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 .
Status of Claims
Claims 1-20 are pending in the present application with claims 1, 12, and 18 being independent.
Claim Objections
Claims 1 and 19 are objected to because of the following informalities:
In claim 1, line 18, it appears that "second" should be changed to --first--.
In claim 19, line 3, it appears that "second" should be changed to --first--.
Appropriate correction is required.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,246,222 ("the '222 Patent"). Although the claims at issue are not identical, they are not patentably distinct from each other as set forth below:
Present Independent Claim 1
Independent Claim 1 of the '222 Patent (underlined limitations map to corresponding limitations in present independent claim 1)
1. A method comprising:
receiving first data pertaining to a first user using an electromechanical machine, wherein the first data comprises characteristics of the first user;
determining whether at least some of the characteristics of the first user have a similarity with at least some of the characteristics of a second user assigned to a first cohort, wherein one or more machine learning models are trained to assign the second user to the first cohort by comparing second data of the second user to data of other people previously assigned to a plurality of cohorts, and wherein the first cohort represents the other people having an at least one similarity to the characteristics of the second user;
responsive to determining that at least some of the characteristics of the first user have a similarity with at least some of the characteristics of the second user,
assigning, via the one or more machine learning models, the first user to the first cohort, and
selecting, via the one or more machine learning models, a treatment plan for the first user;
transmitting, from one or more processing devices, a first control instruction to the electromechanical machine, wherein the [first] user uses the electromechanical machine, and wherein the first control instruction electronically adjusts a pedal
radius setting of the electromechanical machine, such adjustment to be in compliance with at least a first range of motion specified in the treatment plan;
receiving third data pertaining to the first user, wherein the third data comprises the first range of motion achieved by the first user performing the treatment plan; and
transmitting, based on the first range of motion achieved by the first user, a second control instruction to the electromechanical machine, wherein the second control instruction electronically adjusts the pedal radius setting of the electromechanical machine, such adjustment to be in compliance with at least a second range of motion specified in the treatment plan.
1. A method comprising:
receiving first data pertaining to a first user that uses an electromechanical machine to perform a treatment plan, wherein the first data comprises characteristics of the first user, the treatment plan, and a result of the treatment plan;
assigning, via one or more machine learning models and based on the first data, the first user to a first cohort of a plurality of cohorts, wherein the one or more machine learning models are trained to assign the first user to the first cohort by comparing the first data of the first user to other data of people previously assigned to the plurality of cohorts, and wherein the first cohort represents the people having an at least one similarity to the characteristics of the first user;
receiving second data pertaining to a second user, wherein the second data comprises characteristics of the second user;
determining whether at least some of the characteristics of the second user match with at least some of the characteristics of the first user assigned to the first cohort;
responsive to determining at least some of the characteristics of the second user match at least some of the characteristics of the first user,
assigning, via the one or more machine learning models, the second user to the first cohort, and
selecting, via the one or more machine learning models, the treatment plan for the second user;
transmitting, from one or more processing devices, a first control instruction to the electromechanical machine, wherein the second user uses the electromechanical machine, and wherein the first control instruction electronically adjusts a pedal radius setting of the electromechanical machine, such adjustment to be in compliance with at least a first range of motion specified in the treatment plan;
receiving third data pertaining to the second user, wherein the third data comprises the first range of motion achieved by the second user performing the treatment plan; and
transmitting, based on the first range of motion achieved by the second user, a second control instruction to the electromechanical machine, wherein the second control instruction electronically adjusts the pedal radius setting of the electromechanical machine, such adjustment to be in compliance with at least a second range of motion specified in the treatment plan.
All of the limitations in present independent claim 1 are disclosed by the limitations of independent claim 1 of the '222 Patent as set forth above, where the "second user" in independent claim 1 of the '222 Patent is equivalent to the "first user" in present independent claim 1.
Furthermore, present claims 2-20 are respectively disclosed by the limitations of claims 2-20 of the '222 Patent.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 11,337,648 ("the '648 Patent"). Although the claims at issue are not identical, they are not patentably distinct from each other as set forth below:
Present Independent Claim 1
Independent Claim 1 of the '648 Patent (underlined limitations map to corresponding limitations in present independent claim 1)
1. A method comprising:
receiving first data pertaining to a first user using an electromechanical machine, wherein the first data comprises characteristics of the first user;
determining whether at least some of the characteristics of the first user have a similarity with at least some of the characteristics of a second user assigned to a first cohort, wherein one or more machine learning models are trained to assign the second user to the first cohort by comparing second data of the second user to data of other people previously assigned to a plurality of cohorts, and wherein the first cohort represents the other people having an at least one similarity to the characteristics of the second user;
responsive to determining that at least some of the characteristics of the first user have a similarity with at least some of the characteristics of the second user,
assigning, via the one or more machine learning models, the first user to the first cohort, and
selecting, via the one or more machine learning models, a treatment plan for the first user;
transmitting, from one or more processing devices, a first control instruction to the electromechanical machine, wherein the [first] user uses the electromechanical machine, and wherein the first control instruction electronically adjusts a pedal
radius setting of the electromechanical machine, such adjustment to be in compliance with at least a first range of motion specified in the treatment plan;
receiving third data pertaining to the first user, wherein the third data comprises the first range of motion achieved by the first user performing the treatment plan; and
transmitting, based on the first range of motion achieved by the first user, a second control instruction to the electromechanical machine, wherein the second control instruction electronically adjusts the pedal radius setting of the electromechanical machine, such adjustment to be in compliance with at least a second range of motion specified in the treatment plan.
1. A method comprising:
receiving first data pertaining to a first user that uses an electromechanical machine to perform a treatment plan, wherein the first data comprises characteristics of the first user, the treatment plan, and a result of the treatment plan;
assigning, via one or more machine learning models using the first data, the first user to a first cohort of a plurality of cohorts, wherein the one or more machine learning models are trained to assign the first user to the first cohort by comparing the first data of the first user to other data of people previously assigned to the plurality of cohorts, and the first cohort represents the people having an at least one similarity to the characteristics of the first user;
receiving second data pertaining to a second user, wherein the second data comprises characteristics of the second user;
determining whether at least some of the characteristics of the second user match with at least some of the characteristics of the first user assigned to the first cohort;
responsive to determining at least some of the characteristics of the second user match at least some of the characteristics of the first user,
assigning, via the one or more machine learning models, the second user to the first cohort, and
selecting, via the one or more machine learning models, the treatment plan for the second user;
providing, to a computing device, a recommendation pertaining to the treatment plan, wherein the recommendation is provided during a telemedicine session, and the recommendation is presented in a first portion of a user interface on the computing device and an audiovisual feed is presented in a second portion of the user interface, wherein the first and second portions are separate;
receiving a selection of the treatment plan; and
transmitting, from a processing device, a control instruction to the electromechanical machine, wherein the second user uses the electromechanical machine, the processing device is separate from the electromechanical machine, the processing device executes the one or more machine learning models, and the control instruction electronically adjusts a pedal radius setting of the electromechanical machine, such adjustment to be in compliance with an at least first range of motion specified in the treatment plan;
receiving third data pertaining to the second user, wherein the third data comprises the first range of motion achieved by the second user performing the treatment plan; and
transmitting, based on the first range of motion achieved by the second user, a second control instruction to the electromechanical machine, wherein the control instruction electronically adjusts the pedal radius setting of the electromechanical machine, such adjustment to be in compliance with an at least second range of motion specified in the treatment plan.
All of the limitations in present independent claim 1 are disclosed by the limitations of independent claim 1 of the '648 Patent as set forth above, where the "second user" in independent claim 1 of the '648 Patent is equivalent to the "first user" in present independent claim 1.
Furthermore, present claims 2-20 are disclosed by the limitations of claims 1-14 of the '648 Patent as set forth below:
Present Claims
'648 Patent Claims
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Statement Regarding Subject-Matter Eligibility
When currently pending claims 1-20 are considered in view of the 2019 Revised Patent Subject Matter Eligibility Guidance (which collectively includes the guidance in the January 7, 2019 Federal Register notice and the October 2019 update issued by the USPTO as now incorporated into the MPEP, and as supported by relevant case law), the claims are patent eligible under 35 USC 101.
Specifically, the “additional limitations” of the claims (including, inter alia, one or more ML models being trained to assign the second user to the first cohort representing other people having at least one similarity to characteristics of the second user, using the one or more ML models to perform the mental processes of assigning the first user to the first cohort and selecting the treatment plan, transmitting a first control instruction to electronically adjust a “pedal radius setting” of an electromechanical machine being used by a first user and which is in compliance with a first range of motion specified in a treatment plan; receiving third data pertaining to a first user and including the first range of motion achieved by the first user performing the treatment plan; and transmitting, based on the first range of motion achieved by the first user, a second control instruction to the electromechanical machine, where the control instruction electronically adjusts the pedal radius setting of the electromechanical machine which is in compliance with an at least second range of motion specified in the treatment plan) together with the limitations directed to the at least one abstract idea (including, inter alia, receiving first data characteristics of the first user, determining whether the first data characteristics are similar to those of a second user assigned to a first cohort, assigning the first user to the first cohort, selecting a treatment plan, etc.) when viewed as a whole, integrate the at least one abstract idea into a “practical application” of the at least one abstract idea under Step 2A, prong 2 of the Alice/Mayo test by implementing the abstract idea with a particular machine and improving the functioning of a computer and/or other technology.
For instance, a discussed at least at [0033]-[0034], [0039] of the present specification as well as in Applicant’s remarks in the Amendment, the manner in which the present claims implement a trained ML model to assign the first user to the first cohort and select a corresponding treatment plan, electronically adjust the pedal radius setting of the electromechanical machine in accordance a first range of motion in the treatment plan, receive further data including the first range of motion achieved by the first user in performing the plan, and then transmit another control instruction to electronically adjust the pedal radius setting to be in compliance with a second range of motion amounts to implementing the abstract idea with a particular machine and improves existing technology for treating and rehabilitating patients by allowing the electromechanical machine to dynamically adapt to the needs of a user based on the treatment plan thereby improving patient recovery and enabling treatment plan personalization.
Such limitations also amount to “significantly more” than the abstract idea under Step 2B of the Alice/Mayo test because they amount to adding a specific limitation other than what is well-understood, routine, conventional activity in the field, or adding unconventional steps that confine the claim to a particular useful application (see MPEP § 2106.05(d)) and also amount to applying the abstract idea with or by use of a particular machine (see MPEP § 2106.05(f)).
Allowable Subject Matter
Claims 1-20 would be allowed if a Terminal Disclaimer is filed or the claims are amended to obviate the outstanding double patenting rejections.
The following is the Examiner’s statement of reasons for allowance:
Each of the independent claims recites, inter alia, receiving first data characteristic pertaining to a first user using an electromechanical machine; determining whether at least some of the characteristics of the first user have a similarity with at least some of the characteristics of a second user assigned to a first cohort, wherein one or more machine learning models are trained to assign the second user to the first cohort by comparing second data of the second user to data of other people previously assigned to a plurality of cohorts, and wherein the first cohort represents the other people having an at least one similarity to the characteristics of the second user; responsive to determining that at least some of the characteristics of the first user have a similarity with at least some of the characteristics of the second user, assigning, via the one or more machine learning models, the first user to the first cohort and selecting, via the one or more machine learning models, a treatment plan for the first user; transmitting a first control instruction to the electromechanical machine being used by the first user such that the first control instruction electronically adjusts a “pedal radius setting” of the electromechanical machine which is in compliance with a first range of motion specified in the treatment plan; receiving third data pertaining to the first user and including the first range of motion achieved by the first user performing the treatment plan; and transmitting, based on the first range of motion achieved by the first user, a second control instruction to the electromechanical machine, where the control instruction electronically adjusts the pedal radius setting of the electromechanical machine which is in compliance with an at least second range of motion specified in the treatment plan.
While U.S. Patent App. Pub. No. 2017/0329917 to McRaith et al. ("McRaith") discloses, inter alia, receiving data for a first user, assigning the first user to a first cohort, selecting a treatment plan for the first user, and transmitting a control instruction to an electromechanical machine to electronically adjust a parameter of the machine in compliance with a parameter in treatment plan as recited in the independent claims, neither McRaith nor the other references of record specifically disclose(s) the (first) control instruction to electronically adjust a "pedal radius setting" of the electromechanical machine which is in compliance with a first range of motion specified in the treatment plan; receiving third data pertaining to the first user and including the first range of motion achieved by the first user performing the treatment plan; and transmitting, based on the first range of motion achieved by the second user, a second control instruction to the electromechanical machine, where the control instruction electronically adjusts the pedal radius setting of the electromechanical machine which is in compliance with an at least second range of motion specified in the treatment plan, all as required in the independent claims.
For reference, U.S. Patent App. Pub. No. 2009/0211395 discloses an adjustable pedal system for changing the position of pedals along the crank arms of an exercise bike. The system provides a locking member, such as a rack, located along the crank arm and a locking member, such as one or more gear teeth formed on a slide sleeve to which the pedal is affixed. Thus the slide sleeve and pedal can be slid along the crank arm to the desired position whereupon the locking members intermesh to positively lock the pedal in the desired location. The intermeshing is maintained by a clamping device, such as a thumb screw that is tightened to lock the pedals in the desired location and loosened to disengage the locking members to allow the movement of the pedals to another location. The system can be operated without the need for tools and can be retrofitted to existing exercise bikes. Also for reference, KR20170038837A discloses a system that allows bicycles to communicate with other bikes, a central server, client computing devices, and third party servers. Information can be passed to the bike controller for route planning, service scheduling, training purposes, and the like. Bicycle information or information from a bicycle can be performed as directed by the passenger, or can be carried out in advance, such as what information is collected, to whom information can be transmitted. Also for reference, NPL “Fuzzy Controller Design for Assisted Omni-Directional Treadmill Therapy” generally discloses a controller for a treadmill that continually evaluates a user’s position and can adjust control parameters of the treadmill accordingly to provide a best possible assistance.
However, these documents do not appear to disclose, inter alia, sending control instructions to electronically adjust a “pedal radius setting” of an electromechanical machine and which is in compliance with a first range of motion specified in a treatment plan; receiving third data pertaining to a first user and including the first range of motion achieved by the first user performing the treatment plan; and transmitting, based on the first range of motion achieved by the second user, a second control instruction to the electromechanical machine, where the control instruction electronically adjusts the pedal radius setting of the electromechanical machine and which is in compliance with an at least second range of motion specified in the treatment plan, all as recited in the present independent claims.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
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/JONATHON A. SZUMNY/ Primary Examiner, Art Unit 3686
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