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 .
Election/Restrictions
Applicant’s election without traverse of group I, claims 1-15, in the reply filed on 6/30/2026 is acknowledged.
Claims 16-27 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 6/30/2026.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 8/6/2024, 2/11/2025 and 2/11/2025 were received and placed in the record on file. The submissions are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Currently, claim no limitations are interpreted as invoking a 35 USC 112(f) interpretation.
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 1-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Regarding claims 1-15, using the two-part test for subject matter eligibility (see MPEP 2106), independent claim 1 is the exemplary claim and is directed to a process (Step 1: Yes), specifically it is directed to a judicial exception regarding abstract ideas and mathematical concepts (Step 2A, Prong 1: Yes). The abstract idea is bolded in recreated exemplary claim 1 below:
A method comprising:
receiving raw accelerometry data, the raw accelerometry data being collected from a subject during a walking task; and
analyzing the raw accelerometry data to calculate a performance fatigability index for the subject.
The claim encompasses an abstract idea drawn to a mental process and mathematical concepts that can be done in the human mind and/or by hand using a pen and paper. In this case, receiving raw accelerometry data, the raw accelerometry data being collected from a subject during a walking task (mental process of receiving/viewing a dataset): and analyzing the raw accelerometry data to calculate a performance fatiguability index for the subject (mental process of viewing and thinking about the data and the mathematical concept of calculating a performance fatigability index according to an unclaimed formula), are drawn to mental processes and mathematical concepts. In other words, the mental process includes, observation, evaluation, judgement and opinion and the mathematical concept is performing calculations using predetermined mathematical functions (the performance fatigability index formula).
Further, the claims do not recite additional elements that integrate the judicial exception into a practical application (Step 2A, Prong 2: No). The claim fails to recite additional element or combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposed meaningful limitations of the judicial exception. There are no additional elements recited in exemplary claim 1.
Finally, the claims as a whole do not include additional elements that are sufficient to amount to significantly more than the judicial exception (Step 2B: No). As noted above, there are currently no additional element recited in exemplary claim 1.
Accordingly, claim 1 is rejected as non-statutory as being directed to a judicial exception (mental process and mathematical concept) without significantly more.
Further regarding dependent claims 2-6 and 10-15, the claims do not recite any additional elements that implement the abstract idea into a practical application or amount to significantly more than the abstract idea as the claims merely recite further steps/processes of the abstract idea. These additional/further clarifying steps do not amount to significantly more than the abstract idea as it has been held that eligibility cannot be furnished by the unpatentable abstract idea itself (MPEP 2106.04, II, A, 2).
Further regarding dependent claims 7-9, the claims recite the additional elements of collecting the raw accelerometry data from the subject while the subject completes the walking task (claim 7); the raw accelerometry data is received from a triaxial accelerometer (claim 8); and the triaxial accelerometer is worn by the subject (claim 9). However, these additional elements do not integrate the judicial exception into a practical application or amount to significantly more than the abstract idea when considered individually, or as a whole. Specifically, the additional element of claim 7 amounts to the insignificant extra-solution activity of mere data gathering (see MPEP 2106.05(g)); and/or the additional elements of claims 8 and 9 recite conventional, well known and routine elements provided to carry out the insignificant extra-solution activity of mere data gathering (wherein the examiner notes that the applicant discloses in paragraph [0040] of their submitted specification that the triaxial accelerometer used is any well-known and available triaxial accelerometer and is used for its common purpose of measuring activity data). Therefore, when considered individually, and as a whole, the additional elements of claims 7-9 do not integrate the abstract idea into a practical application or amount to significantly more than the abstract idea.
Accordingly, claims 2-15 are rejected as non-statutory as being directed to a judicial exception (mental process and mathematical concept) without significantly more.
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 4, 6-9 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Omron (applicant submitted Japanese Patent Document JP 2013-17614 A, wherein the examiner relies upon the provided English Machine Translation provided with paragraph numbers).
Regarding claims 1, 2, 4, 6-9 and 15; Omron discloses a method comprising:
receiving raw accelerometry data (, the raw accelerometry data being collected from a subject during a walking task (paragraph [0020], [0024]-[0025], [0048]-[0050]); and
analyzing the raw accelerometry data to calculate a performance fatigability index for the subject (wherein the performance fatigability index is represented by index = Sa / Sd wherein Sd is the initial unfatigued value and Sa ,is the value at a given instant; paragraphs [0039]-[0042]; figure 9).
Further regarding claim 2; Omron discloses the performance fatigability index for the subject represents a percentage of decrement in the subject's performance during the walking task
Further regarding claim 4; Omron discloses the step of analyzing the raw accelerometry data comprises obtaining an area under an observed gait cadence-versus-time trajectory curve for the walking task (Sd), wherein the performance fatigability index for the subject is calculated using the area under the observed gait cadence-versus-time trajectory curve for the walking task (wherein the integration unit determines the area under the curve for a cadence period during the walking task, and uses the calculated area under the curve, Sa, to determine the performance fatigability index; paragraphs [0039]-[0042]; figure 9).
Further regarding claim 6; Omron discloses the step of analyzing the raw accelerometry data comprises: partitioning the walking task into a plurality of segments (wherein Omron discloses partitioning the data into timed segments or based on arm swing per step or acceleration amplitude; paragraphs [0039]-[0042] and [0049]-[0073]); obtaining a first area under an observed gait cadence-versus-time trajectory curve for a first segment of the walking task; obtaining a second area under the observed gait cadence-versus-time trajectory curve for a second segment of the walking task; and assigning respective weights to each of the first and second areas under the observed gait cadence-versus-time trajectory curve, wherein the performance fatigability index for the subject is calculated using a sum of the weighted first and second areas under the observed gait cadence- versus-time trajectory curve (wherein the data is partitioned by the cadence of the arm swing and the initial unfatigued cadence vs time trajectory curve is compared to the cadence vs time trajectory curve of a second time period after the initial unfatigued cadence vs time trajectory curve to determine the performance fatigability index; paragraphs [0039]-[0042], [0049]-[0073]; figure 9 and 11-13).
Further regarding claim 7; Omron discloses collecting the raw accelerometry data from the subject while the subject completes the walking task (paragraph [0024] and [0039]-[0042]).
Further regarding claim 8; Omron discloses the raw accelerometry data is received from a triaxial accelerometer (paragraph [0024] and [0039]-[0042]).
Further regarding claim 9; Omron discloses the triaxial accelerometer is worn by the subject (paragraph [0024] and [0039]-[0042]).
Further regarding claim 15; Omron discloses classifying the subject into one of a plurality of physical performance decline categories based on the performance fatigability index (wherein the system classified the performance fatigability index into performance decline category such as “low fatigue”, “fatigued” and “high fatigue”; paragraphs [0039]-[0048], specifically [0043]-[0045]; figures 9, 11, 13, 14)
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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 3 is rejected under 35 U.S.C. 103 as being unpatentable over Omron.
Regarding claim 3; Omron discloses a method of determining the performance fatigability index of a user as described in the rejection of claim 1. Furthermore, Omron discloses the performance fatigability index for the subject comprises a comparison between an area under an observed gait cadence-versus-time trajectory curve for the walking task (Sa) and an area under a gait cadence-versus-time trajectory curve for a walking task at an initial no fatigue cadence (Sd) (paragraphs [0039]-[0042]). Thus, Omron teaches taking an initial gait cadence versus time trajectory curve measurement at the start of the walking/jogging exercise and calculating the area under the curve to determine the initial optimal performance level before fatigue sets in for comparison to later collected values (paragraphs [0039]-[0042]).
However, Omron differs from the claimed invention in that it uses an observed initial area under an observed gait cadence-versus-time trajectory curve when the user doesn’t have fatigue as the optimal value for comparison to the observed area under an observed gait cadence-versus-time trajectory curve instead of the area under a hypothetical gait cadence-versus-time trajectory curve for a walking task at maximal cadence.
It would have been obvious to one of ordinary skill in the art at the time of filing to substitute Omron’s observed initial unfatigued area under a cadence-versus-time trajectory curve with a hypothetical area under a cadence-versus-time trajectory curve representing walking at a maximal cadence as both Omron’s and the instant invention’s value represents an optimal cadence/no fatigue level for comparison to later observed area under a cadence-versus-time trajectory curves. Said another way, Omron’s Sd value is just a calibrated initial value no fatigue cadence value instead of a hypothetical value no cadence value, as they both represent an optimal value where no fatigue is present for comparison to currently measured values.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Omron as applied to claim 1 above, and further in view of Etemad et al (US 2015/0272483 A1).
Regarding claim 5; Omron is described in the rejection of claim 1 above. Omron further discloses the step of obtaining the area under the observed gait cadence-versus-time trajectory curve for the walking task comprises: estimating a plurality of strides and a plurality of cadences for the walking task based on the raw accelerometry data (paragraphs [0039]-[0042], [0049]-[0073]); and determining the area under the observed gait cadence-versus-time trajectory curve for the walking task based on the cadence trajectory (paragraphs [0039]-[0042], [0049]-[0073]).
However, Omron does not explicitly disclose smoothing the cadences for the walking task to obtain a smoothed cadence trajectory and determining the area under the observed gait cadence-versus-time curve based on the smoothed cadence trajectory.
Etemad teaches it is known in the art of accelerometry measurement for activity sensors to filter and/or smooth obtained accelerometer signals to remove noise before further processing/calculating in order to improve performance (paragraph [0228]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to modify Omron’s method to smooth the raw accelerometry data as taught by Etemad in order to improve performance of Omron’s calculations and outputs.
Claims 10-14 are rejected under 35 U.S.C. 103 as being unpatentable over Omron as applied to claim 1 above, and further in view of Karavirta (US 2016/0235363 A9).
Regarding claims 10-14; Omron is described in the rejection of claim 1 above, wherein Omron discloses monitoring the user while they perform a walking and/or jogging task and monitoring their performance.
However, Omron does not explicitly disclose any of the details of the walking task that the user performs including: the length of the walking task is selected to elicit a change in the subject's cadence during the walking task (claim 10); a length of the walking task is at least 400 meters (claim 11); the length of the walking task is at least 4 minutes (claim 12); the walking task is a walk at a usual pace for the subject (claim 13); or that the walking taks is a walk at a fast pace for the subject (claim 14).
Karavirta teaches a method for determining a user’s physiological state (i.e. healthy, fatigued, overtrained, etc…) during a test based on establishing conditions to compare a user’s measured data against wherein the standard performance can be determined by speed, distance, time period, terrain training on, and other factors (paragraphs [0053]-[0076], specifically [0053]-[0054] and [0076]).
Omron discloses measuring a user’s performance/fatigue based on the initial calibration (paragraphs [0039]-[0042]). Karavirta teaches factors that affect a user’s performance/fatigue that are affect testing parameters for setting standard conditions include speed/pace, distance, time running/walking and other factors. Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to test the user’s fatigability in Omron’s method by having the user perform the test/task while focusing on specific parameters including as speed/pace, distance, time walking/running, and other factors as taught by Karavirta in order to monitor the user’s fatigability index performance during different tasks that affect standard performance.
Further regarding claims 10-14; the examiner notes that the applicant’s specification does not provide any criticality to the specifically claimed distances, speeds and or times. Accordingly, the length, time, distance, and speed required by the task are a matter of design choice based on what the user wishes to test their performance on. Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to select any length, time, distance or speed, including those recited in claims 10-14, for testing the user’s performance during the walking task of the Omron/Karavirta combination’s performance test as a matter of design choice based on what the user wants to test their performance on.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
US 2013/0123669 A1 to Kinoshita et al; discloses a gait change determination device which measures fatigue of the user based on gait changes.
US 2013/0190658 A1 to Flaction et al; discloses an integrated portable device and method implementing an accelerometer for detecting asymmetries in movement of a user which can detect fatigue of the user.
US 2017/0189752 A1 to Mohrman et al; discloses a method and apparatus for power expenditure and technique determinization during bipedal motion which includes determining fatigue of the user.
US 2010/0137748 A1 to Sone et al; discloses a fatigue estimation device and apparatus having the fatigue estimation mounted device thereon.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADAM J EISEMAN whose telephone number is (571)270-3818. The examiner can normally be reached Monday - Friday (7:00 AM - 4:00 PM).
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/ADAM J EISEMAN/ Primary Examiner, Art Unit 3791
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