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 .
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 1-15 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.
Regarding claim 1, the phrase “acquisition of the unit data” lacks proper antecedent basis. For this examination, the phrase is being interpreted as “acquisition of the myoelectric potential data”.
Regarding claim 2, claim 1 states that the plurality of measurement spots are located on a face of a target person; the suprahyoid muscle group is not part of the face.
Regarding claim 3, it is unclear how one molar would be wiped by both a left and right cheek. A left sided molar can be wiped by a left cheek, but not a right cheek. A right sided molar can be wiped by a right cheek, but not a left cheek.
Regarding claim 4, it is unclear what the “first unit data” and “second unit data” are. Are they part of the “unit data” of claim 1? For this examination, the first unit data and second unit data of claim 4 are being interpreted as any units of the data of the acquired myoelectric potential data.
Regarding claims 8 and 9, it is unclear what is meant by “at which masticatory is not performed”. For this examination, the phrase is being interpreted as “at which mastication is not performed”.
Regarding claim 14, the phrase “on a basis of a determination result obtained when the target person chews a different food” is not understood in the context of the rest of the claim. Clarification is requested.
Claims not explicitly rejected above are rejected due to their dependence on a rejected base claim.
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 1-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
Regarding claim 1, the claim recites a series of steps or acts, including measuring myoelectric potential from muscles, acquiring myoelectric potential data, calculating a plurality of feature amounts, and determining which one of tongue movement, cheek movement, and occlusal movement is being performed by a target person. Thus, the claim is directed to a process, which is one of the statutory categories of invention.
The claim is then analyzed to determine whether it is directed to any judicial exception. The step of determining from feature amounts which one of tongue movement, cheek movement, and occlusal movement is being performed by a target person sets forth a judicial exception. This step describes a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to a Mental Process, which is an Abstract Idea.
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Claim 1 fails to recite any application of the result of the determination step. The determination of tongue movement, cheek movement, or occlusal movement does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the determined movement, nor does the method use a particular machine to perform the Abstract Idea.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the Abstract Idea, the claim recites additional steps of measuring myoelectrical potential from muscles, acquiring myoelectric potential data, and calculating a plurality of feature amounts by dividing the myoelectric potential data on a basis of a unit time. The measuring, acquiring, and calculating steps are each recited at a high level of generality such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes them from well-understood, routine, and conventional data gathering and calculating activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the measuring and acquiring steps do not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
The dependent claims also fail to add something more to the abstract independent claim as they generally recite method steps pertaining to data gathering or determination steps also capable of being performed mentally (pattern matching to determine a similar movement, detecting a change between datasets/results). The measuring, acquiring, calculating, and determining steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
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.
Claims 1 and 4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Seki et al.’284 (US Pub No. 2020/0046284 – cited by Applicant).
Regarding claim 1, Seki et al.’284 discloses a masticatory movement analysis method, the method comprising: an acquisition step of measuring myoelectric potential from muscles at a plurality of measurement spots on a face when a target person chews and acquiring myoelectric potential data (see Figure 1, and sections [0069-0070]); a calculation step of calculating a plurality of feature amounts from unit data obtained by dividing the myoelectric potential data on a basis of a unit time (sections [0136-0137], [0144]); and a determination step of determining from the feature amounts which one of tongue movement, cheek movement, and occlusal movement is being performed by the target person during acquisition of the unit data (sections [0144-0147], [0150-0153]).
Regarding claim 4, there is no recitation clarifying what the “first unit data” and “second unit data” are, nor is there a recitation linking the “first unit data” or “second unit data” to the “unit data” of claim 1. Because the myoelectric potential data of Seki et al.’284 is series data acquired over time, the acquired series data includes first unit data that partially overlaps with second unit data, the second unit data being taken from a time period to the first unit data.
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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Seki et al.’284, as applied to claim 1, in view of Kamiya et al.’509 (US Pub No. 2014/0120509).
Seki et al.’284 discloses all of the elements of the current invention, as discussed in paragraph 7 above, except for explicitly disclosing that the plurality of measurements including a right masseter muscle, a left masseter muscle, and a muscle near a central portion of a suprahyoid muscle group. Kamiya et al.’509 teaches that it is know to measure myoelectric potential at the masseter muscles and the suprahyoid muscle group in order to measure muscle activity (section [0005]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the method of Seki et al.’284 to be configured to measure myoelectric potential at the right masseter muscle, the left masseter muscle, and the suprahyoid muscle group, as Kamiya et al.’509 teaches that these are known locations to measure myoelectric potentials for muscle activity monitoring/analysis.
Claims 5, 6, 8, 10, 12, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Seki et al.’284, as applied to claim 1.
Regarding claim 5, Seki et al.’284 discloses all of the elements of the current invention, as discussed in paragraph 7 above, except for the determination step including calculating a probability of each movement being performed in the determination as to which one of the movements is being performed. It is noted that Seki et al.’284 teaches use of a neural network trained using supervised learning to perform the determining step (sections [0142-0157]). Official notice is being taken that it is well known in the art for neural network classifiers to also calculate a probability of an output provided by the neural network classifier (see, for example, sections [0048-0049] of Jacquin et al.’139 – US Pub No. 2010/0191139; section [0186] of Takagi et al.’281 – US Pub No. 2015/0196281; and section [0049] of Shariff et al.’671 – US Pub No. 2016/0302671). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the method of Seki et al.’284 to include calculating a probability of each movement being performed in the determination as to which one of the movements is being performed as it is well known in the art to include a calculated probability along with an output result. As evidenced by Shariff et al.’671, the movement having the highest probability would be output to a user (section [0049]).
Regarding claims 6, 8, 10, and 12, Seki et al.’284 discloses that the determination step is performed by a learned model trained using supervised learning (sections [0142-0157]). Official notice is being taken that it is well known in the art that learned models trained using supervised learning use labeled training data pertaining to the desired output of the learned model. As outputs of the learning model of Seki et al.’284 include different types of tongue movement, cheek movement, occlusal movement, and swallowing (section [0136]), one of ordinary skill in the art would have found it obvious to use labeled training data that includes: tongue movement, cheek movement, occlusal movement, and swallowing data during both mastication and rest. Further regarding claim 12, Seki et al.’284 discloses that its learning model can determine that movement does not correspond to tongue movement, cheek movement, or occlusal movement (throat movement).
Regarding claim 15, Seki et al.’284 discloses all of the elements of the current invention, as discussed in paragraph 7 above, except for the method comprising an elapsed time evaluation step of detecting a change in masticatory movement over time. Official notice is being taken that it is well known in the medical diagnostic art to monitor determined results over time in order to detect changes in a person’s current health status. As such, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have modified the method of Seki et al.’284 to include monitoring the masticatory movement over time and detecting any changes. The modification to Seki et al.’284 would keep the target person informed as to changes in their health.
Examiner’s Note
The following is a statement of reasons for the lack of prior art rejections:
Regarding claims 3, 7, 9, 11, and 13, none of the prior art discloses or suggests, either alone or in combination, a masticatory movement analysis method comprising determining whether a tongue is wiping an inner our outer side of a right or left tooth, or determining whether a molar is being wiped by a left cheek, a right cheek, or both the left and right cheeks, in combination with the other claimed steps.
Regarding claim 14, none of the prior art discloses or suggests, either alone or in combination, a masticatory movement analysis method comprising detecting a difference in masticatory movement resulting from a different food type, on a basis of a determination result obtained when a target person chews a different food, in combination with the other claimed steps.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Yoshiteru et al.’682 (JP2020-148692 – cited by Applicant) teaches analyzing a difference in masticatory movement resulting from different textures of food.
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/ETSUB D BERHANU/Primary Examiner, Art Unit 3791
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