Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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 1-20 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claims 1-20 pass step 1 of the test for eligibility.
As per step 2A prong one, the claims are evaluated to determine whether the claims recite a judicial exception. Representative claim 1 recites, with emphasis added:
A method for determining a rotation rate of a ball used for an athletic activity, the method comprising:
sensing acceleration data for the ball using a sensor coupled to the ball;
identifying a repeating portion of the sensed acceleration data;
determining a time period of the repeating portion of the sensed acceleration data;
determining an inverse of the time period of the repeating portion; and
determining the rotation rate of the ball based on the determination of the inverse of the time period.
The above underlined portion of representative claim 1 recites a judicial exception because they are mental processes, as all of the steps could be performed entirely with the human mind or with pen and paper as a human could look at sensed data, identify repeating portions, see the time between each sensed data, determine an inverse of the time period, and determine the rotation rate of the ball based on the determination of the inverse of the time period.
Next, as per step 2A prong two, the claims are evaluated to determine whether the claim as a whole integrates the recited judicial exception into a practical application of the exception.
The elements recited above that are not underlined in representative claim 1 comprise the additional elements. As discussed in more detail below, these additional elements do not integrate the recited judicial exception into a practical application of the exception.
Sensing the acceleration data is/are extra-solution activity as these extra solution activities are insignificant data gathering and data output (see MPEP 2106.05(g))
Thus, taken alone, the additional elements do not integrate the recited judicial exception into a practical application of the exception. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology.
Next, as per step 2B, the claims as a whole are analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claims amount to significantly more than the exception.
Sensing the acceleration data is/are extra-solution activity as these extra solution activities are well known data gathering and data output (see MPEP 2106.05(g)), thus they do not amount to significantly more than the abstract idea.
Thus, taken alone, the additional elements do not amount to significantly more than the exception. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology.
The dependent claims of 2-7, 9-16, and 18-20 are further rejected under 101 for the reasons described above as they simply further define the abstract idea (which makes the abstract idea no less abstract) without adding significantly more or integrating the abstract idea into a practical application.
Thus, taken alone, the additional elements of the dependent claims do not amount to significantly more than the above-identified judicial exception (the abstract idea) and do not integrate the recited judicial exception into a practical application of the exception. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology.
Further, taken alone, the additional elements of the dependent claims do not amount to significantly more than the above-identified judicial exception (the abstract idea). Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,070,655 and claims 1-55 of U.S. Patent No. 9,257,054 in view of Grosso (US 5379968). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘655 cases teaches determining the rotation rate of the object using conditions of data from acceleration data, and the ‘054 patent teaches using acceleration data to determine a first and second orientation and determining the trajectory of the object. The ‘655 and ‘054 patents fail to disclose that a repeating portion of the sensed acceleration data is identified, a time period of the repeating portion of the sensed acceleration data, an inverse of the repeating portion as the way of determining the rotation rate of the ball, however Grosso discloses that an accelerometer may produce a signal which is sinusoidal at the spin frequency (meaning that repeating portions would occur each revolution) (column 9 lines 11-24), which would result in the spin rate being calculated by measuring the number of spins per unit time (which is to say, the inverse of the time period of the repeating portion). It would have been obvious to combine ‘655/’054 in view of Grosso in order to allow for use of a known method of determining the spin rate of the object.
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 1-14 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over McCreary (US 20050223815) in view of Grosso (US 5379968).
In claims 1 and 8 McCreary discloses
Sensing acceleration data for the ball using a sensor coupled to the ball (paragraph 25)
Determining the rotation rate of the ball based on the acceleration data (paragraph 59)
McCreary fails to discloses identifying a repeating portion of the sensed acceleration data, determining a time period of the repeating portion of the sensed acceleration data, and determining an inverse of the time period of the repeating portion, however Grosso discloses that an accelerometer may produce a signal which is sinusoidal at the spin frequency (meaning that repeating portions would occur each revolution) (column 9 lines 11-24, column 7 lines 39-62), which would result in the spin rate being calculated by measuring the number of spins per unit time (which is to say, the inverse of the time period of the repeating portion). It would have been obvious to combine McCreary in view of Grosso in order to allow for use of a known method of determining the spin rate of the object.
In claims 2 and 9, Grosso discloses the repeating portion of the sensed acceleration data corresponds to an orientation of the acceleration data of the ball with respect to the sensor (column 9 lines 11-24)
In claims 3 and 10, Grosso discloses identifying successive similar orientations of the acceleration data with respect to the sensor (column 9 lines 11-24)
In claims 4 and 11, Grosso discloses the repeating portion of the sensed acceleration data corresponds to the repeating peaks in data output representative of orientations of the acceleration data (column 9 lines 11-24)
In claims 5 and 12, Grosso discloses determining the time period of the repeating portion of the sensed acceleration data comprises determining an elapsed time between the successive similar orientations of the acceleration data (column 7 lines 39-62)
In claims 6 and 13, McCreary discloses outputting the rotation rate of the ball to visually convey the rotation rate of the ball to a user (paragraph 29)
In claims 7 and 14, McCreary in view of Grosso fails to discloses Audibly conveying the rotation rate of the ball to the user, however Official notice is taken that providing an output to a speaker for audible conveyance of information was notoriously well known in the art and it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine McCreary in view of Grosso with this well known technique in order to allow for the information to be provided to the user thru a known method of conveying information with advantages such as not needing a display.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS HAYNES HENRY whose telephone number is (571)270-3905. The examiner can normally be reached M-F 10-6.
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/THOMAS H HENRY/ Primary Examiner, Art Unit 3715
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