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 .
Priority
This application discloses and claims only subject matter disclosed in prior Application No. 18425191, filed 1/29/2024, and names the inventor or at least one joint inventor named in the prior application. Accordingly, this application may constitute a continuation or divisional. Should applicant desire to claim the benefit of the filing date of the prior application, attention is directed to 35 U.S.C. 120, 37 CFR 1.78, and MPEP § 211 et seq. The presentation of a benefit claim may result in an additional fee under 37 CFR 1.17(w)(1) or (2) being required, if the earliest filing date for which benefit is claimed under 35 U.S.C. 120, 121, 365(c), or 386(c) and 1.78(d) in the application is more than six years before the actual filing date of the application.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12292768. Although the claims at issue are not identical, they are not patentably distinct from each other because both applications recite substantially similar claim limitations.
19/171206
U.S. Patent No. 12292768
A system for biomechanically optimizing mobile device use, comprising:
a mobile device having an orientation system adapted to determine an orientation and position of the mobile device; wherein the mobile device is adapted to:
determine a reference position relative to one of a vertical position and a horizontal position,
determine a stress angle of the mobile device according to a difference between the position and the reference position, and
actuate a user notification according to a determination that the stress angle exceeds a predetermined angle for a predetermined length of time.
1. A system for implementing behavior modification while using a mobile device comprising:
a mobile device having a computer readable storage and a display;
a processor included in the mobile device and in communication with the computer readable storage; and,
instructions stored on the computer readable storage that when executed by the processor cause the mobile device to:
determine a current position of the display;
determine a reference position relative to one of a vertical position and a horizontal position,
determine a tilt angle of the display according to a difference between the current position and the reference position, and,
actuate a user notification according to a determination that the tilt angle of the display exceeds a predetermined angle, wherein the user notification is activated for an activation period of time and wherein the activation period of time is increased according to a number of times the tilt angle of the display exceeds the predetermined angle.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11927993. Although the claims at issue are not identical, they are not patentably distinct from each other because both applications recite substantially similar claim limitations.
19/171206
U.S. Patent No. 11927993
A system for biomechanically optimizing mobile device use, comprising:
a mobile device having an orientation system adapted to determine an orientation and position of the mobile device; wherein the mobile device is adapted to:
determine a reference position relative to one of a vertical position and a horizontal position,
determine a stress angle of the mobile device according to a difference between the position and the reference position, and
actuate a user notification according to a determination that the stress angle exceeds a predetermined angle for a predetermined length of time.
1. A system for biomechanically optimizing mobile device use comprising:
a mobile device having a computer readable storage and a display;
a processor included in the mobile device and in communication with the computer readable storage and the display;
an orientation determination system included with the mobile device and adapted to determine a position of the mobile device; and,
an operating system stored on the computer readable storage that, when the mobile device is powered on, is adapted to:
determine a reference position relative to one of a vertical position and a horizontal position,
determine a device tilt angle of the mobile device according to a difference between the position of the display when being viewed by a user and the reference position,
actuate a first user notification according to a determination that the device tilt angle exceeds a predetermined angle, and
actuate a subsequent user notification according to a determination that the mobile device has not been returned to the reference position after the first user notification.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 3, 7,11 – 14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 3, 7, 11 - 14 recite the limitation "the computer readable instructions". There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1 – 4, 6 – 8, 10 – 15, 17 - 20 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (U.S. Patent Publication 20130072820 A1) in view of Cunico et al. (U.S. Patent Publication 20190038215 A1).
Regarding claim 1, Lee discloses “A system for biomechanically optimizing mobile device use, comprising:
a mobile device ([0052] a mobile phone, a smartphone) having an orientation system adapted to determine an orientation and position of the mobile device; ([0054] a tilt angle of the portable terminal. An orientation sensor, or combination of an accelerometer and a magnetic sensor located on the portable terminal may provide the tilt angle information.[0065] The variety of sensors may include an orientation sensor, an acceleration sensor, a magnetic sensor, or the like, which is equipped in the portable terminal 301. In response to the tilt angle 320 of the user's cervical spine not falling within a predefined threshold range, the determining unit 101 may determine that the state of the user's cervical spine falls outside a normal range. In addition, in response to the user's cervical spine not falling within the normal range, the determining unit 101 may make a determination that the user is using the portable terminal 301 in an improper posture. [0075])
wherein the mobile device is adapted to: ([0052] a mobile phone, a smartphone)
determine a reference position relative to one of a vertical position and a horizontal position, ([0057] the determining unit 101 may determine that the user is not in a correct posture in response to the state of the user's viewing of the portable terminal not being in a predefined normal range. For example, in response to the user viewing the portable terminal at a distance closer than a threshold distance or keeping an eye on a part of the portable terminal for a long period of time, the determining unit 101 may determine that the user is not in a correct posture. [0098] The sensing data to be collected may be data obtained by native S/W or H/W capabilities of the apparatus without requiring additional sensors. For example, the sensing data may include a front image and positional information of the portable terminal during use of the portable terminal. In other words, the front image may be a face image of a user. The positional information may be sensing data obtained by an orientation sensor, an acceleration sensor, a magnetic sensor, and the like. [0058] [0059])
determine a stress angle of the mobile device according to a difference between the position and the reference position, ([0054] a tilt angle of the portable terminal, or any combination thereof. For example, the determining unit 101 may receive information on a user's face image from a front camera equipped in the portable terminal and may receive information on a tilt angle of the portable terminal. An orientation sensor, or combination of an accelerometer and a magnetic sensor located on the portable terminal may provide the tilt angle information. [0055] he tilt angle of the portable terminal, or any combination thereof. [0065] “calculate an inclination angle 310 of the portable terminal 301 based on the collected sensor information, and calculate the tilt angle of the user's cervical spine based on the calculated inclination angle 310. The variety of sensors may include an orientation sensor, an acceleration sensor, a magnetic sensor, or the like, which is equipped in the portable terminal 301. In response to the tilt angle 320 of the user's cervical spine not falling within a predefined threshold range, the determining unit 101 may determine that the state of the user's cervical spine falls outside a normal range. In addition, in response to the user's cervical spine not falling within the normal range, the determining unit 101 may make a determination that the user is using the portable terminal 301 in an improper posture.) and
Lee does not disclose actuate a user notification according to a determination that the stress angle exceeds a predetermined angle for a predetermined length of time.
Cunico discloses actuate a user notification according to a determination that the stress angle exceeds a predetermined angle for a predetermined length of time. (Fig. 5, [0025] Computing device 102 may determine a viewing angle of the individual based on the orientation of computing device 102 and a position of eyes of the individual captured by the camera of computing device 102 (act 406). [0028] “Based on a result of analyzing the health information, thresholds may be adjusted (act 312). The thresholds are used during act 314 to determine which action(s) to perform, if any, based on the posture quotient. In some embodiments, default thresholds may be set to: 0.456 for moderate posture strain; 0.679 for strong posture strain; and 0.889 for severe posture strain. For example, if the health information is provided and indicates back or neck problems or related muscle issues, then the thresholds may be adjusted during act 312 (e.g., based on predefined values or adjustments, etc.) to, for example: 0.302 for moderate posture strain; 0.510 for strong posture strain; and 0.745 for severe posture strain. In other embodiments, different threshold values and/or a different number of thresholds may be used.” [0015] “The remedial actions may include, but not be limited to: dimming a display of the computing device; performing posture realignment checks every predetermined time interval and adjusting execution of the application (e.g., suspending use of the application for a predetermined amount of time, suspending the use of the application until the individual corrects the posture, slowing execution of the application, etc.).” [0015] “dimming a display of the computing device; performing posture realignment checks every predetermined time interval and adjusting execution of the application (e.g., suspending use of the application for a predetermined amount of time, suspending the use of the application until the individual corrects the posture, slowing execution of the application, etc.” [0027] – [0029]. [0004] [0005] Claim does not define what is “a predetermined angle”. “a predetermined angle” can be zero. )
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to incorporate angle by Cunico into device of Lee. The suggestion/motivation would have been to adjust posture. (Cunico: [0028])
Regarding claim 2, Lee and Cunico disclose further comprising a time determining system (Lee [0071]) within the mobile device operating system adapted to determine an actual length of time that the mobile device is held in a position that the stress angle exceeds the predetermined angle. (Lee [0071])
Regarding claim 3, Lee and Cunico disclose wherein the orientation system is adapted to determine a movement of the mobile device, and the computer readable instructions are adapted to determine the stress angle according to a determination that the movement occurred. (Lee [0054] [0065] [0075])
Regarding claim 4, Lee and Cunico disclose wherein the predetermined angle and predetermined length of time are stored in the computer readable medium and are user configurable. (Lee [0102])
Regarding claims 6, 10, 17, Lee and Cunico disclose wherein the user notification includes at least one of: dimming the display, ([0015] dimming a display of the computing device ) actuating a haptic system, actuating an audio system, displaying a visual notification on the display, and suspending an operation of other currently running applications.
Regarding claims 7, 11, 18, Lee and Cunico disclose wherein the computer readable instructions are adapted to increase an intensity or duration of the user notification according to at least one of: a number of times the stress angle exceeds the predetermined angle and a size of the stress angle. (Lee [0054] [0055])
Regarding claim 8, claim 8 is rejected for same reason as claim 1.
Regarding claims 12, 19, Lee and Cunico disclose wherein the computer readable instructions further cause the system to determine an actual length of time that the mobile device is held in the current position where the stress angle exceeds the predetermined angle. (Lee [0054] [0055] [0065] [0075])
Regarding claim 13, Lee and Cunico disclose wherein the computer readable instructions further cause the system to reduce the predetermined length of time according to the number of times the stress angle has exceeded the predetermined angle. (Lee [0054] [0055] [0065])
Regarding claim 14, Lee and Cunico disclose wherein the computer readable instructions further cause the system to stop the user notification and return the mobile device to an initial state when the stress angle is less than the predetermined angle for a recovery period of time. (Lee [0054] [0055] [0075)
Regarding claim 15, claim 15 is rejected for same reason as claim 1.
Regarding claim 20, Lee and Cunico disclose further adapted to reduce the predetermined length of time according to the number of times the stress angle has exceeded the predetermined angle. (Lee [0054] [0055])
Claims 5, 9, 16 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (U.S. Patent Publication 20130072820 A1) in view of Cunico et al. (U.S. Patent Publication 20190038215 A1) in view of Wang et al. (U.S. Patent Publication 20220398995 A1).
Regarding claims 5, 9, 16 Lee and Cunico do not disclose wherein the reference position is in a range of 5 degrees plus or minus from one of the vertical positions and the horizontal position.
Wang discloses wherein the reference position is in a range of 5 degrees plus or minus from one of the vertical positions and the horizontal position. ([0042] [0070])
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to incorporate angle by Wang into device of Lee and Cunico. The suggestion/motivation would have been to adjust mobile phone position. (Wang: [0042])
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 20160262688 A1 discloses [0049] Controller 101 typically may be used to program sensors 102 with posture and/or position parameters.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHUN-NAN LIN whose telephone number is (571)272-5646. The examiner can normally be reached Monday - Thursday 7:30am - 6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin C Lee can be reached at 571-2722963. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHUN-NAN LIN/Primary Examiner, Art Unit 2629