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 .
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.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10 March 2026 has been entered.
This a response to Applicant’s amendment filed on 10 March 2026, wherein:
Claims 8, 13, 15, and 20 are amended.
Claims 10-12 and 17-19 are original.
Claims 9 and 16 are previously presented.
Claims 1-7, 14, and 21 are canceled.
Claims 8-13 and 15-20 are pending.
Specification
The objection to the specification identified in the Office Action mailed 31 December 2020 is maintained and incorporated by reference. It is reproduced below for Applicant’s convenience.
The attempt to incorporate subject matter into this application by reference to Uswatte et al. in para. 23 is ineffective because the root words “incorporate” and/or “reference” have been omitted. Additionally, the current status of the claims indicate that the Uswatte et al. reference is considered as providing nonessential material. However, if the claims are to be amended to include this subject matter, then this reference will be considered to be providing essential material. Applicant is reminded that the incorporation of essential material in the specification by reference to an unpublished U.S. application, foreign application or patent, or to a publication is improper, and that Applicant will be required to amend the disclosure to include the material incorporated by reference, if the material is relied upon to overcome any objection, rejection, or other requirement imposed by the Office. 37 CFR 1.57(g).
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code 112(b) not included in this action can be found in a prior Office action.
Claims 8-13 and 15-20 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.
Regarding claim 8, independent claim 8 has been amended to recite “a wearable sensor network of physical movement sensors attached to the person, wherein the physical movement sensors of the wearable sensor network are operable to attach to a back of the person and a right upper arm of the person, a right lower arm of the person, and/or a head of the person; an accelerometer attached to a wrist of the person and adapted to transmit data representing physical movements of at least a portion of the person;… recording data representing physical movements of the person from the wearable sensor network and the accelerometer using a sensor of the physical movement sensors operable to attach to the back of the person as a reference sensor”. It is unclear whether the wearable sensor network includes only the physical movement sensors or includes the physical movement sensors and the accelerometer. This lack of clarity is caused by the fact that the accelerometer attached to a wrist of the person and adapted to transmit data representing physical movements of at least a portion of the person is a physical movement sensor operable to attach to a right lower arm of the person (the wrist is part of the lower arm). Thus, it is unclear whether the accelerometer is separate from the physical movement sensors in the wearable sensor network or is a more explicit recitation of one of those physical movement sensors. Therefore, one of ordinary skill in the art would not be apprised of the metes and bounds of the patent protection sought. Dependent claims 9-13 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Regarding claim 15, independent claim 15 has been amended to recite “recording data representing physical movements of the person from an accelerometer attached to a wrist of the person and a wearable sensor network of physical movement sensors operable to attach to a back of the person and a right upper arm of the person, a lower arm of the person, and/or a head of the person using a sensor of the physical movement sensors operable to attach to the back of the person as a reference sensor”. It is unclear whether the wearable sensor network includes only the physical movement sensors or includes the physical movement sensors and the accelerometer. This lack of clarity is caused by the fact that the accelerometer attached to a wrist of the person is a physical movement sensor operable to attach to a right lower arm of the person (the wrist is part of the lower arm). Thus, it is unclear whether the accelerometer is separate from the physical movement sensors in the wearable sensor network or is a more explicit recitation of one of those physical movement sensors. Therefore, one of ordinary skill in the art would not be apprised of the metes and bounds of the patent protection sought. Dependent claims 16-20 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Further regarding claims 8 and 15, each claim has been amended to recite “obtaining motor performance data comprising at least one position vector of a hand and at least one wrist acceleration, wherein the at least one wrist acceleration is based on the recorded data from the accelerometer attached to the wrist of the person; determining physical movements of the person performing the physical task for performances of the task wherein the person is under cognitive loading and for performances of the task wherein the person is not under cognitive loading from the received data for each of the performances of the task based on the motor performance data; determining an effect of cognitive loading in real-time by comparing the physical movements of the person performing the physical task not under cognitive loading and the physical movements of the person performing the physical task under cognitive loading using a Naïve Bayes Model, wherein the physical movements of the person are determined based on at least median frequencies of the at least one position vector of the hand and the at least one wrist accelerations of the motor performance data”. It is unclear what constitutes “at least one position vector of a hand and at least one wrist acceleration”. In particular, one of ordinary skill in the art would not understand that these limitations include position vectors of a hand and wrist accelerations that are not described in the specification. In particular, one of ordinary skill in the art would understand that the terms “position vector of a hand” and “wrist acceleration” to reflect that the human hand has 27 degrees of freedom: 4 in each finger - 3 for extension and flexion and 1 for abduction and adduction, with 5 for the thumb, and 6 for the rotation and translation of the wrist1. However, the disclosure only provides a highly simplified model that treats the lower arm, hand, and wrist as a single, rigid body. For instance, Fig. 1 illustrates the wrist accelerometer as fixed more proximal than the wrist joint itself. Additionally, while the disclosure uses the term “wrist accelerometer”, para. 22 of the specification explicitly identifies that the sensors that could be associated with hand and wrist movements are attached to the upper arm and lower arm. Thus, the disclosure merely provides for a highly simplified model wherein the lower arm, hand, and wrist are treated as a single, rigid body whose movements are determined by the degrees of freedom in the elbow and shoulder as well as rotation from supination and pronation in the forearm, but fails to provide for any actual positions of the hand nor wrist accelerations understood by one of ordinary skill in the art to be encompassed by the claims. Applicant asserts that support for this new claim language is found in pg. 3, 7, and 9 of Provisional Application 62/510,498. However, the closest language is found in pg. 7 which recites that the “Euclidian norm of the hand trajectory was computed by
p
=
p
x
2
+
p
y
2
+
p
z
2
with p as the 3D position vector [pxpypz].” However, the disclosures of both the instant application and the Provisional application are silent regarding where the values for any of the “p” variables come from. No particular sensor is identified. Furthermore, as identified above, no sensor is secured in a manner to provide any information on the position of the hand. Therefore, one of ordinary skill in the art would not be apprised of the metes and bounds of the patent protection sought. Dependent claims 9-13 and 16-20 inherit the deficiencies of their respective parent claim, and are thus rejected under the same rationale.
The text of those sections of Title 35, U.S. Code 112(a) not included in this action can be found in a prior Office action.
Claims 8-13 and 15-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claims 8 and 15, independent claim 8 has been amended to recite “a wearable sensor network of physical movement sensors attached to the person, wherein the physical movement sensors of the wearable sensor network are operable to attach to a back of the person and a right upper arm of the person, a right lower arm of the person, and/or a head of the person”, “an accelerometer attached to a wrist of the person and adapted to transmit data representing physical movements of at least a portion of the person”, “recording data representing physical movements of the person from the wearable sensor network and the accelerometer using a sensor of the physical movement sensors operable to attach to the back of the person as a reference sensor”, “obtaining motor performance data comprising at least one position vector of a hand and at least one wrist acceleration, wherein the at least one wrist acceleration is based on the recorded data from the accelerometer attached to the wrist of the person”, “determining physical movements of the person performing the physical task for performances of the task wherein the person is under cognitive loading and for performances of the task wherein the person is not under cognitive loading from the received data for each of the performances of the task based on the motor performance data”, “determining an effect cognitive loading in real-time by comparing the physical movements of the person performing the physical task not under cognitive loading and the physical movements of the person performing the physical task under cognitive loading using a Naïve Bayes Model, wherein the physical movements of the person are determined based on at least median frequencies of the at least one position vector of the hand and the at least one wrist acceleration of the motor performance data”, and “detecting cognitive decline of the person using the determined effect of cognitive loading based on comparing an effect of cognitive loading within a healthy population with the determined effect of cognitive loading of the person, using the computer system, wherein the computer program instructions further include instructions to perform the detecting cognitive decline of the person”. The disclosure fails to provide sufficient written description for these limitations. As identified above under 35 USC 112(b), one of ordinary skill in the art would not understand that these limitations include at least one position vector of the hand and at least one wrist acceleration that are not described in the disclosure. In particular, one of ordinary skill in the art would understand that the human hand has 27 degrees of freedom: 4 in each finger - 3 for extension and flexion and 1 for abduction and adduction, with 5 for the thumb, and 6 for the rotation and translation of the wrist. However, the disclosure only provides a highly simplified model that, at best, treats the lower arm, hand, and wrist as a single, rigid body but never identifies this as the intended representation. In particular, Fig. 1 illustrates the accelerometer as fixed more proximal than the wrist joint itself. Additionally, while the disclosure uses the term “wrist accelerometer”, para. 22 of the specification explicitly identifies that the sensors that could be associated with hand and wrist movements are attached to the upper arm and lower arm. Additionally, the disclosure is silent regarding the accelerometer being distinct from the wearable sensor network as well as silent regarding the accelerometer being “attached to a wrist of the person”. Thus, this is also new matter. Applicant asserts that support for this new claim language is found in pg. 3, 7, and 9 of Provisional Application 62/510,498. However, the closest language is found in pg. 7 which recites that the “Euclidian norm of the hand trajectory was computed by
p
=
p
x
2
+
p
y
2
+
p
z
2
with p as the 3D position vector [pxpypz].” However, the disclosures of both the instant application and the Provisional application are silent regarding where the values for any of the “p” variables come from. No particular sensor is identified as the source for any “p” variable. Furthermore, as identified above, no sensor is secured in a manner to provide any information on the position of the hand. Thus, the disclosure fails to provide for any position (let alone any position vector) of the hand nor wrist accelerations understood by one of ordinary skill in the art to be encompassed by the claims. Dependent claims 9-13 and 16-20 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Claim Rejections - 35 USC § 101
The text of those sections of Title 35, U.S. Code 101 not included in this action can be found in a prior Office action.
Claims 8-13 and 15-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more than the judicial exception itself.
Step 1
The instant claims are directed to products which fall under at least one of the four statutory categories (STEP 1: YES).
Step 2A, Prong 1
Independent claim 8 recites:
A system for detecting cognitive decline using determined effects of cognitive loading on a person comprising:
a wearable sensor network of physical movement sensors attached to the person, wherein the physical movement sensors of the wearable sensor network are operable to attach to a back of the person and a right upper arm of the person, a right lower arm of the person, and/or a head of the person;
an accelerometer attached to a wrist of the person and adapted to transmit data representing physical movements of at least a portion of the person; and
a computing system comprising a processor, memory accessible by the processor, and computer program instructions stored in the memory and executable by the processor, the computing system adapted to perform:
recording data representing physical movements of the person from the wearable sensor network and the accelerometer using a sensor of the physical movement sensors operable to attach to the back as a reference sensor, the data recorded while the person is repeatedly performing a physical task wherein the person is under cognitive loading during at least some of the performances of the task;
obtaining motor performance data comprising at least one position vector of a hand and at least one wrist acceleration, wherein the at least one wrist acceleration is based on the recorded data from the accelerometer attached to the wrist of the person;
determining physical movements of the person performing the physical task for performances of the task wherein the person is under cognitive loading and for performances of the task wherein the person is not under cognitive loading from the received data for each of the performances of the task, based on the motor performance data;
determining an effect of cognitive loading in real-time by comparing the physical movements of the person performing the physical task not under cognitive loading and the physical movements of the person performing the physical task under cognitive loading using a Naïve Bayes Model, wherein the physical movements of the person are determined based on at least median frequencies of the at least one position vector of the hand and the at least one wrist acceleration of the motor performance data; and
detecting cognitive decline of the person using the determined effect of cognitive loading based on comparing an effect of cognitive loading within a healthy population with the determined effect of cognitive loading of the person.
Independent claim 15 recites:
A computer program product for detecting cognitive decline using determined effects of cognitive loading on a person, the computer program product comprising a non-transitory computer readable storage having program instructions embodied therewith, the program instructions executable by a computer, to cause the computer to perform a method comprising:
recording data representing physical movements of the person from an accelerometer attached to a wrist of the person and a wearable sensor network of physical movement sensors operable to attach to a back of the person and a right upper arm of the person, a right lower arm of the person, and/or a head of the person using a sensor of the physical movement sensors operable to attach to the back of the person as a reference sensor, the data recorded while the person is repeatedly performing a physical task wherein the person is under cognitive loading during some of the performances of the task and is not under cognitive loading during some performances of the task;
obtaining motor performance data comprising at least one position vector of a hand and at least one wrist acceleration, wherein the at least one wrist acceleration is based on the recorded data from the accelerometer attached to the wrist of the person;
determining physical movements of the person performing the physical tasks for performances of the task wherein the person is under cognitive loading and for performances of the task wherein the person is not under cognitive loading from the received data for each of the performances of the task, based on the motor performance data;
determining an effect of cognitive loading by comparing the physical movements of the person performing the physical task not under cognitive loading and the physical movements of the person performing the physical task under cognitive loading using a Naïve Bayes Model, wherein the physical movements of the person are determined based on at least median frequencies of the at least one position vector of the hand and the at least one wrist acceleration of the motor performance data; and
detecting cognitive decline of the person using the determined effect of cognitive loading based on comparing an effect of cognitive loading within a healthy population with the determined effect of cognitive loading of the person.
All of the foregoing underlined elements above amount to the abstract idea grouping of a certain method of organizing human activity because it is managing personal behavior or interactions between people (including social activities, teaching, and following rules or instructions) by merely collecting information, analyzing it, and outputting the results of the collection and analysis.
This collection, analysis, and outputting of results also amounts to the abstract idea grouping of mental processes because the claims, under their broadest reasonable interpretation, cover performance of the limitations in the mind with the aid of a pen and paper but for recitation of generic computer components.
Furthermore, the determining, comparing, applying, generating, and distinguishing steps are also reasonably construed as the abstract idea grouping of mathematical concepts as at least identified in the MPEP 2106.04(a)(2)(I)(C) Mathematical Calculations because they recite steps of determining a variable or number using mathematical methods or performing a mathematical operation. For instance, determining physical movements of the person in the independent claims is further identified in the specification (see, for example, at least para. 6, 17, 27-30, 32-41, 45, and 47) and dependent claims 11, 12, 18, and 19 to entail the mathematical operations of determining a power spectrum of the sensor data (determining a variable or number); comparing a frequency at which the power spectrum has a maximum amplitude with an expected range of frequencies (applying a mathematical operation); determining that a physical movement has occurred when the frequency at which the power spectrum has a maximum amplitude is within the expected range of frequencies (applying a mathematical operation); applying a continuous wavelet transform to the sensor data of a physical movement for which it was determined that the physical movement occurred (applying a mathematical operation); generating a scalogram of wavelet coefficients of the continuous wavelet transform (determining a variable or number); determining that a physical movement began based on the scalogram (applying a mathematical operation); and determining the response time based on the time a stimulus was given and the determined time that the physical movement began (determining a variable or number). Additionally, determining an effect of cognitive loading in the independent claims is further identified in the specification (see, for example, at least para. 6, 32-41, 45, and 47) and dependent claims 13, 14, and 20 to entail the mathematical operations of determining differences in response times between the physical tasks performed without cognitive loading and the physical tasks performed with cognitive loading (determining a variable or number), wherein determining differences in response times comprises using a Naive Bayes probability estimator to distinguish between the physical tasks performed without cognitive loading and the physical tasks performed with cognitive loading (applying a mathematical operation).
The dependent claims amount to merely further defining the judicial exception.
Therefore, the claims recite a judicial exception. (STEP 2A, PRONG 1: YES).
Step 2A, Prong 2
This judicial exception is not integrated into a practical application because the independent and dependent claims do not include additional elements that are sufficient to integrate the exception into a practical application under the considerations set forth in MPEP 2106.04(d). The elements of the claims above that are not underlined constitute additional elements.
The following additional elements, both individually and as a whole, merely generally link the judicial exception to a particular technological environment or field of use: a system (claim 8); a computing system (claim 8); a processor (claim 8); memory (claims 8 and 15); an accelerometer attached to a wrist of the person and a wearable sensor network of physical movement sensors operable to attach to a back of the person and a right upper arm of the person, a right lower arm of the person, and/or a head of the person using a sensor of the physical movement sensors operable to attach to the back of the person as a reference sensor (claim 8 and 15); a computer program product (claim 15); a non-transitory computer readable storage (claim 15); a computer (claim 15); and software (computer program instructions in claims 1 and 8 and program instructions in claim 15). Although the claims recite the components, identified above, these elements are recited at a high level of generality and are not necessarily tied to performing any of the steps of the claimed method. For example, the method includes insufficiently disclosed pre-solution data gathering using “an accelerometer attached to a wrist of the person and a wearable sensor network of physical movement sensors operable to attach to a back of the person and a right upper arm of the person, a right lower arm of the person, and/or a head of the person using a sensor of the physical movement sensors operable to attach to the back of the person as a reference sensor” and a conventionally recited computer system to perform some of the steps of the method. Further evidence is found in at least Fig. 1 which provides a stock image of sensor arrangement and Fig. 7 which illustrates the components as non-descript black boxes. Further evidence is provided by the specification. See, for example, at least para. 51-64. For instance, para. 57 identifies that the “present invention may be a system, a method, and/or a computer program product at any possible technical detail level of integration.” Thus, the judicial exception is not implemented with, or used in, a particular machine or manufacture. Additionally, the claims do not recite any limitations that improve the functionality of the computer system because the claimed functions are merely performing the steps of processing data but are not tied to improving any functionality of the computer system. The components, identified above, are merely an attempt to link the abstract idea to a particular technological environment, but do not result in an improvement to the technology or computer functions employed. This is evidenced by the absence of specificity of the components and their organization in the disclosure. Again, see, for example, at least Fig. 1 and 7 and para. 51-64 of the specification as identified above. In particular, the sensors being recited and organized in a generic fashion to perform their generic functions of data gathering merely adds insignificant pre-solution activity to the judicial exception (e.g., mere data gathering in conjunction with a law of nature or abstract idea). None of the hardware offer a meaningful limitation beyond generally linking the performance of the steps to a particular technological environment, that is, implementation via computers. Again, see, for example, at least Fig. 1 and 7 and para. 51-64 of the specification as identified above. Additionally, the claims do not apply or use a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition nor do they apply or use a judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment. Accordingly, based on all of the considered factors, these additional elements do not integrate the abstract idea (as identified by the abstract idea groupings of a certain method for organizing human activity and mental processes for claims 1-21 and further including the abstract idea grouping of mathematical concepts for claims 4-7, 11-14, and 18-21) into a practical application. Therefore, the claims are directed to the judicial exception. (STEP 2A, PRONG 2: NO).
Step 2B
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception under the considerations set forth in MPEP 2106.05. As identified in Step 2A, Prong 2, above, the claimed system and the process it performs does not require the use of a particular machine, nor does it result in the transformation of an article. The claims do not involve an improvement in a computer or other technology. This is at least evidenced by the manner in which this is disclosed that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 USC 112(a) as identified in Step 2A, Prong 2, above. Thus, the judicial exception is not implemented with, or used in, a particular machine or manufacture. Furthermore, this evidences that the components are merely an attempt to link the abstract idea to a particular technological environment, but do not result in an improvement to the technology or computer functions employed, which the courts have held does not amount to significantly more. In particular, the sensors being recited and organized in a generic fashion to perform their generic functions of data gathering is adding insignificant pre-solution activity to the judicial exception (e.g., mere data gathering in conjunction with a law of nature or abstract idea). None of the hardware offer a meaningful limitation beyond generally linking the performance of the steps to a particular technological environment, that is, implementation via computers. Again, see, for example, at least Fig. 1 and 7 and para. 51-64 of the specification as identified above. Viewed as a whole, these additional claim elements do not provide any meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea of itself (STEP 2B: NO). Therefore, the claims are rejected under 35 USC 101 as being directed to non-statutory subject matter.
Response to Arguments
Applicant’s arguments with respect to inventorship have been fully considered. Applicant’s assertion (see pg. 9) that Newton Howard and Jeroen Bergmann are the two sole inventors who contributed to the conception of the claimed invention is noted.
Applicant’s arguments with respect to the listing of references in the specification have been fully considered. In pg. 9-10, Applicant asserts that the reference to MathWorks Inc. is not a citation but rather is to show the provider and owner of MATLAB® R2014a, and that the information of para. 26 is not obtained by reference from any patents, publications, or other information published or provided by MathWorks Inc.
Examiner acknowledges this assertion and interprets this assertion to be an identification that this reference should not be listed as a cited reference.
Applicant’s arguments against the rejection of the claims under 35 USC 112(b) have been fully considered but they are not persuasive. In pg. 10, Applicant asserts that claims 8 and 15 have been amended to differentiate between the wearable sensor network and the wrist accelerometer. Here, Applicant asserts that wearable sensor network is recited at para. 22 of the instant specification and the at least one wrist accelerometer is recited at pg. 7 and 9 of the Provisional application.
Examiner is not persuaded. Applicant is directed to the rejections above which have been updated to address the claim amendments. It is noted that entirety of the disclosure (i.e., both the instant application and the Provisional application, including para. 22 of the instant specification and pg. 7 and 9 of the Provisional application) is silent regarding distinguishing an accelerometer attached to a wrist as separate from the body sensor network. Additionally, the amendments have also necessitated new rejections.
In pg. 11, Applicant asserts that the newly added language “at least one position vector of a hand and at least one wrist acceleration” is properly definite in view of the specification.
Examiner is not persuaded. Applicant is directed to the updated rejections which address this new language.
Applicant also asserts that the wrist accelerometer is not part of the wearable sensor network illustrated in Fig. 1 and recited in para. 22, but is recited in pg. 7 and 9 of the Provisional application.
Examiner is not persuaded. No aspect of para. 22 of the instant specification and pg. 7 and 9 of the Provisional application provide any description of the wrist accelerometer as separate and distinct from the wearable sensor network. Furthermore, the instant specification only describes the sensors, including the accelerometer, used in the system as elements of the wearable sensor network.
Applicant’s arguments against the rejection of the claims under 35 USC 112(a) have been fully considered but they are not persuasive. In pg. 12, Applicant asserts that the disclosure provides sufficient written description for the amended claims for at least the same reasons recited with respect to the rejections under 35 USC 112(b).
Examiner is not persuaded. As identified, Applicant’s arguments are not persuasive.
Applicant's arguments against the rejection of the claims under 35 USC 101 have been fully considered but they are not persuasive. In pg. 13, Applicant asserts that claim 8 has been amended to be directed to patent eligible subject matter.
Examiner is not persuaded. Applicant is directed to the rejection above which has been updated to address the amendments to the claims.
In pg. 13-14, under Prong One of Step 2A, Applicant asserts that determining an effect of cognitive loading does not recite a mental process.
Examiner is not persuaded. The determining limitations are identified by the rejection to recite the abstract idea groupings of certain methods of organizing human activity, mental processes, and mathematical concepts. Applicant is reminded that the abstract idea groupings are not mutually exclusive and that claims may recite multiple judicial exceptions. See MPEP 2106.04(a).
In pg. 14-16, Applicant asserts that the claimed invention does not recite certain methods of organizing human activity. Here, Applicant provides a small set of cases as examples of this abstract idea grouping and asserts that none of them are analogous to the claimed invention.
Examiner is not persuaded. It is noted that the court decision in Electric Power Group identified merely collecting information, analyzing it, and displaying certain results of the collection and analysis as an abstract idea. It is noted that while not currently explicitly stated in the MPEP, earlier Office guidance (see, for example, at least the Subject Matter Eligibility Guidance from December 2016 and April 2017) explicitly identified this as encompassed under both mental processes and certain methods of organizing human activity. It is also importantly noted that no guidance has been provided by the Office that limits collecting information, analyzing it, and displaying certain results of the collection and analysis as only a mental process. Thus, collecting information, analyzing it, and displaying certain results of the collection and analysis remains understood as both mental processes and certain methods of organizing human activity. Even if collecting information, analyzing it, and displaying certain results of the collection and analysis is understood to only be a mental process, it does not change the basic thrust of the rejection.
In pg. 16-19, Applicant asserts that the pending claims are patent eligible because they are similar to those found patent eligible in Thales Visionix. Within this argument, Applicant asserts that the claimed invention is the analysis of the data.
Examiner is not persuaded. The claims in Thales Visionix are directed to systems and methods that use inertial sensors in a non-conventional manner to reduce errors in measuring the relative position and orientation of a moving object on a moving reference frame. See Thales Visionix at pg. 10. In contrast, the commercial off-the-shelf sensor network (from XSens Technologies Ltd.; see pg. 4 of the Provisional application) used in the claims are merely used as they normally would to provide extrasolution data gathering activities. In particular, the recited hardware (i.e., the sensors) are explicitly identified in the rejection as merely adding insignificant extrasolution data gathering activity, and thus neither integrate the judicial exception into a practical application nor add significantly more. It is important to note that Applicant explicitly admits that the claimed invention is directed to the analysis of the data, which is itself at best merely an improvement within the abstract idea. See pg. 2-3 in SAP America Inc. v. lnvestpic, LLC (890 F.3d 1016, 126 USPQ2d 1638 (Fed. Cir. 2018) which proffered “[w]e may assume that the techniques claimed are groundbreaking, innovative, or even brilliant, but that is not enough for eligibility. Nor is it enough for subject-matter eligibility that claimed techniques be novel and nonobvious in light of prior art, passing muster under 35 U.S.C. §§ 102 and 103. The claims here are ineligible because their innovation is an innovation in ineligible subject matter. Their subject is nothing but a series of mathematical calculations based on selected information and the presentation of the results of those calculations.” Additionally, the Court in Electric Power Group, which SAP America also utilizes in its decision, held that “[i]nformation as such is an intangible. Accordingly, we have treated collecting information, including when limited to particular content (which does not change its character as information), as within the realm of abstract ideas. In a similar vein, we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category. And we have recognized that merely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis. Here, the claims are clearly focused on the combination of those abstract-idea processes. The advance they purport to make is a process of gathering and analyzing information of a specified content, then displaying the results, and not any particular assertedly inventive technology for performing those functions. They are therefore directed to an abstract idea.” See Electric Power Group at pg. 7-8, citations removed for clarity.
In pg. 19-23, under Prong Two of Step 2A, Applicant asserts the claims recite improvements to a technology or technical field under CardioNet, LLC.
Examiner is not persuaded. Applicant’s arguments are not persuasive under the same rationale as they were not persuasive with respect to Thales Visionix. It is further noted that the determining step using Naïve Bayes Model is wholly encompassed in at least the abstract idea grouping of mathematical concepts. To be clear, Naïve Bayes Model is not an additional element that integrates the judicial exception into a practical application. It is further noted that Naïve Bayes Model is not new, nor is used in some new or unconventional manner in the analysis of data, and thus provides no similarity to CardioNet.
In pg. 23, Applicant asserts that claim 15 is patent eligible for the same reasons as claim 8, and that the dependent claims are allowable due to their dependencies.
Examiner is not persuaded. Claim 15 and the dependent claims fall for at least the same reasons as claim 8.
The rejections stand.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL LANE whose telephone number is (303)297-4311. The examiner can normally be reached Monday - Friday 8:00 - 4:30 MT.
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/DANIEL LANE/Examiner, Art Unit 3715
1 Sturman, D. J. (1992). Whole-hand input (Doctoral dissertation, Massachusetts Institute of Technology).