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 .
Response to Amendment
The amendment filed on May 13, 2026 was considered by the examiner. Claims 1-3, 5-13, 15-20, and 22-23 are pending in the application.
Claim Objections
Claim 1 is objected to because of the following informalities:
in claim 1, line 8: “signals” should be inserted after “WBLF”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-3, 5-13, 15-20, and 22-23 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.
Claim 1 recites “wherein the filtering preserves a non-sinusoidal shape and amplitude of the WBLF” in lines 7-8. The specification details that the Hilbert transform is based on assumptions, including that the neuronal activity is sinusoidal (see specification pg. 2 ln. 6-17, pg. 9 ln. 11-21, and pg. 10 ln. 3-18), and that there is increasing evidence that neural oscillations are commonly non-sinusoidal (see specification pg. 10 ln. 29 – pg. 11 ln. 4). There is no disclosure that the filtering preserves a non-sinusoidal shape and amplitude. As such, one of ordinary skill in the art would not have recognized Applicant was in possession of the claimed invention at the time the application was effectively filed.
Claim 1 recites “configured to display temporal and non-phase estimation based cross-correlation between low-frequency signals and high-frequency signals” in lines 15-16. A claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. See MPEP § 2173.03. For the same reasons, the features claimed are new matter. The specification details that “the tau-modulation analysis methods disclosed herein… configured to continuously monitor and analyze the phase-amplitude coupling between WBLF and broadband gamma activity in real-time (see specification pg. 17 ln. 16-19, pg. 27 ln. 25 – pg. 28 ln. 11, pg. 31 ln. 13-29, and generally pg. 33 ln. 31 – pg. 37 ln. 16), which includes extracting and keeping the phase spectrum constant (see specification pg. 36 ln. 20-28). There is no disclosure related to temporal cross-correlation. As such, one of ordinary skill in the art would not have recognized Applicant was in possession of the claimed invention at the time the application was effectively filed.
Claims 2-3, 5-10, and 22-23 are rejected by virtue of their dependence from claim 1.
Claim 11 recites “wherein the filtering preserves a non-sinusoidal shape and amplitude of the WBLF signals” in lines 7-8. The specification details that the Hilbert transform is based on assumptions, including that the neuronal activity is sinusoidal (see specification pg. 2 ln. 6-17, pg. 9 ln. 11-21, and pg. 10 ln. 3-18), and that there is increasing evidence that neural oscillations are commonly non-sinusoidal (see specification pg. 10 ln. 29 – pg. 11 ln. 4). There is no disclosure that the filtering preserves a non-sinusoidal shape and amplitude. As such, one of ordinary skill in the art would not have recognized Applicant was in possession of the claimed invention at the time the application was effectively filed.
Claim 11 recites “configured to display temporal and non-phase estimation based cross-correlation between low-frequency signals and high-frequency signals” in lines 15-16. A claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. See MPEP § 2173.03. For the same reasons, the features claimed are new matter. The specification details that “the tau-modulation analysis methods disclosed herein… configured to continuously monitor and analyze the phase-amplitude coupling between WBLF and broadband gamma activity in real-time (see specification pg. 17 ln. 16-19, pg. 27 ln. 25 – pg. 28 ln. 11, pg. 31 ln. 13-29, and generally pg. 33 ln. 31 – pg. 37 ln. 16), which includes extracting and keeping the phase spectrum constant (see specification pg. 36 ln. 20-28). There is no disclosure related to temporal cross-correlation. As such, one of ordinary skill in the art would not have recognized Applicant was in possession of the claimed invention at the time the application was effectively filed.
Claims 12-13 and 15-10 are rejected by virtue of their dependence from claim 11.
Claim 22 recites “performing intraoperative mapping of the brain of the subject to generate the TMC-strength map” in lines 2-3. The specification details that intraoperative brain mapping may be performed so as to “enable a neurosurgeon to determine the function of a particular region of the brain merely by recording a few minutes of its intrinsic signals” (see specification pg. 15 ln. 14-20). There is no disclosure in the specification that intraoperative mapping is utilized to “generate the TMC-strength map” as claimed. As such, one of ordinary skill in the art would not have recognized Applicant was in possession of the claimed invention at the time the application was effectively filed.
Claim 23 recites “determining placement of electrodes based upon the TMC-strength map and the function of a particular region of the brain” in lines 1-2. The specification of the present application contemplates that “this could provide critical information for the optimal positioning of electrodes in the course of implantation of brain-computer interfaces or neuromodulation systems” (see specification pg. 15 ln. 14-20). There is no disclosure for any determination of electrode placement. At best, the present specification merely contemplates the usage of the present system for electrode placement but does not disclose any specifics of such a system, including determining electrode placement. As such, one of ordinary skill in the art would not have recognized Applicant was in possession of the claimed invention at the time the application was effectively filed.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3, 5-13, 15-20, and 22-23 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 1 recites “configured to display temporal and non-phase estimation based cross-correlation between low-frequency signals and high-frequency signals” in lines 15-16. A claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. See MPEP § 2173.03. The specification details that “the tau-modulation analysis methods disclosed herein… configured to continuously monitor and analyze the phase-amplitude coupling between WBLF and broadband gamma activity in real-time (see specification pg. 17 ln. 16-19, pg. 27 ln. 25 – pg. 28 ln. 11, pg. 31 ln. 13-29, and generally pg. 33 ln. 31 – pg. 37 ln. 16), which includes extracting and keeping the phase spectrum constant (see specification pg. 36 ln. 20-28). There is no disclosure related to temporal cross-correlation. There is an inconsistency between what is claimed (i.e., non-phase estimation based) and what appears to be required for the cross-correlation (phase based). Furthermore, “temporal and non-phase estimation based cross-correlation” appears to be modifying the display, not the calculation of the cross-correlation. However, the displayed cross-correlation would appear to be the same in either estimation as “the SNR values serve as an indication of the strength of phase-amplitude coupling (PAC) between WBLF and broadband gamma activity (see specification pg. 36 ln. 29 – pg. 37 ln. 9). Therefore, there is an inconsistency as it appears as if this element does not further limit the subject matter of the claim. These inconsistencies render claim 1 indefinite. For the purposes of examination, this claim element is interpreted so as to not limit the subject matter of the claim. Appropriate clarification is required.
Claims 2-3, 5-10, and 22-23 are rejected by virtue of their dependence from claim 1.
Claim 11 recites “configured to display temporal and non-phase estimation based cross-correlation between low-frequency signals and high-frequency signals” in lines 15-16. A claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. See MPEP § 2173.03. The specification details that “the tau-modulation analysis methods disclosed herein… configured to continuously monitor and analyze the phase-amplitude coupling between WBLF and broadband gamma activity in real-time (see specification pg. 17 ln. 16-19, pg. 27 ln. 25 – pg. 28 ln. 11, pg. 31 ln. 13-29, and generally pg. 33 ln. 31 – pg. 37 ln. 16), which includes extracting and keeping the phase spectrum constant (see specification pg. 36 ln. 20-28). There is no disclosure related to temporal cross-correlation. There is an inconsistency between what is claimed (i.e., non-phase estimation based) and what appears to be required for the cross-correlation (phase based). Furthermore, “temporal and non-phase estimation based cross-correlation” appears to be modifying the display, not the calculation of the cross-correlation. However, the displayed cross-correlation would appear to be the same in either estimation as “the SNR values serve as an indication of the strength of phase-amplitude coupling (PAC) between WBLF and broadband gamma activity (see specification pg. 36 ln. 29 – pg. 37 ln. 9). Therefore, there is an inconsistency as it appears as if this element does not further limit the subject matter of the claim. These inconsistencies render claim 11 indefinite. For the purposes of examination, this claim element is interpreted so as to not limit the subject matter of the claim. Appropriate clarification is required.
Claims 12-13 and 15-10 are rejected by virtue of their dependence from claim 11.
Claim 22 recites “performing intraoperative mapping of the brain of the subject to generate the TMC-strength map” in lines 2-3. The specification details that intraoperative brain mapping may be performed so as to “enable a neurosurgeon to determine the function of a particular region of the brain merely by recording a few minutes of its intrinsic signals” (see specification pg. 15 ln. 14-20). From this portion of the specification the outputs/processing of the system/method (i.e., the TMC-strength map displayed to a practitioner) are not linked/related to the intraoperative mapping. Is the intraoperative mapping something that the practitioner does based off of the TMC-strength map, in which this recitation would be intended use? Does the system determine an intraoperative mapping of the brain based off of the TMC-strength map? If the intraoperative mapping of the brain is utilized to generate the TMC-strength map (which appears to be contradictory to the specification), how does the intraoperative mapping relate to the processing that is already completed in claim 1 that generates the TMC-strength map? The specification does not answer such questions. These inconsistencies render claim 22 indefinite. For the purposes of examination, the intraoperative mapping is interpreted to cover the receiving and signal processing so as to generate the TMC-strength map as recited in claim 1, consistent with the subsequent rejection and interpretation. Appropriate clarification is required.
Claim 22 recites “recording and analyzing intrinsic signals of the brain during a period of time” in lines 3-4. However, claim 1 recites “receiving, at a computing device, a plurality of real-time brain activity measurements indicative of brain activity of the subject” in lines 4-5; and signal analysis so as to “calculate[e], using the computing device, a TMC-strength… displaying, using the computing device, a TMC-strength map” generally in lines 4-24. It is not clear what relationship the intrinsic signals of claim 22 have to the plurality of real-time brain activity measurements of claim 1. Furthermore, it is not clear whether the “recording and analyzing” is referring to the recording and analyzing of claim 1, or something else. These inconsistencies render claim 22 indefinite. For the purposes of examination, the recitations of claim 22 are interpreted to be the same as/related to the recitations of claim 1.
Claim 23 recites “a particular region” in line 2, but it is not clear if this recitation is the same as, related to, or different from the recitation “a particular region” in claim 22, line 3. The similar phraseology suggests that they are the same, but the indefinite article “a” suggests that they are different. If the recitations are the same, the present recitation should be “the particular region”. If the recitations are different, the relationship between these recitations should be made clear and they should be clearly distinguished from each other (e.g., when multiple elements have similar or the same labels, distinct identifiers such as “first” and “second” should be used to clearly differentiate the elements). For the purposes of examination, the recitations are being interpreted as the same.
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, 5-13, 15-20, and 22-23 are rejected under 35 U.S.C. 101 because the claimed invention is directed towards abstract ideas without significantly more.
Claim 1 interpretation: Under the broadest reasonable interpretation (BRI), the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111. Based on the specification’s identification, the recitation “filtering the plurality of real-time brain activity measurements to extract a plurality of wideband low frequency (WBLF) signals” is calculations/evaluations and judgements (see specification pg. 12 ln. 21 – pg. 13 ln. 7). The recitation “normalizing the plurality of WBLF signals to remove an effect of 1/f power law scaling to produce a plurality of normalized WBLF signals” is calculations/evaluations (see specification pg. 13 ln. 30 – pg. 14 ln. 15). The recitation “extracting a plurality of broadband gamma envelope signals from the plurality of real-time brain activity measurements” is calculations/evaluations and judgements (see specification pg. 12 ln. 21-31 and pg. 13 ln. 8-13). The recitation “calculating a cross-correlation between the plurality of normalized WBLF signals and the plurality of broadband gamma envelope signals to produce at least one Tau Modulation Curve” is calculations/evaluations (see specification pg. 14 ln. 16-21 and pg. 36 ln. 29 – pg. 37 ln. 1). The recitation “calculating a TMC-strength for each of the at least one TMCs” is calculations/evaluations (see specification pg. 14 ln. 22 – pg. 15 ln. 2). The recitations are computer-implemented, as indicated in the claim lines 1-2, and in the specification (see specification pg. 18 ln. 13-26, pg. 20 ln. 16-27, and pg. 22 ln. 14 – pg. 23 ln. 29).
Claim 11 interpretation: Under the broadest reasonable interpretation (BRI), the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111. Based on the specification’s identification, the recitation “filter the plurality of real-time brain activity measurements to extract a plurality of wideband low frequency (WBLF) signals” is calculations/evaluations and judgements (see specification pg. 12 ln. 21 – pg. 13 ln. 7). The recitation “normalize the plurality of WBLF signals to remove an effect of 1/f power law scaling to produce a plurality of normalized WBLF signals” is calculations/evaluations (see specification pg. 13 ln. 30 – pg. 14 ln. 15). The recitation “extract a plurality of broadband gamma envelope signals from the plurality of real-time brain activity measurements” is calculations/evaluations and judgements (see specification pg. 12 ln. 21-31 and pg. 13 ln. 8-13). The recitation “calculate a cross-correlation between the plurality of normalized WBLF signals and the plurality of broadband gamma envelope signals to produce at least one Tau Modulation Curve (TMC)” is calculations/evaluations (see specification pg. 14 ln. 16-21 and pg. 36 ln. 29 – pg. 37 ln. 1). The recitation “calculate a TMC-strength for each of the at least one TMCs” is calculations/evaluations (see specification pg. 14 ln. 22 – pg. 15 ln. 2). The recitations are computer-implemented, as indicated in the claim lines 2-3, and in the specification (see specification pg. 18 ln. 13-26, pg. 20 ln. 16-27, and pg. 22 ln. 14 – pg. 23 ln. 29).
Step 1: This part of eligibility analysis evaluates whether the claim falls within any statutory category. MPEP 2106.03. Claim 1 recites a method, which is directed towards a process (a statutory category of invention). Claim 11 recites a system, which is directed towards a machine and/or a manufacture (a statutory category of invention). Step 1: YES.
Step 2A Prong One: This part of the eligibility analysis evaluates whether the claim recites a judicial exception. as explained in MPEP 2106.04(a)(2)(I). The courts consider mathematical calculations, when the claim is given its BRI in light of the specification, as falling within the “mathematical concept” grouping of abstract ideas. A claim does not have to recite “calculating” in order to be considered a mathematical calculation. For example, a step of “determining” a variable or number using a mathematical method, or “performing” a mathematical operation, may also be considered a mathematical calculation when the BRI of the claim in light of the specification encompasses a mathematical calculation. As discussed in the claim interpretation section, the limitations include, under the BRI, calculations/evaluations of the received brain activity measurements. Accordingly, the limitations as seen in claims 1 and 11 recite judicial exceptions (abstract ideas that fall within the mathematical calculations grouping of mathematical concepts).
Alternatively or additionally, these steps describe the concept of using implicit mathematical formulas (i.e., calculations to extract and cross-correlate the received brain activity measurements) to derive a conclusion based on input of data, which corresponds to concepts identified as abstract ideas by the courts (Diamond v. Diehr. 450 U.S. 175, 209 U.S.P.Q. 1 (1981), Parker v. Flook. 437 U.S. 584, 19 U.S.P.Q. 193 (1978), and In re Grams. 888 F.2d 835, 12 U.S.P.Q.2d 1824 (Fed. Cir. 1989)). The concept of the recited limitations identified as mathematical concepts above is not meaningfully different than those mathematical concepts found by the courts to be abstract ideas.
Furthermore, as explained in MPEP 2106.04(a)(2)(III). The courts consider a mental process (thinking) that “can be performed in the human mind, or by a human using a pen and paper” to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). The “mental processes” abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgements, and opinions. As discussed in the claim interpretation section, the limitations include, under the BRI, judgements/evaluations of the received brain activity measurements. Furthermore, claim 1 recites “[a] computer-implemented method for tracking a brain state and mapping a functional brain organization of a brain of a subject in real-time” in the preamble. In the preamble, “in real-time” is mere intended use and does not limit the scope of the claim, see MPEP 2111.02. Claim 11 does not recite any similar language. Both claims also recite to “receive a plurality of real-time brain activity measurements”, which puts limitation on the type and nature of data collected only, it does not require any of the mental process steps to be performed in real-time. As such, no limitations are provided that would force the complexity of any of the identified evaluation steps to be non-performable by pen-and-paper practice. Accordingly, the limitations as seen in claims 1 and 11 recite judicial exceptions (abstract ideas that fall within the mental process grouping).
Claim 1 recites the following elements, which are part of the abstract idea (i.e., the algorithm):
a method for tracking a brain state and mapping a functional brain organization of a subject in real-time, the method comprising:
a. receiving a plurality of real-time brain activity measurements indicative of brain activity of the subject;
b. filtering the plurality of real-time brain activity measurements to extract a plurality of wideband low frequency (WBLF) signals, wherein the filtering preserves a non-sinusoidal shape and amplitude of the WBLF signals;
c. normalizing the plurality of WBLF signals to remove an effect of 1/f power law scaling to produce a plurality of normalized WBLF signals;
d. extracting a plurality of broadband gamma envelope signals from the plurality of real-time brain activity measurements;
e. calculating a cross-correlation between the plurality of normalized WBLF signals and the plurality of broadband gamma envelope signals to produce at least one Tau Modulation Curve (TMC) configured to display temporal and non-phase estimation based cross-correlation between low-frequency signals and high-frequency signals;
f. calculating a TMC-strength for each of the at least one TMCs, wherein each TMC-strength is indicative of a WBLF modulation of broadband gamma activity in the brain of the subject; and
g. displaying a TMC-strength map to a practitioner, wherein:
i. the TMC-strength map comprises a plurality of TMC-strengths comprising each TMC-strength mapped to a corresponding brain position at which a subset of brain activity measurements used to produce each TMC was obtained; and
ii. the TMC-strength map provides measures of functional or state-specific brain regions intraoperatively to the practitioner.
Claim 11 recites the following elements, which are part of the abstract idea (i.e., the algorithm):
tracking a brain state and mapping a functional brain organization of a subject,
a. receive a plurality of real-time brain activity measurements indicative of brain activity of the subject;
b. filter the plurality of real-time brain activity measurements to extract a plurality of wideband low frequency (WBLF) signals, wherein the filtering preserves a non-sinusoidal shape and amplitude of the WBLF signals;
c. normalize the plurality of WBLF signals to remove an effect of 1/f power law scaling to produce a plurality of normalized WBLF signals;
d. extract a plurality of broadband gamma envelope signals from the plurality of real-time brain activity measurements;
e. calculate a cross-correlation between the plurality of normalized WBLF signals and the plurality of broadband gamma envelope signals to produce at least one Tau Modulation Curve (TMC) configured to display temporal and non-phase estimation based cross-correlation between low-frequency signals and high-frequency signals;
f. calculate a TMC-strength for each of the at least one TMCs, wherein each TMC-strength is indicative of a WBLF modulation of broadband gamma activity in the brain of the subject; and
g. display a TMC-strength map to a practitioner, wherein:
i. the TMC-strength map comprises a plurality of TMC-strengths comprising each TMC strength mapped to a corresponding brain position at which a subset of brain activity measurements used to produce each TMC was obtained; and
ii. the TMC strength map provides measures of functional or state-specific brain regions intraoperatively to the practitioner.
Step 2A Prong One: YES.
Step 2A Prong Two: This part of the eligibility analysis evaluates whether the claim as a whole integrates the judicial exceptions into a practical application of the exception. This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exceptions, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exceptions into a practical application. The recitation related “the TMC strength map provides measures of functional or state-specific brain regions intraoperatively to a practitioner” is being interpreted as intended use, because it merely indicates what the TMC-strength map may provide to an intended user, and the only actual output of the system is the TMC-strength map. There is no present requirement in the claim for any “real-time” processing or output. Claims 1 and 11 recite a computing device (i.e., a generic computer with a generic display/output). Thus, the method/system (including the at least one processor) merely uses a generic computer as a tool to perform an abstract idea - see MPEP 2106.04(d) and MPEP 2106.05(f). Step 2A Prong Two: NO.
Step 2B: This part of the eligibility analysis evaluates whether the claim as a whole, amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim. MPEP 2106.05. As explained with Step 2A Prong Two, the claims recite additional elements which are directed towards the performance of the abstract ideas utilizing a generic computer, and are at best the equivalent of merely adding the words “apply it” to the judicial exceptions. Mere instructions to apply an exception cannot provide an inventive concept. These elements/steps can be seen as well-understood, routine, and conventional individually and in combination. Claims 1 and 11 merely recite a computing device (i.e., a generic computer, including the at least one processor and generic display/output) for performing the abstract ideas. Thus the method/system (the generic computer) does not qualify as significantly more because these limitations are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well- understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process. Step 2B: NO.
Claims 1 and 11 are NOT eligible.
Claims 2-3, 5-10, and 22-23 depend from claim 1 and merely further define the abstract ideas of claim 1 with no further element that integrates the abstract ideas into a practical application or that qualifies as being significantly more. Looking at the limitations of each claim as an ordered combination in conjunction with the claims from which they depend (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome.
Claims 12-13 and 15-19 depend from claim 11 and merely further define the abstract ideas of claim 11 with no further element that integrates the abstract ideas into a practical application or that qualifies as being significantly more. Looking at the limitations of each claim as an ordered combination in conjunction with the claims from which they depend (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome.
Claim 20 depends from claim 11 and further defines the abstract ideas of claim 11 with the additional element of a brain activity monitor device. The usage of such a device is well-known, routine, and conventional. For example, Malish (US Patent Application Publication 2022/0211325 – cited in prior action) systems and methods for utilizing EEG measurements for diagnosis of an individual (see abstract), and that the EEG examinations/scans in the system may be performed utilizing any well-known EEG apparatus (see ¶[0059]; Fig. 6). Therefore, the brain activity monitor device of claim 20 cannot be seen as integration into a practical application or that qualifies as being significantly more.
Furthermore, looking at the limitations of each claim as an ordered combination in conjunction with the claims from which they depend (that is, as a whole) adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
The succeeding art rejections to the claims under 35 U.S.C. § 103 below are made with the claims as best understood and interpreted in light of the preceding rejections under 35 U.S.C. § 112 above.
Claims 1-3, 6, 11-13, 16, 20, and 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Burton (US Patent Application Publication 2021/0169417 – cited in prior action), hereinafter Burton, and in view of Langevin et al. (US Patent Application Publication 2021/0113841 – cited in prior action), hereinafter Langevin, and in view of Väyrynen et al. (US Patent Application Publication 2019/0246927 – cited in prior action), hereinafter Väyrynen.
Regarding Claims 1 and 11, Burton teaches systems/methods for monitoring a user, specifically with EEG sensors (see abstract). Burton teaches a computer-implemented method for tracking a brain state and mapping a functional brain organization of a brain of a subject in real-time (see abstract, ¶[0442]-[0449], ¶[2765], ¶[3246]-[3249], ¶[3497]-[3508], ¶[3555]-[3559]; Fig. 54; see also ¶[0062], ¶[0233]-[0251], ¶[1675]-[1679] and Fig. 61 for real-time monitoring),
a computing device , the computing device comprising at least one processor (¶[1194]-[1200], ¶[2257], ¶[3214]-[3216], ¶[3246]-[3249], ¶[3398]-[3399], ¶[3438]-[3439], and ¶[3623]-[3625] the computer implemented method and computer system, including one or more processors),
the method comprising:
a. receiving, at a computing device, a plurality of real-time brain activity measurements indicative of brain activity of the subject (¶[0055], ¶[0401]-[0405], ¶[1061]-[1062], and ¶[2686]-[2692], and ¶[2715]-[2737] the EEG signal data acquisition; Fig. 54; see also ¶[0062], ¶[0233]-[0251], ¶[1675]-[1679] and Fig. 61 for real-time monitoring);
b. filtering, using the computing device, the plurality of real-time brain activity measurements to extract a plurality of wideband low frequency (WBLF) signals, wherein the filtering preserves a non-sinusoidal shape and amplitude of the WBLF signals (¶[2934]-[2981] the spectrograph extraction of waves, including low frequency signals, such as delta, theta, and alpha waves, ¶[2973] the bands of interest may be extracted via filtering, followed by extraction of phase and amplitude properties using a Hilbert transform, indicating that the features of the signal are preserved);
d. extracting, using the computing device, a plurality of broadband gamma envelope signals from the plurality of real-time brain activity measurements (¶[2934]-[2981] the spectrograph extraction of waves, including the gamma wave);
e. calculating, using the computing device, a cross-correlation between the plurality of wideband low frequency (WBLF) signals and the plurality of broadband gamma envelope signals to produce at least one Tau Modulation Curve (TMC) configured to display temporal and non-phase estimation based cross-correlation between low-frequency signals and high-frequency signals (¶[2964]-[2981] the cross-frequency coupling or correlation of the high-frequency sub-bands in the gamma range to low-frequency rhythms, such as delta/slow waves, which if displayed, would show the aforementioned cross-frequency coupling or correlation of the high-frequency sub-bands in the gamma range to low-frequency rhythms, such as delta/slow waves);
f. calculating, using the computing device, a TMC-strength for each of the at least one TMCs (¶[2033], ¶[2105]-[2106], ¶[3324]-[3326], and ¶[3407]-[3409] the SNR may be taken of signals in the system, this is the strength), wherein each TMC-strength is indicative of a WBLF modulation of broadband gamma activity in the brain of the subject (because the claim that such a TMC strength (i.e., SNR of the cross-correlation) is indicative of the WBLF modulation of broadband gamma activity in the brain of the subject, and as Burton teaches such a TMC strength, then Burton also teaches such an indication); and
g. displaying, using the computing device, intraoperatively to the practitioner (¶[0105]-[0136], ¶[0215]-[0216], ¶[0233]-[0238], ¶[2873], ¶[2878], and ¶[3301] the display of the EEG data, such as on a mobile phone, ¶[0787] the user may opt-in individuals to utilize the system, such as general practitioners, ¶[0062], ¶[0250]-[0251], ¶[1276]-[1277], and ¶[3097] the subject is monitored in real-time). The recitation “intraoperatively to the practitioner” is being interpreted as intended use, because it merely indicates what the TMC-strength map may provide to an intended user in the context for which it is used, and the only actual output of the method/system is the TMC-strength map. There is no positive recitation for displaying the TMC-strength map during a surgical procedure presently recited in the claims. Therefore, the only element required to meet the claimed recitation is the TMC-strength map.
Here, the claim recites that “the filtering preserves a non-sinusoidal shape and amplitude of the WBLF signals”. While Burton indicates that such features would be preserved, so that the extraction of phase and amplitude properties may occur, the definition of filtering also indicates as such. Filtering may generally be defined as the removal of some unwanted features (i.e., frequency bands) from the signal, while retaining desired features, which would necessarily retain the shape and amplitude within the desired frequency range. See for example Kynix, “Filter (Signal Processing) Basics in Electronics”, published 2019-12-06, accessed on 03/20/2026, accessed at https://www.kynix.com/Blog/Filter-Signal-Processing.html#%E2%85%B0-filter-definition, § I. Filter Definition. See also Bolic, “Pervasive Cardiovascular and Respiratory Monitoring Devices”, chapter “Overview of biomedical instrumentation and devices”, Academic Press, 2023, § 3.1.2 Signals and systems – cited in prior action. See further Ducard, “Signals and Systems, Lecture 7: Introduction to Filtering”, Institute for Dynamic Systems and Control, Fall 2018, Slide 3, Definition: filtering – cited in prior action.
Alternatively and/or additionally, Burton does not specifically teach the type of filter utilized.
Langevin teaches compositions and methods for detecting and modulating oscillatory patterns within the BLA for anxiety disorders (see abstract), in which a FIR low pass filter is utilized to extract low-frequency oscillations, such as the theta oscillations, and a FIR band pass filter is utilized to extract gamma oscillations (see ¶[0118]-[0121]). Note that the specification of the present application indicates that FIR filters are utilized (see specification pg. 12 ln. 32 – pg. 13 ln. 29), which would necessarily preserve the claimed elements, including the non-sinusoidal shape and amplitude.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the FIR filter of Langevin for filtering the frequency bands in Burton because (1) it is the application of a known technique to a known method/system ready for improvement to yield predictable results; and/or (2) Burton requires the usage of a filter to extract the frequency bands of interest and Langevin teaches one such frequency extraction filter; and/or (3) FIR filters have benefits including linear phase, stability, and shape preservation in the pass band (see for example “FIR Filter Design”, MATLAB, https://www.mathworks.com/help/signal/ug/fir-filter-design.html, November 10, 2018, accessed via WayBack Machine at https://web.archive.org/web/20181110204347/https://www.mathworks.com/help/signal/ug/fir-filter-design.html, accessed on March 20, 2026, § FIR vs. IIR Filters and § Linear Phase Filters).
Additionally and/or alternatively, with regard to the TMC-strength, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the SNR of Burton with the cross-correlation of Burton because (1) it is the application of a known technique to a known method ready for improvement to yield predictable results and/or (2) the SNR would be a useful metric to determine the strength of the signal to the noise, which is an important indicator in signal quality.
The modified Burton does not specifically teach a TMC strength map comprising a plurality of TMC-strengths comprising each TMC-strength mapped to a corresponding brain position at which a subset of brain activity measurements used to produce each TMC was obtained.
Burton further teaches mapping EEG signals to the brain at specific locations (¶[2480], ¶[2765], ¶[2836]-[2839], ¶[3292]-[3294], ¶[3394], and ¶[4166]-[4170]; Figs. 65-66).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the brain mapping of Burton with the determined strengths of the modified Burton because (1) it is the application of a known technique to a known method/system ready for improvement to yield predictable results and/or (2) the brain map would provide an easy to comprehend visual aid to help understand the data.
In this case, as the modified Burton teaches the TMC-strength map, the modified Burton necessarily teaches that such a map would provide measures of functional or state-specific brain regions.
The modified Burton is silent regarding normalizing, using the computing device, the plurality of WBLF signals to remove an effect of 1/f power law scaling to produce a plurality of normalized WBLF signals.
Väyrynen teaches an apparatus and methods related to processing received EEG signals involving phase-to-phase, phase-to-amplitude, or amplitude-to-phase coupling, as well as normalizing the slow-wave (low frequency) portion of the EEG signals, which would involve the phase and amplitude spectrums (see abstract), in which the normalization may involve a lease-squares regression as part of the detection, and involve Fourier transforms (see ¶[0041]-[0046]), in which the regression may be linear (see ¶[0064]), and in which the Fourier transforms may be implemented via a fast Fourier transform (FFT) for conversion into the frequency domain and an inverse FFT for conversion back to the time domain (see ¶[0101]-[0105]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the least squares normalization of Väyrynen with the WBLF extraction of the modified Burton because (1) it is the application of a known technique to a known method/system ready for improvement to yield predictable results and/or (2) the normalization would reduce variability in the calculations, such as between the high/low frequency portions or between subjects. Here, as the claim only indicates that normalization would remove an effect of 1/f power law scaling, and the modified Burton teaches such normalization; therefore, the modified Burton teaches to remove an effect of 1/f power law scaling.
Regarding Claims 2 and 12, Burton in view of Langevin and Väyrynen teaches the method/system of claims 1 and 11, respectively, as stated above. Burton further teaches the plurality of real-time brain activity measurements comprises at least one of electroencephalographic (EEG) signals, magnetoencephalographic (MEG) signals, electrocorticographic (ECoG) signals, stereo electroencephalography (SEEG) signals, functional magnetic resonance (fMRI) signals, and functional near-infrared optical imaging (fNRI) signals (¶[0055], ¶[0401]-[0405], ¶[1061]-[1062], and ¶[2686]-[2692], and ¶[2715]-[2737] the EEG signal data acquisition; Fig. 54).
Regarding Claims 3 and 13, Burton in view of Langevin and Väyrynen teaches the method/system of claims 1 and 11, respectively, as stated above. The modified Burton further teaches extracting the plurality of WBLF signals comprises applying, using the computing device, an FIR lowpass filter comprising a cutoff frequency of 30 Hz to the plurality of real-time brain activity measurements (see Burton ¶[2934]-[2981], the spectrograph extraction of waves, including low frequency signals, such as delta, theta, and alpha waves, the waves may be filtered according to the frequency bands of interest, ¶[0376]-[0377] a low pass filter may be utilized; see Langevin ¶[0118]-[0121], the FIR low pass filter is utilized to extract low-frequency oscillations, such as the theta oscillations).
The low-frequency (i.e., delta of 0.5-3 Hz or theta of 3-8 Hz) range of the modified Burton suggests the range of the present claim because a cutoff frequency of 30 Hz encompasses the range of Burton. See MPEP 2144.05: “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”.
Regarding Claims 6 and 16, Burton in view of Langevin and Väyrynen teaches the method/system of claims 1 and 11, respectively, as stated above. The modified Burton further teaches extracting the plurality of broadband gamma envelope signals comprises applying, using the computing device, an FIR bandpass filter configured to pass signals comprising frequencies ranging from 70 Hz to 170 Hz and a Hilbert transform to the plurality of real-time brain activity measurements (see Burton ¶[2934]-[2981], the spectrograph extraction of waves, including the gamma wave, the waves may be filtered according to the frequency bands of interest, and the usage of a Hilbert transform to extract the phase and amplitude properties; see Langevin ¶[0118]-[0121], the FIR band pass filter is utilized to extract gamma oscillations).
The high-frequency (i.e., gamma of 70-140 Hz or of 70-120 Hz) range of the modified Burton suggests the range of the present claim because 70 Hz to 170 Hz encompasses the range of Burton. See MPEP 2144.05: “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”.
Regarding Claim 20, Burton in view of Langevin and Väyrynen teaches the system of claim 11 as stated above. Burton further teaches a brain activity monitoring device operatively coupled to the computing device, the brain activity monitoring device configured to obtain the plurality of real-time brain activity measurements, the brain activity monitoring device comprising one of an electroencephalographic system, a magnetoencephalographic (MEG) system, an electrocorticographic (ECoG) system, a stereo electroencephalography (SEEG) system, a functional magnetic resonance (fMRI) system, and a functional near-infrared optical imaging (fNRI) system (¶[0055], ¶[0401]-[0405], ¶[1061]-[1062], and ¶[2686]-[2692], and ¶[2715]-[2737] the EEG signal data acquisition, which may be acquired by the example system (EEG sensors) as depicted in Fig. 54).
Regarding Claim 22, Burton in view of Langevin and Väyrynen teaches the method of claim 1 as stated above. Burton further teaches performing interoperative mapping of the brain of the subject to generate the TMC-strength map, wherein a function of a particular region of the brain is determined by recording and analyzing intrinsic signals of the brain during a period of time (¶[0105]-[0136], ¶[0215]-[0216], ¶[0233]-[0238], ¶[2873], ¶[2878], and ¶[3301] the display of the EEG data, such as on a mobile phone, ¶[0787] the user may opt-in individuals to utilize the system, such as general practitioners, ¶[0062], ¶[0250]-[0251], ¶[1276]-[1277], and ¶[3097] the subject is monitored in real-time, ¶[2480], ¶[2765], ¶[2836]-[2839], ¶[3292]-[3294], ¶[3394], and ¶[4166]-[4170], the mapping EEG signals to the brain at specific locations; Figs. 65-66; see also above claim 1 mapping of receiving and signal analysis). As best understood in view of the above 35 U.S.C. § 112 rejections.
Regarding Claim 23, Burton in view of Langevin and Väyrynen teaches the method of claim 22 as stated above. Burton further teaches determining placement of electrodes based upon the TMC-strength map and the function of a particular region of the brain (¶[0105]-[0136], ¶[0215]-[0216], ¶[0233]-[0238], ¶[2873], ¶[2878], and ¶[3301] the display of the EEG data, such as on a mobile phone, ¶[0787] the user may opt-in individuals to utilize the system, such as general practitioners, ¶[0062], ¶[0250]-[0251], ¶[1276]-[1277], and ¶[3097] the subject is monitored in real-time, ¶[2480], ¶[2765], ¶[2836]-[2839], ¶[3292]-[3294], ¶[3394], and ¶[4166]-[4170], the mapping EEG signals to the brain at specific locations, ¶[3216]-[3236] including the placement of electrodes; Figs. 65-66; see also above claim 1 mapping of receiving and signal analysis).
Claims 5 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Burton in view of Langevin and Väyrynen as applied to claims 1 and 11 above, respectively, and in view of Marquez Chin et al. (US Patent Application Publication 2017/0172497 – cited in prior action), hereinafter Marquez Chin.
Regarding Claims 5 and 15, Burton in view of Väyrynen teaches the method/system of claims 1 and 11, respectively, as stated above. The modified Burton further teaches normalizing the plurality of WBLF signals comprises: a. applying, using the computing device, a fast Fourier transform to the plurality of WBLF signals to obtain a WBLF amplitude spectrum and a WBLF phase spectrum; b. obtaining, using the computing device, a least-squares linear regression fit of the WBLF amplitude spectrum over a log-log spaced range; c. normalizing, using the computing device, the WBLF amplitude spectrum using the least-squares linear regression fit to obtain a normalized amplitude spectrum; and d. performing, using the computing device, an inverse fast Fourier transform to the normalized amplitude spectrum to obtain the plurality of normalized WBLF signals (see Burton ¶[2934]-[2981] the spectrograph extraction of waves, including low frequency signals, such as delta, theta, and alpha waves, the waves may be filtered according to the frequency bands of interest; see Väyrynen abstract, ¶[0041]-[0046], and ¶[0064], the normalization involving the least-squares linear regression of the amplitude/phase spectrums, ¶[0101]-[0105] the usage of the FFT for conversion into the frequency domain and the inverse FTT for conversion back into the time domain).
The low-frequency (i.e., delta of 0.5-3 Hz or theta of 3-8 Hz and/or nearby spectral region 1-25 Hz) range of the modified Burton suggests the range of the present claim because 1-30 Hz overlaps with the range of Burton. See MPEP 2144.05: “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”.
The modified Burton is silent regarding the use of a Hamming window.
Marquez Chin teaches a method for characterizing a brain electric signal (see abstract), in which an EEG signal may be converted into the frequency domain via a FFT with a Hamming window, with a resolution of 1 Hz between 1 and 50 Hz, so that the signal may be normalized and smoothed (see ¶[0160]-[0162]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the Hamming window alongside FFT of Marquez Chin with the modified Burton because (1) it is the application of a known technique to a known method/system ready for improvement to yield predictable results and/or (2) the Hamming window would reduce spectral leakage in the EEG signal.
Claims 7-8 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Burton in view of Langevin and Väyrynen as applied to claims 1 and 11 above, respectively, and in view of Deutsch et al. (US Patent Application Publication 2022/0313135 – cited in prior action), hereinafter Deutsch.
Regarding Claim 7, Burton in view of Langevin and Väyrynen teaches the method of claim 1 as stated above. The modified Burton further teaches wherein calculating the TMC-strength comprises calculating a signal-to-noise (SNR) for each of the at least one TMCs (see Burton ¶[2033], ¶[2105]-[2106], ¶[3324]-[3326], and ¶[3407]-[3409], the SNR may be taken of signals in the system, this is the strength).
The modified Burton does not specifically teach that the SNR comprises a ratio of an average variance of each TMC and an average variance of all of the at least one TMCs.
Deutsch teaches a system for measuring EEG signal via scalp placed electrodes (see abstract and Figs. 1A-1B), in which the SNR may be calculated via the variances of the signal and the noise (see ¶[0167]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the SNR calculation of Deutsch with the as the SNR of the modified Burton because (1) it is the application of a known technique to a known method ready for improvement to yield predictable results and/or (2) the modified Burton requires the calculation of SNR and Deutsch teaches one such calculation of SNR.
Here, the claim uses language of “each” and “at least one TMC”, so the SNR may be computed for a single TMC under the broadest reasonable interpretation (BRI) of the claim. Therefore, the modified Burton teaches the strength (SNR) of a single TMC, as the ratio of an average variance of each TMC and an average of all the at least one TMCs would be one (the average of one value would be itself, both values would be the variance of the TMC used in the SNR calculation, and the ratio of the same number is 1).
Regarding Claim 8, Burton in view of Langevin, Väyrynen, and Deutsch teaches the method of claim 7 as stated above. The modified Burton further teaches a TMC-strength value of at least 1 is indicative of a presence of WBLF modulation of broadband gamma activity in the brain of the subject (see Burton ¶[2033], ¶[2105]-[2106], ¶[3324]-[3326], and ¶[3407]-[3409], the SNR of the cross-correlation; see Deutsch ¶[0167], the SNR calculated utilizing variance). Here, as the claim only indicates that a TMC-strength value of at least 1 is indicative of a presence of WBLF modulation of broadband gamma activity in the brain of the subject, which is a result of the signal strength (SNR calculation), and the modified Burton teaches such signal strength (SNR calculation); therefore, the modified Burton teaches that if a TMC-strength value of at least one were computed, then that would be indicative of a presence of WBLF modulation of broadband gamma activity in the brain of the subject.
Regarding Claim 17, Burton in view of Langevin and Väyrynen teaches the system of claim 11 as stated above. The modified Burton further teaches each TMC-strength comprises a signal-to-noise (SNR) for each of the at least one TMCs (see Burton ¶[2033], ¶[2105]-[2106], ¶[3324]-[3326], and ¶[3407]-[3409], the SNR may be taken of signals in the system, this is the strength).
The modified Burton does not specifically teach that the SNR comprises a ratio of an average variance of each TMC and an average variance of all of the at least one TMCs.
Deutsch teaches a system for measuring EEG signal via scalp placed electrodes (see abstract and Figs. 1A-1B), in which the SNR may be calculated via the variances of the signal and the noise (see ¶[0167]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the SNR calculation of Deutsch with the SNR of the modified Burton because (1) it is the application of a known technique to a known system ready for improvement to yield predictable results and/or (2) the modified Burton requires the calculation of SNR and Deutsch teaches one such calculation of SNR.
Here, the claim uses language of “each” and “at least one TMC”, so the SNR may be computed for a single TMC under the broadest reasonable interpretation (BRI) of the claim. Therefore, the modified Burton teaches the strength (SNR) of a single TMC, as the ratio of an average variance of each TMC and an average of all the at least one TMCs would be one (the average of one value would be itself, both values would be the variance of the TMC used in the SNR calculation, and the ratio of the same number is 1).
Furthermore, the modified Burton further teaches a TMC-strength value of at least 1 is indicative of a presence of WBLF modulation of broadband gamma activity in the brain of the subject (see Burton ¶[2033], ¶[2105]-[2106], ¶[3324]-[3326], and ¶[3407]-[3409], the SNR of the cross-correlation; see Deutsch ¶[0167], the SNR calculated utilizing variance). Here, as the claim only indicates that a TMC-strength value of at least 1 is indicative of a presence of WBLF modulation of broadband gamma activity in the brain of the subject, which is a result of the signal strength (SNR calculation), and the modified Burton teaches such signal strength (SNR calculation); therefore, the modified Burton teaches that if a TMC-strength value of at least one were computed, then that would be indicative of a presence of WBLF modulation of broadband gamma activity in the brain of the subject.
Claims 9-10 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Burton in view of Langevin, Väyrynen, and Deutsch as applied to claims 8 and 17 above, respectively, and in view of Chandran et al. (“Comparison of Matching Pursuit Algorithm with Other Signal Processing Techniques for Computation of the Time-Frequency Power Spectrum of Brain Signals”, The Journal of Neuroscience, 36(12):3399-3408, March 23, 2016 – cited in prior action), hereinafter Chandran.
Regarding Claims 9 and 18, Burton in view of Langevin, Väyrynen, and Deutsch teaches the method/system of claims 8 and 17, respectively, as stated above. The modified Burton is silent regarding calculating, using the computing device, a TMC-frequency for each of the at least one TMCs, each TMC- frequency indicative of a frequency of WBLF modulation of broadband gamma activity in the brain of the subject, wherein calculating the TMC- frequency comprises: a. calculating, using the computing device, an average TMC for each of the at least one TMCs; and b. applying, using the computing device, a matching pursuit filter to determine a fundamental oscillation frequency of each average TMC, wherein the fundamental oscillation frequency is the TMC-frequency.
Chandran teaches about the usage of matching pursuit (MP) on brain signals, including gamma waves, as compared to standard technique of Fourier transform, multitaper method, wavelet transform, or Hilbert transform (see abstract). Chandran teaches that MP utilizes tiles calculated from a multitude of different STFTs, averaged, and then the tile with the frequency that explains the maximum energy of the signal is selected (see pg. 3404-3405 § Matching pursuit algorithm).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the matching pursuit frequency determination of Chandran with the cross-correlation of the modified Burton because (1) it is the application of a known technique to a known method/system ready for improvement to yield predictable results; and/or (2) the TMC frequency would give an indication of the correlation between the two (high/low) wave portions; and/or (3) the matching pursuit better captures the frequency of signals with both transient and rhythmic activity (such as brain signals) compared to standard techniques.
Regarding Claims 10 and 19, Burton in view of Langevin, Väyrynen, Deutsch, and Chandran teaches the method/system of claims 9 and 18, respectively, as stated above. The modified Burton does not specifically teach displaying, using the computing device, a TMC-frequency map to the practitioner, the TMC-frequency map comprising a plurality of TMC-frequencies comprising each TMC-frequency mapped to the corresponding brain position at which the subset of brain activity measurements used to produce each TMC was obtained.
Burton further teaches mapping EEG signals to the brain at specific locations (¶[2480], ¶[2765], ¶[2836]-[2839], ¶[3292]-[3294], ¶[3394], and ¶[4166]-[4170]; Figs. 65-66).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the brain mapping of Burton with the determined frequencies of the modified Burton because (1) it is the application of a known technique to a known method/system ready for improvement to yield predictable results and/or (2) the brain map would provide an easy to comprehend visual aid to help understand the data.
Response to Arguments
Applicant’s arguments, objections to the claims
Applicant’s arguments, see pg. 8, filed May 13, 2026, with respect to the objection of claim 22 have been fully considered and are persuasive. Therefore, the objection has been withdrawn.
Applicant’s arguments, 35 U.S.C. § 112(a)
Applicant’s arguments, see pg. 8, filed May 13, 2026, with respect to the rejections of claims 21-22 under 35 U.S.C. § 112(a) have been fully considered and are persuasive. Therefore, the rejections have been withdrawn. However, upon further consideration, a new grounds of rejection are made under 35 U.S.C. § 112(a) that were necessitated by Applicant’s amendment filed on May 13, 2026.
Applicant’s arguments, 35 U.S.C. § 112(b)
Applicant’s arguments, see pg. 9, filed May 13, 2026, with respect to the rejections of claims 19 and 22 under 35 U.S.C. § 112(b) have been fully considered and are persuasive. Therefore, the rejections have been withdrawn. However, upon further consideration, a new grounds of rejection are made under 35 U.S.C. § 112(b) that were necessitated by Applicant’s amendment filed on May 13, 2026.
Applicant’s arguments, 35 U.S.C. § 101
Applicant’s arguments, see pg. 9-19, filed May 13, 2026, with respect to the rejections of claims 1-3, 5-13, and 15-22 under 35 U.S.C. § 101 have been fully considered and are NOT persuasive. The Applicant first discusses the recent board decisions of Ex Parte Carmody and Ex Parte Desjardins as claims recited technological improvements that are patent-eligible. The Applicant first argues that similarities between Desjardins, specifically that as the improvement from the specification (i.e., preserving the non-sinusoidal shape) is recited in the claims, the claims should be allowable, with such improvements described over the Hilbert transform-based phase-amplitude coupling-based methods. The examiner respectfully disagrees. The recitation in the claim is not presently recited in the specification (see above 35 U.S.C. § 112a rejection).
Furthermore, even if the improvements were recited in the specification and then reflected in the claims, such an improvement is directed towards the abstract ideas themselves. An improved abstract idea is still an abstract idea even if such an abstract idea results in more accurate results.1,2 Also, having the claims focus on determining the TMC-strength map is not itself limiting the claims to improving the technology because cases that involve practical, technological improvements extend beyond simply improving the accuracy of a prediction.3 See, e.g., McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299, 1315 (Fed. Cir. 2016) (“The claimed process uses a combined order of specific rules that renders information into a specific format that is then used and applied to create desired results: a sequence of synchronized, animated characters.”); Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1304 (Fed. Cir. 2018) (finding patent eligible a claim drawn to a behavior-based virus scan that protects against viruses that have been “cosmetically modified to avoid detection by code-matching virus scans”); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1330, 1333 (Fed. Cir. 2016) (discussing patent eligible claims directed to “an innovative logical model for a computer database” that included a self-referential table allowing for greater flexibility in configuring databases, faster searching, and more effective storage); CardioNet, LLC v. InfoBionic, Inc., 955 F.3d 1358, 1368 (Fed. Cir. 2020) (explaining that the claims at issue focus on a specific means for improving cardiac monitoring technology; they are not “directed to a result or effect that itself is the abstract idea and merely invoke generic processes and machinery” (quoting McRO, 837 F.3d at 1314)). Therefore, the improvement cannot integrate the abstract ideas into a practical application because the improvement is directed towards the abstract ideas. Therefore, Applicant’s arguments are not persuasive.
Next, Applicant argues that, similar to Desjardins, the present application describes “an extremely specific process of processing neurological signals that is similar to the specific process of training and using a machine-learning model in Desjardins…the subject matter the technical field, the claimed subject matter, and the specific technological improvement in the Instant application and Desjardins are demonstrated to be similar”. The examiner respectfully disagrees. It is not apparent from the copied claim language, which aspect is similar to Desjardins. The improvements in Desjardins provided an “improvement to machine learning technology by explaining how the machine learning model is trained to learn new tasks while protecting knowledge about previous tasks to overcome the problem of “catastrophic forgetting,” and that the claims reflected the improvement identified in the specification… allowing the system to reduce use of storage capacity; and the enablement of reduced complexity in the system” and that “[s]uch improvements were tantamount to how the machine learning model itself would function in operation and therefore not subsumed in the identified mathematical calculation” (see December 05, 2025 USPTO Memo, revised second and last paragraphs of MPEP § 2106.04(d)(1)).
The improvement in Desjardins provides multiple key distinctions as compared to the present application; primarily, the improvements in Desjardins improved the functioning of a computer (i.e., allowing the system to reduce use of storage capacity; and the enablement of reduced complexity in the system) and the improvement in Desjardins were not subsumed in the identified mathematical calculation (i.e., the identified abstract ideas). Conversely, the improvement of the claims of the present application does not improve any computer function and lie in the generation of the TMC-strength map, the improved methods of assessing measures of functional or state-specific brain regions (emphasis added). Therefore, the improvement in assessment is directed towards the filtering/extraction, normalizing, and calculating elements, which as indicated above, are the abstract ideas. Such that, in the present application as compared to Desjardins, such improvements are subsumed in the identified abstract ideas. Therefore, Applicant’s arguments are not persuasive.
Next, the Applicant argues that similarities between Enfish, specifically that “in the instant claim recitations is disclosed a process of a specific methodology of processing neuronal activity to allow for analyzing neuronal activity not being contained within a narrow frequency band, being sinusoidal, or being sustained to provide for a spectral biopsy to diagnose and characterize pathologies directly from brain activity… [t]hus the i) overall technical field of software inventions and ii) claimed technological improvements in the present application and claims are both very similar to Enfish”. The examiner respectfully disagrees.
First, it is not clear how “the i) overall technical field of software inventions and ii) claimed technological improvements in the present application and claims are both very similar to Enfish” as the improvements do not appear to be similar. Furthermore, elements that “allow for analyzing neuronal activity not being contained within a narrow frequency band” are not presently positively recited in the independent claims.
The improvements in Enfish are similar to those in Desjardins, as both improvements are positively recited in the claim and relate to improvements in the functioning of a computer. In Enfish, such improvements relate to a self-referential table allowing for greater flexibility in configuring databases, faster searching, and more effective storage (see above Enfish citation). Conversely, the improvement of the claims of the present application does not improve any computer function and lie in the generation of the TMC-strength map, the improved methods of assessing measures of functional or state-specific brain regions (emphasis added). Therefore, the improvement in assessment is directed towards the filtering/extraction, normalizing, and calculating elements, which as indicated above, are the abstract ideas. Such that, in the present application as compared to Enfish or Desjardins, such improvements are subsumed in the identified abstract ideas. Therefore, as described above, the improvement cannot integrate the abstract ideas into a practical application because the improvement is directed towards the abstract ideas. Therefore, Applicant’s arguments are not persuasive.
Next, the Applicant argues that, under Step 2A, Prong One, the claim elements cannot be practically preformed in the human mind as “performing analysis of neuronal activity in real-time involves processing massive amounts of data representing millions to billions of data points that cannot be mentally processed, compared, or analyzed by a human in real-time”. The examiner respectfully disagrees. As indicated above, the claims do not require any analysis of neuronal activity in real-time, merely, “receiving, at a computing device, a plurality of real-time brain activity measurements”. Furthermore, there is no requirement for “millions to billions of data points”, but rather, at least two would fall within the BRI of a plurality. Therefore, Applicant’s arguments are not persuasive.
Next, the Applicant argues that, under Step 2A, Prong One, the specific claim elements do not explicitly recite any mathematical concepts, and that “[a]t best, the claims recite limitations that may be based on or involve mathematical concepts, but no mathematical concepts are recited in the claim themselves”. The examiner respectfully disagrees. The claims positively recite mathematical calculations. The steps of filtering, normalizing, extracting, and calculating are positively recited elements that are themselves mathematical calculations. These steps are not merely based on mathematical concepts but are themselves mathematical calculations, positively recited in the claims. Therefore, Applicant’s arguments are not persuasive.
Next, the Applicant argues that, under Step 2A, Prong Two, similar to the above arguments in view of Desjardins and Enfish, “the present claims are not directed to merely mathematical concepts or mental processes, but instead to a specific, computer-implemented technological process that analyzes neuronal activity with technical improvements very similar to those in Desjardins and Enfish”. The examiner respectfully disagrees. As discussed above, the improvement of the claims of the present application does not improve any computer function and lie in the generation of the TMC-strength map, the improved methods of assessing measures of functional or state-specific brain regions (emphasis added). Therefore, the improvement in assessment is directed towards the filtering/extraction, normalizing, and calculating elements, which as indicated above, are the abstract ideas. Such that, in the present application as compared to Enfish or Desjardins, such improvements are subsumed in the identified abstract ideas. Therefore, as described above, the improvement cannot integrate the abstract ideas into a practical application because the improvement is directed towards the abstract ideas. Therefore, Applicant’s arguments are not persuasive.
The Applicant has also argued that “[t]he amended recitations of independent claims 1 and 11 constitute a specific implementation of machine learning, not a generic mental processes or mathematical concepts”. The examiner respectfully disagrees. The independent claims of the present application do not positively recite any implementation of machine learning. Therefore, Applicant’s arguments are not persuasive.
Next, the Applicant argues that, under Step 2B, “the claims contain an inventive concept that amounts to significantly more than any alleged judicial exception”. The examiner respectfully disagrees. The Applicant has not specified what alleged “inventive concept” amount to significantly more. As described above, the claims recite additional elements which are directed towards the performance of the abstract ideas utilizing a generic computer, and are at best the equivalent of merely adding the words “apply it” to the judicial exceptions. Mere instructions to apply an exception cannot provide an inventive concept. These elements/steps can be seen as well-understood, routine, and conventional individually and in combination. Claims 1 and 11 merely recite a computing device (i.e., a generic computer, including the at least one processor and generic display/output) for performing the abstract ideas. Thus the method/system (the generic computer) does not qualify as significantly more because these limitations are simply appending well-understood, routine and conventional activities previously known in the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well- understood, routine and conventional activities previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014)) and/or a claim to an abstract idea requiring no more than being stored on a computer readable medium which is a well-understood, routine and conventional activity previously known in the industry (see Electric Power Group, 830 F.3d 1350 (Fed. Cir. 2016); Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (2014); SAP Am. v. InvestPic, 890 F.3d 1016 (Fed. Circ. 2018)).
Looking at the limitations as an ordered combination (that is, as a whole) adds nothing that is not already present when looking at the elements taking individually. There is no indication that the combination of elements improves the functioning of a computer, for example, or improves any other technology. There is no indication that the combination of elements permits automation of specific tasks that previously could not be automated. There is no indication that the combination of elements includes a particular solution to a computer-based problem or a particular way to achieve a desired computer-based outcome. Rather, the collective functions of the claimed invention merely provide conventional computer implementation, i.e., the computer is simply a tool to perform the process. Therefore, Applicant’s arguments are not persuasive.
The Applicant’s arguments with regard to 35 U.S.C. § 101 are not persuasive and the rejections to the claims under 35 U.S.C. § 101 are maintained.
Applicant’s arguments, 35 U.S.C. § 103
Applicant’s arguments, see pg. 19-25, filed May 13, 2026, with respect to the rejections of claims 1-3, 5-13, and 15-22 under 35 U.S.C. § 103 have been fully considered and are NOT persuasive. Applicant argues the combination of Burton in view of Langevin and Väyrynen does not teach the claims as amended, specifically the non-sinusoidal shape and the display temporal and non-phase estimation based cross-correlation. The examiner respectfully disagrees. As explained above, with regard to shape preservation, the claim recites that “the filtering preserves a non-sinusoidal shape and amplitude of the WBLF signals”. While Burton indicates that such features would be preserved, so that the extraction of phase and amplitude properties may occur, the definition of filtering also indicates as such. Filtering may generally be defined as the removal of some unwanted features (i.e., frequency bands) from the signal, while retaining desired features, which would necessarily retain the shape and amplitude within the desired frequency range. See for example Kynix, “Filter (Signal Processing) Basics in Electronics”, published 2019-12-06, accessed on 03/20/2026, accessed at https://www.kynix.com/Blog/Filter-Signal-Processing.html#%E2%85%B0-filter-definition, § I. Filter Definition. See also Bolic, “Pervasive Cardiovascular and Respiratory Monitoring Devices”, chapter “Overview of biomedical instrumentation and devices”, Academic Press, 2023, § 3.1.2 Signals and systems – cited in prior action. See further Ducard, “Signals and Systems, Lecture 7: Introduction to Filtering”, Institute for Dynamic Systems and Control, Fall 2018, Slide 3, Definition: filtering – cited in prior action.
Alternatively and/or additionally, Burton does not specifically teach the type of filter utilized.
Langevin teaches compositions and methods for detecting and modulating oscillatory patterns within the BLA for anxiety disorders (see abstract), in which a FIR low pass filter is utilized to extract low-frequency oscillations, such as the theta oscillations, and a FIR band pass filter is utilized to extract gamma oscillations (see ¶[0118]-[0121]). Note that the specification of the present application indicates that FIR filters are utilized (see specification pg. 12 ln. 32 – pg. 13 ln. 29), which would necessarily preserve the claimed elements, including the non-sinusoidal shape and amplitude.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the FIR filter of Langevin for filtering the frequency bands in Burton because (1) it is the application of a known technique to a known method/system ready for improvement to yield predictable results; and/or (2) Burton requires the usage of a filter to extract the frequency bands of interest and Langevin teaches one such frequency extraction filter; and/or (3) FIR filters have benefits including linear phase, stability, and shape preservation in the pass band (see for example “FIR Filter Design”, MATLAB, https://www.mathworks.com/help/signal/ug/fir-filter-design.html, November 10, 2018, accessed via WayBack Machine at https://web.archive.org/web/20181110204347/https://www.mathworks.com/help/signal/ug/fir-filter-design.html, accessed on March 20, 2026, § FIR vs. IIR Filters and § Linear Phase Filters).
With regard to Applicant’s argument related to the display temporal and non-phase estimation based cross-correlation, as explained above, there are inconsistencies with this recitation, and for the purposes of examination, this claim element is interpreted so as to not limit the subject matter of the claim. Therefore, Applicant’s arguments are not persuasive.
The Applicant’s arguments with regard to 35 U.S.C. § 103 are not persuasive and the rejections to the claims under 35 U.S.C. § 103 are maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN D. MORONESO whose telephone number is (571)272-8055. The examiner can normally be reached M-F: 8:30AM - 6:00 PM, MST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JENNIFER M. ROBERTSON can be reached at (571)272-5001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.D.M./Examiner, Art Unit 3791
/JENNIFER ROBERTSON/Supervisory Patent Examiner, Art Unit 3791
1 “[T]he improvement in computational accuracy alleged here does not qualify as an improvement to a technological
process; rather, it is merely an enhancement to the abstract mathematical calculation of haplotype phase itself...The
different use of a mathematical calculation, even one that yields different or better results, does not render patent
eligible subject matter.” In re Board of Trustees of Leland Stanford Junior University, 991 F.3d 1245 (Fed. Cir.
2021).
2 “[A] claim for a new abstract idea is still an abstract idea.” Synopsys, Inc. v. Mentor Graphics Corp, 839 F.3d 1138
(Fec. Cir. 2016).
3 See In re Board of Trustees of Leland Stanford Junior University, 991 F.3d 1245 (Fed. Cir. 2021).
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