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 .
DETAILED ACTION
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) receiving data associated with a user that uses an electromechanical machine to perform a treatment plan, correlating at least two of a pain measurement, an indication of medication utilization, and a measurement of revolutions per minute to generate a unique data signature, generating one or more alternative treatment plans for the user, and controlling the electromechanical machine. Correlating is a mathematical concept. This judicial exception is not integrated into a practical application because the correlating is not integrated into a practical application. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the electromechanical machine and artificial intelligence engine, when considered separately and in combination, do not add significantly more to the exception.
Step 1: Independent claims 1, 10 and 19 recite a computer-implemented method, a non-transitory computer-readable medium storing instructions, and system. Thus, they are directed to statutory categories of invention.
Step 2A, prong 1:
Claims 1, 10 and 19 recite the following claim limitations:
Receiving data associated with a user an electromechanical machine manipulated by a user while the user is performing a treatment plan or performing actions,
correlating, using an artificial intelligence engine, at least two of a pain measurement, an indication of medication utilization, and a measurement of revolutions per minute to generate a unique data signature associated with a treatment gap associated with the treatment plan performed by the user, wherein the at least two of the pain measurement, the indication of medication utilization, and the measurement of revolutions per minute each satisfies a respective threshold level,
generating, using the artificial intelligence engine, one or more alternative treatment plans for the user,
based on a threshold compliance level associated with each of the one or more alternative treatment plans, selecting an alternative treatment plan from the one or more alternative treatment plans,
controlling, while the user uses the electromechanical machine and based on the alternative treatment plan, the electromechanical machine.
These limitations, under their broadest reasonable interpretation, cover concepts that can be practically performed in the human mind, i.e., using pen and paper. With a plurality of measurements for each physiological variable of a patient, a human could reasonably construct a correlation, generate alternative treatment plans and control an electromechanical machine. Thus, the claims recite limitation which fall within the ‘mental processes’ grouping of abstract ideas.
Step 2A, prong 2:
Claims 1, 10 and 19 recite the following additional elements:
an electromechanical machine,
an artificial intelligence engine,
a computing device,
processing device.
An electromechanical machine to implement the treatment plan is merely insignificant extra-solution activity (See MPEP 2106.05(g)).
An artificial intelligence engine is merely an algorithmic engine for performing an existing process quickly (See MPEP 2106.05(f)).
The computing device and the processing device are computer components to being used as a tool to carry out the methods (See MPEP 2106.05(f)).
Thus, the abstract idea is not integrated into a practical application. The combination of these additional elements is no more than insignificant extra solution activity, and mere instructions to apply the exception using generic computer components (the processing device and computer-readable medium). Accordingly, even in combination, these additional elements do not integrate the abstract idea into a practical application. Claims 1, 10, and 19 are directed to an abstract idea.
Step 2B
Claims 1, 10, and 19 do not include additional elements that are sufficient to amount to
significantly more than the judicial exception. As discussed with respect to Step 2A Prong Two,
the additional elements in claims 1, 10, and 19 amount to no more than insignificant extra
solution activity and mere instructions to apply the exception using a generic computer
component. The same analysis applies here in 2B and does not provide an inventive concept.
The electromechanical machine to implement the treatment plan was considered
insignificant extra-solution activity in Step 2A Prong Two, it has been re-evaluated in Step 2B
and determined to be well-understood, routine, conventional activity in the field.
The courts have recognized the following laboratory techniques as well-understood,
routine, conventional activity in the life science arts when they are claimed in a merely generic
manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See MPEP
MPEP 2106.05(d) II.
Using electromechanical machine to implement the treatment plan is conventional exercise
machinery in the exercise arts related to physical activity. An electromechanical machine represents a
high level of generality for describing an exercise machine.
The following evidence supports such a determination:
electronically Storing and retrieving information in memory, Versata Dev. Group,
Inc. V. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir.
2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
For these reasons, there is no inventive concept. The claims 1, 10, and 19 are not patent
eligible. Even when viewed as a whole, nothing in these claims adds significantly more to the
abstract idea.
Dependent claims
Regarding claims 2, 11 and 20, the artificial intelligence engine selects the alternative treatment plan based on one or more available resources, psychographics of the user, demographics of the user, geographic data associated with the user, or some combination thereof is a limitation that further defines the type of data collected.
Regarding claims 3 and 12, the treatment gap represents a difference between what is prescribed in the treatment plan and a characteristic of the user, wherein the characteristic comprises performance, physical condition, medical condition or both is a limitation that further defines how the data is manipulated.
Regarding claims 4 and 13, the computing device transmits, using an input peripheral of the computing device, the pain measurement that is input by the user further defines how the data is manipulated.
Regarding claims 5 and 14, the artificial intelligence engine uses one or more trained computer-implemented models to generate the unique data signature associated with the treatment gap further defines data manipulation and the type of data collected.
Regarding claims 6 and 15, the pain measurement comprises pain after a final session of the treatment plan, average pain after all of one or more sessions of the treatment plan, or some combination thereof is a limitation that further defines how the data is manipulated.
Regarding claims 7 and 16, converting a format of the data to a standardized or canonical format and generating training data from the converted data, wherein the training data is used to train one or more computer-implemented models executed by the artificial intelligence engine defines data manipulation and further defines the type of data collected.
Regarding claims 8 and 17, the measurement of revolutions per minute comprises an average revolutions per minute of one or more sessions of the treatment plan further defines the type of data collected.
Regarding claims 9 and 18, based on the unique data signature associated with the treatment gap, initiating a telehealth session between the computing device and a second computing device associated with a second user further defines how the data is collected.
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 1-20 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 1, 10 and 19 are indefinite because it is unclear what element or elements in the electromechanical machine are being controlled, or how the electromechanical machine is being controlled.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 12,249,410. Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims are directed to an obvious broadening by eliminating exercise sessions and routines in a system, method and computer instructions for correlating and using an artificial intelligence engine to modify and control an electromechanical machine as claimed in claims 1-17 of U.S. Patent No. 12,249,410.
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.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Roh et al (US 2019/0262084).
Regarding claims 1, 10 and 19 Roh discloses:
receiving, from one or more of an electromechanical machine, a sensor, and a computing device, data associated with a user that uses the electromechanical machine to perform a treatment plan, see paragraph [0029];
correlating, using an artificial intelligence engine, at least two of a pain measurement, an indication of medication utilization, and a measurement of revolutions per minute to generate a unique data signature associated with a treatment gap associated with the treatment plan performed by the user, wherein the at least two of the pain measurement, the indication of medication utilization, and the measurement of revolutions per minute each satisfies a respective threshold level, see paragraphs [0031] and [0101].
Roh does not disclose using an artificial intelligence engine, to generate one or more alternative treatment plans for the user. Roh does teach using AI/machine learning to improve patient comfort, see paragraph [0101]. One of ordinary skill in the art would have found it obvious use the artificial intelligence engine to generate one or more alternative treatment plans for the user to improve patient comfort.
Based on the unique data signature associated with the treatment gap associated with the treatment plan performed by the user, one or ordinary skill in the art would have found it obvious to use the artificial intelligence engine to select one or more alternative treatment plans for the user to maximize the patient comfort.
Based on a threshold compliance level associated with each of the one or more alternative treatment plans where discomfort exceeds a threshold, see paragraph [0031], an artificial intelligence unit renders it obvious to select an alternative treatment plan from the one or more alternative treatment plans, see paragraph [0031].
Roh teaches controlling, while the user uses the electromechanical machine and based on the alternative treatment plan, the electromechanical machine, see paragraph [0029].
Regarding claims 2, 11 and 20, Roh discloses the artificial intelligence engine selects the alternative treatment plan based on one or more available resources, psychographics of the user, demographics of the user, geographic data associated with the user, or some combination thereof, see paragraph [0031].
Regarding claims 3 and 12, Roh discloses the treatment gap represents a difference between what is prescribed in the treatment plan and a characteristic of the user, wherein the characteristic comprises performance, physical condition, medical condition or both, see paragraph [0031].
Regarding claims 4 and 13, Roh discloses the computing device transmits, using an input peripheral of the computing device, the pain measurement that is input by the user, see paragraph [0100].
Regarding claims 5 and 14, Roh discloses the artificial intelligence engine uses one or more trained computer-implemented models to generate the unique data signature associated with the treatment gap, see paragraph [0050].
Regarding claims 6 and 15, Roh discloses the pain measurement comprises pain after a final session of the treatment plan, average pain after all of one or more sessions of the treatment plan, or some combination thereof, see paragraph [0050].
Regarding claims 7 and 16, Roh discloses converting a format of the data to a standardized or canonical format and generating training data from the converted data, wherein the training data is used to train one or more computer-implemented models executed by the artificial intelligence engine, see paragraph [0052].
Regarding claims 8 and 17, the limitations of the measurement of revolutions per minute are non-elected base claim features for examination purposes.
Regarding claims 9 and 18, based on the unique data signature associated with the treatment gap, initiating a telehealth session between the computing device and a second computing device associated with a second user, see paragraphs [0158] and [0159].
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Shukla (US 2019/0192874) discloses a system operator to input settings for treatments and provide a pre-treatment pain score and post-treatment pain score. The scores are correlated with input settings to determine which transcranial magnetic stimulation settings provide the best reduction in pain.
Daniels (2018/0081439) discloses a wearable Haptic Human/Machine Interface (HHMI) for uses including, mitigating tremor, stroke, brain and spinal cord rehabilitation, and pain relief.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to George Manuel whose telephone number is (571) 272-4952.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Klein can be reached on (571) 270-5213. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/George Manuel/
Primary Examiner
Art Unit: 3792
3/20/2026