model representing fatigued MUs due to a peripheral mechanism dominant at higher velocities, with slow recovery ([pg. 3047, basic three compartment fatigue model] Mf is modeled by equation 1); and outputting the predicted muscle fatigue ([FIG8] the fatigue dynamics are output). Xia does not specifically disclose a centrally fatigued compartment (M_FC) model representing fatigued MUs due to a central mechanism dominant at zero or near-zero joint velocities, with rapid recovery. Xia discloses using a correction factor to determine central fatigue but this is not separate algorithm or model or based on zero or near zero velocities.
The other closest prior art is Michaud et al. “Four-compartment muscle fatigue model to predict metabolic inhibition and long-lasting nonmetabolic components” but was not published before the effective filing date.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL ANTHONY CATINA whose telephone number is (571)270-5951. The examiner can normally be reached 10-6pm.
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/MICHAEL A CATINA/Examiner, Art Unit 3791 /TSE CHEN/Supervisory Patent Examiner, Art Unit 3791
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