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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Status of Claims
Claims 20 – 39 are currently pending.
Response to Remarks
Regarding 101, the Examiner attended a meeting with other Examiners wherein the topic was 101 subject matter eligibility, and it just so happened that these claims or similar claims by same Applicant were discussed. Correlation and normalization are well-known mathematical concepts. Thus, the features related to spin estimation are mathematical. The specification provides for Equation 3 for autocorrelation at Para. 19. Normalization appears to involve conjugation (because complex) and subtraction of lowpass results, thus mathematical. See Spec. Para. 27. The specification states “The shoulder width method of measuring spin rate relies on the Doppler shift seen by the radar when the illuminated object is moving with respect to the radar.” See Spec. Para. 20. Applicant’s Fig. 1 also shows velocity plus and minus radial velocity (Doppler velocity), thus the shoulder frequencies are considered mathematical.
The transmission and reception of radar data at a generalized high abstract level for the purpose data gathering is insignificant extra solution activity because that is how radars collect data. See e.g. Rimini (US 20190339358 A1) Para. 79, Goldman (US 20140112103 A1) Para. 44 and Kihlberg (US 4041293 A) Abstract. The Examiner erroneously did not treat transmission and reception at a high level for data gathering as insignificant extra-solution activity in the prosecution of some of Applicant’s parent applications. See e.g. Application 16/662,612 claim set 7/07/2021.
Previously, Applicant and the Examiner discussed whether displaying the spin estimation would be a practical application and thus eligible subject matter. See Appl. 17/824,467 claims dated 12/07/2023 at least claim 20. The Examiner decided that the display would be data output and thus insignificant extra-solution activity. In view of the 101 meeting that Examiner attended, Examiner’s previous decision for these claims or similar claims regarding a display for this particular set of facts is erroneous. The invention is directed to a user having an estimate of his/her spin as evidenced by the user interface. See e.g., Spec. Para. 31. Thus, a display for displaying spin estimation would be a practical result and considered eligible subject matter for this particular set of facts. The display would allow for “athletes to quickly determine projectile spin data to improve performance.” See Remarks Page 7. However, a display is not claimed in the independent claims. Also, the language “for display” in claim 23 appears to be intended use. The claims should actively recite language to indicate display of spin estimates to be eligible subject matter.
The Examiner reviewed Diehr, and it appears the claims at issue in Diehr involved iterative calculations, updating and opening a press, which are facts that are at least eligible subject matter under at least step 2B if not maybe step 2A prong 2. However, these facts are not analogous to the instant application. The independent claims of the instant application can be divided into two distinct groups: data gathering and math, thus not an ordered combination that is significantly more that “well-understood, routine, conventional” activity in the field. 84 Fed. Reg. at 56; MPEP § 2106.05(d). The fact that collecting data and performing math on said data should be apparent by all the references cited on PTO 892. See e.g. Saegusa (US 10379213 B2) claim 19, Schuck (US 20180106889 A1), Ataie (US 20190339548 A1) Para. 64. Also, the Examiner takes official notice that it is common for high school students in physic class to take measurements on data and then perform calculations on said data. The Examiner makes a fair presumption that most readers of this application have probably had a physics class or some other similar class wherein measurements are made which were then applied to calculations.
Regarding the prior art rejection, the independent claims do not require a width or shape. Shoulder frequencies is not a term of art. Applicant could amend the independent claims to indicate width or shape of shoulder frequency to determine spin estimation. The cited portion of Schuck at Para. 38 states either autocorrelation or Cepstrum. Also, Cepstrum uses Fourier transforms.
Looking at the prosecution history, it appears that Examiner was narrowly interpreting lag as a variable term specifically associated with correlation. Now, looking at Applicant’s remarks, reviewing the specification at Para. 55 regarding step 512 and looking at dependent claim 27, it appears that the lag is basically related to width used to determine spin estimation. If Examiner’s understanding is now correct, then Saegusa (US 20160327642 A1) would have been a better reference. In fact, Saegusa would have been a 102 reference for Application 17/824,467 because Saegusa would have at least anticipated all of the claimed features of claim 1. See Saegusa Para. 148 quoting “generating a correlation equation between the peak frequency PK and the movement speed, and generating a correlation equation between the frequency width SW and the rotation speed, and the correlation equations are selected based on the diameter information input to the input unit 20.” Nonetheless, the Examiner does not have a secondary reference that teaches a nexus between normalization (or conjugation or root mean square) and spin estimation. In addition to independent claims 20, Independent claims 29 and 37 have additional features such as “summation of a variable number of measurements” and “second normalized spectrum”, respectively. As such, the prior art rejection and double patent rejection for this instant application rejection is withdrawn.
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 20 – 38 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims recite the abstract ideas as explained in the Step 2A, Prong I analysis below. This judicial exception is not integrated into a practical application as explained in Step 2A, Prong 2 analysis below. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception as explained in Step 2B analysis below.
Note that claim 39 appears to have eligible subject matter.
Step 2A, Prong 1:
Step 2A, prong 1, of the 2019 Guidance, first looks to whether the claim recites any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activities such as a fundamental economic practice, or mental processes). 84 Fed. Reg. at 52–54.
Regarding the independent claims 20, 29 and 37, Correlation and normalization are well-known mathematical concepts. Thus, the features related to spin estimation are mathematical. The specification provides for Equation 3 for autocorrelation at Para. 19. Normalization appears to involve conjugation (because complex) and subtraction of lowpass results, thus mathematical. See Spec. Para. 27. The specification states “The shoulder width method of measuring spin rate relies on the Doppler shift seen by the radar when the illuminated object is moving with respect to the radar.” See Spec. Para. 20. Applicant’s Fig. 1 also shows velocity plus and minus radial velocity (Doppler velocity), thus the shoulder frequencies are considered mathematical.
Also, the specification states that “Shoulder detection system 308 identifies one or more shoulders in the FFT data, such as by determining a point at which FFT energy associated with a peak has fallen to a predetermined level relative to that peak, by determining a matched set of positive and negative deviations from the peak that have a predetermined energy or in other suitable manners.” See Spec. Para. 35. Thus, the feature of identifying a component spectrum (peak) and shoulder frequencies could also be considered a mental process in this regard, although it is clearly a mathematical process as discussed supra. Note that FFT is also a mathematical process.
Algorithms that can easily be performed in the mind or by hand or with the aid of a general-purpose computer. See Intellectual Ventures I LLC. v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016); Mortg. Grader, Inc. v. First. Choice Loan Servs. Inc., 811 F.3d 1314, 1324 (Fed. Cir. 2016).
The FFT of claims 21 and 30 is mathematical.
The detection of a greater magnitude of claims 22 and 31 is a mental process.
Claims 23 – 26, 32 – 35 and 38 are directed to a comparison. Claim 25 is also directed to a comparison to identify metrics. Claim 26 is also directed to a comparison to identify a matched pattern, which, as broadly claimed, could be based on subtraction. These features are considered mathematical. Claim 27 is broadly directed to calibration data and could be considered mathematical. Claim 28 is mathematical.
Claim 36 appears to be a mental process based on the specification at Para. 35 discussed supra.
Step 2A, Prong 2:
Step 2A, prong 2, of the 2019 Guidance, next analyzes whether claims 22, 33, 36 and 41 recite additional elements that individually or in combination integrate the judicial exception into a practical application. 2019 Guidance, 84 Fed. Reg. at 53–55. The 2019 Guidance identifies considerations indicative of whether an additional element or combination of elements integrate the judicial exception into a practical application, such as an additional element reflecting an improvement in the functioning of a computer or an improvement to other technology or technical field. Id. at 55; MPEP § 2106.05(a).
In addition to reciting the above-noted abstract ideas, the issue is whether the claims as a whole including various additional elements integrate the abstract ideas into a practical application. In other words, do the claims as a whole produce any meaningful limits, i.e. improvement in technology?
The specification states “Such athletes can improve their performance by understanding the dynamics of spin variation versus flight path, and if projectile spin data is readily available, it allows them to apply this knowledge to their sport activities. As such, the ability to quickly determine projectile spin data can help to improve the performance of athletes.” See Spec. Paragraph 13 or 14.
Claimed sensors that are claimed at a high level of generality for the purpose of data gathering is considered extra-solution activity. As such, the transmission and reception of radar data at a generalized high abstract level for the purpose data gathering is insignificant extra solution activity because that is how radars collect data. See e.g. Rimini (US 20190339358 A1) Para. 79, Goldman (US 20140112103 A1) Para. 44 and Kihlberg (US 4041293 A) Abstract.
The language of “for display” in claim 23 may be considered intended use wherein the display or the act of displaying is not actually claimed.
Claim 23 – 26, 32 – 35 and 38 may have additional language that further defines the data, e.g., input or output, or how the data is collected. For example, receiving data at different times is still data gathering thus considered extra-solution activity. The type of data being inputted or outputted is also considered extra-solution activity.
The various systems, aside from the radar, appear to be directed to circuitry related to a general-purpose computer. See Spec. Paragraph 67.
Using generic computer components to implement an abstract idea does not integrate the abstract idea into a practical application. See, e.g., Alice, 573 U.S. at 223–24; see also Memorandum, 84 Fed. Reg. at 55 (explaining that courts have identified merely using a computer as a tool to perform an abstract idea as an example of when a judicial exception has not been integrated into a practical application).
Even though the specification states an improvement, the claimed subject matter is still abstract because all of the features discussed supra are either abstract, e.g., mathematical, or extra-solution activity. A claim for a useful or beneficial abstract idea is still an abstract idea. See Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379–80 (Fed. Cir. 2015).
None of the additional limitations provide a meaningful limit on the claim invention. Rather, the additional limitations are directed to data gathering and data processing which is an extra-solution activity.
Step 2B:
Under step 2B of the 2019 Guidance, the issue is whether the claims adds any specific limitations beyond the judicial exception that, either alone or as an ordered combination, amount to more than “well-understood, routine, conventional” activity in the field. 84 Fed. Reg. at 56; MPEP § 2106.05(d).
The issue is whether the claims as a whole including the additional limitations, as an ordered combination, amount to more than “well-understood, routine, conventional” activity in the field. In other words, the issue is whether the additional elements in combination (as well as individually) amount to an inventive concept.
The issue is whether the ordered combination of structural features and/or steps are considered well-understand, routine and conventional or whether the ordered combination itself provides for an improvement of a particular structure. For example, the integration of a computer with a sensor is conventional because a sensor collects data and a computer performs calculations and processing on data from said sensors. Again, the additional limitations are directed to mere data gathering and data processing, which is “well-understood, routine, and conventional” activity in the field. Thus, the additional limitations alone or in combination do not amount to an inventive concept.
BASCOM Global Internet v. AT&T Mobility LLC, 119 USPQ2d 1236 (Fed. Cir. 2016) (BASCOM) provides, in summary, an example wherein the local computer, ISP server, internet computer network and controlled access network are generic computer and networking components that when taken individually do not amount to significantly more but taken together provided for an unconventional and non-generic combination of known elements that result in an improvement of filtering content thus amounting to significantly more. As such, BASCOM provides an example wherein the improvement was related to functionality of the computer and networking itself, rather than an abstract idea. Also, the MPEP provides at least two examples of an improvement wherein the improvement was related to functionality of the computer itself, rather than an abstract idea. See MPEP 2106.04 examples v and vi.
Here, all the rejected claims are directed to features that are mathematical concepts and/or extra-solution activity, that when all the features are considered together, the features as a whole are still abstract because all the substantive features are mental processes and/or mathematical that could be done by a general-purpose computer and wherein the only other structure, e.g. radar, is only claimed at a high-level of abstraction for the purpose of data gathering. Again, a claim for a useful or beneficial abstract idea is still an abstract idea. See Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379–80 (Fed. Cir. 2015). As such, the ordered combination of features is directed solely to abstract ideas or extra-solution activity as discussed supra. The same reasoning applies to the dependent claims.
The fact that collecting data and performing math on said data is well-understood, routin and conventioanl should be apparent by all the references cited on PTO 892. See e.g. Saegusa (US 10379213 B2) claim 19, Schuck (US 20180106889 A1), Ataie (US 20190339548 A1) Para. 64. Also, the Examiner takes official notice that it is common for high school students in physic class to take measurements on data and then perform calculations on said data. The Examiner makes a fair presumption that most interested readers of this application have probably had a physics class or some other similar class wherein measurements are made which were then applied to calculations.
The dependent claims 21 – 28, 30 – 36 and 38 either further define the abstract idea in the independent claims or add limitations which recite abstract ideas similar to the ones addressed above or provide for extra-solution activity and/or intended use.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL W JUSTICE whose telephone number is (571)270-7029. The examiner can normally be reached 7:30 - 5:30 M-F.
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/MICHAEL W JUSTICE/Examiner, Art Unit 3648
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