Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
DETAILED ACTION
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 11/13/24; 5/12/25; 8/28/25; 12/16/25 has/have been acknowledged and is/are being considered by the Examiner.
Specification
The disclosure is objected to because of the following informalities: the first paragraph of the specification should be updated to indicate the present status of the priority application.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 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 –
(e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language.
Claims 1-7, 9-18 and 20 are rejected under pre-AIA 35 U.S.C. 102(e) as being anticipated by Aragones et al. (U.S. Pat. 2012/0271143 hereinafter “Aragones”).
Regarding claims 1, 12 and 20, Aragones discloses a system and method comprising: a processor (e.g. 106); and a memory that stores executable instructions that, when executed by the processor, facilitate performance of operations (e.g. 108), comprising: monitoring user adherence to a defined program followed by a user based on feedback information, associated with performance of the defined program by the user, received over a course of the defined program, wherein the feedback information comprises at least one of physical movement information related to the user, or physiological information related to the user (e.g. Figs. 1, 10a-10b; ¶¶ 28, 79, 87, 89); and determining whether the user is able to perform a physical exercise based on the feedback information (e.g. ¶¶ 70, 79, 87, 89).
Regarding claims 2 and 13, Aragones further discloses determining comprises comparison of at least one of feature values or context metrics associated with the feedback information, to at least one of reference metrics or reference value ranges associated with the physical exercise (e.g. ¶¶ 70, 79, 87, 89).
Regarding claims 3 and 14, Aragones further discloses wherein the comparison of the at least one of feature values or context metrics involves rule-based classification schemes that relate the at least one of reference metrics or reference value ranges to the at least one of feature values or context metrics (e.g. Figs. 3A-3B; ¶¶ 6, 13, 19, 29, 71, 73, 86, 88).
Regarding claims 4-7 and 15-18, Aragones further discloses determining how the user able, unable, likely able or likely unable to perform the exercise, determine the probability and present an avatar to enforce user adherence to the exercise (e.g. ¶¶ 70, 79, 87, 89).
Regarding claim 9, Aragones further discloses displaying the avatar at an interface generated and presented to the user at a device (e.g. ¶¶ 27, 65-66, 77, 87; “multimedia or videos being displayed to show proper positioning”).
Regarding claim 10, Aragones further discloses at least one of motion or movement, speech, tone of voice, level of sound, facial expressions, body language, color, speed of movement, or range of motion (e.g. Figs. 3A-3B; ¶¶ 6, 13, 19, 29, 70-71, 73, 86-89).
Regarding claim 11, Aragones further discloses wherein the at least one reaction comprises provision of external data to at least one user of the plurality of users at the device, wherein the external data comprises at least documents, articles, multimedia, or hyperlinks (e.g. ¶¶ 27, 65-66, 77, 87; “multimedia or videos being displayed to show proper positioning”).
Claim Rejections - 35 USC § 103
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 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.
Claims 8 and 19 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Aragones as applied to claims 1-7, 9-18 and 20 above, and further in view of Schiff et al. (U.S. Pub. 2012/0095863 hereinafter “Schiff”).
Regarding claims 8 and 19, Aragones discloses the claimed invention except for the use of machine learning to analyze behavior data for analysis. However, Schiff teaches that it is known to use machine learning as set forth in Paragraphs 34, 55, 64 and 74 to provide recommendation and analysis based on behaviors to enhance the analysis by merging data sources. Therefore, It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the system as taught by Aragones, with machine learning teachniques as taught by Schiff, since such a modification would provide the predictable results of using machine learning to enhance and speed up the merging of data sources to provide an accurate analysis of behavior.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 14-17 are objected to under 37 CFR 1.75 as being a substantial duplicate of claims 2-4 and 6. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 706.03(k).
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 11-12, 17-18 and 20 of U.S. Patent No. 9,997,082. Although the claims at issue are not identical, they are not patentably distinct from each other because both are directed toward monitoring a user and determining if the user is deviating. See Chart below for corresponding claims that are not patently distinct.
Chart for corresponding claims that are not patently distinct.
Current Claims
9,997,082
1, 12, 20
1-2, 11-12, 17
2 and 13
1-2, 11-12, 17
3 and 14
3, 13
4-8 and 15-19
4, 14
10
1-2, 11-12, 17
11
1-2, 11-12, 17
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REX R HOLMES whose telephone number is (571)272-8827. The examiner can normally be reached on Monday-Thursday 7:00AM-5:30PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer McDonald can be reached on (571) 270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/REX R HOLMES/
Primary Examiner, Art Unit 3762
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