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 .
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 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.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed applications, US Provisional Application No. 62/322,367, US Application No. 15/487,908, and US Application No. 18/377,174, fail to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application.
In particular, the disclosures of each of the prior-filed applications fail to provide sufficient written description for “a plurality of activity and context monitoring devices of a user, each of the plurality of activity and context monitoring devices of the user including an ultra thin client for monitoring and transmitting activity data of the user and context data of the user, the activity data including… whether a user has taken their blood pressure medication…, and the context data including a user location at a particular time and a plurality of activities the user is performing at the particular time… receiving and producing content for the user as part of facilitating a desired behavior change in the user, the content including an auditory message and a visual message,… and the plurality of behavior nudge devices further receiving and presenting contextual notifications based on the desired behavior change in the user, health data of the user, the activity data of the user, and the context data of the user, the contextual notifications including a reminder to the user of the desired behavior change in the user” and “determining the content to produce for the user, the content being determined based on the desired behavior change in the user, the health data of the user, the activity data of the user, and the context data of the user; selecting a form in which to produce the content; generating content data to be used to produce the content in the selected form;… updating the user profile based on the one or more additional behavior changes in the user” in claim 1 to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. It is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See MPEP 2161.01(I). In particular, the specification of the prior-filed application, at best, merely recites similar language as the claims without providing any substantive description for the claimed limitations identified above for the same reasons that the instant specification also fails as identified in the rejections of the claims under 35 USC 112(a) in the Office Action mailed 21 June 2024 for the same claim limitations in US 18/377,174, and thus does not comply with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120.
Thus, claims 1-7 do not gain benefit of priority to US Provisional Application No. 62/322,367, US Application No. 15/487,908, and US Application No. 18/377,174. Therefore, claims 1-7 have an effective filing date of 23 December 2024.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 1-7 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 1, the disclosure fails to provide sufficient written description for “receiving and producing content for the user as part of facilitating a desired behavior change in the user, the content including an auditory message and a visual message,… and the plurality of behavior nudge devices further receiving and presenting contextual notifications based on the desired behavior change in the user, health data of the user, the activity data of the user, and the context data of the user, the contextual notifications including a reminder to the user of the desired behavior change in the user” and “determining the content to produce for the user, the content being determined based on the desired behavior change in the user, the health data of the user, the activity data of the user, and the context data of the user” to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Claims lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. See MPEP 2161.01(I). The disclosure merely recites that this limitation is performed in results-based language without providing the steps, calculations, or algorithms necessary to perform the claimed limitation. See, for example, at least para. 36, 40, 44-51, 59-61, 73, 99, 107, 108, 110, 111, 118, 121, 123, and 133-146. Additionally, para. 55 merely recites that motivational rules are “rules specifying how to communicate with a user in eliciting behavior changes” and provides cursory examples in results-based language without actually identifying any motivational rules. Dependent claims 2-7 inherit the deficiencies of their respective parent claims, and thus are rejected under the same rationale.
Further regarding claim 1, the disclosure fails to provide sufficient written description for “selecting a form in which to produce the content” to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Claims lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. See MPEP 2161.01(I). Para. 121 of the specification merely recites that a form can be selected in which to produce content without any further description of the selection process. Thus, the disclosure merely recites that this limitation is performed in results-based language without providing the steps, calculations, or algorithms necessary to perform the claimed limitation. Dependent claims 2-7 inherit the deficiencies of their respective parent claims, and thus are rejected under the same rationale.
Further regarding claim 1, the disclosure fails to provide sufficient written description for “generating content data to be used to produce the content in the selected form” to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Claims lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. See MPEP 2161.01(I). The disclosure merely recites that this limitation is performed in results-based language without providing the steps, calculations, or algorithms necessary to perform the claimed limitation. See, for example, at least para. 100, 109, 119, 121-123, 130, and 142. Additionally, the specification provides a related insufficiently disclosed function, f(β,ϕ, Δ) in para. 48. In particular, para. 48 merely generically recites that β is “values of behavior-specific behavior change phenotype variables of the user”, ϕ is “values of dynamic state responsive phenotype variables of the user”, and Δ is “a context of the user” without actually identifying the function encompassing these variables. Dependent claims 2-7 inherit the deficiencies of their respective parent claims, and thus are rejected under the same rationale.
Further regarding claim 1, the disclosure fails to provide sufficient written description for “updating the user profile based on the one or more additional behavior changes in the user” to show one ordinary skill in the art that Applicant had possession of the claimed invention. Claims lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. See MPEP 2161.01(I). In particular, the same rationale regarding the monitoring, determining, selecting, and generating limitations identified above are applied here. If the disclosure fails to provide sufficient written description for those steps, then it also fails to provide sufficient written description for perform the updating step. This is further evidenced by the specification which merely recites that updating can occur in results-based language without providing the steps, calculations, or algorithms necessary to perform the claimed limitation. See, for example, at least para. 43, 50, 51, 54, 70, 72, 73, 75, 88, 112, and 145. Dependent claims 2-7 inherit the deficiencies of their respective parent claims, and thus are rejected under the same rationale.
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 1-7 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 including additional elements that are sufficient to amount to significantly more than the judicial exception itself.
Step 1
The instant claims are directed to a system which falls under the four statutory categories (STEP 1: YES).
Step 2A, Prong 1
Independent claim 1 recites:
A system comprising:
a plurality of activity and context monitoring devices of a user, each of the plurality of activity and context monitoring devices of the user including an ultra thin client for monitoring and transmitting activity data of the user and context data of the user, the activity data including heart rate readings of the user, whether a user has taken their blood pressure medication, and a distance the user has walked, and the context data including a user location of the user at a particular time and a plurality of activities the user is performing at the particular time;
a plurality of behavior nudge devices of the user for receiving and producing content for the user as part of facilitating a desired behavior change in the user, the content including an auditory message and a visual message, each of the plurality of behavior nudge devices including a speaker for producing the auditory message and a display for presenting the visual message to the user, and the plurality of behavior nudge devices further receiving and presenting contextual notifications based on the desired behavior change in the user, health data of the user, the activity data of the user, and the context data of the user, the contextual notifications including a reminder to the user of the desired behavior change in the user;
one or more processors; and
memory storing instructions that, when executed by the one or more processors, cause the system to perform:
receiving first user data for the user, the first user data including the desired behavior change in the user;
receiving the health data for the user from an Electronic Health Record and a health insurance claims system;
receiving, from the plurality of activity and context monitoring devices of the user, the activity data of the user and the context data of the user;
maintaining a user profile of the user, the user profile including the desired behavior change in the user, behavior changes that have occurred in the user, goals of the user, and communication preferences of the user;
determining the content to produce for the user, the content being determined based on the desired behavior change in the user, the health data of the user, the activity data of the user, and the context data of the user;
selecting a form in which to produce the content;
generating content data to be used to produce the content in the selected form;
providing the content data to the plurality of behavior nudge devices of the user for use in producing the content in the selected form in order to facilitate the desired behavior change in the user;
receiving second user data for the user, the second user data indicating one or more additional desired behavior changes in the user; and
updating the user profile based on the one or more additional desired behavior changes in the user.
All of the foregoing underlined elements identified above amount to the abstract idea grouping of a certain method of organizing human activity because they amount to managing personal behavior or interactions between people (including social activities, teaching, and following rules or instructions). Additionally, the monitoring, receiving, producing, maintaining, determining, selecting, generating, providing, and updating steps identified above are interpreted as a series of steps that could reasonably be performed by mental processes with the aid of pen and paper because the claims, under their broadest reasonable interpretation, cover performance of the limitations in the mind but for the recitation of generic computer components.
Dependent claims 2 and 5-7 amount to merely further defining the judicial exception.
Therefore, the claims recite a judicial exception. (STEP 2A, PRONG 1: YES).
Step 2A, Prong 2
This judicial exception is not integrated into a practical application because the independent and dependent claims do not include additional elements that are sufficient to integrate the exception into a practical application under the considerations set forth in MPEP 2106.04(d). The elements of the claims above that are not underlined constitute additional elements.
The following additional elements, both individually and as a whole, merely generally link the judicial exception to a particular technological environment or field of use: a system (claim 1), a plurality of activity and context monitoring devices (claim 1), an ultra thin client (claim 1), a plurality of behavior nudge devices (claim 1), a speaker for producing the auditory messages to the user (claim 1), a display for presenting the visual messages to the user (claim 1), one or more processors (claim 1), a memory (claim 1), an Electronic Health Record and a health insurance claims system (claim 1), an application (claim 2), a wearable device (claims 3 and 4), and an interface (claim 5). This is evidenced by the manner in which these elements are disclosed in the drawings and the instant specification. For example, Fig. 1, 5, 7, and 9 merely illustrate systems as collections of non-descript black boxes, while para. 18-33 merely provide stock descriptions of generic computer hardware and software components in any generic arrangement. Furthermore, the computer components are merely an attempt to link the abstract idea to a particular technological environment, but do not result in an improvement to the technology or computer functions employed. For example, para. 31 merely recites that “activity and context monitoring device(s) 104 can include thin clients or ultra-thin clients. For example, the activity and context monitoring device(s) 104 can include a smart phone.” The claims do not recite any specific rules with specific characteristics that improve the functionality of the computer system. None of the hardware offer a meaningful limitation beyond generally linking the performance of the steps to a particular technological environment, that is, implementation via computers. Again, this is evidenced by the manner in which these elements are disclosed in the drawings and specification. See at least Fig. 1, 5, 7, and 9, and para. 18-33 of the specification. Additionally, the use of a plurality of non-descript activity and context monitoring devices for monitoring and transmitting activity data of the user and context data of the user is merely adding insignificant extra-solution data-gathering activity to the judicial exception (e.g., mere data gathering in conjunction with a law of nature or abstract idea). Additionally, the claims do not apply or use a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition nor do they apply or use a judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment. For instance, while the disclosure identifies that it may generally be used to elicit behavior changes of user with a disease (see, for example, para. 86 and 91 of the specification), it is silent regarding any specific treatment or prophylaxis for any specific disease or medical condition. It should be noted that because the courts have made it clear that mere physicality or tangibility of an additional element or elements is not a relevant consideration in the eligibility analysis, the physical nature of the additional elements does not affect this analysis. See MPEP 2106.05(I) for more information on this point, including explanations from judicial decisions including Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 224-26 (2014). Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. (STEP 2A, PRONG 2: NO).
Step 2B
The independent and dependent claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception under the considerations set forth in MPEP 2106.05. As identified in Step 2A, Prong 2, above, the claimed system and the process it performs does not require the use of a particular machine, nor does it result in the transformation of an article. Although the claims recite computer components, identified above, for performing at least some of the recited functions, these elements are recited at a high level of generality in a conventional arrangement for performing their basic computer functions (i.e., receiving, processing, transmitting, outputting data). This is evidenced by the manner in which these elements are disclosed in the instant specification. For example, Fig. 1, 5, 7, and 9 merely illustrate systems as collections of nebulous black boxes, while para. 18-33 merely provide stock descriptions of generic computer hardware and software components in any generic arrangement. Furthermore, the computer components are merely an attempt to link the abstract idea to a particular technological environment, but do not result in an improvement to the technology or computer functions employed. The use of a plurality of non-descript activity and context monitoring devices for monitoring and transmitting activity data of the user and context data of the user is merely adding insignificant extra-solution activity to the judicial exception. The claims do not recite any specific rules with specific characteristics that improve the functionality of the computer system. For example, non-descript motivation rules and recommendation rules are merely recited to be received from the caregiver and merely intended to facilitate the behavior change in the user without any real description of how these rules implement the claimed functionality, let alone improve any functionality of the computer system. None of the hardware offer a meaningful limitation beyond generally linking the performance of the steps to a particular technological environment, that is, implementation via computers. Again, this is evidenced by the manner in which these elements are disclosed in the instant specification. See at least Fig. 1, 5, 7, and 9, and para. 18-33 of the specification. Viewed as a whole, these additional claim elements do not provide meaningful limitation 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 of itself (STEP 2B: NO).
Therefore, the claims are rejected under 35 USC 101 as being directed to non-statutory subject matter.
Claim Rejections - 35 USC § 102
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 1-7 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Cuthbert (US 2013/0216989).
Regarding claim 1, Cuthbert teaches a system comprising:
a plurality of activity and context monitoring devices of a user, each of the plurality of activity and context monitoring devices of the user including an ultra thin client for monitoring and transmitting activity data of the user and context data of the user (Cuthbert, para. 17, “The present invention relates to a system for sensing a behavior of a subject in an environment, and a method for offering personalized support for behavior changes. In some embodiments, the system comprises a receiver in communication with a first sensor, wherein the first sensor detects the behavior and transmits a first signal associated with the behavior to the receiver. In some embodiments, the system comprises a receiver in communication with a second sensor, wherein the second sensor detects the behavior, and transmits a second signal associated with the behavior to the receiver. In some embodiments, the receiver sends the first and second signals to a computer system comprising a processor. The computer system compares, by the processor, the first and second signals to confirm that the behavior occurred. Communications between users and subjects, the first sensor, the second sensor, the computer system, and the processor can happen according to any communication protocol including, for example, USA, Wi-Fi, Bluetooth, TCP, EnOcean™, WiMax™, ONE-NET, ANT, 6LoWPAN, Wibree, Wireless HART, and IEEE reliant protocols, such as Z-Wave™ and ZigBee™.” Para. 30-40 teach non-exhaustive embodiments of sensor quantities, types, and configurations. The sensors are construed as activity and context monitoring devices, including an ultra thin client.), the activity data including heart rate readings of the user (Cuthbert, para. 71, “The subject can wear a heartbeat sensor that allows the system to monitor the heart rate throughout the day,”), whether a user has taken their blood pressure medication, and a distance the user has walked (Cuthbert, para. 112, “For example: a) accelerometers can collect information on velocity (how quickly the user walks, runs, and moves); b) the distance between events can be determined and an estimation can be made whether the person walked, ran or drove from an initial point to a final point… For example, a pedometer can provide information on how quickly a subject walks, runs, and moves.”), and the context data including a user location of the user at a particular time (Cuthbert, para. 41, “Another aspect of the present invention relates to a method for applying geolocation data from a plurality of devices including phones, tablets, and sensors that can personalize lifestyle recommendations to where a user is present in real time.”) and a plurality of activities the user is performing at the particular time (Cuthbert, para. 30, “As the subject engages in a behavior the receiver sends the signals to a computer system comprising a processor, wherein the computer system compares, by the processor, the first and/or second signal(s) to confirm that the behavior occurred.” Para. 41, “Another aspect of the present invention relates to a method for applying geolocation data from a plurality of devices including phones, tablets, and sensors that can personalize lifestyle recommendations to where a user is present in real time.”);
a plurality of behavior nudge devices of the user for receiving and producing content for the user as part of facilitating a desired behavior change in the user (Cuthbert, para. 112, “The message platform 103 and the calendar platform 105 can be accessed from a plurality of devices, for example, smartphone(s), tablet(s), desktop computer(s), laptop computer(s) and a plurality of mobile devices with different interfaces and operating systems.”), the content including an auditory message and a visual message, each of the plurality of behavior nudge devices including a speaker for producing the auditory message to the user and a display for presenting the visual message to the user (Cuthbert, para. 74, “Types of messages can include, for example, text messages, audio messages, or video messages.”), and the plurality of behavior nudge devices further receiving and presenting contextual notifications based on the desired behavior change in the user, health data of the user, the activity data of the user, and the context data of the user, the contextual notifications including a reminder to the user of the desired behavior change in the user (Cuthbert, para. 29, “The system of the invention comprises a personalized support application for behavior change… The system combines the use of personalized data retrieved from a plurality of databases, and data retrieved from a subject in an environment to provide personalized objectives, and recommendations on actionable items that can be pursued to achieve or make progress towards an objective.” Para. 65, “The system and method for behavioral change can be operable to analyze the health information of a subject based on a subject's objectives, provide personalized health education for a subject based on a subject's objectives, provide personalized reminders to a subject based on a subject's objectives, and provide one or more points redeemable for one or more reward credits incentivizing a subject's achieving or making progress towards a target objective. The present invention links personalized health education with reminders, rewards, and incentives that can motivate subject behavior, and increase adherence and compliance. The objective-based health education, health reminders, and reward credits can help subject populations achieve a higher degree of compliance with medically prescribed behavioral change regimens.”);
one or more processors (Fig. 3, processor 302; Fig. 4 illustrates parallel processing using computer systems which necessarily include one or more processors; Fig. 5, processors 501a-f); and
memory storing instructions (Cuthbert, high speed cache 301; para. 115, “a high speed cache 301… to provide a high speed memory for instructions or data that have been recently, or are frequently, used by processor 302; Fig. 4, Network Attached Storage 401a and 401b; Fig. 5, memory subsystem 502, memory 504a-f, FPGAs 505a-f) that, when executed by the one or more processors, cause the system to perform:
receiving first user data for the user, the first user data including the desired behavior change in the user (Cuthbert, para. 43, “The method of the invention can set behavior-changing objectives in the objective engine seeking, for example, a positive change in a sedentary lifestyle. The subject can acknowledge the behavior and set behavioral changing objectives in the objective engine, seeking, for example, a positive change in a sedentary lifestyle.”);
receiving the health data for the user from an Electronic Health Record and a health insurance claims system (Cuthbert, para. 48, “The system of the invention can collect data from a plurality of individuals and organizations, for example:… electronic health records (EHRs),…health insurance companies…”; para. 91, “A system of the invention can combine the detected behavior with a subject's history, and/or with a subject's medical history to make correlations and provide personalized recommendations.” Para. 78-84 further detail a subject’s personal history and personal medical history.);
receiving, from the plurality of activity and context monitoring devices of the user, the activity data of the user and the context data of the user (Cuthbert, Para. 17 explicitly identifies that the sensor data is received. Para. 30, “As the subject engages in a behavior the receiver sends the signals to a computer system comprising a processor, wherein the computer system compares, by the processor, the first and/or second signal(s) to confirm that the behavior occurred.” Para. 41, “Another aspect of the present invention relates to a method for applying geolocation data from a plurality of devices including phones, tablets, and sensors that can personalize lifestyle recommendations to where a user is present in real time.” Para. 42, “The objective engine of the systems of the invention can auto-populate goal recommendations based on a plurality of data acquired from a plurality of sensors.”);
maintaining a user profile of the user, the user profile including the desired behavior change in the user, behavior changes that have occurred in the user, goals of the user, and communication preferences of the user (Cuthbert, Abstract, The system is also capable of building differentiated personalized profiles of antecedents, behaviors, and rewards to develop highly targeted treatment indicators and better behavioral outcomes.” Para. 74, “A messaging platform within the objective engine can be configured by a user or a subject from a plurality of available systems for social messaging. Messages can consist, for example, of objective reminders, instructions towards an object progress/completion, and/or support messages. Types of messages can include, for example, text messages, audio messages, or video messages. The frequency at which any of the messages described herein are sent can be determined by the subject or a user, for example, a family member, a therapist, or a physician… A calendar platform within the objective engine can be configured by a user or a subject from a plurality of available systems for objective schedule monitoring and tracking.”);
determining the content to produce for the user, the content being determined based on the desired behavior change in the user, the health data of the user, the activity data of the user, and the context data of the user (Cuthbert, para. 18, “Using the system and method disclosed herein, the system can search a database comprising behavioral information for a recommendation for improving the behavior, wherein the search is performed by the processor, and the computer system provides the recommendation to the subject. The system can identify behaviors, and define objectives for behavioral changes.” Para. 87, “The system of the invention can introduce a subject to other subjects who share, for example, a goal, a recommendation, a condition, a treatment regimen, a therapist, and/or a geographic location.”);
selecting a form in which to produce the content (Cuthbert, para. 74, “A messaging platform within the objective engine can be configured by a user or a subject from a plurality of available systems for social messaging. Messages can consist, for example, of objective reminders, instructions towards an object progress/completion, and/or support messages. Types of messages can include, for example, text messages, audio messages, or video messages. The frequency at which any of the messages described herein are sent can be determined by the subject or a user, for example, a family member, a therapist, or a physician… A calendar platform within the objective engine can be configured by a user or a subject from a plurality of available systems for objective schedule monitoring and tracking.”);
generating content data to be used to produce the content in the selected form (Cuthbert, para. 93, “The system can process the combined behavioral and medical data to generate a series of personalized objectives and recommendations for the subject.” As identified above, the messaging platform and calendar platform can be configured by the subject. Therefore, the content is produced in the selected form as configured by the subject.);
providing the content data to the plurality of behavior nudge devices of the user for use in producing the content in the selected form in order to facilitate the desired behavior change in the user (Cuthbert, para. 18, “the computer system provides the recommendation to the subject”);
receiving second user data for the user, the second user data indicating one or more additional desired behavior changes in the user (Cuthbert implies this with: para. 45, “The system and method of the invention can use data from multiple databases… to monitor progress towards objectives, and to help subjects achieve salient rewards, while providing a rich personalized experience. The system and method of the invention can mine data detected by a plurality of sensors, from a plurality of devices, and from a plurality of databases. The invention can use the collected and/or combined data to provide objectives, and post progress towards objectives.” Para. 58, “The system of the invention can determine a subject's behavior”); and
updating the user profile based on the one or more additional desired behavior changes in the user (Cuthbert, para. 18, “populating progress towards objectives within the calendar platform, and reminding the subject hourly, daily, or weekly of achievements, objectives, and progress.” Para. 25, “A subject can be congratulated the subject's success in remediating the escalation of a behavior. The subject can receive a reward for their progress.” Para. 56, “The system and method of the invention can use data from multiple databases to help users and subjects set relevant objectives, to set objectives for subjects, to monitor progress towards objectives, and to help subjects achieve salient rewards, while providing a rich personalized experience. The system and method of the invention can mine data detected by a plurality of sensors, from a plurality of devices, and from a plurality of databases. The invention can use the collected and/or combined data to provide objectives, and post progress towards objectives.” Para. 58, “Upon detecting the behavior, the system of the invention can process the subject's behavioral data and provide behavior-changing recommendations to the subject as objectives in the calendar platform and/or in the messaging platform.”).
Regarding claim 2, Cuthbert teaches the system of claim 1, wherein the user data is received from the user directly and from an application utilized by the user (Cuthbert, para. 29, “The system of the invention comprises a personalized support application for behavior change… The system combines the use of personalized data retrieved from a plurality of databases, and data retrieved from a subject in an environment to provide personalized objectives, and recommendations on actionable items that can be pursued to achieve or make progress towards an objective.” Para. 74, “The system of the invention comprises of an objective engine interface, wherein a subject and/or an authorized user can access a messaging platform and a calendar platform to determine objectives, monitor progress, and communicate with a plurality of users and data sources.” Para. 77, “the system of the invention can use the combination of data detected by the sensors from the environment, with the subject's input, input from friends and family, personal medical records, and/or personal history.” Para. 117, “Software and data are stored in external storage 313 and can be loaded into RAM 303 and/or cache 301 for use by the processor. The system 300 includes […] application software running on top of the operating system.” The objective engine interface, messaging platform, and calendar platform are construed as part of the “application software running on top of the operating system”.).
Regarding claims 3 and 4, Cuthbert teaches the system of claim 1, wherein at least one of the plurality of activity and context monitoring devices comprises (claim 5: is coupled to) a wearable device (Cuthbert, Fig. 1, Sensors 106 and Receiver 107; para. 30, “the system for sensing a behavior of a subject in an environment comprises a receiver. In some embodiments, the receiver is in communication with a plurality of sensors, for example, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, or 30 sensors present in the environment. As the subject engages in a behavior the receiver sends the signals to a computer system comprising a processor, wherein the computer system compares, by the processor, the first and/or second signal(s) to confirm that the behavior occurred.”).
Regarding claim 5, Cuthbert teaches the system of claim 1, wherein the instructions, when executed by the one or more processors, further cause the system to perform:
providing an interface to a caregiver of the user through which the caregiver can view the activity data of the user, the health data of the user, and the context data of the user (Cuthbert, para. 21, “Users of the system can be custodians of the subject, health care providers, family members, friends, and subjects.” Para. 27 and 28 describe the capabilities of the interface provided to a caregiver of the user. For example, in para. 28, “a physician, can use the system of the invention to set objectives and monitor progress of a plurality of patients. A lawyer can set goals for the lawyer's clients, and monitor the client's progress towards the client's goals, set alerts and provide coaching when the student requires it. A teacher can set goals for the teacher's students, and monitor the student's progress towards the student's goals, set alerts and provide coaching when the student requires it.”); and
receiving from the caregiver, via the interface, motivation rules and recommendation rules to facilitate the behavior change in the user, the motivation rules and recommendation rules being based on the desired behavior change in the user, the activity data of the user, the health data of the user, and the context data of the user (Cuthbert, para. 27, “A user can browse a list of subjects served by, for example, a certain healthcare or research facility. The user can add new subjects, edit the objectives of the existing subjects, or delete old subjects, as is appropriate for maintaining accurate clinical and research records in accordance with the prevailing regulations. A user can build a behavior-changing regimen for a subject using a system of the invention. A regimen, broadly, encompasses the recommendations and objectives for a subject.” Para. 56, “In some embodiments, the system of the invention can use the frequency, duration, seriousness, and basis of current and past behaviors for behavior to identify antecedents, forecast behavior-changing and function-changing objective consequences, and provide behavior-changing and function-changing objectives.”).
Claim Rejections - 35 USC § 103
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Cuthbert (US 2013/0216989) as applied to claim 6, in view of Tatourian et al. (US 2016/0180723, hereinafter referred to as Tatourian).
Regarding claim 6, Cuthbert teaches the system of claim 5, wherein the desired behavior change in the user is a reduction in calories consumed (Cuthbert, para. 92, “The system of the invention can make recommendations to support effectively a subject's commitment to a lower calorie diet”).
Cuthbert also teaches recommendation rules comprising a recommendation of an establishment determined to be proximate to the user, wherein the establishment is related to a desired behavior change in the user (Cuthbert provides examples for tobacco and alcohol cessation at para. 57, “the system of the invention can make both personalized and geospecific recommendations to a subject seeking to avoid consuming tobacco products, such as, for example, if the subject smokes after eating, the system of the invention can recommend… driving to a nearby story to purchase a substitute to tobacco, such as chewing gum” and at para. 132, “The system can use the geolocation aspect of the sensors to send personalized recommendations within the messaging platform with information on nearby alcoholic anonymous meetings.”)
Cuthbert does not explicitly teach the recommendation rules comprise a recommendation of a restaurant.
However, in an analogous art, Tatourian teaches the recommendation rules comprise a recommendation of a restaurant (Tatourian, para. 28, “the information collected from software sensors may be used to alter the recommended action generated by the action recommendation circuit set 170. For example, the recommended action generated in response to a behavior identified as eat healthy may be a list of local health food restaurants A and B to visit when the person 110 is away from home during mealtime.”).
It would have been obvious to a person having ordinary skill in the art to include the restaurant recommendation of Tatourian in the recommendations of Cuthbert because recommending local health food restaurants when the user is away from home during mealtime aids a user who “wishes to lose weight or eat healthier” (eating heathier includes managing calorie intake, such as lowering calorie consumption. See at least para. 20 in Tatourian.) which is a behavior change goal of both Tatourian (see Tatourian at least at para. 11) and Cuthbert (see Cuthbert at least at para. 89). Thus, it is merely combining prior art elements according to known methods to yield predictable results.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Cuthbert (US 2013/0216989) as applied to claim 5.
Regarding claim 7, Cuthbert teaches the system of claim 5, wherein the desired behavior change in the user is an increase in physical fitness (Cuthbert, para. 18, “The computer system can provide behavioral changing recommendations to the subject seeking changes on […], for example, increased physical activity”).
Cuthbert also teaches recommendation rules comprising a recommendation of an establishment determined to be proximate to the user, wherein the establishment is related to a desired behavior change in the user (Cuthbert provides examples for tobacco and alcohol cessation at para. 57, “the system of the invention can make both personalized and geospecific recommendations to a subject seeking to avoid consuming tobacco products, such as, for example, if the subject smokes after eating, the system of the invention can recommend… driving to a nearby story to purchase a substitute to tobacco, such as chewing gum” and at para. 132, “The system can use the geolocation aspect of the sensors to send personalized recommendations within the messaging platform with information on nearby alcoholic anonymous meetings.”)
While Cuthbert teaches that the subject can receive memberships, passes, and discounts at a nearby gym (see Cuthbert at para. 96, 105, and 139), Cuthbert does not explicitly teach the recommendation rules comprise a recommendation of a gym.
However, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention for the recommendation rules in Cuthbert to comprise a recommendation of a gym because Cuthbert teaches recommendation rules comprising a recommendation of an establishment determined to be proximate to the user, wherein the establishment is related to a desired behavior change in the user in addition to Cuthbert teaching the desired behavior change as an increase in physical fitness as identified above. It is merely a simple substitution of one known element for another to obtain predictable results.
Claim 7 is also alternatively rejected under 35 U.S.C. 103 as being unpatentable over Cuthbert (US 2013/0216989) as applied to claim 5, in view of Tatourian et al. (US 2016/0180723, hereinafter referred to as Tatourian).
Regarding claim 7, Cuthbert teaches the system of claim 5, wherein the desired behavior change in the user is an increase in physical fitness (Cuthbert, para. 18, “The computer system can provide behavioral changing recommendations to the subject seeking changes on […], for example, increased physical activity”).
Cuthbert also teaches recommendation rules comprising a recommendation of an establishment determined to be proximate to the user, wherein the establishment is related to a desired behavior change in the user (Cuthbert provides examples for tobacco and alcohol cessation at para. 57, “the system of the invention can make both personalized and geospecific recommendations to a subject seeking to avoid consuming tobacco products, such as, for example, if the subject smokes after eating, the system of the invention can recommend… driving to a nearby story to purchase a substitute to tobacco, such as chewing gum” and at para. 132, “The system can use the geolocation aspect of the sensors to send personalized recommendations within the messaging platform with information on nearby alcoholic anonymous meetings.”)
While Cuthbert teaches that the subject can receive memberships, passes, and discounts at a nearby gym (see Cuthbert at para. 96, 105, and 139), Cuthbert does not explicitly teach the recommendation rules comprise a recommendation of a gym.
In the event that it would not be found that the recommendation rules comprise a recommendation of a gym to be obvious under Cuthbert, alternatively, in an analogous art, Tatourian teaches the recommendation rules comprise a recommendation of a gym (para. 27, “the recommendation action generated by the action recommendation circuit set 170 may be to… join a local gym.”).
It would have been obvious to a person having ordinary skill in the art to include the gym recommendation of Tatourian in the recommendations of Cuthbert because recommending a local gym aids a user who “wishes to lose weight” which is a behavior change goal of both Tatourian (see Tatourian at least at para. 11) and Cuthbert (see Cuthbert at least at para. 89). Thus, it is merely combining prior art elements according to known methods to yield predictable results.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Hara (US 2002/0133560) discloses providing information to a user based on an action plan.
Ichihara (US 2002/0132627) discloses providing an information to a user based on an action plan wherein an agent function judges the circumstance of the user by comparing information on an action plan with information on the current location of the user, and upon judging an occurrence of a trouble which affects the action plan, providing proper information and continues to assist the user until the desired purpose of the user is achieved.
Maeda (US 2003/0158768) discloses a model building program for presenting a practicable plan in an environment indicated by data, based on the environmental data prepared to decide the environment of a specific field or selecting one or more models from a plurality of models as candidate models, and providing a specific and detailed action plan needed when a specific model is adopted and greatly contributes to strategy formation by the planning department of an enterprise.
Bronkema (US 2004/0247748) disclose a system and method for behavior modification through dynamic identification of behavior patterns, assistance in finding and implementing healthy alternatives to undesirable behavior patterns, preparation of dynamically variable user-specific programs, monitoring of current user activities, and presenting feedback and information to the user.
Lee et al. (US 2005/0054381) discloses a proactive user interface that actively makes suggestions to the user based upon prior experience with a particular user and/or various preprogrammed patterns from which the computational device could select, depending upon user behavior.
Tran (US 2008/0004904) discloses an interoperable health-care system for remotely monitoring a user.
Ross (US 2008/0312510) discloses a wellness program that includes a health reporting component and a readiness question generation component formatted to assess a readiness of the one or more individuals to take a selected action.
Dibenedetto et al. (US 2009/0047645) discloses a sports electronic training system that may interact with other devices and applications.
Brown (US 2010/0003653) discloses a system and method for automated coaching to help a person constrain their consumption or other behavior.
Kahn et al. (US 7,662,065) discloses a method and apparatus for identifying a raw target exercise level for a user and applying a goal setting algorithm to adjust the raw target exercise level.
Tchao et al. (US 2010/0048358) discloses systems and techniques for the collection and display of athletic information.
Alten et al. (US 7,698,101) a worn sensor that collects and transmits location and physiometric data.
Thukral et al. (US 2010/0105525) discloses a system for encouraging a user to perform substantial physical activity, wherein the system includes sensors that may be worn.
LeBoeuf et al. (US 2011/0106627) discloses systems and methods for monitoring various physiological and environmental factors and using this data to support a variety of useful methods, such as clinical trials, marketing studies, biofeedback, entertainment, and others.
Itaya et al. (US 2011/0165544) discloses an activity presenting apparatus and method.
Edman et al. (US 2011/0230732) discloses using physiological monitoring to enable an individualized response, e.g., feedback, recommendations, rewards or guidance to be presented to the individual within the context of electronic media.
Utley et al. (US 2011/0263947) methods and systems for assisting patients in behavioral modification and cessation programs.
Hoffman et al. (US 2010/0116550) discloses athletic performance monitoring, tracking, and coaching.
Jain et al. (US 2012/0130196) discloses receiving and recording inputs identifying a mood or health status of a person, an activity of the person, time, and providing a variety of therapies.
Hoffman et al. (US 2012/0283855) discloses athletic performance monitoring, tracking, and coaching.
Utter (US 2013/0004923) discloses a nutrition management method and apparatus for a wellness application using data from a wearable sensor.
Leonard (US 2013/0030779) discloses a method and system for accelerating or improving the success rate of a behavior change, including gathering primary and secondary relationship data of an informal network of individuals and behavior change constructs for a plurality of individuals.
Pacione et al. (US 2013/0158367) discloses a nutrition and activity management system for achieving an optimum or preselected energy balance between calories consumed and energy expended by the user. The adaptable system provides relevant and predictive feedback to the user.
Gold (US 2013/0305169) discloses methods and systems for providing feedback in an interest centric, interactive communications environment.
Darrow (US 2013/0316313) discloses a system and method for providing lifestyle management services over a network.
Van Halteren et al. (US 2014/0122104) discloses a system, method, apparatus, and computer readable medium for promoting a healthier life style of a subject.
Brust et al. (US 2014/0156645) discloses systems and methods for implementing and performing coaching-assisted content delivery and goal-based workflows.
Frankfort et al. (US 2014/0234817) discloses systems and methods for providing behavior modification programs to students.
Hendriks et al. (US 2014/0272844 and US 2014/0272845) discloses a method and system for increasing the likelihood of inducing behavior change in a lifestyle management program.
Short et al. (US 2016/0374600) discloses methods and systems for assisting daily living for an individual.
Short et al. (US 9,839,380 and US 2018/0116574) discloses methods and systems for generating correlations between human biological phenotype, human behavioral and/or emotional phenotype, and temporal location to provide feedback, advice and guidance.
Short et al. (US 10,278,624) discloses a method and system for providing assistance for maintaining or improving an individual’s wellness.
Hong et al. (US 2017/0046567 and US 2017/0161554) discloses systems and methods for perform behavioral and behavioral phenotype detection and assisting in behavioral therapy.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL LANE whose telephone number is (303)297-4311. The examiner can normally be reached Monday - Friday 8:00 - 4:30 MT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Xuan Thai can be reached at (571) 272-7147. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL LANE/Examiner, Art Unit 3715
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