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 .
Status of Claims
Claims 20-32, 45 are pending. Claims 1-19, 33-37 remain canceled. Claims 38-44 are withdrawn from consideration. Claims 20-22, 27-31 are amended. Claims 45 is new.
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 20-32, 45 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) converting the obtained EEG waveform into a spectrogram; grouping spectrograms corresponding to channels into a group aggregating the spectrograms into a median power spectrogram (MPS) for the group; and determining whether the subject has a seizure using a ML model created from a plurality of snapshot images of spectrograms from a plurality of patients and the MPS. The abstract idea is part of the Mathematical Concepts group(s) identified in the Ninth Edition, Revision 10.2019 (revised June 2020) of the Manual of Patent Examination Procedure (MPEP). This judicial exception is not integrated into a practical application because they amount to simply implementing the abstract idea on a computer; data-gathering steps do not add a meaningful limitation to the method as they are insignificant extra-solution activity; there is no improvement to a computer or other technology; does not apply the abstract idea to effect a particular treatment or prophylaxis for a disease or medical condition; does not apply the abstract idea with, or by use of, a particular machine. The additional elements are identified as follows: a plurality of EEG channels, where a channel comprises any pair-wise combination of EEG electrodes. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements, when considered both individually and as a whole, do not amount to significantly more than the abstract idea. The additional computer and data-gathering elements, which are recited at a high level of generality, provide conventional computer and data-gathering functions that do not add meaningful limitations to practicing the abstract idea.
Those in the relevant field of art would recognize the above-identified additional elements as being well-understood, routine, and conventional means for data-gathering and computing, as demonstrated by non-patent literature of record in the application (See, for example, Yan et al Evaluation of a novel median power spectrogram for seizure detection by non-neurophysiologists; Seizure 50 (2017) 109–117). Thus, the claimed additional elements “are so well-known that they do not need to be described in detail in a patent application to satisfy 35 U.S.C. § 112(a).” Berkheimer Memorandum, III. A. 3.
When considered in combination, the additional elements (generic computer functions and conventional equipment/steps) do not amount to significantly more than the abstract idea. The Federal Circuit has held that combining additional elements for data-gathering with abstract ideas does not make a claim patent-eligible. Looking at the claim limitations 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 or improves any other technology. Their collective functions merely provide conventional computer implementation.
Regarding the dependent claims, the dependent claims are directed to either 1) steps that are also abstract or 2) additional data gathering that is well-understood, routine and previously known to the industry. Although the dependent claims are further limiting, they do not recite significantly more than the abstract idea. A narrow abstract idea is still an abstract idea and an abstract idea with additional well-known data-gathering equipment/functions is not significantly more than the abstract idea.
Response to Arguments and Amendments
Regarding 101 Rejections, Applicant argues that the claims do not recite a mathematical concept. Examiner disagrees. The limitations “converting the obtained EEG waveform into a spectrogram; grouping spectrograms corresponding to channels into a group aggregating the spectrograms into a median power spectrogram (MPS) for the group; and determining whether the subject has a seizure using a model created from a plurality of snapshot images of spectrograms from a plurality of patients and the MPS” is a mathematical concept involving mathematical equations. Applicant argues that “While a machine learning model may involve "math", the claimed determination based on the ML model created from a plurality of MPS snapshot images from a plurality of patients (and the MPS) is not a mathematical concept.” Examiner disagrees. It is inherent that an ML model’s determination is mased on math.
Applicant further argues that that claims is integrated into a practical application of improving seizure detection. “To show that the involvement of a computer assists in improving the technology, the claims must recite the details regarding how a computer aids the method, the extent to which the computer aids the method, or the significance of a computer to the performance of the method. Merely adding generic computer components to perform the method is not sufficient. Thus, the claim must include more than mere instructions to perform the method on a generic component or machinery to qualify as an improvement to an existing technology.” MPEP 2106.05(a)II
However, the claims do not recite the details of a computer that aids in the steps of claims. Referring to the specification, the determining and generating encompass a mathematical algorithm that is utilized to compute a mathematical relationship. A computer to perform these calculations is not sufficient to establish a technological improvement.
Applicant argues that claim 22 does not claim an abstract idea. Examiner notes that Claim 22 is ultimately dependent on Claim 20. The additional limitations of Claim 22 do not provide significantly more.
Regarding 103 Rejections, Applicant’s arguments have been fully considered. The rejection is withdrawn.
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 JAY B SHAH whose telephone number is (571)272-0686. The examiner can normally be reached M-F 8-5.
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JAY SHAH
Primary Examiner
Art Unit 3791
/JAY B SHAH/ Primary Examiner, Art Unit 3791
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