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 Claim(s)
Claims 25-38 have been examined.
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.
Claims 25, 32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 11 of U.S. Patent No 11,545,250. Although the claims at issue are not identical, they are not patentably distinct from each other because both claims 25, 32 of current application and claims 1, 11 of US Patent No. 11,545,250 recite the same features of receiving a biological extraction pertaining to a user; generating a plurality of lifestyle intervention combinations as a function of the biological extraction; selecting, from the plurality of lifestyle intervention combinations, using a second machine-learning model trained, a projected adherence of the user to the recommendations.
Claims 25, 32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 10 of U.S. Patent No 12,334,205. Although the claims at issue are not identical, they are not patentably distinct from each other because both claims 25, 32 of current application and claims 1, 10 of US Patent No. 12,334,205 recite the same features of receiving a biological extraction pertaining to a user; generating a plurality of lifestyle intervention combinations as a function of the biological extraction; selecting, from the plurality of lifestyle intervention combinations, a second machine-learning model trained, a projected adherence of the user to the nutritional goal recommendations using the plurality of lifestyle intervention combination
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 25-38 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1:
Claim(s) 25 recite(s) a system, which is a statutory category (i.e. machine). Claim 32 recites a method, which is a statutory category (i.e. process). Accordingly, claims 25, 32 are all within at least one of the four statutory categories.
Step 2A - Prong One:
Regarding Prong One of Step 2A of MPEP2106.04-.07, the claim limitations are to be analyzed to determine whether, under their broadest reasonable interpretation, they “recite” a judicial exception or in other words whether a judicial exception is “set forth” or “described” in the claims. An “abstract idea” judicial exception is subject matter that falls within at least one of the following groupings: a) mathematical concepts, b) certain methods of organizing human activity, and/or c) mental processes.
The limitation of Independent claims 25, 32 recite at least one abstract idea. Specifically, Claim 25 recites the steps of
A system for generating lifestyle change recommendations based on biological extractions, the system comprising a computing device, the computing device designed and configured to:
receive a biological extraction pertaining to a user, wherein the biological extractions comprises user physiological data comprising nutritional habits of the user;
generate a plurality of lifestyle intervention combinations as a function of the biological extraction data;
derive a user inclination enumeration a function of at least a user input;
generate, using a first machine-learning model trained in nutritional recommendation data correlated with the user physiological data, a nutritional goal recommendation based on the biological extraction data; and
determine, using a second machine-learning model trained in user inclination data, a projected adherence of the user to the nutritional goal recommendations.
The limitations “receive a biological extraction pertaining to a user, wherein the biological extractions comprises user physiological data comprising nutritional habits of the user; generate a plurality of lifestyle intervention combinations as a function of the biological extraction data” constitutes (c) “a mental process” because receiving biological extraction, generate lifestyle intervention can be practically performed in the human mind. Accordingly, the claim is directed toward at least one abstract idea.
Further the limitations “derive a user inclination enumeration a function of at least a user input; generate, using a first machine-learning model trained in nutritional recommendation data correlated with the user physiological data, a nutritional goal recommendation based on the biological extraction data; and determine, using a second machine-learning model trained in user inclination data, a projected adherence of the user to the nutritional goal recommendations” constitutes (b) certain methods of organizing human activity” because these limitations could be performed by the user, researcher to observe, analyze intervention data sources on a piece of paper. Accordingly, the claim is directed toward at least one abstract idea
Furthermore, the abstract idea for claims 32 is identical as the abstract idea for claim 25, because the only difference between claim 25 and claim 32 is that claim 25 recites a system, whereas claim 32 recites a method.
Furthermore, the following depending claims further define the at least one abstract idea, and thus fail to make the abstract idea any less abstract.
For dependent claims 25-31, 33-38 generating the plurality of lifestyle intervention combination by receiving a description of a disease state of the users providing exercise program, dietary elimination, merely define steps that were indicated as being part of the abstract idea, and thus part of mental process.
Step 2A - Prong Two:
Regarding Prong Two of Step 2A, it must be determined whether the claim as a whole integrates the abstract idea into a practical application. As noted in MPEP2106.04-.07, it must be determined whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception. The courts have indicated that additional elements merely using a computer to implement an abstract idea, adding insignificant extra solution activity, or generally linking use of a judicial exception to a particular technological environment or field of use do not integrate a judicial exception into a “practical application.”
In the present case, the additional limitations beyond the above-noted at least one abstract idea are as follows (where the bolded portions are the “additional limitations” while the underlined portions continue to represent the at least one “abstract idea”):
A system for generating lifestyle change recommendations based on biological extractions, the system comprising a computing device, the computing device designed and configured to:
receive a biological extraction pertaining to a user, wherein the biological extractions comprises user physiological data comprising nutritional habits of the user (merely invokes use of computer and computer components as a tool as noted below, see MPEP 2106.05(f));
generate a plurality of lifestyle intervention combinations as a function of the biological extraction data (merely invokes use of computer and computer components as a tool as noted below, see MPEP 2106.05(f));
;
derive a user inclination enumeration a function of at least a user input;
generate, using a first machine-learning model trained in nutritional recommendation data correlated with the user physiological data, a nutritional goal recommendation based on the biological extraction data (merely invokes use of computer and computer components as a tool as noted below, see MPEP 2106.05(f)); and
determine, using a second machine-learning model trained in user inclination data, a projected adherence of the user to the nutritional goal recommendations (merely data gathering steps as noted below, see MPEP 2106.05(g) and Symantec).
For the following reasons, the Examiner submits that the above identified additional limitations do not integrate the above-noted at least one abstract idea into a practical application.
Regarding the additional limitation of a computing device, a machine learning model, , the examiner submits that this additional limitation merely adds the use of a computer to perform a process (See MPEP 2106.05(f))
.
Thus, taken alone, the additional elements do not integrate the at least one abstract idea into a practical application.
Looking at the additional limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. For instance, there is no indication that the additional elements, when considered as a whole, reflect an improvement in the functioning of a computer or an improvement to another technology or technical field, apply or use the above-noted judicial exception to implement and revise a treatment plan, implement/use the above-noted judicial exception with a particular machine or manufacture that is integral to the claim, effect a transformation or reduction of a particular article to a different state or thing, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is not more than a drafting effort designed to monopolize the exception (MPEP § 2106.05).
For these reasons, representative independent claim 1 and analogous independent claim 11 do not recite additional elements that integrate the judicial exceptions into a practical application.
The remaining dependent claim limitations not addressed above fail to integrate the abstract idea into a practical application as set below:
Dependent claims 2-3, 12-13 the claims specify various features of lifestyle interventions and thus the additional elements to be mere instructions to apply an exception, because they do no more than merely invoke computers or machinery as a tool to perform an existing process (see MPEP § 2106.05(f)).
For claims 6-, 17, assigning the projected user adherence comprises training a machine-learning model and process and thus the additional elements to be mere instructions to apply an exception, because they do no more than merely invoke computers or machinery as a tool to perform an existing process (see MPEP § 2106.05(f)).
Thus, taken alone, the additional elements do not integrate the at least one abstract idea into a practical application.
2019 PEG: Step 2B:
Regarding Step 2B, independent claims 25, 32 do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for the same reasons to those discussed above with respect to determining that the claim does not integrate the abstract idea into a practical application.
Furthermore, claims 25, 32 limit the use of first machine learning, second machine learning (i.e. generating algorithm), the Examiner submits that these limitations amount to merely using these computer devices as well-understood, routine, conventional activity (Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018).), and MPEP 2106.05(d)(I)(2)
For the reasons stated, the claims fail the Subject Matter Eligibility Test and are consequently rejected under 35 USC 101. Therefore, claims 1-24 are rejected under 35 USC 101 as being patentable ineligibility.
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 25, 32 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 25, 32 recite derive a user inclination enumeration as a function of at least a user input. However, what type of “inclination enumeration”, the claims intend to accomplish. Therefore, the claims render indefinite.
Dependent claims 25-38 are rejected as the same reason with claim 25 and 32 respectively.
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 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.
Claims 1, 6-7, 15, 17, 21 are is/are rejected under 35 U.S.C. 103 as being unpatentable over Haddad et al. (US20190145988A1 hereinafter Haddad) in view of Georgiev et al. (US20120059664A1 hereinafter Georgiev) and further in view of Appelbaum et al. (WO2018200877A1 hereinafter Appelbaum)
With respect to claim 25, Haddad teaches a system for providing nutritional goal recommendations based on biological extractions, the system comprising a computing device, the computing device designed and configured to:
receive biological extraction data pertaining to a user, wherein the biological
extraction data comprises user physiological data comprising nutritional
habits of the user (‘988; Abstract: by disclosure, Haddad describes providing nutritional supplement information for a subject is proposed, including a sequence of steps in given order and repeated at least once after a time span of at least 2 days or one week for adapting the provided nutritional information: A) taking a sample from the subject; B) analyzing said sample to determine the nutritional status;)
Georgiev teaches
derive a user inclination enumeration as a function of at least a user input (‘664; Para 0033: Data management module 16 can derive information relating to an individual's physiological state based on the data indicative of one or more physiological parameters, with the data management module 16 being programmed to derive such information using known methods based on the data indicative of one or more physiological parameters. With respect to nutritional information data received by health and wellness management system 10, the data management module 16 can be programmed to summarize and analyze the data to determine daily calorie intake, protein intake, fiber intake, fat intake, carbohydrate intake, and/or water consumption,);
It would have been obvious to one of ordinary skill in the art before the effective filing date of claimed invention to modify the system of Haddad with the technique of managing personel health and wellness as taught by Georgiev in order to provide the user inclination enumeration as the user input..
Appelbaum teaches
generate a plurality of lifestyle intervention combinations as a function of the
biological extraction data (‘’877; Abstract: by disclosure, Appelbaum describes to improve health outcomes for a variety of lifestyle intervention regimens. Described herein are methods and systems for providing an interface for a human subject, collecting subject-specific data entered by the human subject, and comparing the subject-specific data to a database of entry activity by prior subjects.);
generate, using a first machine-learning model trained in nutritional
recommendation data correlated with the user physiological data, a
nutritional goal recommendations based on the biological extraction data (‘877; Para 0071: the likelihood is determined by a multi-factorial weighted analysis of two or more, three or more, four or more, five or more, six or more, seven or more, eight or more, or all types, amounts, or rates of entry activity sub-types (e.g. , engagement with interface, engagement with lifestyle regimen, compliance parameters, and/or type, frequency, duration and/or intensity of exercise completed). The weights and activity sub-types can be identified manually, by trial and error, or computationally via, e.g. , logistic regression or machine learning, methods to identify patterns associated with a high or low likelihood of therapeutic milestone achievement.);
determine, using a second machine-learning model trained in user inclination
data, a projected adherence of the user to the nutritional goal recommendations (‘877; Para 0028: the milestone achievement input comprises additional or alternative lifestyle interventions or regimens for increasing the likelihood or degree of milestone achievement, and/or increasing adherence to the lifestyle regimen. In some embodiments, the milestone achievement input comprises access to digital tools, e.g. for meal and/or exercise planning. In some embodiments, the milestone achievement input further comprises a request or requirement for confirmation or proof of completion of such additional or alternative lifestyle interventions or regimens, e.g. by photographic means)
It would have been obvious to one of ordinary skill in the art before the effective filing date of claimed invention to modify the system of Haddad/Georgiev with the technique of managing lifestyle and health interventions as taught by Appelbaum in order to provide the adherence of the user to nutritional goal recommendation.
Claim 32 is rejected as the same reason with claim 25.
With respect to claim 26, the combined art teaches the system of claim 25, wherein determining a projected adherence of the user to the nutritional goal recommendations further comprises:
integrating the nutritional goal recommendations with a meal planning service by
determining a meal planning option based on the projected adherence,
wherein the meal planning option includes at least one of:
ordering meal plan deliveries customized according to the nutritional goal
recommendations; providing itemized ingredient information associated with the nutritional goal
recommendations; providing a combination of meal plan deliveries and itemized ingredient information according to the nutritional goal recommendations (‘877; Para 0020: he compliance parameters selected from the group consisting of: a) generate meal plan; b) follow meal plan; c) procure ingredients from a shopping list; d) engage with digital interface; e) log daily and/or weekly targets (e.g. plant-based meals consumed, exercise performed); f) log hydration; and g) communicate with coach).
Claim 33 is rejected as the same reason with claim 26.
With respect to claim 27, the combined art teaches the system of claim 25, wherein the user physiological data comprises gut-wall measurement (‘877; Paras 0140-0141).
Claim 34 is rejected as the same reason with claim 27.
With respect to claim 28, the combined art teaches the system of claim 25, wherein the user physiological data comprises genetic information and microbiome data indicative of nutrient metabolism (‘988; Para 0110: any information related to the user's general status, fitness and nutrition is valuable and allows painting a more complete picture. Also other genetic (like particular gene sequencing data) or phenotypic information (e.g. microbiome data, just to name one) can be integrated.).
Claim 35 is rejected as the same reason with claim 28.
With respect to claim 29, the combined art teaches the system of claim 25, wherein the second machine-learning model determines the projected adherence based on user-entered feedback from past nutritional goal recommendations (‘877; Para 0028: he milestone achievement input comprises additional or alternative lifestyle interventions or regimens for increasing the likelihood or degree of milestone achievement, and/or increasing adherence to the lifestyle regimen.).
Claim 36 is rejected as the same reason with claim 29.
With respect to claim 30, the combined art teaches the system of claim 26, wherein the meal planning service is adjusted dynamically based on updated biological extraction data received periodically from the user (‘988; Para 0059).
Claim 37 is rejected as the same reason with claim 30.
With respect to claim 31, the combined art teaches the system of claim 26, wherein the biological extraction data further comprises psychological profile data, and once or more meal planning option determination further accounts for psychological preferences of the user (‘988; Para 0106).
Claim 38 is rejected as the same reason with claim 31.
Conclusion
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/HIEP V NGUYEN/Primary Examiner, Art Unit 3686
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