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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 15 April 2026 has been entered.
This a response to Applicant’s amendment filed on 15 April 2026, wherein:
Claims 1-28, 32, and 41 are canceled.
Claims 29, 30, 36-39, 45, and 46 are amended.
Claims 31, 33-35, 40, 42-44 are previously presented.
Claims 29-31, 33-40, and 42-46 are pending.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 112(a) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Provisional Application No. 62/444,610, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application.
In particular, the disclosure of the prior-filed application fail to provide sufficient written description for “training a user's focus as part of a comprehensive program for treatment or prophylaxis of autism spectrum disorder or attention disorder”, “c) monitoring the user's gaze with respect to the first VTA using an eye tracker device arranged proximate to the display; d) collecting user gaze data from the eye tracker device when the first VTA is presented to the user, the user gaze data comprising user gaze time information and user gaze location information for one or more of the user’s left and right eye; e) determining, by the processor, an event wherein the user's gaze with respect to the first VTA meets predetermined success criteria comprising one or more of i) a determination that user gaze coordinates are within the first set of VTA coordinates; ii) a user gaze time within the first VTA is greater than a predetermined minimum threshold user gaze time; iii) a time to initial user eye contact within the first VTA is less than a predetermined initial user eye contact threshold; iv) a user gaze deviation time is within a predetermined user gaze deviation time threshold; f) upon determining the user’s gaze meets the predetermined success criteria, updating the display by removing the first VTA, and replacing the first VTA with a second VTA overlayed on a second area of the first face; g) repeating steps b) – e) for the second VTA to monitor and determine the user's ability to focus on the second VTA; and h) issuing a repositioning alert when the eye tracker device detects one or more of the user’s left eye or right eye is outside a predetermined capture field” in claim 29 and “c) monitoring the user's gaze with respect to the first VTA using eye tracker measurement data transmitted by the eye tracker device to the processor; d) collecting user gaze data from the eye tracker device when the first VTA is presented to the user, the user gaze data comprising user gaze time information and user gaze location information for one or more of the user’s left and right eye; e) determining, by way of transmission of eye tracking measurement data, whether the user's gaze with respect to the first VTA meets a first predetermined success criteria comprising one or more of i) a determination that user gaze coordinates are within the first set of VTA coordinates; ii) a user gaze time within the first VTA is greater than a predetermined minimum threshold user gaze time; iii) a time to initial user eye contact within the first VTA is less than a predetermined initial user eye contact threshold; iv) a user gaze deviation time is within a predetermined user gaze deviation time threshold; f) updating the display upon meeting the first predetermined success criteria by removing the first VTA, and replacing the first VTA with a second VTA overlayed on a second area of the first face; g) repeating steps b) – e) for the second VTA to monitor and determine the user's ability to focus on the second VTA; and h) issuing a repositioning alert when the eye tracker device detects one or more of the user’s left eye or right eye is outside a predetermined capture field” in claim 38, “the step of using one or more physiological measuring devices comprising at least one of an electroencephalogram device (EEG), electrocardiogram device (ECG), and galvanic skin resistance measuring device (GSR), where the one or more physiological measuring devices are capable of capturing and transmitting physiological state data of the user to the processor” in claim 30, “measuring a physiological state of the user in reaction to the method using one or more monitoring devices comprising at least one of an electroencephalogram device (EEG), electrocardiogram device (ECG), and galvanic skin resistance measuring device (GSR), where the one or more physiological measuring devices are capable of capturing and transmitting physiological state data of the user to the processor” in claim 39, “adapting the g) repeating step to maintain the physiological state of the user” in claims 31 and 40, “wherein the second VTA is smaller in area than the first VTA” in claims 33 and 42, and “displaying a second face on the display and introducing a third VTA in step i) comprising repeating steps b) – e) replacing the first VTA with the third VTA when the processor determines the user's gaze fails to meet the predetermined success criteria” in claims 37 and 46 to show one of ordinary skill in the art that Applicant had possession of the claimed invention. The disclosures of the prior-filed application fails to provide sufficient written description for at least the same reasons as the instant disclosure as identified under 35 USC 112(a), below. Additionally, the specification of US 62/444,610 is 30 pages and multiple drawings shorter, thereby providing substantially less than the insufficient disclosure of the instant application. See the rejections of the claims under 35 USC 112(a), below, regarding insufficient written description.
Thus, claims 29-31, 33-40, and 42-46 do not gain benefit of priority to US Application 62/444,610. Therefore, claims 29-31, 33-40, and 42-46 have an effective filing date of 10 January 2018.
Claim Objections
Claims 30-37 and 39-46 are objected to because of the following informalities:
Claims 30-37 and 39-46 are each labeled as “(Previously amended)” or “(Previously canceled)”. These are not proper status identifiers as identified in 37 CFR 1.121. Continued use may result in amendments not being entered along with a Notice of Non-Compliant Amendment. It is noted that canceled claims 1-28 include the same improper status identifier.
Claim 42 includes an amendment that removes language from the claim that has already occurred in prior filed claim amendments.
Dependent claims 31, 34, 40, and 43 inherit the deficiencies of their respective parent claims, and are thus objected to under the same rationale.
Appropriate correction is required.
Claim Interpretation
The text of those sections of Title 35, U.S. Code 112(f) not included in this action can be found in a prior Office action.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“monitoring the user's gaze with respect to the first VTA using an/the eye tracker device” in claims 29 and 38.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 29-31, 33-40, and 42-46 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.
Claim limitation “monitoring the user's gaze with respect to the first VTA using an/the eye tracker device” in claims 29 and 38 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The specification merely recites that this is performed in results-based language by “eye tracking glasses” (see, for example, at least para. 47 and 49) or a non-descript “Eye Tracker device” (see, for example, at least para. 48, 57, 87, 109, 112, 125, 128, 147, 150, 162, 165, 166, 200, and 202), but is silent any mechanism or device within the non-descript eye tracking glasses and Eye Tracker device that actually performs the function of collecting eye tracking measurement data indicating the user’s gaze. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. Dependent claims 30, 31, 33-37, 39, 40, and 42-46 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claims 30 and 39 have been amended to recite “using one or more physiological measuring devices comprising at least one of an electroencephalogram device (EEG), electrocardiogram device (ECG), and galvanic skin resistance measuring device (GSR) capable of capturing and transmitting the physiological state data of the user to the processor” in claim 30 and “using one or more monitoring devices comprising at least one of an electroencephalogram device (EEG), electrocardiogram device (ECG), and galvanic skin resistance measuring device (GSR), where the one or more physiological measuring devices are capable of capturing and transmitting physiological state data of the user to the processor” in claim 39. It is unclear how “one or more… comprises at least one of an EEG, an ECG, and a GSR”. In particular, this causes a lack of clarity because “one or more” and “at least one” are synonymous, and thus at least redundant if not unclear what “one or more comprises at least one of” connotes. Thus, one of ordinary skill in the art would not be apprised of the metes and bounds of the patent protection sought. For the purposes of compact prosecution, the limitation is construed such that the claim recites “further comprising the step of using one or more physiological measuring devices capable of capturing physiological state data of the user and transmitting the physiological state data of the user to the processor, wherein the one or more physiological measuring devices comprises: an electroencephalogram device (EEG), an electrocardiogram device (ECG), or a galvanic skin resistance measuring device (GSR).” Dependent claims 31 and 40 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Claims 36 and 45 have each been amended to recite “wherein step g) further comprises removing the visual cue.” It is unclear when the visual cue is removed because step (g) recites “repeating steps b) – e) for the second VTA to monitor and determine the user’s ability to focus on the second VTA”. (Bolded for emphasis). Thus, one of ordinary skill in the art would not be apprised of the metes and bounds of the patent protection sought.
Claims 37 and 46 each recite the limitation "step i) comprising repeating steps b) – e)" in line 3 of each claim. There is insufficient antecedent basis for this limitation in the claim. In particular, “step (i)” is not a step. (i) is a condition in step (e) that is recited in the alternative for “predetermined success criteria”, wherein condition (i) recites “a determination that user gaze coordinates are within the first set of VTA coordinates”.
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 29-31, 33-40, and 42-46 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 29 and 38, the originally filed disclosure is silent regarding “training a user's focus as part of a comprehensive program for treatment or prophylaxis of autism spectrum disorder or attention disorder”. There are two statutory provisions that prohibit the introduction of new matter. The first provision is 35 USC 132, which provides that no amendment shall introduce new matter into the disclosure of the invention. If new matter is added to the claims, the examiner should reject the claims under 35 USC 112(a) – written description requirement. See MPEP 2163.06. Claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. It is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See MPEP 2161.01(I). While the disclosure generically mentions providing therapy to a user, the disclosure is silent regarding any “comprehensive program for treatment or prophylaxis” for any medical condition or disease. Furthermore, it is silent regarding integrating training a user’s focus into such a program that the training is part of a comprehensive program. Similarly, while the disclosure recites the language “certain medical and neurological conditions” and “different medical and/or emotional conditions that result in impaired eye contact during social situations”, it is silent regarding such conditions including attention disorder. Thus, this is new matter. Dependent claims 30, 31, 33-37, 39, 40, and 42-46 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Further regarding claims 29 and 38, the disclosure fails to provide sufficient written description for “c) monitoring the user's gaze with respect to the first VTA using an eye tracker device arranged proximate to the display; d) collecting user gaze data from the eye tracker device when the first VTA is presented to the user, the user gaze data comprising user gaze time information and user gaze location information for one or more of the user’s left and right eye; e) determining, by the processor, an event wherein the user's gaze with respect to the first VTA meets predetermined success criteria comprising one or more of i) a determination that user gaze coordinates are within the first set of VTA coordinates; ii) a user gaze time within the first VTA is greater than a predetermined minimum threshold user gaze time; iii) a time to initial user eye contact within the first VTA is less than a predetermined initial user eye contact threshold; iv) a user gaze deviation time is within a predetermined user gaze deviation time threshold; f) upon determining the user’s gaze meets the predetermined success criteria, updating the display by removing the first VTA, and replacing the first VTA with a second VTA overlayed on a second area of the first face; g) repeating steps b) – e) for the second VTA to monitor and determine the user's ability to focus on the second VTA; and h) issuing a repositioning alert when the eye tracker device detects one or more of the user’s left eye or right eye is outside a predetermined capture field” in claim 29 and “c) monitoring the user's gaze with respect to the first VTA using eye tracker measurement data transmitted by the eye tracker device to the processor; d) collecting user gaze data from the eye tracker device when the first VTA is presented to the user, the user gaze data comprising user gaze time information and user gaze location information for one or more of the user’s left and right eye; e) determining, by way of transmission of eye tracking measurement data, whether the user's gaze with respect to the first VTA meets a first predetermined success criteria comprising one or more of i) a determination that user gaze coordinates are within the first set of VTA coordinates; ii) a user gaze time within the first VTA is greater than a predetermined minimum threshold user gaze time; iii) a time to initial user eye contact within the first VTA is less than a predetermined initial user eye contact threshold; iv) a user gaze deviation time is within a predetermined user gaze deviation time threshold; f) updating the display upon meeting the first predetermined success criteria by removing the first VTA, and replacing the first VTA with a second VTA overlayed on a second area of the first face; g) repeating steps b) – e) for the second VTA to monitor and determine the user's ability to focus on the second VTA; and h) issuing a repositioning alert when the eye tracker device detects one or more of the user’s left eye or right eye is outside a predetermined capture field” in claim 38 to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. It is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See MPEP 2161.01(I). In particular, these functions are merely recited to be performed in results-based language without providing the steps, calculations, or algorithms necessary to perform the claimed functionalities. For instance, while the specification identifies that a non-descript “eye tracking device”, “eye tracker device”, or “eye tracking glasses” is used, it is silent regarding any mechanism within these devices for tracking an eye of a user indicating the user’s gaze. It is also silent regarding any analysis of eye tracking data, or any other physiological or behavioral data, from which any subsequent function is based on. For example, para. 64, 71, 79, 86, 100-102, 172 of the specification merely recite that the system may also provide for application of algorithms, including machine learning algorithms, to perform the functions without any substantive description. In particular, the most description is merely results-based language that recite that the algorithms will “use the data to programmatically refine and/or create [Computer Generated Experience] Parameters in order to maximize or optimize some outcome variable.” See, for example, at least para. 100-102 and 172. Dependent claims 30, 31, 33-37, 39, 40, and 42-46 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Regarding claims 30, 31, 39, and 40, the disclosure fails to provide sufficient written description for “the step of using one or more physiological measuring devices comprising at least one of an electroencephalogram device (EEG), electrocardiogram device (ECG), and galvanic skin resistance measuring device (GSR), where the one or more physiological measuring devices are capable of capturing and transmitting physiological state data of the user to the processor” in claim 30, “measuring a physiological state of the user in reaction to the method using one or more monitoring devices comprising at least one of an electroencephalogram device (EEG), electrocardiogram device (ECG), and galvanic skin resistance measuring device (GSR), where the one or more physiological measuring devices are capable of capturing and transmitting capable of capturing and transmitting the physiological state data of the user to the processor” in claim 39, and “adapting the g) repeating step to maintain the physiological state of the user” in claims 31 and 40 to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. It is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See MPEP 2161.01(I). In particular, these functions, at best, are merely recited to be performed in results-based language without providing the steps, calculations, or algorithms necessary to perform the claimed functionalities. In addition to the lack of clarity regarding the second VTA step and the VTA step as identified above, the specification merely recites that three physiological measuring devices (ECG measuring device, GSR measuring device, and EEG measuring device) are applied to the body of the user (see, for example, at least para. 143 and 144), but are silent regarding relating any physiological data to “a physiological state of the user in reaction to the method”, and thus also to “adapting the g) repeating step to maintain the physiological state of the user”. For instance, the only physiological data identified in the disclosure is heart rate of the user measured by an ECG. However, in addition to being silent regarding any other form of physiological data, the disclosure is silent regarding relating the heart rate data to the claimed functions. Thus, these limitations are new matter. Dependent claims 31 and 40 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Regarding claims 33 and 42, the disclosure fails to provide sufficient written description for “wherein the second VTA is smaller in area than the first VTA” to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. It is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See MPEP 2161.01(I). In particular, the disclosure is silent regarding any analysis based on the user’s gaze meeting predetermined criteria for selecting the second VTA that is smaller or larger than the first VTA. Dependent claims 34 and 43 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Regarding claims 37 and 46, the disclosure fails to provide sufficient written description for “displaying a second face on the display and introducing a third VTA in step i) comprising repeating steps b) – e) replacing the first VTIA with the third VTA when the processor determines the user's gaze fails to meet the predetermined success criteria” to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. It is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See MPEP 2161.01(I). In addition to the lack of clarity regarding a third VTA step, the disclosure is silent regarding any analysis based on the user’s gaze meeting predetermined success criteria to produce a result of displaying a second face on the display and introducing a third VTA.
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 29-31, 33-40, and 42-46 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 a method and a product which fall under at least one of the four statutory categories (STEP 1: YES).
STEP 2A, PRONG 1
Independent claim 29 recites:
A computer-implemented method for training a user’s focus as part of a comprehensive program for treatment or prophylaxis of autism spectrum disorder or attention disorder, the method comprising:
a) displaying a first face on a display;
b) presenting on the display, by the processor, a computer-generated experience (CGE) comprising a first visual training area (VTA) overlayed on a first area of the first face, and wherein a VTA step for the first VTA comprises generating a first set of VTA coordinates in a coordinate space defining the first VTA and a visual cue to direct the user’s attention to the first area;
c) monitoring the user's gaze with respect to the first VTA using an eye tracker device arranged proximate to the display;
d) collecting user gaze data from the eye tracker device when the first VTA is presented to the user, the user gaze data comprising user gaze time information and user gaze location information for one or more of the user’s left eye and right eye;
e) determining, by the processor, an event wherein the user's gaze with respect to the first VTA meets predetermined success criteria comprising one or more of i) a determination that user gaze coordinates are within the first set of VTA coordinates; ii) a user gaze time within the first VTA is greater than a predetermined minimum threshold user gaze time; iii) a time to initial user eye contact within the first VTA is less than a predetermined initial user eye contact threshold; iv) a user gaze deviation time is within a predetermined user gaze deviation time threshold;
f) upon determining the user's gaze meets the predetermined success criteria, updating the display by removing the first VTA, and replacing the first VTA with a second VTA overlayed on a second area of the first face;
g) repeating steps b) – e) for the second VTA to monitor and determine the user's ability to focus on the second VTA; and
h) issuing a repositioning alert when the eye tracker device detects one or more of the user’s left eye or right eye is outside a predetermined capture field.
Independent claim 38 recites:
A system for training a user’s focus as part of a comprehensive program for treatment or prophylaxis of autism spectrum disorder or attention disorder, the system comprising:
a display;
an eye tracker device arranged proximate to the display; and
a processor configured to perform steps of:
a) displaying a first face on the display,
b) presenting on the display a computer-generated experience (CGE) comprising a first visual training area (VTA) overlayed on a first area of the first face, and wherein a VTA step comprises generating a first set of VTA coordinates in a coordinate space defining the first VTA and a visual cue to direct the user's attention to the first area;
c) monitoring the user's gaze with respect to the first VTA using eye tracking measurement data transmitted by the eye tracker device to the processor;
d) collecting user gaze data from the eye tracker device when the first VTA is presented to the user, the user gaze data comprising user gaze time information and user gaze location information for one or more of the user’s left eye and right eye;
e) determining, by way of transmission of eye tracking measurement data, whether the user's gaze with respect to the first VTA meets a first predetermined success criteria comprising one or more of i) a determination that user gaze coordinates are within the first set of VTA coordinates; ii) a user gaze time within the first VTA is greater than a predetermined minimum threshold user gaze time; iii) a time to initial user eye contact within the first VTA is less than a predetermined initial user eye contact threshold; iv) a user gaze deviation time is within a predetermined user gaze deviation time threshold;
f) updating the display upon meeting the first predetermined success criteria by removing the first VTA, and replacing the first VTA with a second VTA overlayed on a second area of the first face;
g) repeating steps b) – e) for the second VTA to monitor and determine the user's ability to focus on the second VTA; and
h) issuing a repositioning alert when the eye tracker device detects one or of more of the user’s left eye or right eye is outside a predetermined capture field.
All of the foregoing underlined elements 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 presenting, collecting, and assessing information in an iterative manner.
At least the monitoring, collecting, determining, detecting, updating, repeating, and issuing steps also amount 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 pen and paper but for the recitation of generic computer components. See MPEP 2106.04(a)(2)(III)(C) - A Claim That Requires a Computer May Still Recite a Mental Process.
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
The 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 merely generally link the judicial exception to a particular technological environment or field of use: reciting that the method is “computer-implemented” (claim 29), a display (claims 29 and 38), a processor (claims 29 and 38), reciting the experience as “computer-generated” (claims 29 and 38), an eye tracker device arranged proximate to the display (claims 29 and 38), a system (claim 38), one or more physiological measuring devices comprising at least one of an electroencephalogram device (EEG), electrocardiogram device (ECG), and galvanic skin resistance measuring device (GSR) (claims 30 and 39). Although the claims recite the components, identified above, these elements are recited at a high level of generality in a conventional arrangement for performing their basic computer functions (i.e., collecting, processing, outputting data). Evidence is found in at least Fig. 1-15B which illustrates the components as stock images and non-descript black boxes ancillary to the claimed invention, as well as the specification which identifies that the system is not comprised of a particular machine nor consists of a particular arrangement. See, for example, at least para. 47-54, 62-84, 86-91, 93-174, 179, 184, and 258-267. For instance, para. 48 identifies that “[eye tracking] devices are known in the art and generally any [eye tracking] device may be used” and para. 49 identifies that the system is any combination of software and hardware that includes a form of visual presentation to the user. Furthermore, the Declaration filed 02 September 2025 explicitly asserts that the “exact implementation of the components and software is irrelevant as along as the functionality of tracking the user’s eyes is accomplished.” See Declaration at item 12. 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. 1-15B and para. 47-54, 62-84, 86-91, 93-174, 179, 184, and 258-267 of the specification as identified above. This also evidences that 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. Additionally, the claims do not recite any specific rules with specific characteristics that improve the functionality of the computer system. The system is merely recited to be used, not improved. For instance, the eye tracker device, EEG, ECG, and GSR, as claimed and organized, merely add insignificant extrasolution activity to the judicial exception (e.g., mere data gathering in conjunction with a law of nature or abstract idea). Furthermore, in the event that the presenting steps are construed as additional elements, they would merely add insignificant extrasolution activity to the judicial exception (e.g., mere pre-solution stimulating in conjunction with a law of nature or abstract idea). 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. While the preamble of each independent claim recite that the respective method or system is “for training a user’s focus as part of a comprehensive program for treatment or prophylaxis of medical conditions where the user benefits from focus training, the medical conditions comprising autism spectrum disorder”, the bodies of the claims are silent regarding training a user’s focus nor do they identify or effect a particular treatment or prophylaxis for any particular disease or medical condition. The language "of medical conditions where the user benefits from focus training, the medical conditions comprising autism spectrum disorder" further evidence the absence of a particular treatment or prophylaxis because "medical conditions", while explicitly recited to include autism spectrum disorder, is unbounded. In other words, under Applicant's assertion that the claim is a treatment, it is unclear how a treatment can be particular, as required by MPEP 2106.04(d)(2), when it is a "treatment" for any and all medical conditions as claimed (see MPEP 2111.03 which explain that the transitional term “including” is inclusive or open-ended and does not exclude additional, unrecited elements). Accordingly, based on all of the considered factors, these additional elements do not integrate the abstract idea 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. Additionally, the process is, at best, merely an automation of a manual process performed between humans. The mere automation of manual processes has repeatedly been determined by the courts to be patent ineligible, such as using a generic computer to process an application for financing a purchase, Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055, 123 USPQ2d 1100, 1108-09 (Fed. Cir. 2017) or speeding up a loan-application process by enabling borrowers to avoid physically going to or calling each lender and filling out a loan application, LendingTree, LLC v. Zillow, Inc., 656 Fed. App'x 991, 996-97 (Fed. Cir. 2016) (non-precedential). See MPEP 2106.05(a), section I. Although the claims recite components (identified in Step 2A, Prong 2) for performing at least some of the recited functions, these elements are recited at a high level of generality in a conventional arrangement for performing their basic computer functions (i.e., collecting, processing, outputting data). BASCOM Global Internet Servs. v. AT&T Mobility LLC (827 F.3d 1341, 1350-51, 119 USPQ2d 1236, 1243-44 (2016)), Electric Power Group, LLC v. Alstom S.A. (830 F.3d 1350, 1354, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016)). They are well-understood, routine, and conventional functions of a computer, as evidenced by the Applicant’s written description which describe the elements in a manner 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. Evidence is found in at least Fig. 1-15B which illustrates the components as stock images and non-descript black boxes untethered to the claimed invention, and in the specification, which identify that the system is not comprised of a particular machine nor consists of a particular arrangement. See, for example, at least para. 47-54, 62-84, 86-91, 93-174, 179, 184, and 258-267. 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. 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. 1-15B and para. 47-54, 62-84, 86-91, 93-174, 179, 184, and 258-267 of the specification as identified above. Furthermore, in the event that the presenting steps are construed as additional elements, they would merely add insignificant extrasolution activity to the judicial exception (e.g., mere pre-solution stimulating in conjunction with a law of nature or abstract idea). Similarly, the eye tracker device, EEG, ECG, and GSR merely add insignificant extrasolution activity the judicial exception (e.g., mere data gathering in conjunction with a law of nature or abstract idea). 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.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code 103 not included in this action can be found in a prior Office action.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 29-31, 35-40, and 44-46 are rejected under 35 U.S.C. 103 as being unpatentable over Sahin (WO 2015/127441) in view of Maass et al. (US 2013/0268033, hereinafter referred to as Maass).
Regarding claims 29 and 38, Sahin teaches a computer-implemented method (claim 29) and a system (claim 23) for training a user’s focus as part of a comprehensive program for treatment or prophylaxis of autism spectrum disorder or attention disorder, the method comprising:
a) displaying a first face on a display (Sahin, para. 203, “one or more faces of individuals are identified within the video data (804). The faces, for example, can include family members, social peers, colleagues, or other people in the surroundings. Additionally, in some embodiments, the faces can include animals or inanimate objects, such as a family pet, a therapy dog, or a toy doll.”);
b) presenting on the display, by the processor, a computer-generated experience (CGE) comprising a first visual training area (VTA) overlayed on a first area, and wherein a VTA step for the first VTA comprises generating a first set of VTA coordinates in a coordinate space defining the first VTA and a visual cue to direct the user's attention to the first area (Sahin, para. 204, “at least a first face of the one or more faces in captured video data is augmented to draw attention to the face within the video output to the user (806). In some examples, the face may be outlined in colors, overlaid with a shimmer, or caricatured in an animated fashion to draw the attention of the user. In other examples, silly hair may be applied to an individual identified within the video data or a distortion field applied to the face region. Alternatively or additionally, in some examples, background video surrounding the face may be dimmed, reduced in complexity, or blurred to reduce focus on any aspects in the video besides the face. In a particular example, a favorite cartoon character may be superimposed upon the face region of an individual (e.g., in an opaque or semi-transparent manner) within the video data to draw the attention of the user to the face of the individual.” Para. 111, “the machine vision language tutor algorithm 532a, executing upon or in conjunction with the wearable data collection device 504, correlates identified object indices 506a with the location coordinates 506g of the index elements 512 at the time of acquisition. The location coordinates 506g, for example, may include two-dimensional coordinates (e.g., within a video frame reference) or three-dimensional coordinates (e.g., with respect to the individual 102). Identification of the object indices 506a, furthermore, may be associated with a time-date stamp identifying the time of acquisition. The location coordinates can be factored into presenting information to the individual 502 related to the objects 508, 510.”)
c) monitoring the user’s gaze with respect to the first VTA using an eye tracker device arranged proximate to the display (Sahin, para. 206, “an eye tracking module may analyze eye tracking data 116g obtained from a face-directed video capture element of the wearable data collection device”);
d) collecting user gaze data from the eye tracker device when the first VTA is presented to the user, the user gaze data comprising user gaze time information and user gaze location information for one or more of the user’s left eye and right eye (Sahin, para. 206, “an eye tracking module may analyze eye tracking data 116g obtained from a face-directed video capture element of the wearable data collection device to determine when the gaze of the user co-registers with the first face of the video data.” Throughout Sahin are references to comparing gaze position over a threshold period of time indicating that both user gaze location and user gaze time information are included in the user gaze data.);
e) determining, by the processor, an event wherein the user’s gaze with respect to first VTA meets first predetermined success criteria comprising one or more of i) a determination that user gaze coordinates are within the first set of VTA coordinates; ii) a user gaze time within the first VTA is greater than a predetermined minimum threshold user gaze time; iii) a time to initial user eye contact within the first VTA is less than a predetermined initial user eye contact threshold; iv) a user gaze deviation time is within a predetermined user gaze deviation time threshold (Sahin, para. 209, “Levels of positive reinforcement may vary based upon desirability of reaction. For example, for a brief period of time, the positive reinforcement feedback may be enhanced to include an indication of success. After a threshold period of time, the positive reinforcement feedback may be enhanced to include an indication of success. For example, any social eye contact may be rewarded in part, but social eye contact for at least a threshold period of time (e.g., one second, three seconds, etc.) may be rewarded with points or a more elaborate/celebratory feedback mechanism.” At least this indicates Sahin teaches (i), (ii), and (iv). Para. 207 and 208 discuss identifying that the user does not initiate eye contact within a predetermined initial user eye contact threshold and modifies the augmentation style to achieve co-registration.);
f) upon determining the user’s gaze meets the predetermined success criteria, updating the display by removing the first VTA, and replacing the first VTA with a second VTA overlayed on a second area of the first face (Sahin, Fig. 8, Co-registration broken prior to threshold period of time?, No, Return to obtain video data 802, identify one or more faces of individuals in video data 804, Augment at least a first face of the one or more faces to draw attention to the face within the video 806);
g) repeating steps b) – e) for the second VTA to monitor and determine the user’s ability to focus on the second VTA (Sahin, the process in Fig. 8 is a loop illustrating that it is repeated a plurality of times).
Sahin does not explicitly teach h) issuing a repositioning alert when the eye tracker device detects one or more of the user’s left eye or right eye is outside a predetermined capture field.
However, in a related art, Maass teaches h) issuing a repositioning alert when the eye tracker device detects one or more of the user’s left eye or right eye is outside a predetermined capture field (Maass, para. 22, “As soon as the control device 10 finds that the actual position or orientation of the user’s head and/or eyes is outside said boundaries, the control device 10 goes into warning mode. In this warning mode, the control device 10 activates a warning device 60 a user-perceivable warning signal, indicating to the user that his head is not in the correct attitude.”).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the repositioning alert of Maass into the method and system of Sahin because maintaining the eyes in the proper capture field is a basic calibration step of eye tracking for effective data capture. Thus, it is merely the use of a known technique to improve similar devices and methods in the same way.
Regarding claims 30 and 39, Sahin teaches the computer-implemented method of claim 29 and the system of claim 38, further comprising the step of using one or more physiological measuring devices comprising at least one of an electroencephalogram device (EEG), electrocardiogram device (ECG), and galvanic skin resistance measuring device (GSR), where the one or more physiological measuring devices are capable of capturing and transmitting physiological state data of the user to the processor (Sahin, Fig. 11, heart and breath 116e, EEG EMG 116f/116i, skin dynamics 1106e; para. 192, “emotional and physiological states may be derived from the individual's physiological data. The states, for example, can include one or more of a mental state, an arousal level, and an irascibility level.” Para. 49, “the wearable data collection device 104 may collect heart and/or breathing rate data 116e (or, optionally, electrocardiogram (EKG) data), electroencephalogram (EEG) data 116f, and/or Electromyography (EMG) data 116i). The wearable data collection device 104 may interface with one or more peripheral devices, in some embodiments, to collect the physiological data. For example, the wearable data collection device 104 may have a wired or wireless connection with a separate heart rate monitor, EEG unit, or EMG unit. In other embodiments, at least a portion of the physiological data is collected via built-in monitoring systems. Unique methods for non-invasive physiological monitoring are described in greater detail in relation to FIG. 11. Optional onboard and peripheral sensor devices for use in monitoring physiological data are described in relation to FIG. 12.” Para. 237, “skin dynamics data 1106e (galvanic skin response and skin conductance response measurements, etc.)).
Regarding claims 31 and 40, Sahin teaches the computer-implemented method of claim 30 and the system of claim 39, further comprising adapting the g) repeating step to maintain the physiological state of the user (Sahin, para. 193, “The individual, in some implementations, may be presented with feedback designed to divert a pending atypical behavioral episode. For example, feedback may be presented via the individual's wearable data collection device (e.g., visual, audible, tactile, etc.) designed to alter one or more physiological conditions indicative of a pending atypical behavioral episode. The feedback, in a particular example, may be designed to calm the emotional state of the individual or focus the individual's attention to divert from a present thought pattern. A variety of particular feedback examples follow. The individual may be presented with a short episode of a game that has proven previously to attract the attention of this individual or others like this individual. The individual may be encouraged to focus on a particular sensation and try to eliminate another sensation from mind. The individual may be instructed to chew or crunch on a food or toy that provides comfort or inward focus for the individual. In a particular example, turning to FIG. 7D, a screen shot 760 includes a prompt pane 762 encouraging the user to relax alongside an image pane 764 configured to provide a pleasurable sensory experience for the user.”).
Regarding claims 35 and 44, Sahin teaches the computer-implemented method of claim 29 and the system of claim 38, wherein the visual cue is a geometric shape defining extents of the VTA (Sahin, para. 204, “the face may be outlined in colors”. A face is construed to be geometrically shaped, particularly when digitized for computer-implemented procedures.).
Regarding claims 36 and 45, Sahin teaches the computer-implemented method of claim 29 and the system of claim 38, wherein step g) further comprises removing the visual cue (Sahin, para. 208, “if co-registration indicative of social eye contact between the user and one of the faces is not identified (810), an augmentation style is adjusted (812). For example, if the first augmentation style included a line surrounding the first face, the augmentation style may be adjusted to instead apply a jiggling movement to the face. In another example, if the first augmentation style included a black and white caricature version of the face, a second augmentation style may include a colorful caricature version of the face. Furthermore, augmentation style of the background scenery may be applied and/or adjusted.” Thus, the prior visual cue (in particular, the visual cue of each of independent claims 29 and 38) is removed.).
Regarding claims 37 and 46, Sahin teaches the computer-implemented method of claim 29 and the system of claim 38, further comprising displaying a second face on the display (Sahin, para. 203, “one or more faces of individuals are identified within the video data (804). The faces, for example, can include family members, social peers, colleagues, or other people in the surroundings. Additionally, in some embodiments, the faces can include animals or inanimate objects, such as a family pet, a therapy dog, or a toy doll.”) and introducing a third VTA in step i) comprising repeating steps b) – e) replacing the first VTA with the third VTA when the processor determines the user's gaze fails to meet the predetermined success criteria (It is noted that this limitation is dependent on a limitation that is claimed in the alternative, and is therefore not required. Regardless, Sahin teaches this limitation at least at para. 208, “if co-registration indicative of social eye contact between the user and one of the faces is not identified (810), an augmentation style is adjusted (812). For example, if the first augmentation style included a line surrounding the first face, the augmentation style may be adjusted to instead apply a jiggling movement to the face. In another example, if the first augmentation style included a black and white caricature version of the face, a second augmentation style may include a colorful caricature version of the face. Furthermore, augmentation style of the background scenery may be applied and/or adjusted.” As the process is looped, multiple augmentations may occur including iteratively presenting multiple VTAs.).
Claims 33, 34, 42, and 43 are rejected under 35 U.S.C. 103 as being unpatentable over Sahin (WO 2015/127441) in view of Maass et al. (US 2013/0268033, hereinafter referred to as Maass) as applied to claims 29 and 38, further in view of Elgarf et al.1 (hereinafter referred to as Elgarf).
Regarding claims 33 and 42, Sahin teaches the computer-implemented method of claim 29 and the system of claim 38.
Sahin does not explicitly teach wherein the second VTA is smaller in area than the first VTA.
However, in an analogous art, Elgarf teaches wherein the second VTA is smaller in area than the first VTA (Elgarf, pg. 150, Level 1, Stage 2: “six butterflies appear consecutively on the girl’s face… In this phase, butterflies are nearer to the face than in the first stage.” The butterflies in Stage 2 being nearer to the face are indicative of the second VTA that is smaller in area than the first VTA.).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the shrinking subsequent areas of Elgarf in the prompting of Sahin such that the second VTA is smaller in area than the first VTA because it is well within the purview of the augmentation style of Sahin and “the first level aims at just attracting the child’s attention towards a human face and eyes without being explicitly prompted to look into the eyes of a human character in an attempt to teach him/her to initiate eye gaze and maintain it for a few seconds.” See Elgarf at pg. 150. Thus, it is merely combining prior art elements according to known methods to yield predictable results.
Regarding claims 34 and 43, Sahin teaches the computer-implemented method of claim 33 and the system of claim 42, wherein the first VTA comprises eyes and nose of the first face and the second VTA comprises the eyes of the first face (Sahin, para. 201, “The method 800, for example may incorporate a type of game or virtual reality activity aimed at conditioning a user assessed for ASD to engage in social eye contact.” Para. 204, “the face may be outlined in colors, overlaid with a shimmer, or caricatured in an animated fashion to draw the attention of the user. In other examples, silly hair may be applied to an individual identified within the video data or a distortion field applied to the face region. Alternatively or additionally, in some examples, background video surrounding the face may be dimmed, reduced in complexity, or blurred to reduce focus on any aspects in the video besides the face.” Thus, as an area comprises the face for the purpose of “conditioning a user assessed for ASD to engage in social eye contact”, the first area in Sahin comprises eyes and nose of the first face and the second area comprises the eyes of the first face.).
In the alternative, Elgarf more explicitly teaches wherein the first VTA comprises eyes and nose of the first face and the second VTA comprises the eyes of the first face (Elgarf, pg. 150, Level 1, Stage 1: “six butterflies are organized in a roundabout shape around the young lady's face. The user has to get rid of them all in any order to enable the transfer to the next stage. This scene is presented on Fig. 1a.” Level 1, Stage 2: “six butterflies appear consecutively on the girl's face. A new butterfly does not show up until the user disposes of the past one. In this phase, butterflies are nearer to the face than in the first stage.” Level 1, Stage 3: “similar to stage 2, yet the butterflies are smaller and closer to the eyes as depicted on Fig. 1b.”).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the shrinking subsequent areas of Elgarf in the prompting of Sahin such that the first VTA comprises eyes and nose of the first face and the second VTA comprises the eyes of the first face because it is well within the purview of the augmentation style of Sahin and “the first level aims at just attracting the child’s attention towards a human face and eyes without being explicitly prompted to look into the eyes of a human character in an attempt to teach him/her to initiate eye gaze and maintain it for a few seconds.” See Elgarf at pg. 150. Thus, it is merely combining prior art elements according to known methods to yield predictable results.
Response to Arguments
Applicant's arguments with respect to the denial of benefit of priority have been fully considered but they are not persuasive. In pg. 7-11, Applicant asserts that several limitations of independent claims 29 and 38 are supported by para. 19 and 30 of Provisional Application 62/444,610 and para. 60, 176, and 177 of the PCT application, claims 31 and 40 are supported by para. 30 of the Provisional and para. 261 of the PCT, and claims 37 and 46 are supported by para. 30 of the Provisional and para. 183 of the PCT.
Examiner is not persuaded. Para. 19 and 30 of Provisional Application 62/444,610 and para. 60, 176, 177, 183, and 261 of the PCT application fail at least for the same reasons as the disclosure of the instant specification. It is noted, however, that the instant specification is the national stage of the PCT application and is addressed in the rejections of the claims under 35 USC 112(a).
Applicant's arguments with respect to claim interpretation under 35 USC 112(f) have been fully considered but they are not persuasive. Applicant asserts that the term “eye tracker” contains specific structure and is well known to one of ordinary skill in the art so does not require extrinsic evidence for an adequate understanding of the structure. Applicant also asserts that further support for the term “eye tracker” is found in the application as published at para. 4, 57, 87, 109, 125, 147, and 162 and Fig. 1, 2A-2D, 3A-3C, 4A-4C, 5, 6, 7A-7D, 8, 9, 10A-10D, 12A-12B, 13A-13C, 14A-14B, and 15A-15B.
Examiner respectfully disagrees. Under the first prong and second prong, the term “eye tracker device” is both a generic placeholder and functional language that modifies itself, and is further modified by additional functional language “monitoring the user’s gaze with respect to the first VTA”. Under the third prong, the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function. Thus, the limitation is correctly interpreted under 35 USC 112(f). Additionally, none of the identified specification paragraphs or drawings disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. In particular, many of these are explicitly identified in at least the rejection under 35 USC 112(b) as insufficient.
Applicant also asserts that cited prior art references Sahin and Yuan use the terms “eye tracking sensors”, “eye tracking module”, and “eye tracking device” and thus provide clear evidence that the terms “eye tracker” or “eye tracking device” are an art-recognized structure to perform the claimed function.
Examiner is not persuaded. In contrast to the instant application, both Sahin and Yuan provide clear identification of sufficient structure to implement the functionality. For example, Sahin identifies in para. 48 that “Techniques for identifying eye gaze direction, for example, are described in U.S. Patent Application No. 20130106674 entitled ‘Eye Gaze Detection to Determine Speed of Image Movement’ and filed November 2, 2011, the contents of which are hereby incorporated by reference in its entirety.” Sahin also identifies eye-tracking cameras multiple times. Similarly, Yuan illustrates the eye tracking device 110 itself in Fig. 3B. Additionally, Yuan goes further than the instant disclosure and provides an explicit product example of the eye tracking device. See at least para. 22 in Yuan which recites “An example of an eye tracking device 110 integrated into a display device 130 can be found in the T60/T120 Eye Tracker manufactured by TOBII TECHNOLOGY AB.” It is noted that such an explicit product identification has been identified as particularly absent in the instant disclosure in prior Office Actions.
Applicant asserts that one of ordinary skill in the art would understand the term “eye tracker” to mean a class of electronic devices used to track a user’s eyes as per the Declaration.
Examiner is not persuaded. Applicant is directed to the consideration of the Declaration in the Office Action mailed 27 October 2025 which identifies that Declarant’s assertion is not persuasive.
Applicant's arguments with respect to the rejections of the claims under 35 USC 112(b) have been fully considered but they are not persuasive. In pg. 12-13, Applicant asserts that an eye tracker is supported by para. 48, 87, 202, and Fig. 9. Here, Applicant also asserts that Fig. 9 is a an accurate representation of the Tobii EyeX Tracker.
Examiner respectfully disagrees. At least para. 48, 87, and 202 are explicitly identified in the rejection as insufficient. Fig. 9 is further insufficient as it illustrates an eye tracker 920 as a non-descript black rectangle with two white circles in it. Regarding the Tobii EyeX Tracker, it is unfortunate that the originally filed disclosure is silent regarding the Tobii EyeX Tracker or any other particular example of an eye tracker device as such a disclosed example would remedy the issue. Regardless, as identified above, the eye tracker 920 in Fig. 9 is merely a non-descript black rectangle with two white circles in it and does not represent the Tobii EyeX Tracker. Such an assertion would amount to new matter.
In pg. 14, Applicant provides a table in pg. 10 and asserts that this table identifies support of claim elements newly and previously added to the claims.
Examiner is not persuaded. Applicant is directed to the rejections above which have been updated to address the amendments to the claims.
In pg. 14-15, Applicant asserts that one of ordinary skill in the art would understand the term “eye tracker” to mean a class of electronic devices used to track a user’s eyes and would understand element 920 of Fig. 9 to be an eye tracker as per the Declaration.
Examiner is not persuaded. Applicant is directed to the consideration of the Declaration in the Office Action mailed 27 October 2025 which identifies that Declarant’s assertions are not persuasive.
In pg. 15, Applicant also asserts that claim 30, 37, 39, and 46 have been amended to overcome the rejection under 35 USC 112(b).
Examiner is not persuaded. Applicant is directed to the rejections of the claims which have been updated to address the amendments to the claims.
Applicant's arguments with respect to the rejections of the claims under 35 USC 112(a) have been fully considered but they are not persuasive. In pg. 16, Applicant asserts that one of ordinary skill in the art would understand the term “eye tracker” to mean a class of electronic devices used to track a user’s eyes and would understand element 920 of Fig. 9 to be an eye tracker as per the Declaration.
Examiner is not persuaded. Applicant is directed to the consideration of the Declaration in the Office Action mailed 27 October 2025 which identifies that Declarant’s assertions are not persuasive.
Applicant's arguments with respect to the rejections of the claims under 35 USC 101 have been fully considered but they are not persuasive. Under Step 1, Applicant recites language from the rejection that is found in Step 2A, Prong 1 and recites that Applicant disagrees with asserting that independent claim 29 relates to a method/process and independent claim 38 relates to a system.
It is unclear why Applicant would recite language from Step 2A, Prong 1 when addressing Step 1, wherein Step 1 of the rejection recites “The instant claims are directed to a method and a product which fall under at least one of the four statutory categories (STEP 1: YES).”
Under Step 2A, Prong 1, Applicant asserts that specific guidance regarding the pending claims are found in pg. 33, 40, and 41 of the Office’s Appendix 1 to the October 2019 Update: Subject Matter Eligibility Life Sciences & Data Processing Examples and cites claim 4 of Example 46.
Examiner is not persuaded. As identified in prior Office Actions where Applicant pointed to other Examples that also do not relate to the instant claims, Applicant is reminded that examples issued by the Office in conjunction with Eligibility Guidance are intended to show exemplary analyses only and should not be used as a basis for a subject matter’s eligibility or be relied upon in the same manner as a decision from a court. (Bolded for emphasis). To be clear, no aspect of Example 46 relates to the instant claims. For instance, as identified in the rejection, the claimed sensing devices (eye tracker device, EEG, ECG, and GSR), at best, merely amount to adding insignificant extrasolution data gathering activity to a judicial exception which is distinct from the sensors in claim 4 of Example 46.
Under Step 2A, Prong 2, Applicant asserts that autism spectrum disorder (ASD) is a disease or medical condition and that eye contact training is an accepted behavioral therapy practice for individuals with ASD.
While Examiner agrees that ASD amounts to a disease or medical condition, the claims are silent regarding applying or using a judicial exception to effect a particular treatment or prophylaxis for ASD. Merely adding the language “as part of a comprehensive program for treatment or prophylaxis of autism spectrum disorder or attention disorder” to the preamble of the independent claims does not imply, let alone explicitly claim, any treatment or prophylaxis for any disease or medical condition, nor any additional element that applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition. It is noted that the disclosure is silent regarding “a comprehensive program for treatment or prophylaxis of autism spectrum disorder or attention disorder”, let alone training a user’s focus to be part of such a “comprehensive program”. This further evidences the absence of a particular treatment or prophylaxis. Additionally, the “comprehensive program” is either for a treatment or for a prophylaxis further contradicting any assertion of particularity as a treatment is distinctly different from a prophylaxis, which is preventative.
Under Step 2B, Applicant asserts that the claimed invention is not routine, conventional, or well-understood.
Examiner is not persuaded. Step 2B is not an analysis of whether the claimed invention is routine, conventional, or well-understood. An aspect of Step 2B involves determining whether the additional elements are routine, conventional, or well-understood such that they do not add significantly more to the judicial exception.
Applicant then asserts that taking all the claim elements both individually and as an ordered combination, the claim as a whole amounts to significantly more, and that the use of an eye tracker to track voluntary and involuntary eye movements, to track user's left and right eye gaze data, and to issue an alert when a user is outside a capture field does not add an "insignificant extrasolution activity".
Examiner is not persuaded. These are merely conclusory statements made without substantive support, and are not persuasive. Applicant is directed back to the rejection which identifies that the claim elements both individually and as a whole do not add significantly more to the judicial exception.
Applicant's arguments with respect to the rejections of the dependent claims have been fully considered but they are not persuasive. In pg. 23, Applicant asserts that dependent claims are allowable due to their dependencies from the independent claims.
Examiner is not persuaded. Applicant is directed to the rejections above which identify that neither the independent claims nor the dependent claims are allowable.
Applicant's arguments with respect to the rejections of the claims under 35 USC 103 have been fully considered but they are not persuasive. In pg. 23-24, Applicant asserts that Sahin and Maass do not teach the amended claims.
Examiner is not persuaded. Applicant misrepresents Sahin and Maass in the rejections. It is noted the rejections clearly map the cited prior art to the claim limitations.
Applicant also asserts that Sahin and Elgarf do not teach the amended claims.
Examiner is not persuaded. Applicant continues to misrepresent Sahin and Elgarf. It is noted the rejections clearly map the cited prior art to the claim limitations.
The rejections stand.
Conclusion
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/DANIEL LANE/Examiner, Art Unit 3715
1 Elgarf, M., Abdennadher, S., Elshahawy, M. (2017). I-Interact: A Virtual Reality Serious Game for Eye Contact Improvement for Children with Social Impairment. In: Serious Games. JCSG 2017. Lecture Notes in Computer Science, vol 10622. Springer, Cham. https://doi.org/10.1007/978-3-319-70111-0_14
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