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 .
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.
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.
Claims 1-6, 10-13 and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 12299795. Although the claims at issue are not identical, they are not patentably distinct from each other because the following.
The table below shows the correspondence between claim 1 of the ‘663 application and claim 1 of the ‘681
‘663
‘795
(Claim 1)
A non-transitory computer-readable medium storing computer-executable instructions, which, when executed by a computer processor, cause the computer processor to carry out a method of generating a virtual avatar representing a user using sensor data from a plurality of sensors mounted to the user wherein the method comprises:
obtaining sensor data from the plurality of sensors, wherein the sensor data includes:
force sensor data from a plurality of force sensors positioned underfoot of the user;
and IMU data from a plurality of inertial measurement units (IMUs) mounted at respective IMU locations on the user, wherein the IMU data includes a plurality of IMU datasets, and each IMU dataset corresponds to one of the IMU locations; determining an activity type from the sensor data;
determining an estimated full-body posture of the user by inputting the IMU data, force sensor data, and activity type to a machine learning model trained to estimate full-body posture, wherein the estimated full-body posture specifies a limb position and a limb orientation for each limb of the user;
generating the virtual avatar based on the estimated full-body posture; and displaying the virtual avatar.
(Claim 1)
A method of generating a virtual avatar representing a user using sensor data from a plurality of sensors mounted to the user, the method comprising:
obtaining sensor data from the plurality of sensors, wherein the sensor data includes:
force sensor data from a plurality of force sensors positioned underfoot of the user;
and IMU data from a plurality of inertial measurement units (IMUs) mounted at respective IMU locations on the user, wherein the IMU data includes a plurality of IMU datasets, and each IMU dataset corresponds to one of the IMU locations; determining an activity type from the sensor data;
determining an estimated full-body posture of the user by inputting the IMU data, force sensor data, and activity type to a machine learning model trained to estimate full-body posture, wherein the estimated full-body posture specifies a limb position and a limb orientation for each limb of the user;
generating the virtual avatar based on the estimated full-body posture,…and displaying the virtual avatar.
The table below shows the correspondences between the remaining claims.
‘663
2
3
4
5
6
10
11
12
13
‘795
2
3
4
5
6
7
8
9
10
Regarding claim 17, the ‘795 patent does not expressly teach but Guard teaches the non-transitory computer-readable medium of claim 1, wherein the virtual avatar is used to visualize differences in performance or to be used as a tool for reducing a risk of injury (the limitation recites an intended use or purpose in an computer readable medium claim. As to MPEP 2111.02, statements of intended use are not given patentable weight. Because, patent ‘795 teaches displaying user motion via an avatar, it is functionally capable of being used to visualize performance or evaluate risk of injury).
Claims 7, 9, 14-16, 18 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over U.S. Patent No. 12299795 in view of Guard et al. (PGPUB Document No. US 2020/0253320).
Regarding claim 7, the ‘795 patent does not expressly teach but Guard teaches the non-transitory computer-readable medium of claim 1, wherein the plurality of IMUs comprises at most 10 IMUs (As implied in the ‘795 patent a plurality of motion sensors are applied to a plurality of locations on the body. Similarly, Guard teaches wearable body sensors to collect body positional data (Guard: 0168)).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of an ordinary skill in the art to utilize motion sensors on necessary body parts to track body positional data as suggested by Guard, because this enables accurate tracking of positional body data.
Regarding claim 9, the ‘795 patent does not expressly teach but Guard teaches the non-transitory computer-readable medium of claim 1, wherein the virtual avatar is generated in the absence of any visual motion capture data (“virtual reality systems and provide controlled movements for an avatar in a virtual environment based on a user's movements” (Guard: Abstract). “Sensor inputs are used to control a full range of directional locomotion of avatars in virtual environments” (Guard: 0230). Guard does teach using video data to controlling avatar movements in an alternate embodiment. However, the suggestion of an alternate embodiment does not invalidate other embodiments that control avatar movement based only on motion sensors).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of an ordinary skill in the art to modify the teachings of the ‘795 patent such as to animate the virtual avatar as taught by Guard, because the use of motion sensors enable an effective and efficient method for tracking motion data.
Regarding claim 14, the ‘795 patent does not expressly teach but Guard teaches the non-transitory computer-readable medium of claim 3, wherein a first scaling factor applied to a motion of the virtual avatar (Guard teaches speed adjustment (Guard: 0242)) and a second scaling factor applied to a size of the virtual avatar are different (the required scale applied to the avatar that is part of a third party video game/software (Guard: 0224)).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of an ordinary skill in the art to modify the teachings of the ‘795 patent such as to generate avatar as taught by Guard, because this enables an added level of user customization.
Regarding claim 15, the ‘795 patent does not expressly teach but Guard teaches the non-transitory computer-readable medium of claim 1, wherein generating the virtual avatar and displaying the virtual avatar are performed in real time, substantially coincident with obtaining the sensor data. (Guard teaches the concept of the devices communicating sensor data in real-time (Guard: 0046)).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of an ordinary skill in the art to apply the real-time processing teaching to the ‘795 patent such that the generation and display of the virtual avatar utilize the processing teaching of Guard), because this enables rendering virtual object in real time.
Regarding claim 16, the ‘795 patent does not expressly teach but Guard teaches the non-transitory computer-readable medium of claim 1, wherein the virtual avatar is displayed on a VR headset or other display (virtual reality headset 180 (Guard: 0166)).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of an ordinary skill in the art to display the virtual objects of the ‘795 patent on a VR headset such as that taught by Guard, because this enables an immersive VR experience to the user.
Regarding claim 18, the ‘795 patent does not expressly teach but Guard teaches the non-transitory computer-readable medium of claim 1, wherein the activity type includes walking, running, cycling, jumping, dancing, golfing, snowboarding, or other athletic activity (Guard teaches the application of VR to athletic movements like golf (Guard: 0215)).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of an ordinary skill in the art to apply the VR teaching of the ‘795 patent to athletic motions such as those taught by Guard, because this enables a wider application of VR systems.
Regarding claim 20, the ‘795 patent does not expressly teach but Guard teaches the non-transitory computer-readable medium of claim 4, wherein virtual avatar motion is proportional to the motion of the limbs of the user (Guard teaches the concept of the movement of the avatar corresponding to the motion of the user (Guard: 0239)).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of an ordinary skill in the art to modify the ‘795 patent such that avatar movement corresponds to the movement of the user as taught by Guard, because this enables an intuitive method of controlling the avatar.
Claims 8 are rejected on the ground of nonstatutory double patenting as being unpatentable over U.S. Patent No. 12299795 in view of Kerber et al. (PGPUB Document No. US 2021/0200311).
Regarding claim 8, the ‘795 patent does not expressly teach but Kerber teaches the non-transitory computer-readable medium of claim 1, wherein the plurality of IMUs comprises a pair of underfoot IMUs, a pair of wrist-mounted IMUs, a sacrum-mounted IMU, a trunk-mounted IMU, a pair of thigh-mounted IMUs, and a pair of shank-mounted IMUs (Kerber: 0042).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of an ordinary skill in the art to modify the teachings of the ‘795 patent such as to track motion data as taught by Kerber, because this enables extensive and accurate tracking of user motion.
Claims 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over U.S. Patent No. 12299795 in view of Pawlowski et al. (PGPUB Document No. US 2016/0144280).
Regarding claim 19, the ‘795 patent does not expressly teach but Pawlowski teaches the non-transitory computer-readable medium of claim 1, further comprising comparing virtual avatars from different activity sessions to visualize differences in performance (Pawlowski teaches the concept of “track users' progression through an activity simulation, which may resemble related sporting events” (Pawlowski: Abstract)).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one of an ordinary skill in the art to modify the teachings of the ‘795 patent such as to further include the option track user progress for different athletic sessions, because this enables an added variety of functions to the user.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to David H Chu whose telephone number is (571)272-8079. The examiner can normally be reached M-F: 9:30 - 1:30pm, 3:30-8:30pm.
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/DAVID H CHU/Primary Examiner, Art Unit 2616
