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 .
Specification
The abstract of the disclosure is objected to because
The abstract contains 220 words, which is over the requirement for 50 – 150 words in length
There is implied language including, “According to an aspect, there is provided.”
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
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.
Claims 1 – 15 are 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 1 (line 17) and Claim 9 (line 15) each recite the term “formed from values of the muscle contraction feature”. It is unclear if these values are intended to be the same or different than the previously-recited values of a muscle contraction feature. For the purposes of examination, the term “formed from values of the muscle contraction feature” is deemed to claim “formed from second values of the muscle contraction feature”. Claims 2 – 8 and 10 – 15 are similarly rejected due to their dependence on Claims 1 and 9.
Claim 2 (lines 1 - 2) and Claim 10 (lines 1 - 2) each recite the term “wherein the measurements of muscle contractions are obtained”. It is unclear if these are intended to be the same or different than the previously-recited first and second sets of measurements. For the purposes of examination, the term “wherein the measurements of muscle contractions are obtained” is deemed to claim “wherein the first and second set of measurements of muscle contractions are obtained”.
Claim 3 (line 3 – 4) and Claim 11 (lines 3 – 4) each recite the term “determine values of the muscle contraction feature for muscle contractions in the first time period”. It is unclear if these values are intended to be the same or different than the previously-recited values of a muscle contraction feature. For the purposes of examination, the term “determine values of the muscle contraction feature for muscle contractions in the first time period” is deemed to claim “determine the values of the muscle contraction feature for the muscle contractions of the at least one muscle in the first time period”.
The term “suitable computer or processor” in claim 8 is a relative term which renders the claim indefinite. The term “suitable” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear what the metes and bound of “suitable” are such that a computer or processor could be determined to be unsuitable, whether it is by function, cost, size, etc. For the purposes of examination, the term “suitable computer or processor” is deemed to claim “computer or processor”.
Claim 15 recites the term “worn by a subject”. It is unclear if this is intended to be the same or different than the previously-recited subject in Claim 9, from which this claim depends. For the purposes of examination, the term “worn by a subject” is deemed to claim “worn by the subject”.
Claim 15 recites the term “contractions of one or more muscles of the subject”. It is unclear if this is intended to be the same or different than the previously-recited at least one muscle in Claim 9, from which this claim depends. For the purposes of examination, the term “contractions of one or more muscles of the subject” is deemed to claim “contractions of the at least one muscle of the subject”.
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.
Claim 8 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter because the claim recites a “computer program product comprising a computer readable medium having computer readable code”, which can be considered either software per se or signals per se, which are not one of the statutory categories of invention. The claim should be amended to recite “non-transitory computer readable medium comprising computer readable code”, and the forthcoming 101 analysis regarding Claim 8 is provided assuming that this amendment is made.
Claims 1 - 15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Regarding Claim 1, the claim recites "an act or step, or series of acts or steps" and is therefore a process, which is a statutory category of invention (Step 1). The claim is then analyzed to determine whether it is directed to any judicial exception (Step 2A, Prong 1).
Regarding Claim 9, the claim recites an apparatus, which is one of the statutory categories of invention (Step 1). The claim is then analyzed to determine whether it is directed to any judicial exception (Step 2A, Prong 1).
Each of claims 1 – 15 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1 – 15 recites at least one step or instruction for observations, evaluations, judgments, and opinions, which are grouped as a mental process under the 2019 PEG. The claimed invention involves making observations, evaluations, judgments, and opinions, which are concepts performed in the human mind under the 2019 PEG.
Accordingly, each of Claims 1 – 15 recites an abstract idea.
Specifically, Claims 1 – 15 recite (underlined are observations, judgments, evaluations, or opinions, which are grouped as a mental process under the 2019 PEG) (additional elements bolded, see Step 2A, prong 2);
Claim 1
A computer-implemented method for assessing muscle fatigue in at least one muscle of a subject, the method comprising:
obtaining a first set of measurements of muscle contractions of the at least one muscle for a first time period;
forming a first frequency distribution from values of a muscle contraction feature determined from the first set of measurements;
determining a first distribution fit of the first frequency distribution;
determining whether the first distribution fit is statistically stable;
if the first distribution fit is determined to be statistically stable, determining, from the first distribution fit, a first value for a distribution fit feature;
comparing the first value to a second value for the distribution fit feature to determine a measure of the fatigue of the at least one muscle during the first time period, wherein the second value for the distribution fit feature relates to a second distribution fit of a second frequency distribution, wherein the second frequency distribution is formed from values of the muscle contraction feature determined from a second set of measurements of muscle contractions of the at least one muscle for a second time period that is different to the first time period; and
outputting a signal representing the determined measure of the fatigue.
Claim 9
An apparatus for assessing muscle fatigue in at least one muscle of a subject, the apparatus comprising a processing unit configured to:
obtain a first set of measurements of muscle contractions of the at least one muscle for a first time period;
form a first frequency distribution from values of a muscle contraction feature determined from the first set of measurements;
determine a first distribution fit of the first frequency distribution;
determine whether the first distribution fit is statistically stable;
determine, from the first distribution fit, a first value for a distribution fit feature if the first distribution fit is determined to be statistically stable;
compare the first value to a second value for the distribution fit feature to determine a measure of the fatigue of the at least one muscle during the first time period, wherein the second value for the distribution fit feature relates to a second distribution fit of a second frequency distribution, wherein the second frequency distribution is formed from values of the muscle contraction feature determined from a second set of measurements of muscle contractions of the at least one muscle for a second time period that is different to the first time period; and
output a signal representing the determined measure of the fatigue.
(observation, judgment or evaluation, which is grouped as a mental process under the 2019 PEG);
These underlined limitations describe a mathematical calculation and/or a mental process, as a skilled practitioner is capable of performing the recited limitations and making a mental assessment thereafter. Examiner notes that nothing from the claims suggests that the limitations cannot be practically performed by a human with the aid of a pen and paper, or by using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time. Examiner additionally notes that nothing from the claims suggests and undue level of complexity that the mathematical calculations and/or the mental process steps cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps. For example, in Independent Claims 1 and 9, these limitations include:
Observation and judgment to form a first frequency distribution from values of a muscle contraction feature determined from the first set of measurements;
Observation and judgment of a first distribution fit of the first frequency distribution;
Observation and judgment of whether the first distribution fit is statistically stable;
Observation and judgment of, from the first distribution fit, a first value for a distribution fit feature if the first distribution fit is determined to be statistically stable;
Observation and judgment to compare the first value to a second value for the distribution fit feature to determine a measure of the fatigue of the at least one muscle during the first time period, wherein the second value for the distribution fit feature relates to a second distribution fit of a second frequency distribution, wherein the second frequency distribution is formed from values of the muscle contraction feature determined from a second set of measurements of muscle contractions of the at least one muscle for a second time period that is different to the first time period;
all of which are grouped as mental processes under the 2019 PEG.
Similarly, the Dependent Claims include the following abstract limitations, in addition the aforementioned limitations in Independent Claims 1 and 9 (underlined observation, judgment or evaluation, which is grouped as a mental process under the 2019 PEG):
processing the first set of measurements to determine values of the muscle contraction feature for muscle contractions in the first time period;
Observation and judgment to process the first set of measurements to determine values of the muscle contraction feature for muscle contractions in the first time period;
forming the first frequency distribution from the determined values of the muscle contraction feature.
Observation and judgment to form the first frequency distribution from the determined values of the muscle contraction feature.
determining a measure of the variability of the first distribution fit
Observation and judgment of a measure of the variability of the first distribution fit
comparing the determined measure of the variability to a threshold value;
Observation and judgment to compare the determined measure of the variability to a threshold value;
wherein the first distribution fit is determined to be statistically stable if the determined measure of the variability is below the threshold value.
wherein the first distribution fit is Observed and judged to be statistically stable if the determined measure of the variability is below the threshold value.
the measure of the fatigue of the at least one muscle during the first time period is determined based on a difference between, or ratio of, the first value of the distribution fit feature and the second value of the distribution fit feature.
the measure of the fatigue of the at least one muscle during the first time period is Observed and judged based on a difference between, or ratio of, the first value of the distribution fit feature and the second value of the distribution fit feature.
all of which are grouped as mental processes under the 2019 PEG.
Accordingly, as indicated above, each of the above-identified claims recite an abstract idea.
Step 2A, Prong 2
The above-identified abstract ideas in each of Independent Claims 1 and 9 (and their respective Dependent Claims) are not integrated into a practical application under 2019 PEG because the additional elements (identified above in Independent Claims 1 and 9), either alone or in combination, generally link the use of the above-identified abstract ideas to a particular technological environment or field of use. More specifically, the additional elements of:
“surface electromyography (sEMG) sensor”
“mechanomyography (MMG) sensor”
“accelerometer”
“strain gauge sensor”
“piezoelectric sensor”
“stretch sensor”
“deformation sensor”
“computer program product”
“computer readable medium”
“computer or processor”
“processing unit”
“device that is to be carried or worn by a subject”
“muscle contraction sensor”
Additional elements recited include an “surface electromyography (sEMG) sensor”, “mechanomyography (MMG) sensor”, “accelerometer”, “strain gauge sensor”, “piezoelectric sensor”, “stretch sensor”, “deformation sensor”, “computer program product”, “computer readable medium”, “computer or processor”, “processing unit”, “device that is to be carried or worn by a subject”, and “muscle contraction sensor” in the Independent Claims 1 and 9, their dependent claims. These components are recited at a high level of generality, i.e., as a generic computer processor performing a generic function of processing data (the obtaining, determining, and comparing). These generic hardware component limitations for “surface electromyography (sEMG) sensor”, “mechanomyography (MMG) sensor”, “accelerometer”, “strain gauge sensor”, “piezoelectric sensor”, “stretch sensor”, “deformation sensor”, “computer program product”, “computer readable medium”, “computer or processor”, “processing unit”, “device that is to be carried or worn by a subject”, and “muscle contraction sensor” are no more than mere instructions to apply the exception using generic computer and hardware components. As such, these additional elements do not impose any meaningful limits on practicing the abstract idea.
Further additional elements from Independent Claims 1 and 9 include pre-solution activity limitations, such as:
obtain a first set of measurements of muscle contractions of the at least one muscle for a first time period;
output a signal representing the determined measure of the fatigue.
In addition the aforementioned extra-solution activity limitations in Independent Claims 1 and 9, additional extra-solution activity limitations recited in the Dependent Claims include:
wherein the measurements of muscle contractions are obtained by one or more of: a surface electromyography (sEMG) sensor, a mechanomyography (MMG) sensor, an accelerometer, a strain gauge sensor, a piezoelectric sensor, a stretch sensor or a deformation sensor
wherein the muscle contraction feature is any of: intensity of the muscle contraction, duration of the muscle contraction, and tremors in the muscle contraction.
distribution fit feature comprises any of: a maximum value of the muscle contraction feature; a minimum value of the muscle contraction feature; a scale of values for the first distribution fit; a measure of dispersion of the first distribution fit; a measure of the shape of the first distribution fit; a number of muscle contractions in a predetermined part of the first distribution fit; and a number of muscle contractions in the first distribution fit.
A computer program product comprising a computer readable medium having computer readable code embodied therein, the computer readable code being configured such that, on execution by a suitable computer or processor, the computer or processor is caused to perform the method of claim 1.
These pre-solution measurement elements are insignificant extra-solution activity, setting up the parameters of the system, and serve as data-gathering for the subsequent steps.
The ““surface electromyography (sEMG) sensor”, “mechanomyography (MMG) sensor”, “accelerometer”, “strain gauge sensor”, “piezoelectric sensor”, “stretch sensor”, “deformation sensor”, “computer program product”, “computer readable medium”, “computer or processor”, “processing unit”, “device that is to be carried or worn by a subject”, and “muscle contraction sensor” as recited in Independent Claims 1 and 9 and their dependent claims are generically recited computer and hardware elements which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract ideas identified above in Independent Claims 1 and 9 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer processor as claimed. In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in Independent Claims 1 and 9 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, Independent Claims 1 and 9 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B –
None of Claims 1 – 15 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: “surface electromyography (sEMG) sensor”, “mechanomyography (MMG) sensor”, “accelerometer”, “strain gauge sensor”, “piezoelectric sensor”, “stretch sensor”, “deformation sensor”, “computer program product”, “computer readable medium”, “computer or processor”, “processing unit”, “device that is to be carried or worn by a subject”, and “muscle contraction sensor” as recited in Independent Claims 1 and 9 and their dependent claims.
The additional elements of the “surface electromyography (sEMG) sensor”, “mechanomyography (MMG) sensor”, “accelerometer”, “strain gauge sensor”, “piezoelectric sensor”, “stretch sensor”, “deformation sensor”, “computer program product”, “computer readable medium”, “computer or processor”, “processing unit”, “device that is to be carried or worn by a subject”, and “muscle contraction sensor” Claims 1 - 15, as discussed with respect to Step 2A Prong Two, amounts to no more than mere instructions to apply the exception using generic computer and hardware components. The same analysis applies here in 2B, i.e., mere instructions to apply an exception using a generic computer component cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Per Applicant’s specification, the “muscle contraction sensor” and “surface electromyography (sEMG) sensor” are described on [Page 8, Lines 5 - 6] as “The muscle contraction sensor 6 can be a sensor that measures an electrical component associated with muscle contractions (e.g. an sEMG sensor)”. The “muscle contraction sensor” and “surface electromyography (sEMG) sensor” is shown as generic block element “muscle contraction sensor 6” in Fig. 1.
Per Applicant’s specification, the “mechanomyography (MMG) sensor” is defined generically at [Page 8, Lines 6 - 7] as “The muscle contraction sensor 6 can be…sensor that measures a mechanical component associated with muscle contractions (e.g. a mechanomyography (MMG) sensor.” The “mechanomyography (MMG) sensor” is shown as generic block element “muscle contraction sensor 6” in Fig. 1.
Per Applicant’s specification, the “accelerometer” is described on [Page 8, Lines 8 - 9] as “The muscle contraction sensor 6 can be…a sensor that measures an amount or level of movement associated with muscle contractions (e.g. an accelerometer)…” The “accelerometer” is shown as generic block element “muscle contraction sensor 6” in Fig. 1.
Per Applicant’s specification, the “strain gauge sensor”, “stretch sensor”, “piezoelectric sensor”, and “deformation sensor” are described on [Page 8, Lines 8 - 9] as “The muscle contraction sensor 6 can be… a sensor that responds to geometrical changes 10 caused by muscle contractions (e.g. a strain gauge, a piezoelectric sensor, a sensor that includes conductive rubber, or any other type of stretch or deformation sensor)”. The “strain gauge sensor”, “stretch sensor”, “piezoelectric sensor”, and “deformation sensor” is shown as generic block element “muscle contraction sensor 6” in Fig. 1.
Per Applicant’s specification, the “computer program product” is defined generically at [Page 4, lines 6 - 10] as “a computer program product comprising a computer readable medium having computer readable code embodied therein…”
Per Applicant’s specification, the “computer readable medium”, is defined generically at [Page 11, Line 8] “…stored on a computer readable medium, such as, for example, the memory unit 14…” and [Page 9, lines 1 – 8] “The memory unit 14 can comprise any type of non-transitory machine-readable medium…” It I shown as generic block element “memory unit 14” in Fig. 1.
Per Applicant’s specification, the “computer or processor”, “processing unit”, is defined generically at [Page 8, Lines 12 – 27] as “…The processing unit 12 may be implemented as a combination of dedicated hardware to perform some functions…e.g. one or more programmed microprocessors…” It is shown as generic block element “processing unit 12” in Fig. 1.
Per Applicant’s specification, the “device that is to be carried or worn by a subject” is defined generically at [Page 11, Lines 16 – 17] as “The device 4 is being carried or worn by the subject at least during the first time period…”and [Page 7, Lines 13 – 16] “the device 4 is to be carried or worn in proximity to or on the part of the body of the subject in which a muscle or muscles to be 15 assessed are located (e.g. the device 4 could be worn on a leg to measure fatigue in a leg muscle or leg muscles).” It is shown as generic block element “device 4” in Fig. 1.
Accordingly, in light of Applicant’s specification, the claimed terms “surface electromyography (sEMG) sensor”, “mechanomyography (MMG) sensor”, “accelerometer”, “strain gauge sensor”, “piezoelectric sensor”, “stretch sensor”, “deformation sensor”, “computer program product”, “computer readable medium”, “computer or processor”, “processing unit”, “device that is to be carried or worn by a subject”, and “muscle contraction sensor” are reasonably construed as a generic computing and hardware devices. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the “surface electromyography (sEMG) sensor”, “mechanomyography (MMG) sensor”, “accelerometer”, “strain gauge sensor”, “piezoelectric sensor”, “stretch sensor”, “deformation sensor”, “computer program product”, “computer readable medium”, “computer or processor”, “processing unit”, “device that is to be carried or worn by a subject”, and “muscle contraction sensor”. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1 – 15 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the apparatus and method of Claims 1 - 15 are directed to applying an abstract idea as identified above on a general-purpose computer without (i) improving the performance of the computer itself, or (ii) providing a technical solution to a problem in a technical field. None of Claims 1 - 15 provides meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements for Step 2A Prong 2 in Independent Claims 1 and 9 (and their dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1 - 15 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1 - 15 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1 - 15 are not patent eligible and are rejected under 35 U.S.C. 101.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Jonckheere, et. al., (US 2020/0305743 A1) discloses methods and systems for detecting rhythmic synchronization of motor neurons (as a “Bursting Rate Variability (BRV)”) for quadriplegic and control subjects using sEMG measurements of back muscles and comparing distributions for the populations.
Regarding Claims 1 and 9, Jonckheere discloses A computer-implemented method ([Abstract]; [0005]), the method comprising: (and an apparatus comprising a processing unit ([Abstract]; [0005])
obtaining a first set of measurements of muscle contractions of the at least one muscle for a first time period ([0045] “data…recorded over a period of a little more than 10 years…sEMG…cervical (C2-C3)…aligned with the back-muscle fibers…”; [0068]; Figs. 6A – 6D; [0043] “quadriplegic subjects…”);
forming a first frequency distribution from values of a muscle contraction feature determined from the first set of measurements ([0069] “ frequency histograms of D8 doublet return times based on the corrected Akaike Information Criterion (AICc) for model selection…”)
determining a first distribution fit of the first frequency distribution ([0069] “find the best theoretical probability distribution fit from the frequency histograms of D8 doublet return times…”; [0073] “…Weibull distribution…required the smallest sample size (n) to be identified as the best fit most of the trials…”; Figs. 9A and 9B)
determining whether the first distribution fit is statistically stable (Figs. 12A – 12D; [0024] “ best fitting distributions at different sample sizes according to an aspect of the invention…”; [0073] “…Weibull distribution…required the smallest sample size (n) to be identified as the best fit most of the trials…”; [0075] “Weibull…at least ~5 samples with different parameters…”; [0072] “…lower values of AICc denote better model fits…”; [0043] “…quadriplegic subjects…Weibull distribution as the best fit…”);
if the first distribution fit is determined to be statistically stable, determining, from the first distribution fit, a first value for a distribution fit feature (Fig. 9A and 9B values “Quad”);
comparing the first value to a second value for the distribution fit feature (Figs. 9A and 9B; [0042] – [0043] including “Bursting Rate Variability (BRV)…differentiates the BRV of quadriplegic subjects (see FIGS. 8A-8B) versus control subjects (see FIGS. 7A-7D)…”; [0044] “…an objective comparison between quadriplegic and control subjects…”), wherein the second value for the distribution fit feature relates to a second distribution fit of a second frequency distribution ([0044] “…experimental results…control subjects…”; Fig. 9A and 9B values, “control”; [0043] “…the types of continuous probability distributions already differentiates the BRV of quadriplegic subjects (see FIGS. 8A-8B) versus control subjects (see FIGS. 7A-7D)…mixtures of normal distributions in the case of control subjects.”), wherein the second frequency distribution is formed from values of the muscle contraction feature determined from a second set of measurements of muscle contractions of the at least one muscle for a second time period that is different to the first time period (Fig. 9A and 9B, “Quad” vs “Control” subjects)(Examiner notes that the muscle contractions are measured from the same target muscle groups for each set of subjects.)
Jonckheere does not particularly disclose that this process can be used to identify a measure of muscular fatigue during a time period, nor does it suggest to modify the disclosed process to be used to identify a measure of muscular fatigue during a time period, as it is a specific experimental analysis between conditions of quadriplegia and control subjects. There is no particular relation disclosed to how the differences in distribution fit or BRV correlate to a measure of muscle fatigue.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MELISSA J MONTGOMERY whose telephone number is (571)272-2305. The examiner can normally be reached Monday - Friday 7:30 - 5:00 ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander Valvis can be reached at (571) 272 - 4233. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MELISSA JO MONTGOMERY/Examiner, Art Unit 3791
/JUSTIN XU/Primary Examiner, Art Unit 3791
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