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 § 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.
Claim 11 is 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.
Claim 11 recites a claim limitation “wherein said feedback signal generator comprises a speaker” and “said speaker.” Claim 11 depends on claim 10 and claim 10 also recites a claim limitation “wherein said feedback signal generator comprises a speaker.” This is causing confusion.
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 1-11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 12370427. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations claimed by the instant claims are being disclosed by claims 1-12 of U.S. Patent No. 12370427.
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.
Claim(s) 1-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over THORNBRUE et al. [US20210228963], hereinafter THORNBRUE, in view of MALHOTRA [US20160027325 ].
Regarding claim 1, THORNBRUE discloses a timing biofeedback system (Fig. 1) that detects start of an action, comprising:
an inertial sensor coupled to a piece of equipment used by a user to perform an action, said inertial sensor comprising an accelerometer; a gyroscope; and a network interface ([0071], “sensor 104 may contain any or all of a three axis accelerometer 105, a three axis gyroscope 106” and [0073], “data may be transferred over a wireless network”);
wherein said inertial sensor is configured to capture inertial sensor data during a session wherein said user performs said action with said piece of equipment; and, stream said inertial sensor data over said network interface as said inertial sensor data is captured; said action comprises one or more phases ([0073], “Data may be obtained in real time during a swing”); and,
a feedback signal generator configured to transmit one or more feedback signals to said user ([0025], “One or more embodiments of the invention may include utilizing sound or at least one Virtual Reality (VR), Augmented Reality (AR) or Mixed Reality (MR) display, glasses or goggles to provide bio-feedback to the user. For example, in one or more embodiments, a sound or visual display may be utilized to provide feedback to the user to indicate a correct position, or movement has been achieved”);
a processor coupled to said inertial sensor via a network connection, and coupled to said feedback signal generator, wherein said processor is configured to receive said inertial sensor data ([0074], “Steps 120 through 170 analyze data from sensor 104 to characterize the swing, resulting in swing metrics 180. These steps may be performed in any order, or in parallel. These steps may be performed on any system or combination of systems. For example, without limitation, any or all of these steps may be performed on a computer, a mobile computer, a laptop computer, a notebook computer a desktop computer, a tablet computer, a mobile phone, a smart phone, a smart watch, a microprocessor, a server, or a network of any of these devices. In one or more embodiments the sensor 104 may contain a processor or processors that perform some or all of the steps 110 through 170”); detect a starting time of said action based on said inertial sensor data without generating a prompt to indicate to said user to start said action (Fig. 5, [0081], “The swing plane speed curve may be used to define an unambiguous point in time for the start of the downswing of a swing”).
However, THORNBRUE does not explicitly disclose each phase of said one or more phases has an associated ideal duration; when said starting time of said action is detected, for each phase of said one or more phases, start a timer with a duration equal to said associated ideal duration associated with said each phase; and, when said timer expires, transmit a feedback signal to said feedback signal generator; and, continue to a subsequent phase of said one or more phases unless said each phase is a last phase.
Nevertheless, MALHOTRA teaches in a like invention, each phase of said one or more phases has an associated ideal duration ([0102], “Feedback systems may be implemented to provide feedback signals to the athlete as discussed above, such as to indicate the tempo of the golf swing”); when said starting time of said action is detected, for each phase of said one or more phases, start a timer with a duration equal to said associated ideal duration associated with said each phase; and, when said timer expires, transmit a feedback signal to said feedback signal generator; and, continue to a subsequent phase of said one or more phases unless said each phase is a last phase ([0102], “based upon the detection one or more features of the backswing or forward swing, an additional feedback signal may be transmitted at a predetermined time configured to indicate the proper timing for the athlete to perform an additional feature of the athletic performance, such as making contact with the ball… an athlete may receive feedback, such as various audible tones) indicative of the tempo of their backswing and their forward swing, and despite the tempo of the forward swing, an additional feedback signal may mark the timing of an optimal point in time to make contact with the ball, based upon properties the detected backs-wing”).
Thus, it would have been obvious to one having ordinary skill in the art before the time the invention was effectively filed to have modified the timing biofeedback system, as disclosed by THORNBRUE, to have the feedback signal indicating an ideal duration associated with a phase is up, as taught by MALHOTRA, in order to assist the athlete to improve the said action by ending/beginning each phase of the action at the timing of an optimal point in time.
Regarding claim 2, the combination of THORNBRUE and MALHOTRA discloses the timing biofeedback system that detects start of an action of claim 1, wherein said processor and said feedback signal generator are integrated into a mobile device used by said user (THORNBRUE, [0074], “For example, without limitation, any or all of these steps may be performed on a computer, a mobile computer, a laptop computer, a notebook computer a desktop computer, a tablet computer, a mobile phone, a smart phone, a smart watch, a microprocessor, a server, or a network of any of these devices”).
Regarding claim 3, the combination of THORNBRUE and MALHOTRA discloses the timing biofeedback system that detects start of an action of claim 1, wherein said accelerometer comprises a three axis accelerometer; said gyroscope comprises a three axis gyroscope; and, said network interface comprises a wireless network interface (THORNBRUE, [0071], “sensor 104 may contain any or all of a three axis accelerometer 105, a three axis gyroscope 106” and [0073], “data may be transferred over a wireless network”).
Regarding claim 4, the combination of THORNBRUE and MALHOTRA discloses the timing biofeedback system that detects start of an action of claim 1, wherein said processor is further configured to calculate a feedback signal value, and wherein said feedback signal generator comprises a speaker; said feedback signal comprises an audio output from said speaker; said feedback signal value comprises one or more of pitch and volume of the audio output (MALHOTRA, [0102], “an athlete may receive feedback, such as various audible tones) indicative of the tempo of their backswing and their forward swing”).
Regarding claim 5, the combination of THORNBRUE and MALHOTRA discloses the timing biofeedback system that detects start of an action of claim 1, wherein said feedback signal is different for each phase of said one or more phases (MALHOTRA, [0102], “an athlete may receive feedback, such as various audible tones) indicative of the tempo of their backswing and their forward swing”).
Regarding claim 6, the combination of THORNBRUE and MALHOTRA discloses the timing biofeedback system that detects start of an action of claim 1, wherein said action comprises one or more of a putt; a golf stroke; a stroke of a racquet; a swing of a bat (THORNBRUE, [0009], “the exemplary embodiments described herein may also be applied to any other piece of equipment that involves a swing, including but not limited to a golf club, tennis racquet, etc.”).
Regarding claim 7, the combination of THORNBRUE and MALHOTRA discloses the timing biofeedback system that detects start of an action of claim 1, wherein said detect a starting time of said action based on said inertial sensor data comprises one or more of determine whether one or more of said piece of equipment and said user are in a correct orientation to start said action (THORNBRUE, [0071], “Sensor 104 may incorporate any type of sensor technology or technologies to measure any quantities, such as for example any aspects of the motion, position, or orientation of the bat”); determine whether one or more of said piece of equipment and said user are substantially stationary before said starting time of said action (THORNBRUE, [0023], “The bat forward velocity at any point in time may be calculated as the velocity of the sweet spot projected onto a plane perpendicular to the longitudinal axis of the bat”); determine whether one or more of said piece of equipment and said user move or rotate at a speed or acceleration above a threshold value (THORNBRUE, [0015], “The time of impact may be calculated by searching the sensor data time series for event signatures that may for example have acceleration and angular velocity exceeding respective threshold values”); and, determine whether one or more of said piece of equipment and said user move in an expected direction or rotate on an expected axis (THORNBRUE, [0016], “A valid air swing may for example require that peak xy angular velocity and peak z-axis acceleration exceed respective threshold values”).
Regarding claim 8, please refer to the claim rejection of claims 1, 3 and 7.
Regarding claim 9, please refer to the claim rejection of claim 4.
Regarding claim 10, please refer to the claim rejection of claims 1-7.
Regarding claim 11, please refer to the claim rejection of claim 4.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YINGCHUAN ZHANG whose telephone number is (571)272-1375. The examiner can normally be reached 8:00 - 4:30 M-F.
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/YINGCHUAN ZHANG/Primary Examiner, Art Unit 3711
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