DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments
Applicant's arguments filed 7/7/26 have been fully considered but they are not persuasive. Examiner respectfully disagrees with the applicant for the following: with respect to independent claims 21 and 34, Applicant argues that Huston fails to disclose transmitting participant location information to a spectator device “only when the participant is within a predetermined area,” as recited in claim 21, and similarly fails to disclose “transmitting the dynamic location of the athlete to a spectator device only while the athlete is within a predetermined area,” as recited in claim 34. The Examiner respectfully disagrees.
As set forth in the Office Action, Huston expressly teaches a system for tracking participants engaged in sporting or fitness activities. Paragraph [0014] explains that, although a preferred embodiment is described in connection with automobile racing, the disclosed system is applicable to a wide variety of spectator sports, including “auto, aircraft, motorcycle, bicycle, boat racing, horse racing, football, soccer and hockey.” Thus, Huston is not limited to tracking automobiles.
More specifically, paragraph [0015] expressly teaches application of the disclosed system to an individual athlete, stating that “a football player can be fitted with a GPS device and radio,” and further explaining that the preferred embodiment obtains participant location information using GPS. Accordingly, Huston expressly teaches the claimed portable fitness monitoring device carried by or associated with an athletic participant and configured to determine the location of that participant.
Huston further teaches communicating such participant location information to spectator devices. As identified in the rejection, paragraph [0033] discloses that radio 46 communicates the GPS position information of the participants to spectators 48 and that devices 20 in the hands of spectators process the received position information. Huston additionally explains that, in some sports, participants may broadcast their location information directly to spectators without an intervening server. Thus, Huston teaches determining participant location using a participant-associated GPS device and transmitting that participant location information for receipt by a spectator device.
Applicant's argument regarding the claimed “predetermined area” is likewise not persuasive. Paragraph [0010] expressly teaches that the participant information provided to a spectator is geographically relevant to the spectator's location. Huston explains that “the portable device displays information most relevant to the spectator's location,” and specifically identifies the position and information of the “cars nearest the spectator.” Huston therefore establishes a geographic relationship between the location of the participant and a defined geographic area associated with the spectator.
Applicant argues that paragraph [0010] merely concerns what is ultimately displayed and does not concern transmission. However, the rejection does not rely upon paragraph [0010] in isolation. Rather, paragraph [0010] is relied upon for Huston’s teaching of the geographic or area-based condition, while paragraph [0033] establishes the transmission of participant GPS location information to the spectator devices. These teachings are part of the same disclosed spectator-participant location system and must be considered together rather than individually.
In particular, Huston teaches: (1) determining the participant’s location using GPS; (2) communicating participant GPS location information to spectator devices; (3) determining or otherwise using the spectator’s geographic location; and (4) providing the participant information that is geographically relevant to that spectator, specifically identifying participants nearest the spectator. Accordingly, Huston teaches the relied-upon relationship in which transmission of participant location information to the spectator device is associated with the participant being within the geographically relevant area.
Applicant’s distinction between the location of Huston’s cars and the claimed location of an athlete is also not persuasive. The rejection does not rely on the automobile itself as being an athlete in isolation. Rather, Huston expressly identifies the cars/drivers as participants in the disclosed racing embodiment and then expressly teaches that the same participant-location system is applicable to human athletes participating in football, soccer, hockey, bicycle racing, and other sports. Paragraph [0015] removes any ambiguity on this point by expressly teaching that a football player can be fitted with the GPS device and radio used to determine and communicate participant location.
Thus, in Huston’s racing example, the dynamically determined location of the car/driver represents the location of the sporting participant, whereas the location of spectator 48/device 20 represents the spectator location. When the teachings of paragraphs [0014] and [0015] are applied to Huston’s expressly disclosed human-athlete embodiments, the participant location is directly the location of the athlete carrying the GPS device and radio. Accordingly, Huston expressly contemplates the claimed relationship between an athlete’s location and a spectator’s location.
Moreover, Huston does not merely disclose these two locations independently. Huston expressly relates them. Paragraph [0010] teaches providing information concerning participants nearest the spectator, and Huston elsewhere describes the example of a spectator positioned at the third turn who is particularly interested in the cars near the third turn. Huston therefore uses the participant location in comparison with the spectator's location to identify those participants located within the geographically relevant area associated with that spectator.
Stated another way, Huston’s disclosure establishes two distinct locations: (1) the dynamic location of the participant/athlete and (2) the location of the spectator. The participant/athlete location changes as the participant moves through the sporting venue, while the spectator location defines the geographically relevant viewing area. Huston then identifies the participants nearest that spectator and provides their participant information to the spectator. The fact that Huston illustrates this operation using cars near a spectator at the third turn does not distinguish the claimed athlete embodiment because Huston expressly teaches applying the same system to human athletes equipped with GPS devices and radios.
Applicant's interpretation would improperly isolate the statement in paragraph [0010] concerning display from Huston’s surrounding disclosure concerning participant location determination, transmission, spectator location, and geographically relevant participant information. Huston expressly teaches each of these operations as components of the same spectator-participant location system.
Accordingly, the Examiner maintains that Huston teaches the limitations of independent claims 21 and 34 as identified in the Office Action. In particular, paragraphs [0014] and [0015] teach athletic participants, including a football player equipped with a GPS device and radio; paragraph [0033] teaches communication of participant GPS position information to spectator devices; and paragraph [0010] teaches geographically restricting the relevant participant information according to the spectator's location, including providing the location information concerning participants nearest the spectator.
The double patenting rejection is also maintained due to unpersuasive argument.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claim 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 12,032,070. Although the claims at issue are not identical, they are not patentably distinct from each other because for the following:
Examiner has drawn the analysis for at least claim 21 to the patented claim 1. Claim 21 is subject to an obviousness-type double patenting rejection over claim 1 because claim 21 is not patentably distinct from the subject matter of claim 1 and merely recites an obvious system implementation of the same athlete/spectator tracking concept.
Claim 1 recites a method for tracking an athlete engaged in a fitness activity comprising receiving, at a portable fitness monitoring device, data from which a dynamic location of the athlete can be determined; receiving, at a spectator device, data from which a spectator location can be determined; displaying, on the portable fitness monitoring device, a map of a route of the fitness activity; and displaying the athlete and spectator locations along the route, wherein the athlete symbol moves in real time based on the athlete’s dynamic location. Thus, claim 1 already discloses a portable fitness device that determines athlete location, a spectator device associated with a spectator, and communication/use of athlete location data for live tracking.
Claim 21 recites a system for tracking a participant engaged in a fitness activity comprising a portable fitness monitoring device configured to determine location information of the participant and a spectator device configured to receive the participant location information, wherein the system transmits the participant location information from the portable fitness monitoring device to the spectator device only when the participant is within a predetermined area.
The portable fitness monitoring device of claim 21 corresponds directly to the portable fitness monitoring device of claim 1, and the participant location information corresponds to the dynamic athlete location of claim 1. The spectator device configured to receive participant location information is likewise inherent in claim 1, which requires a spectator device associated with a spectator and coordinated live tracking between devices. In order for the athlete and spectator locations to be displayed relative to one another and updated in real time, athlete location data necessarily must be communicated to the spectator side or shared within the tracking system.
The only meaningful distinction in claim 21 is the limitation that transmission occurs only when the participant is within a predetermined area. Restricting data transmission based on geofencing, route segments, checkpoints, or defined geographic areas would have been an obvious optimization to one of ordinary skill in the art for conserving battery power, reducing bandwidth, improving privacy, and limiting tracking updates to relevant portions of the course route already displayed in claim 1. Since claim 1 already uses a route map for the fitness activity, selecting portions of that route as transmission zones would have been a predictable design choice.
Further, claim 21 merely changes statutory class from a method to a system, which does not confer patentable distinction where the claimed devices perform the same functions required by the earlier method claim.
Accordingly, claim 21 is an obvious variation of claim 1 because it recites the same athlete live-tracking architecture with the predictable addition of area-based transmission control. Therefore, claim 21-40 are unpatentable for nonstatutory obviousness-type double patenting over the patented claims.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of pre-AIA 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) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
Claim(s) 21-25, 27-35, 37-39 is/are rejected under pre-AIA 35 U.S.C. 102(a)(1) as being anticipated by Huston (US 2007/0015586).
Claim 21. A system for tracking a participant engaged in a fitness activity — para [0014] discloses application to athletic activities, stating: “Auto, aircraft, motorcycle, bicycle, boat racing, horse racing, football, soccer and hockey are just a few examples.” a portable fitness monitoring device configured to determine location information of the participant; — para [0015] states: “a football player can be fitted with a GPS device and radio...” and further “the preferred embodiment contemplates obtaining participant location information via GPS.” and a spectator device configured to receive the participant location information; — para [0033] states: “The devices 20 in the hands of the spectators 48 processes the position information...” wherein the system is configured to transmit the participant location information from the portable fitness monitoring device to the spectator device — para [0033] states: “The radio 46 is used to communicate on a broadcast basis to all spectators 48 ... the GPS position information of the cars 10.” only when the participant is within a predetermined area. — para [0010] suggests area-based relevance, stating: “the portable device displays information most relevant to the spectator’s location... the cars nearest the spectator.”
Claim 22. The system of claim 21, wherein the system is configured to record performance data only when the participant is in the predetermined area — para [0033] states: “The server 44 stores the position data of each car 10 communicated to the base station 42...” indicating selective storage/recording of transmitted data. and the performance data comprises the location information of the participant. — para [0033] states: “stores the position data of each car 10.”
Claim 23. wherein the portable fitness monitoring device comprises a performance sensor... and the performance data comprises data from the performance sensor. — para [0012] states: “Other information from car sensors are possible... such as linear or radial G, engine or tire condition, fuel state, etc.”
Claim 24. configured to only transmit data to the spectator device during a predetermined window of time. — para [0010] states: “During the race, the positions of the cars are broadcast to the spectators.” This teaches transmission during an event time window.
Claim 25. wherein the predetermined window of time begins at a scheduled time and date. — para [0010] states: “During the race...” indicating commencement at the scheduled sporting event time.
Claim 27. transmit... only when a live tracking feature... is active — para [0013] states: “the spectator might want to follow a particular car continuously...” teaching selectable live tracking mode. automatically activate... upon occurrence of a predetermined event — para [0010] states: “During the race, the positions... are broadcast,” meaning activation upon race start. and deactivate... upon receiving a manual input — para [0011] teaches user controls: “the spectator can not only switch views, but can also tilt or pan... or zoom.”
Claim 28. configured to provide feedback to the participant upon activation of the live tracking feature. — para [0012] teaches providing displayed information and appended data to users upon operation of modes.
Claim 29. wherein the predetermined event comprises the occurrence of a predetermined date and time. — para [0010] states: “During the race...” implying activation upon scheduled event time/date.
Claim 30. wherein the predetermined event comprises the participant location information indicating that the participant is within a predetermined distance of a predetermined location. — para [0010] states: “the spectator might select finish line...” and para [0011] teaches spectator-location based views, suggesting location-triggered operations tied to known course points.
Claim 31. wherein the spectator device is further configured to determine location information of a spectator — para [0010] states: “Each spectator has a portable device that has a GPS engine...” the portable fitness monitoring device is further configured to receive the location information of the spectator — para [0010] states the server receives spectator location after login and location reporting. and... only transmit... if the live tracking feature... is active. — para [0013] teaches selectable follow modes when active.
Claim 32. wherein the live tracking feature can be activated manually by an input to the spectator device. — para [0011] states: “the spectator can select the view.”
Claim 33. wherein the predetermined area is a predetermined transmission area of a route of a fitness activity. — para [0017]-[0021] describe views of cars along track 12, i.e., route-based transmission/display areas.
Claim 34. A method, comprising: receiving, at a portable fitness monitoring device, data based upon which a dynamic location of an athlete can be determined; — para [0015] states participant location information obtained via GPS. automatically activating a live tracking feature... upon a predetermined event; — para [0010] teaches broadcasting during the race. and while the live tracking feature is active, transmitting the dynamic location of the athlete to a spectator device only while the athlete is within a predetermined area. — para [0033] teaches transmitting GPS position information to spectators.
Claim 35. wherein the predetermined event is the dynamic location of the athlete being within a predetermined distance of a feature of a course of an athletic event. — para [0010] states selectable views such as “finish line,” teaching course feature locations.
Claim 37. comprising providing feedback to the participant when the live tracking feature is activated. — para [0012] teaches appended information displays when selected modes are active.
Claim 38. comprising transmitting the dynamic location of the athlete to the spectator device only during a predetermined window of time. — para [0010] states: “During the race, the positions... are broadcast.”
Claim 39. wherein the predetermined window of time begins at a scheduled start time for the athletic event. — para [0010] teaches broadcasting begins during the race “During the race, the positions of the cars are broadcast to the spectators”, i.e., at event start.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 26, 36 and 40 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Huston (US 2007/0015586).
Claim 26. configured to calculate a predetermined duration from historical data related to the participant... — The reference does not expressly disclose calculating duration from historical participant data. However, para [0012] teaches participant statistics and historical metrics may be displayed: “identification plus speed, plus acceleration...” which would have suggested predictive duration calculations.
Claim 36. wherein the feature is a start line. — para [0010] race commencement and para [0017]-[0021] track views would have made use of known start line locations obvious.
Claim 40. comprising estimating a completion time... based on historical data related to the athlete, and wherein the predetermined window of time concludes at the completion time. — The reference does not expressly disclose finish-time prediction. However, para [0012] teaches displaying participant speed and acceleration data, which would have rendered finish-time estimation obvious to one of ordinary skill.
Claims 41-42, Huston teaches on para 0010-0011, the predetermined geographical location such as the race track, now whether the only designed to recognized this race track or other expanded location is within the knowledge of ordinary skilled artisan as a design choice.
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 MASUD AHMED whose telephone number is (571)270-1315. The examiner can normally be reached M-F 9:00-8:30 PM PST with IFP.
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MASUD . AHMED
Primary Examiner
Art Unit 3657A
/MASUD AHMED/Primary Examiner, Art Unit 3657
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