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 .
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.
It is noted that claims 1-20 are considered eligible subject matter. Even if the claims were considered an abstract idea, the claims contain limitations that provide a practical application, i.e. GUIs for body analysis.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 2, 4, 5, 7, 10-12, 14, 15, 17 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 1, 1, 1, 3, 10, 15, 15, 15, 15, 15/3, and 19, respectively of U.S. Patent No. 12141937. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application are broader versions of the patent. In claim 1 of the instant application, “A method comprising: at an electronic device including one or more processors, a non-transitory memory, and a display:” corresponds to “A method comprising: at an electronic device including one or more processors, a non-transitory memory, and a display” of claim 1 of the patent, “displaying, on the display, a target visual representation of a user” of the instant application corresponds to “displaying, on the display, a target visual representation of a user” of the patent, “(target visual representation of a user) that is generated based on a current body assessment of the user,” of the instant application corresponds to “generating a target visual representation of the user based on the one or more body assessment vectors”, wherein body assessment vectors are current body assessments as they are generated from current images, of claim 1 of the patent, “a first target dimension for a first body part and a second target dimension for a second body part” of the instant application corresponds “a first target dimension for a first body part and a second target dimension for a second body part” (body assessment targets used in the generating a target visual representation step) of claim 1 of the patent, “overlaying, on a first portion of the target visual representation that corresponds to the first body part, a first indicator to indicate that the first body part satisfies the first target dimension for the first body part;” of the instant application corresponds to “overlaying, on a first portion of the target visual representation that corresponds to the first body part, a first indicator to indicate that the first body part satisfies the first target dimension for the first body part;” of claim 1 of the patent, and “and overlaying, on a second portion of the target visual representation that corresponds to the second body part, a second indicator to indicate that the second body part does not satisfy the second target dimension for the second body part” of the instant application corresponds to “overlaying, on a second portion of the target visual representation that corresponds to the second body part, a second indicator to indicate that the second body part does not satisfy the second target dimension for the second body part” of claim 1 of the patent. Regarding claim 2, “obtaining images of the user;” of the instant application corresponds to “obtaining one or more images associated with a user” of claim 1 of the patent, “and determining the current body assessment of the user based on the images of the user” of the instant application corresponds to “providing the one or more images to…generate one or more body-assessment vectors” of claim 1 of the patent. Regarding claim 4, “the images depict the user from different points of view” of the instant application corresponds to “the one or more images represents a different orientation of the user” of claim 1 of the patent. Regarding claim 5, “providing the images as an input to a body-assessment classifier;” of the instant application corresponds to “providing the one or more images to a body-assessment classifier” of claim 1 of the patent, “and receiving the current body assessment as an output from the body-assessment classifier” of the instant application corresponds to “to generate one or more body-assessment vectors” that is received by the “generating a target visual representation” step of claim 1 of the patent. Regarding claim 7, “ obtaining sensor data from a wearable device;” of the instant application corresponds to “obtains the body sensor data from a wearable device” of claim 3 if the patent, “and determining the current body assessment of the user based on the sensor data” of the instant application corresponds to “modifying the one or more body-assessment vectors based on the body sensor data” of claim 2. Regarding claim 10, “the target visual representation is further a function of fitness program data” of the instant application corresponds to “the morphed visual representation is a further function of fitness program data” of claim 10 of the patent. Claims 11 and 20 of the instant application are mapped to claims 15 and 19 of the patent, respectively, the same as claim 1 of the instant application is mapped to claim 1 of the patent. The only difference is that claims 11 and 20 are device and non-transitory computer readable medium claims, in which the language maps directly to their corresponding claims 15 and 19 of the patent, respectively. Claims 12, 14, 15 of the instant application also map to claim 15, 15, 15, respectively of the patent. The only difference is their dependencies, which have been rejected above. Claim 17 of the instant application maps to claims 15 and 3 of the patent, in which claim 3 contains the limitations of claim 17, and claim 15 is a method claim instead of a device claim. Since claims 1 and 11 of the instant application are the same except different types of claim (method vs. device) and since claim 3 of the patent corresponds to one of the method, its use in a device is obvious and therefore is rejected under obviousness-type double patenting.
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.
Claim 1, 2, 5, 6, 8-12, 15, 16 and 18-20 are rejected under 35 U.S.C. 102(a)(2) as being unpatentable by U.S. Patent Application Publication NO. 20130174073 (Ash et al).
Regarding claim 1, Ash et al discloses a method (fig. 5) comprising: at an electronic device (fig. 2) including one or more processors (fig. 2, item 210), a non-transitory memory (page 2, paragraphs 25-26), and a display (fig. 2, item 222 215): displaying, on the display (fig. 2, item 215), a target visual representation of a user (fig. 8, 9,. Item 610) that is generated based on a current body assessment of the user (fig. 5, item 514), a first target dimension for a first body part and a second target dimension for a second body part, i.e. the goals inputted in fig. 7, fig. 8 item 826-828 page 6, paragraph 57); overlaying, on a first portion of the target visual representation that corresponds to the first body part, a first indicator to indicate that the first body part satisfies the first target dimension for the first body part, i.e. fig. 9, item 620, overlayed on waist (page 9, paragraph 85); and overlaying, on a second portion of the target visual representation that corresponds to the second body part, a second indicator to indicate that the second body part does not satisfy the second target dimension for the second body part, i.e. an indicator that a goal weight (page 6, paragraph 59) is not achieved or a cardiovascular dimension still needs attention, with a marker overlaid as shown in fig. 9, item 618.
Claims 11 and 20 are rejected for the same reasons as claim 1. Thus, the arguments analogous to that presented above for claim 1 are equally applicable to claims 11 and 20. Claims 11 and 20 distinguish from claim 1 only in that they are device and non-transitory computer readable medium claims. Ash et al teaches further this feature, i.e. fig. 2, item 214, 214, 210 and page 2 paragraphs 25-26.
Regarding claim 2, Ash discloses obtaining images of the user from EMR (pages 3-4, paragraph 35,37, fig. 5, item 510); and determining the current body assessment of the user based on the images of the user because the health forecaster uses the EMR (page 3-4, paragraph 35, fig. 5, item 514).
Regarding claim 5, Ash et al discloses providing the health related data as an input to a body-assessment classifier (fig. 5, item 510); and receiving the current body assessment as an output from the body-assessment classifier (fig. 5, item 514), and that health related data includes images (page 4, paragraph 37).
Regarding claim 6, Ash et al discloses detecting a user input that specifies the first target dimension for the first body part and the second target dimension for the second body part by inputting the variables (page 6, paragraph 57).
Regarding claim 8, Ash et al discloses detecting a user input that specifies body measurements of the user, i.e. a weight (page 4, paragraph 44, fig. 5, item 510); and determining the current body assessment based on the body measurements (fig. 5, item 514).
Regarding claim 9, Ash et al discloses generating the target visual representation comprises: generating a current visual representation of the user based on the current body assessment of the user (fig. 5, item 510); and modifying the current visual representation of the user based on a combination of the first target dimension for the first body part and the second target dimension for the second body part to generate the target visual representation by inputting the targets in fig. 7 and modifying the representation to fig. 8, 9 item 610 (fig. 5, item 516).
Regarding claim 10, Ash et al discloses the target visual representation (fig. 9, item 610) is further a function of fitness program data, a function of fitness (fig. 9, item 814) program data (page 2, paragraph 24).
Claims 12, 15, 16, 18 and 19 are rejected for the same reasons as claims 2, 5, 6, 8 and 9, respectively. Thus, the arguments analogous to that presented above for claims 2, 5, 6, 8 and 9are equally applicable to claims 12, 15, 16, 18 and 19 . Claims 12, 15, 16, 18 and 19 distinguish from claims 2, 5, 6, 8 and 9 only in that they have different dependencies, both of which have been previously rejected. Therefore, prior art applies.
Claim Rejections - 35 USC § 103
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 3, 4, 7, 13, 14 and 17 are rejected under 35 U.S.C. 103(a) as being unpatentable over Ash et al in view of U.S. Patent Application Publication No. 20150038806 (Kaleal, III et al).
Regarding claim 3, Ash et al discloses all of the claimed elements as set forth above and incorporated herein by reference.
Ash et al does not disclose expressly the electronic device further includes a camera and wherein obtaining the images comprises capturing the images with the camera.
Kaleal III, et al discloses the electronic device further includes a camera and wherein obtaining the images comprises capturing the images with the camera (page 30, paragraph 231, page 27, paragraph 206).
Ash et al & Kaleal III, et al are combinable because they are from the same field of endeavor, i.e. fitness avatar creation.
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to have a camera for capturing images.
The suggestion/motivation for doing so would have been to provide a more robust method by having a direct input of images and allowing the user to input current images.
Therefore, it would have been obvious to combine the method of Ash et al with the camera of Kaleal, III et al to obtain the invention as specified in claim 3.
Regarding claim 4, Kaleal, III et al discloses the images depict the user from different points of view (page 27, paragraph 206).
Regarding claim 7, Kaleal, III et al discloses obtaining sensor data from a wearable device (fig. 3, item 304, “Biometric”, “movement”, page 5, paragraph 46); and determining the current body assessment of the user based on the sensor data (fig. 3, item 308).
Claims 13, 14 and 17 are rejected for the same reasons as claims 3, 4 and 7, respectively. Thus, the arguments analogous to that presented above for claims 3, 4 and 7 are equally applicable to claims 13, 14 and 17. Claims 13, 14 and 17 distinguish from claims 3, 4 and 7 only in that they have different dependencies, both of which have been previously rejected. Therefore, prior art applies.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kathleen Yuan Dulaney whose telephone number is (571)272-2902. The examiner can normally be reached M-F: 9AM-5PM.
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/KATHLEEN Y DULANEY/Primary Examiner, Art Unit 2666 4/27/2026
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