DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/14/26 has been entered.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 1-20 are directed to an abstract idea without significantly more. The claims recite a mental process that can be performed by human being and/or a method of organizing human activity.
In regard to Claims 1, 16, and 20, the following limitations can be performed as a mental process by a human being in terms of claiming collecting data, analyzing that data, and providing outputs based on that analysis which has been held by the CAFC to be an abstract idea in decisions such as, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential); recite a method of organizing human activity in terms of claiming the teaching/training/evaluation of a human subject’s which has been identified by MPEP 2106.04(a)(2)(II) as being a method of organizing human activity; in terms of claiming
a method for treating a subject with a functional impairment due to a stroke or traumatic brain injury…without assistance from a therapist, the method comprising:
[receiving] first signals [regarding] the subject during a rehabilitation treatment session, the first signals corresponding to the subject’s mind state;
[receiving] second signals from a second set of sensors attached to the subject during the rehabilitation treatment session, the second signals corresponding to the subject’s body state, the second signals include signals corresponding to a measure of subject agonist-antagonist muscle contraction;
providing a [visual output] for viewing by the subject;
[…] calculating, […]
a mind state alignment measure indicating the subject’s current mind state…subject,
a body state alignment measure indicating the subject’s current body state…subject, and
a mind-body synergy measure correlated with a voluntary muscle contraction measure that meets or exceeds a threshold muscle contraction condition, and which is temporally associated with each of the mind state alignment measure satisfying a mind state alignment condition and each of the body state alignment measure satisfying a body state alignment condition; and
administering treatment to the subject…alignment measures, wherein administering comprises
dynamically displaying […] the appropriate…reorganization/neuroplasticity,
dynamically displaying […] mind state…target mind state, and
dynamically displaying […] body state… target body state;
wherein […] and dynamically displaying….exercises […] for the subject to view…of the subject.
In regard to the dependent claims, they also claim an abstract idea to the extent that they merely claim further limitations that likewise could be performed as a mental process by a human being and/or a method of organizing human activity.
Furthermore, this judicial exception is not integrated into a practical application because to the extent that additional elements are claimed either alone or in combination such as, e.g., embodying an abstract idea in software executing on a computer such that the software executes “continuously” and in “real time”, sensing devices that attach to the subject and “continuously” provide sensed data, display devices, a user/visual interface, and/or processing resources these are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., data gathering), to embody the abstract idea on a general purpose computer, and/or do no more than generally link the use of a judicial exception to a particular technological environment or field of use.
Furthermore, the claims do not include additional elements that taken individually, and also taken as an ordered combination, are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g., embodying an abstract idea in software executing on a computer such that the software executes “continuously” and in “real time”, sensing devices, display devices, a user/visual interface, and/or processing resources these are generic, well-known, and conventional computer elements and are claimed for the generic, well-known, and conventional functions of collecting and processing data and/or providing an analysis based on that processing. As evidence that these additional elements are generic, well-known, and conventional, Applicant’s specification discloses the support for these 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 U.S.C. § 112(a). See, e.g., Figure 2A in Applicant’s specification and text regarding same.
Response to Arguments
In regard to the rejections made under 35 USC 101, Applicant argues that it has not claimed a “method of organizing human activity.” Applicant claims the teaching/training/evaluation of a human subject’s which has been identified by MPEP 2106.04(a)(2)(II) as being a method of organizing human activity.
Applicant argues that it has not claimed a “mental process” because its claimed invention allegedly cannot be “practically performed” in the human mind. Applicant’s argument is unpersuasive because Applicant’s claims are directed to collecting human performance data while performing some functional development task, comparing that data to a metric, and providing a differential visual output to a screen based on that comparison, and the CAFC has held the same such subject matter to be patent ineligible under Mayo as directed to a “mental process” in decisions such as, e.g., Yousician (non-precedential).
Applicant further argues in regard to the 101 rejections:
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Applicant’s arguments are unpersuasive. Applicant’s claimed limitations in regard to calculating the “mind state, body state and mind-body synergy measures” basically comprise the limitations of “calculate…a mind state alignment measure…a body state alignment measure…and a mind-body synergy measure…” There is nothing “extensive and complicated” required to be calculated by these limitations as their BRI would basically allow for any calculation to be made. What is more, the fact that Applicant’s claimed abstract idea when embodied as computer software then executes “continuously and in real-time” also does not render patent eligible subject matter. See, e.g., from the CAFC’s opinion in Similo v. Flexsim (2020-1171; 12/29/20):
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Id., slip. op., pages 19-20.
Applicant further argues in regard to the 101 rejections:
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Applicant’s arguments are unpersuasive. Applicant’s citation to Diehr is inapposite as that decision had nothing to do with providing a differential visual display based on collected and analyzed data. However, Yousician (non-precedential) concerned exactly those limitations. See, e.g.,
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Id., slip. op., page 3.
And the CAFC held such subject matter to be patent ineligible as a “mental process”, as already mentioned supra.
Conclusion
The prior art made of record and not relied upon is listed in the attached PTO-Form 892 and is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Mike Grant whose telephone number is 571-270-1545. The Examiner can normally be reached on Monday through Friday between 8:00 a.m. and 5:00 p.m., except on the first Friday of each bi-week.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's Supervisory Primary Examiner, Peter Vasat can be reached at 571-270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C GRANT/Primary Examiner, Art Unit 3715