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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/16/26 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, 3, 4, 6-10, and 13-24 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, 3, 4, 6-10, and 13-24 are directed to an abstract idea without significantly more. The claims recite a mental process that can be performed by human being and/or as a method of organizing human activity and/or claim training/employing a machine learning model in a particular technological environment.
In regard to Claims 1 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in decisions such as, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential); and/or recite a method of organizing human activity in terms of claiming the teaching/training/evaluation of a human subject’s which has been identified by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 the Applicant claiming:
[a] method, comprising:
Initiating […] an interaction […] between […] one or more [users] wherein the interaction […] includes at least one non-player character, and at least one avatar corresponding to one or more users […];
receiving […] during the […] interaction […] one or more data streams of biometric sensor data [concerning] a neuro-physiological response of a first user […];
calibrating […] the biometric sensor data…using an adaptive [algorithm] configured to dynamically adjust one or more sensor-specific calibration parameters […] based on one or more detected involuntary physiological responses of the first user;;
receiving […] an event trigger…during the play of the interaction […], wherein the biometric sensor data…exceeding a predetermined threshold;
in response to the event trigger, calculating […], a neuro-physiological state of the first user by:
[providing a] stimulus that includes a non-arousing stimulus and a known arousing stimulus […]
[receiving data regarding] measure[ments of] an involuntary response of the first user while interacting with the […] stimulus;
determining […] at least an expectation baseline arousal value based on the calibrated sensor data and the involuntary response to normalize an individual physiological variability of the first user relative […];
calculating […] a weighting value based on one or more source identities for the calibrated sensor data;
calculating […] a set of measures concurrently for the first user based on different combinations of the calibrated sensor data, the expectation baselines, and the weighting value, wherein the set of measures includes one or more of an arousal measure, a valence measure, and a confidence measure;
receiving […] context-indicating data of the first user […] wherein…noise level;
correlating […] via a trained […] algorithm, the set of measures with the biometric data and the context-indicating data of the first user to generate a […] control signal representative of the neurophysiological state;
and
based on the correlated set of measures, determining […] the neuro-physiological state of the first user, and a [visual] representation of the neuro-physiological state of the first user; and
displaying […] the […] representation of the neuro-physiological state […];
modifying […] an appearance and a behavior of the at least one avatar by controlling one or more rendering parameters of the [visual display] based on the […] control signal;
applying [an] algorithm to a parameter of the interaction […] to optimize a parameter based on the neuro-physiological state; and
modifying […] one or more characteristics of a non-player character of the interaction […] based on the optimized parameter to dynamically adjust an interaction pacing and a challenge intensity rendered by the [visual display]; and
outputting […] the modified interaction […] to a display […].
In regard to Claims 1 and 20, the following limitations recite training/employing a machine learning algorithm in a particular technological environment, which has been held to be an abstract idea by the CAFC in, e.g., Recentive Analytics, in terms of the Applicant claiming:
calibrating […] biometric sensor data for each of the one or more data streams using an adaptive machine learning algorithm…first user;
correlating […] via a trained machine-learning algorithm, the set of measures with the biometric data and the context-indicating data of the first user to generate a […] control signal…state;
applying […] a machine learning algorithm to a parameter of the interaction […] to optimized the parameter based on the neuro-physiological state.
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 as a method of organizing human activity and/or claimed training/employing a machine learning model in a particular technological environment.
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., a processor, at least one sensor, one or more devices, a communication component, a communication network, employing audio/video, embodying Applicant’s abstract idea as computer software that processes data concurrently/in parallel and/or digitally and/or in real-time, a computer memory, and/or computer applications, 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., a processor, at least one sensor, one or more devices, a communication component, a communication network, employing audio/video, embodying Applicant’s abstract idea as computer software that processes data concurrently/in parallel and/or digitally and/or in real-time, a computer memory, and/or employing real-time and/or offline computer applications, 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 teaches 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 generally, e.g., Figures 1-4 in Applicant’s PGPUB and text regarding same; see, e.g., p150 in regard to processing data “concurrently”; see, e.g., p50 in regard to processing data in “real-time”; and, e.g., p42 in regard to controlling real-time and/or off-line applications.
Response to Arguments
Applicant argues on pages 14-15 of its Remarks in regard to the rejections made under 35 USC 101 that it has not claimed an abstract idea in the form of a “mental process”. Applicant’s argument is not persuasive, however, because Applicant includes numerous limitations in its argument (“sensors physically mounted on virtual reality devices”, “an adaptive machine learning algorithm”, “virtual reality system”) that were not, in fact, identified in the 101 rejection as being part of the alleged abstract idea identified as a “mental process”. What is more, Applicant’s claims are directed to collecting data (e.g., biometric data, an event trigger), analyzing that data (e.g., calibrating the data, determining a baseline arousal value, computing a set of measures), and then providing some dynamic visual output based on that analysis (e.g., displaying a representation of the user’s neuro-physiological state, modifying the visual appearance of an avatar), and is closely analogous, thereby, to the invention invalidated by the CAFC in, e.g., Ubisoft v. Yousician (non-precedential) as being directed to an abstract idea in the form of a “mental process”.
Applicant further argues on pages 15-16 of its Remarks that it does not claim an abstract idea in the form of a “method of organizing human activity”. However, Applicant’s claims are directed to 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 claimed a “practical application” and thereby claimed patent eligible subject matter under the Mayo test. Applicant’s argument is not persuasive. The Mayo test is a legal test and “practical application” is not part of the Mayo test but is, instead, a burden placed on examiners by the Office when they are making a 101 rejection employing the Mayo test. Simply invoking “practical application” but without citing specific legal authority in support of Applicant’s argument that it has claimed patent eligible subject matter under the two-part Mayo test, therefore, does not provide a proper basis or rationale as to why the 101 rejection being made is allegedly deficient. Applicant argues that it has claimed a “practical application” because of, e.g., the visual appearance of the display its claims (“dynamic modification of virtual reality output based on the neuro-physiological state of the user”) which “improve[s] the technical field of immersive virtual reality rendering”. Applicant’s argument is not persuasive because programming a computer to provide a certain visual display to a human being does not necessarily render patent eligible subject matter. See, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician (non-precedential). In other words, Applicant’s claimed invention does not make a technical improvement to the claimed VR system in terms of, e.g., allowing it to provide a high-resolution display, use less power, and/or be manufactured more cheaply. Instead, Applicant is trying to claim the visual appearance of the display itself.
Applicant further argues on page 13 of its Remarks in regard to the rejections made under 35 USC 101:
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Applicant’s argument is not persuasive. As evidence that these additional elements are generic, well-known, and conventional, Applicant’s specification teaches 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 generally, e.g., Figures 1-4 in Applicant’s PGPUB and text regarding same; see, e.g., p150 in regard to processing data “concurrently”; see, e.g., p50 in regard to processing data in “real-time”; and, e.g., p42 in regard to controlling real-time and/or off-line applications.
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