DETAILED ACTION
This is a Non-Final Office Action responsive to the Request for Continued Examination filed 6 February 2026 and the instant application filed 28 June 2024, which is a broadening reissue of application 17/253,688 (US Patent 11,372,484 B2 to Branquinho Gomes et al., hereinafter “the ‘484 patent”, published 28 June 2022).
The 28 June 2024 filing canceled original claims 1-20 and presented new claims 21-54.
The instant amendment cancels claims 55 and 56 and amends claims 21, 31, 38, 48, and 50. As a result, claims 21-23, 25-36, 38-40, 42-53, and 57 are pending.
Claims 21-23, 25-36, 38-40, 42-53, and 57 are rejected herein.
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Reissue
Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceed-ing in which US Patent 11,372,484 B2 is or was involved. These proceedings would include interferences, reissues, reexaminations, and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is mate-rial to patentability of the claims under consideration in this reissue appli-cation.
These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
Applicant is notified that any subsequent amendment to the specification and/or claims must comply with 37 CFR 1.173(b).
Response to Arguments
Applicant argues with respect to the prior rejections of claims 21-23, 25-34, 36, 38-40, 42-51, 53, and 55-57 under 35 USC 103 in view of Ferro Bento (referred to in the remarks as “Bento”) and Starkey, and the rejection of claims 35 and 52 in view of Ferro Bento, Starkey, and Radcliffe (see Remarks at 8-10).
In particular, the remarks assert that the cited prior art fails to disclose the newly amended limitation “at least one of the plurality of predetermined kinematic constraints is associated with a plane definition that provides a plane for evaluating the exercise, the plane changing over the course of the exercise”, stating that “Starkey fails to teach or suggest a ‘plane definition’ that is associated with a ‘predetermined kinematic constraint,’ where such ‘plane definition’ provides a plane that ‘changes over the course of the exercise.’” The Examiner respectfully disagrees.
Applicant previously argued in the 7 January 2026 remarks that the reference plane of Starkey is “fixed and static”, citing to Starkey at [0051]. Such argument is reiterated in the instant remarks at 9. Paragraph [0051] of Starkey discusses an acceptable range of angles for a subject during a “ready position” phase. However, as claimed and argued by Applicant, the plane changes “over the course of the exercise”, and the plane definition “has a time component, enabling different time instants to be associated with different planes for checking an individual’s posture or movement” (see 7 January 2026 Remarks at 9). The Examiner contends that the argued “ready position” of Starkey does not encompass the entire movement to be produced by the subject, but that to be performed at the beginning of said movement.
Starkey provides examples of activities which include multiple phases. For example, at [0046] Starkey discloses that “an overhand throw may involve the following known phases: ready position, stride, arm cocking, and release”, or at [0049] that the overhand throw may comprise a “ready position phase, a stride phase, an arm cocking phase, a release phase, and a follow-through phase”. Paragraph [0049] further states that “[o]nce start and end times are determined (for each phase), motion sensor data within each phase is compared against benchmark data to determine scores”. Paragraph [0050] discusses that a “subjects axial skeleton, hip, keens, and center of mass may be derived from the motion sensor data and compared against benchmark data. Other positions may involve other joints, which would be similarly measured and compared against benchmark data to generate corresponding scores”. Finally, at [0054], Starkey discloses that “[j]oint data may comprise joint angle data in a particular plane (front, sagittal, transverse, parasagittal), which may be subsequently compared to an absolute or relative angle during analysis”.
In addition to the complex motion of an overhand throw, Starkey discloses a variety of examples of activities that may be monitored, from the groups of locomotor, non-locomotor, and manipulative movements (see [0053]). It can be understood that at least some of the example activities provided in [0053] would encompass motion in several different planes (e.g., the front, sagittal, transverse, and/or parasagittal planes).
As Starkey at [0054] discloses that data during a phase “may comprise joint angle data in a particular plane (frontal, sagittal, transverse, parasagittal), which may be subsequently compared to an absolute or relative angle during analysis”, Starkey can be seen to choose the relevant plane or planes for each phase of an activity, and as the relevant planes of motion may change throughout the course of the monitored activity, the monitored planes for each phase of an activity may change over the course of the activity, resulting in a “kinematic constraint…associated with a plane definition that provides a plane for evaluating the exercise, the plane changing over the course of the exercise”.
Subsequently, Applicant’s arguments are not persuasive.
Claim Rejections - 35 USC § 103
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.
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.
Claims 21-23, 25-34, 36, 38-40, 42-51, 53, and 57 are rejected under 35 U.S.C. 103 as being unpatentable over Ferro Bento et al. (US Publication 2016/0008661 A1, hereinafter Ferro Bento), in view of Starkey (US Publication 2019/0046836 A1).
Regarding claim 21, Ferro Bento discloses
A computer-based method for determining whether an individual has performed an exercise correctly (Ferro Bento at [0072] discloses that the “tunnel of motion” utilized “was developed with the idea to automate quantification of the correct performed motor tasks”. The systems and methods of Ferro Bento are directed towards “rehabilitation therapy focused on repeated physical tasks”, at [0004]. The movements performed in such therapy are analogous to the claimed “exercise”), comprising:
capturing, by a camera, a video of the individual performing the exercise (Ferro Bento discloses the use of a motion capture system that includes camera-based 3D tracking, at [0036]);
acquiring, by one or more processors and using software, a set of coordinates defining one or more of a posture of the individual or a movement of the individual for at least a portion of the video that is captured (“the user performs a controlled movement while coordinate samples are recorded as a path”, at [0038]); and
analyzing, by the one or more processors and using the software or different software, the set of coordinates together with a plurality of predetermined constraints related to the exercise (a “tunnel of motion” is utilized to determine the correctness of performed motor tasks, at [0072]. The tunnel of motion includes boundaries meant to restrict the user’s movements such that a correct exercise may be performed. See [0038-0039]. At [0038], the user “performs a controlled movement while coordinate samples are recorded as a path. After that, the user must repeat the same movement aiming to perform minimal error to the recorded path. The system achieves this by calculating virtual spheres with a prefixed radius around the samples of the recorded path.” As such, the recorded path is used to create the “tunnel of motion” that is analogous to the claimed “prerecorded constraints” related to the exercise), thereby determining one or more of:
whether the posture is a correct posture for the exercise or a portion of the exercise; or
whether the movement is a correct movement for the exercise or a portion of the exercise (Ferro Bento discloses that a user “performs a correct movement when the motions stay within the boundaries of the tunnel of motion”, at [0069]).
Ferro Bento fails to explicitly disclose wherein the prerecorded constraints are prerecorded kinematic constraints and
causing, by the one or more processors, display of feedback in a user interface of a computing device indicating whether the posture is the correct posture for the exercise or the portion of the exercise or the movement is the correct movement for the exercise or the portion of the exercise,
wherein at least one of the plurality of predetermined kinematic constraints is associated with a plane definition that provides a plane for evaluating the exercise, the plane changing over the course of the exercise.
It is noted that the specification of the ‘484 Patent particularly defines a “first predetermined constraint” as having “associated therewith a pair of orientations, a set of angles and a plane definition.” See the ‘484 Patent at col. 3, lines 30-33. As a result, the term “predetermined kinematic constraint” with be interpreted consistent with such definition as provided by the specification.
Starkey discloses “a kinematic motor skills testing system”, at [0001], similar to the movement monitoring system of Ferro Bento. Furthermore, Starkey discloses wherein the movements of a user are monitored and compared to “benchmark data”, which is disclosed to “define a range of acceptability for various joints throughout various phases of a motor skill activity”, at [0026]. Such data includes beginning and/or end points for a movement phase ([0047]), measurement of a plurality of angles at a plurality of phases ([0052]), and measurement in particular planes ([0051]). As such, Starkey discloses “predetermined kinematic constraints”.
Furthermore, Starkey discloses
causing, by the one or more processors, display of feedback in a user interface of a computing device indicating whether the posture is the correct posture for the exercise or the portion of the exercise or the movement is the correct movement for the exercise or the portion of the exercise.
Starkey discloses that “feedback may be provided to the user via any form of sensory feedback (e.g., visual feedback, auditory feedback, or tactile feedback)”, as well as a “display device for displaying information to a user”, at [0145]. At [0132], Starkey discloses the display of alerts to a user, such as a notification “of a significant discrepancy between actual knee position and ideal knee position”, analogous to feedback in a user interface indicating whether a posture/movement is the correct posture/movement for the portion of the exercise.
Starkey further discloses
wherein at least one of the plurality of predetermined kinematic constraints is associated with a plane definition that provides a plane for evaluating the exercise, the plane changing over the course of the exercise.
As discussed in the Response to Arguments above, Starkey discloses analyzing the motion of an activity across a plurality of phases, in which each phase may require motion from a different set of planes relative to the other phases of the activity. See Starkey, [0052] – [0054], as discussed supra.
Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the instant invention to modify the exercise monitoring system of Ferro Bento to include the predetermined kinematic constraints and visual feedback of Starkey. Such a combination necessarily amounts to the use of a known technique to improve similar devices in the same way.
Independent claim 38 recites limitations analogous in scope to those of independent claim 21, and as a result are rejected under similar rationale. Independent claim 38 further recites at least one non-transitory computer readable medium including software configured to cause one or more processors to execute the acquiring, analyzing, and determining steps of the invention (disclosed by Ferro Bento at [0069], as “central console software running on a computer” and software executed on the computer “to generate the appropriate kinematic model and test if the current positioning of the user is within the tunnel of motion”).
Regarding claim 22, Ferro Bento and Starkey disclose The computer-based method of claim 21, wherein the exercise that is performed is a physical exercise (as noted above, The systems and methods of Ferro Bento are directed towards “rehabilitation therapy focused on repeated physical tasks”, at [0004]. The movements performed in such therapy are analogous to the claimed “physical exercise”).
Claim 39 recites limitations analogous in scope to those of claim 22, and is rejected under similar rationale.
Regarding claim 23, Ferro Bento and Starkey disclose The computer-based method of claim 21, wherein the exercise that is performed is monitored by one or more of a fitness instructor or a therapist (Ferro Bento discloses that the invention may be used in a physical rehabilitation session in which a patient is assisted by a therapist within a clinical environment, at [0041]).
Claim 40 recites limitations analogous in scope to those of claim 23, and is rejected under similar rationale. Claim 40 recites wherein the software is configured to cause the one or more processors to transmit information regarding performance of the exercise by the individual to a computing device of one or more of a fitness instructor or a therapist to enable the one or more of the fitness instructor or the therapist to monitor the performance of the exercise or the portion of the exercise (Ferro Bento discloses that the invention may be used in a clinical environment with the assistance of a therapist, at [0041]).
Regarding claim 25, Ferro Bento and Starkey disclose The computer-based method of claim 21, wherein the exercise comprises a translational movement (Starkey at [0054] discloses that data gathered during a movement phase may comprise “qualitative and/or quantitative descriptions of movements in specific joints or limbs, includ[ing] but not limited to flexion/extension, abduction/adduction, elevation/depression, rotation, pronation/supination of the wrist, dorsiflexion/plantar flexion of the ankle, inversion/eversion of the feet, occlusion/protrusion/retrusion of the jaw, nutation/counternutation of the sacrum, and opposition of thumbs and other fingers.” Starkey further discloses at [0053] multiple types of movements that may be monitored, such as walking, running, hopping, jumping, bending, flexing, stretching, swinging, twisting, and raising. Movements such as walking, running, and the flexion/extension and abduction/adduction of limbs and jaw protrusion/retrusion, include translational movement).
Claim 42 recites limitations analogous in scope to those of claim 25, and is rejected under similar rationale.
Regarding claim 26, Ferro Bento and Starkey disclose The computer-based method of claim 25, wherein the translational movement comprises a translational movement of a limb of the individual (Starkey is show at [0053]-[0054] to disclose a variety of monitored movements, including translational movements. Movements such as the flexion/extension and abduction/adduction of limbs are analogous to the “translational movement of a limb”, as claimed).
Claim 43 recites limitations analogous in scope to those of claim 26, and is rejected under similar rationale.
Regarding claim 27, Ferro Bento and Starkey disclose The computer-based method of claim 25, wherein the translational movement comprises a translational movement of a torso of the individual (Starkey is show supra to explicitly disclose translational movements. At [0034], Starkey discloses that the monitored body parts or joints may refer to “any part of the skeleton and includes, but is not limited to the spine, hips, shoulder center, shoulders, neck, elbows, wrists, hand tips, thumbs, knees, ankles, feet, head, and eye sockets.” At least the monitoring of movement of the spine is analogous to the “translational movement of a torso of the individual”).
Claim 44 recites limitations analogous in scope to those of claim 27, and is rejected under similar rationale.
Regarding claim 28, Ferro Bento and Starkey disclose The computer-based method of claim 21, wherein the exercise comprises an angular movement (Starkey at [0053] and [0054] discloses multiple types of movements and motions that may be monitored. Such movements include movements such as bending, flexing, swinging, and twisting, as well as the explicit comparison of joint angle data disclosed in [0054], for movements such as wrist pronation/supination and ankle dorsiflexion/plantar flexion).
Claim 45 recites limitations analogous in scope to those of claim 28, and is rejected under similar rationale.
Regarding claim 29, Ferro Bento and Starkey disclose The computer-based method of claim 28, wherein the angular movement comprises an angular movement of a limb of the individual (Starkey at [0053] and [0054] discloses multiple types of movements and motions that may be monitored. Such movements include movements such as bending, flexing, swinging, and twisting, as well as the explicit comparison of joint angle data disclosed in [0054], for movements such as wrist pronation/supination and ankle dorsiflexion/plantar flexion. Such movements are analogous to the claimed “angular movement of a limb of the individual”).
Claim 46 recites limitations analogous in scope to those of claim 29, and is rejected under similar rationale.
Regarding claim 30, Ferro Bento and Starkey disclose The computer-based method of claim 28, wherein the angular movement comprises an angular movement of a torso of the individual (Starkey at [0053] and [0054] discloses multiple types of movements and motions that may be monitored, and includes monitoring of motions of the spine at [0034]. Such movements include movements such as bending, flexing, swinging, and twisting, as well as the explicit comparison of joint angle data disclosed in [0054]. Twisting and bending movements associated with the spine are analogous to the claimed “angular movement of a torso of the individual”).
Claim 47 recites limitations analogous in scope to those of claim 29, and is rejected under similar rationale.
Regarding claim 31, Ferro Bento and Starkey disclose The computer-based method of claim 28, wherein the angular movement is relative to the plane, the plane having a position or orientation that is defined by a position or orientation of one or more of a limb of the individual or a torso of the individual (Starkey discloses at [0051] the comparison of movements and orientations of joints and body parts relative to the sagittal plane, known to be defined by the spine/torso of the individual).
Claim 48 recites limitations analogous in scope to those of claim 31, and is rejected under similar rationale.
Regarding claim 32, Ferro Bento and Starkey disclose The computer-based method of claim 21, wherein the set of coordinates is in a reference frame (Ferro Bento at [0010] discloses recording a reference motion from a subject, including recording reference coordinate samples while performing a reference motion. Ferro Bento discloses camera-based 3D tracking technology for use in the invention at [0069], and discloses recording user movement to generate a tunnel of motion at [0039]. The recording of reference video data using a camera would inherently include “reference frames” as claimed).
Claim 49 recites limitations analogous in scope to those of claim 32, and is rejected under similar rationale.
Regarding claim 33, Ferro Bento and Starkey disclose The computer-based method of claim 21, wherein each of the plurality of predetermined kinematic constraints comprises one or more threshold values (Ferro Bento discloses the use of a “tunnel of motion”, which provides the movement constraints for the invention. At [0012-0014], Ferro Bento explicitly discloses that the distance between the coordinate sample and the reference coordinates samples is analyzed to determine if it is lesser than the radius of the spheres of the reference tunnel of motion (i.e., threshold values of motion)). Starkey discloses wherein such constraints are predetermined kinematic constraints.
Claim 50 recites limitations analogous in scope to those of claim 33, and is rejected under similar rationale.
Regarding claim 34, Ferro Bento and Starkey disclose The computer-based method of claim 33, wherein one or more of the posture is determined to be the correct posture or the movement is determined to be the correct movement when analyzing the set of coordinates indicates that one or more of the posture or the movement has not surpassed the one or more threshold values (Ferro Bento discloses the use of a “tunnel of motion”, which provides the movement constraints for the invention. At [0012-0014], Ferro Bento explicitly discloses that the distance between the coordinate sample and the reference coordinates samples is analyzed to determine if it is lesser than the radius of the spheres of the reference tunnel of motion (i.e., threshold values of motion)).
Claim 51 recites limitations analogous in scope to those of claim 34, and is rejected under similar rationale.
Regarding claim 36, Ferro Bento and Starkey disclose The computer-based method of claim 21, further comprising wherein the feedback is provided in real time to one or more of an individual, an instructor, or a therapist (Ferro Bento discloses that an individual, instructor, or therapist may monitor the user’s exercise motions, at [0041]. Ferro Bento further discloses at [0077] that processing and analyzing of a motor task may be performed in real time. Starkey discloses the display of alerts to a user, such as a notification “of a significant discrepancy between actual knee position and ideal knee position”, analogous to feedback in a user interface indicating whether a posture/movement is the correct posture/movement for the portion of the exercise, at [0132]. Claim 8 of Starkey, for example, recites a practice interface for “showing the subject performing the motor skill activity in real or near-real time, a video preview of an ideal performance of the motor skill activity, and one or more alerts indicating a discrepancy between the motion sensor data and the benchmark data”).
Claim 53 recites limitations analogous in scope to those of claim 36, and is rejected under similar rationale.
Regarding claim 57, Ferro Bento and Starkey disclose The computer-based method of claim 21, further comprising storing, in memory, the plurality of predetermined kinematic constraints related to the exercise, the plurality of predetermined constraints being stored before capturing the video of the individual performing the exercise (Starkey discloses wherein phases of a movement “may be detected based on a predetermined model for the particular activity stored in the memory of the computing device or the memory of the motion sensor”, at [0046]. Starkey further discloses the display of a “benchmark video” of an avatar performing the activity and modeling ideal biomechanics, at [0129]).
Claims 35 and 52 are rejected under 35 U.S.C. 103 as being unpatentable over Ferro Bento and Starkey, in view of Radcliffe et al. (US Publication 2019/0111299 A1, hereinafter Radcliffe)
Regarding claim 35, Ferro Bento and Starkey disclose The computer-based method of claim 33. Ferro Bento and Starkey fail to explicitly disclose such, wherein one or more of the posture is determined to be the correct posture or the movement is determined to be the correct movement when analyzing the set of coordinates indicates that one or more of the posture or the movement has surpassed the one or more threshold values.
Radcliffe discloses a programmable range of motion system that allows for the setting of various parameters for exercised used during physical therapy, similar to the exercises of Ferro Bento and Starkey. Furthermore, Radcliffe discloses wherein such range of motion parameters may include upper and lower constraints such as maximum and minimum flexion angles, at [0078]. A range of motion reporting system may send report data related to a patient’s movements to a remote database, including parameters such as minimum angle and maximum angle. See [0083]. As a result, Radcliffe allows a therapist to set a “correct” minimum constraint and determine whether a patient has exceeded such minimum constraint.
Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the instant invention to modify the correct movement determinations of Ferro Bento and Starkey to include the minimum and maximum constraints defining a correct movement as in Radcliffe. Such a combination amounts to the use of a known technique to improve similar devices in the same way.
Claim 52 recites limitations analogous in scope to those of claim 36, and is rejected under similar rationale.
Conclusion
Claims 21-23, 25-36, 38-40, 42-53, and 57 stand rejected by virtue of this Office action.
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/MICHAEL ROSWELL/Primary Examiner, Art Unit 3992
Conferees: /JOSHUA D CAMPBELL/Primary Examiner, Art Unit 3992
/ALEXANDER J KOSOWSKI/Supervisory Patent Examiner, Art Unit 3992
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