DETAILED ACTION
This application is being examined under AIA first-to-file provisions.
Status of claims
Canceled:
none
Pending:
1-10
Withdrawn:
none
Examined:
1-10
Independent:
1
Allowable:
none
Rejections applied
Abbreviations
x
112/b Indefiniteness
PHOSITA
"a Person Having Ordinary Skill In The Art before the effective filing date of the claimed invention"
x
112/b "Means for"
BRI
Broadest Reasonable Interpretation
x
112/a Enablement,
Written description
CRM
"Computer-Readable Media" and equivalent language
112 Other
IDS
Information Disclosure Statement
102, 103
JE
Judicial Exception
x
101 JE(s)
112/a
35 USC 112(a) and similarly for 112/b, etc.
101 Other
N:N
page:line
Double Patenting
MM/DD/YYYY
date format
Priority
As detailed on the 3/30/2022 filing receipt, this application was filed 3/24/2022, and there is no claim to earlier priority.
Specification objections
In all instances, when appropriate relative to amendments addressing the below objections and 112/b rejections, the specification also should be amended.
Claim objections
Claims 1-10 are objected to because of the following informalities. Appropriate correction is required. In each objection the claims are definite with respect to the issues cited here because interpretation would have been sufficiently clear to PHOSITA, but nonetheless the claims are objected to for consistency among the claims or as otherwise indicated. With regard to any suggested amendment below to overcome an objection, in the subsequent examination it is assumed that each amendment is made. However, equivalent amendments also would be acceptable. Any amendments in response to the following objections should be applied throughout the claims, as appropriate.
The following issues are objected to:
Claim
Recitation
Comment
1
An AI test...
AI processing...
The preamble recites "AI...," and the "processing unit" recites intended use "for performing AI processing," but the claim recites no clear "AI" steps or elements.
1
for psychology preference...
...as a result, various tendencies...
The preamble recites the objective of "preference," but the claim finishes by reciting "tendencies."
1
a helmet for detection of brainwaves of testers; the helmet
The use of a semi-colon here is improper at least because what follows is not a grammatically independent clause. Instead, a comma would be appropriate here. This same issue occurs in multiple instances throughout the claims and must be corrected throughout the claims.
1
the processing unit comprising:
a processing end transceiver...;
a test and analyzing unit...; and
a brainwave module...
Each sub-element of the "processing unit" should be further indented so as to distinguish this list from the main list of claim elements.
1-10
In all claims reciting multiple process steps or multiple major claim elements, each element or step of the claim should be separated by a line indentation. (608.01(m) Form of Claims pertains.) For example, see claim 4, in which each semi-colon-separated step/element should begin on a new line, and all claims should be formatted similarly in this regard.
6
...items, that includes:...
Improper subject-verb agreement, should read: "...items, that include[[s]]:..."
6
Olfaction test...
(i) Each instance of "test" requires a grammatical article to precede it, e.g. "a".
(ii) In each instance, the adjective describing the test, e.g. "Olfaction," should not be capitalized. The same issue occurs with "Mindfulness" (claim 7) and "Human" (claims 8 and 10).
1-10
pre-test and formal test
In claim 5, "formal test" is recited without a hyphen. Both "pre-test" and "formal-test" should be recited consistently throughout the claims either with or without hyphenation.
Claim rejections - 112/b
The following is a quotation of 35 USC 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.
Claims 1-10 are rejected under 112/b, as indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. Claims depending from rejected claims are rejected similarly, unless otherwise noted, and any amendments in response to the following rejections should be applied throughout the claims, as appropriate. With regard to any suggested amendment below, for claim interpretation during the present examination it is assumed that each amendment suggested here is made. However equivalent amendments also would be acceptable.
The following issues cause the respective claims to be rejected under 112/b as indefinite:
Claim
Recitation
Comment (suggestions in bold)
1
signally
The recitation is inconsistent with ordinary usage of the term. The claim is not interpretable.
1
the brainwave receiver
The recitation requires but lacks clear antecedent.
1
a test and analyzing unit...
by using big data technologies
Claim 1 is indefinite under 112/b after invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "test and analyzing") without specifying steps or structure to prevent invoking, and it is not clear that the specification discloses sufficient structure, material, or acts rather than just function and results (e.g. 5:6-15), noting that any disclosure must be clearly linked to the invoking recitation and that the above citation to the specification does not clearly disclose structure sufficient to satisfy 112/b. Also, it is not clear that the recited "...using big data technologies" would have provided PHOSITA with adequate description of the structure of the "unit." While inputs and/or outputs are disclosed, there is not clear disclosure of analysis required to proceed from inputs to outputs. MPEP 2181 pertains, and MPEP 2187, FP 7.34.23 lists options for overcoming the rejection. MPEP 2161.01.I "Determining Whether There Is Adequate Written Description For A Computer-Implemented Functional Claim Limitation" also pertains.
1, 7-10
a test and analyzing unit...
by using big data technologies
In claim 1, in the recited "...using big data technologies," the recited "big data" is a term of relative or vague degree or form of association, neither defined in the specification ([5:11]) nor having a well-known and sufficiently particular definition in the art and in the instant context. (MPEP 2173.05(b) pertains.) Claims 7-10 are rejected similarly.
1
common
The recited "common" is a term of relative or vague degree or form of association, neither defined in the specification ([5:11]) nor having a well-known and sufficiently particular definition in the art and in the instant context. (MPEP 2173.05(b) pertains.)
1
a brainwave feature standard module
Indefinite under 112/b after invoking 112/f. Recites means (or an equivalent, nonce term, here "module") and function and/or result (here "brainwave contrast") without specifying steps or structure to prevent invoking, and it is not clear that the specification discloses sufficient structure, material, or acts rather than just function and results (e.g. 5:12), noting that any disclosure must be clearly linked to the invoking recitation and that the above citation to the specification does not clearly disclose structure sufficient to satisfy 112/b. MPEP 2181 pertains, and MPEP 2187, FP 7.34.23 lists options for overcoming the rejection. MPEP 2161.01.I "Determining Whether There Is Adequate Written Description For A Computer-Implemented Functional Claim Limitation" also pertains.
1
a brainwave contrast module
Indefinite under 112/b after invoking 112/f. Recites means (or an equivalent, nonce term, here "module") and function and/or result (here "brainwave contrast") without specifying steps or structure to prevent invoking, and it is not clear that the specification discloses sufficient structure, material, or acts rather than just function and results (e.g. 5:16-20), noting that any disclosure must be clearly linked to the invoking recitation and that the above citation to the specification does not clearly disclose structure sufficient to satisfy 112/b. While inputs and/or outputs are disclosed, there is not clear disclosure of analysis required to proceed from inputs to outputs. MPEP 2181 pertains, and MPEP 2187, FP 7.34.23 lists options for overcoming the rejection. MPEP 2161.01.I "Determining Whether There Is Adequate Written Description For A Computer-Implemented Functional Claim Limitation" also pertains.
1, 3-4, 6-7, 9-10
tester
In claim 1, the recited "another tester" and "the tester" (two instances) is lack clear antecedent basis at least because all previous recitations were "testers" plural. Claims 3-4, 6-7 and 9-10 are rejected similarly. In claim 10, the relationship is unclear between the claim 10 newly instantiated "a tester" and previous recitations in claim 1.
1
various tendencies
First, the relationship of "tendencies" to the rest of the claim is unclear, and a related written description rejection is applied below.
Second, the recited "various" is a term of relative or vague degree or form of association, neither defined in the specification ([5:11]) nor having a well-known and sufficiently particular definition in the art and in the instant context. (MPEP 2173.05(b) pertains.)
3
a test unit performing tests to testers...
the pre-test means to receive the brainwaves of the tester before the tester does not give any object for testing...
Each clause is not clearly interpretable. The recited "...performing tests to..." is inconsistent with ordinary usage.
3
...and formal-test;...
Missing grammatical article
3
...; the test...
The recitation requires but lacks clear antecedent at least because there is a previous recitation of "a test unit," but there is not previous recitation of "a test."
3
...; the pre-test...
The recitation requires but lacks clear antecedent at least because the previous recitation of "tests" was plural.
3
the tester
The recitation requires but lacks clear antecedent at least because there is a previous recitation of "testers" plural, but there is not previous recitation of "tester" singular.
3
...to the tester, then receiving...
The relationship is unclear between this "then..." clause and the rest of the claim. Possibly a conjunction, such as "and," is needed before "then."
3
a brainwave feature analyzing unit
Indefinite under 112/b after invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "brainwave feature analyzing") without specifying steps or structure to prevent invoking, and it is not clear that the specification discloses sufficient structure, material, or acts rather than just function and results (e.g. 6:1-24), noting that any disclosure must be clearly linked to the invoking recitation and that the above citation to the specification does not clearly disclose structure sufficient to satisfy 112/b. While inputs and/or outputs are disclosed, there is not clear disclosure of analysis required to proceed from inputs to outputs. MPEP 2181 pertains, and MPEP 2187, FP 7.34.23 lists options for overcoming the rejection. MPEP 2161.01.I "Determining Whether There Is Adequate Written Description For A Computer-Implemented Functional Claim Limitation" also pertains.
3
brainwave signals...
response...
The relationships are unclear between these newly recited "brainwave signals" and "response" versus the previously recited "brainwaves."
3
the pre-test means to receive...
and the formal-test means...
The recited "means" is a term of art in U.S. patent law, and the term does not appear to be used here consistent with that ordinary usage in U.S. patent law. If the intention here is to provide a definition of the preceding terms, then better terminology would be, for example, "the pre-test comprises..."
4
the preferences...
Requires but lacks clear antecedent at least because previously recited instances are singular or are plural.
4
it being classified...
The antecedent of the pronoun "it" is unclear.
4
...wherein the method
Requires back lacks clear antecedent.
4
the tester is tested by sensing the testing objects
Not interpretable, and possibly "by" should read "when" or "while."
4
...some sections of the brainwaves existing continuous variations, that is...
Not interpretable, grammatical fragment or grammatically incomplete clause
4
...that is:...
There are two instances in claim 4, and in each instance the relationship is unclear between the subsequent recitation and the rest of the claim. For example, it is unclear whether the subsequent recitation is in addition to or replaces other steps of the claim.
4
that is: increase or decrease along the same direction, being considered to be the features
about the preference of the tester.
Not clearly interpretable
4
responses of the testers
The relationship is unclear between this instance and that recited in claim 3.
4
the responses are the preferences of the objects
Not interpretable. Possibly "objects" should read "testers."
4
..., that is: the testers like...; it being...; then the...
The grammatical construction of the claim is unclear. The relationships are unclear among the recited verbs and process steps.
4, 6-8
...; ...; ...;
In claim 4, the claim recites a list of semi-colon-separated elements or steps. However, no conjunction is included between the penultimate and ultimate elements or steps such that the relationship among the elements or steps, e.g. "and" vs. "or," is unclear. Claims 6-8 are rejected similarly.
5
brainwaves includes
Subject-verb agreement
5
from pre-test and formal test
Missing grammatical articles
5
..., and brainwave under
mindfulness
Not clearly interpretable
5
mindfulness
It is unclear what the recitation requires at least because the meaning of the term is unclear. A related written description rejection applies below. The recitation is a term of relative or vague degree or form of association, neither defined in the specification ([5:11]) nor having a well-known and sufficiently particular definition in the art and in the instant context. (MPEP 2173.05(b) pertains.)
5
...; the test and analyzing unit determines these brainwaves to
acquire features
The recited "these" requires but lacks clear antecedent. It is unclear which "brainwaves" are referenced.
6, 10
tasteful
Claim 6 is not interpretable at least because "tasteful" is not recited consistently with its ordinary usage. Also, in its ordinary usage, "tasteful" is a term of relative or vague degree or form of association, neither defined in the specification ([5:11]) nor having a well-known and sufficiently particular definition in the art and in the instant context. (MPEP 2173.05(b) pertains.) Claim 10 is rejected similarly.
6
Touch sense test using a plurality of objects as test objects
(i) It is not clear how the recitation further limits the claim.
(ii) As recited, the scope of this instance of "objects" for the "Touch sense test" appears to include, for example, "voices," which appear incompatible with the recited purpose.
6
professional
The recited "professional" is a term of relative or vague degree or form of association, neither defined in the specification ([5:11]) nor having a well-known and sufficiently particular definition in the art and in the instant context. (MPEP 2173.05(b) pertains.)
6
Communication test being executed by a test set of two personas; they perform the tests of viewing each other silently, talking to each other and talking with handcrafts
(i) This recitation is uninterpretable at least due to any one of the bolded terms. The relationships are unclear between the ordinary usage of the bolded terms and the rest of the claim.
(ii) The relationship is unclear between the recited "Communication test" singular and "...perform the tests" plural.
7
...wherein a Mindfulness estimation is performed...
The relationship is unclear between this recitation and claim 1 at least because (i) this recitation is a process step but claim 1 is a machine/manufacture and (ii) generally it is not clear where in claim 1 this recitation should occur.
7
...no pre-test is performed, just the formal test is performed...
The relationship is unclear between this recitation and claim 1 at least because claim 1 recites neither a "pre-test" nor a "formal test." Relatedly, "the formal test" lacks antecedent basis.
7
...the tester is in a state of mindfulness, i.e., in a state that no any ideal appears in the mind
Not interpretable at least because:
(i) "mindfulness" is a term of relative or vague degree or form of association, neither defined in the specification ([5:11]) nor having a well-known and sufficiently particular definition in the art and in the instant context. (MPEP 2173.05(b) pertains.) A related written description rejection is applied below.
(ii) The recited "no any ideal appears" is grammatically incorrect.
(iii) The recited "ideal" is a term of relative or vague degree or form of association, neither defined in the specification ([5:11]) nor having a well-known and sufficiently particular definition in the art and in the instant context. (MPEP 2173.05(b) pertains.)
(iv) Relatedly, the subsequently recited "brainwaves in mindfulness" also appears grammatically flawed and possibly should read "brainwaves during mindfulness."
(v) Relatedly, the subsequently recited "those in normal state" also appears grammatically flawed at least because it appears that a grammatical article is required as for example "a normal state."
(vi) Relatedly, the subsequently recited "by this way" is not ordinary English and possible should read "in this way."
8
wherein a Human characters for human resources is executed, in pre-test, data about specific classes are read and in formal-test, mindfulness is tested; the brainwaves for pre-test and formal-test are executed for big data analysis; various sections of the brainwaves are analyzed for acquiring human characters of the testers which are used in human resources.
Not interpretable and therefore indefinite under 112/b, and a written description rejection is applied below.
Also, the recited "a Human characters" is grammatically incorrect at least as to its use of grammatical articles.
Also, it appears that a new independent clause may begin at "...and in..." such that this "and" should be preceded by a comma to start the independent clause, and another comma is needed after the "and" in order to set off the phrase "in formal-test."
Also, it is not clear why here "formal-test" is hyphenated but not elsewhere. The recitations should be consistent.
Similarly, the remainder of claim 8 is uninterpretable, after "mindfulness is tested..."
9
wherein a potential estimation is performed, in pre-test, data about specific classes are read and in formal-test, mindfulness is tested;
Uninterpretable at least because the recitation appears to include two or three independent clauses without proper punctuation.
9
the brainwaves for pre-test and formal-test are executed for big data analysis
Uninterpretable at least because it is unclear why the verb "are executed" applies to "brainwaves" as opposed to "analysis." It is unclear what it means to "execute" a "brainwave." Also, a related written description rejection is applied below.
10
wherein a Human sensibility and estimation of thought are acquired
The grammatical article "a" does not agree with the verb "are acquired."
10
in that, no pre-test is performed, in formal-test, tests about...
Uninterpretable at least because the meaning of "in that" as used in this instance is unclear as is its relationship to the rest of the claim.
Also, there appear to be two or more independent clauses without proper punctuation distinguishing them.
10
olfaction, visual, taste, hearing, touch, and thought of brain
The list recites both nouns and adjectives, rendering the list uninterpretable and the claim indefinite. Possibly "visual" should read "vision."
10
thought of brain
Uninterpretable
10
by such as sensing...
Uninterpretable
10
sensing tasteful objects, plots and videos, foods, music, touching
of objects, learning of professional classes
The list recites both elements (nouns) and steps (verbs), and more generally the relationships are inconsistent and unclear between the recited "sensing" and the elements and steps of the list.
rendering the list uninterpretable and the claim indefinite. Possibly "visual" should read "vision."
10
and communication with others
The relationship is unclear between this recitation and the rest of the claim.
10
and big data analysis is performed for acquiring a module to determine emotion and logics of a tester.
Uninterpretable at least because interpretation of the recited "for acquiring a module" is unclear.
Also, the recited "logics" is itself uninterpretable.
Claim rejections - 112/a
The following is a quotation of 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.
Regarding issues of written description support stemming even from the original claims and original disclosure, MPEP 2161.01.I (e.g. 6th para.), 2163.I and 2163.I.A pertain: "[O]riginal claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed" (MPEP 2161.01.I,6th para.).
Written description
Claims 1-10 are rejected under 112/a as failing to comply with the written description requirement. The claims read on subject matter which is not described in the specification in such a way as to reasonably convey to PHOSITA that the inventors, at the time the application was filed, had possession of the claimed invention. Claims depending from rejected claims are rejected similarly, unless otherwise noted. With regard to any suggested amendment(s) below to overcome a rejection, equivalent amendments also would be acceptable.
Claim 1 recites "...for performing AI processing..." The specification discloses "...for performing AI (artificial intelligent) processing...," (4:25), but it is not clear that the recited "...for performing AI processing..." would have provided PHOSITA with adequate description to perform such processing.
Claim 1 recites "...a test and analyzing unit..." The specification discloses "...analyzes
the brainwaves by using big data technologies," (5:6-15), but it is not clear that the recited "...using big data technologies" would have provided PHOSITA with adequate description of the structure of the "unit." The written description provided is not clearly commensurate with the recited "test and analyzing."
Claim 1 recites "...using big data technologies..." The specification discloses "...using big data technologies," (5:8; 8:13, 19 and 27; 9:12), but it is not clear that the recited "...using big data technologies" would have provided PHOSITA with adequate description as to what is required or how to proceed. Claims 7-10 are rejected similarly. Additionally, in claim 7, the recited "furthermore big data analysis is applied to calculate concentration, tightness, and strengths of various sections of the brainwaves to acquire reports about the mindfulness" similarly lacks clear written description support as to how PHOSITA is to proceed.
Claim 1 recites "...a brainwave contrast module..." The specification discloses "...analyzes
the brainwaves by using big data technologies," (5:16-20), but it is not clear that the disclosure would have provided PHOSITA with adequate description of the structure of the "module," in particular as to how the module accomplishes contrasting of brainwaves.
Claim 1 recites "...as a result, various tendencies of the tester can be known...." The specification discloses "...analyzes the brainwaves by using big data technologies," (5:20; 7:25-8:2), but it is not clear that the disclosure would have provided PHOSITA with adequate description to determine the recited "tendencies."
Claims 5 and 7-9 recite "...mindfulness..." The specification discloses "...1. Mindfulness estimation..." (8:6-16), but it is not clear that the disclosure would have provided PHOSITA with an adequate meaning of the term in the recited context, in particular as to what recitation of the term requires.
Claim 8 recites "...wherein a Human characters for human resources is executed..." The specification discloses "...Human characters for human resources..." (8:16-23), but it is not clear that the disclosure would have provided PHOSITA with an adequate meaning of the term in the recited context, in particular as to what recitation of the term requires and how PHOSITA is to proceed.
MPEP 2161.01.I "Determining Whether There Is Adequate Written Description For A Computer-Implemented Functional Claim Limitation" also pertains.
As appropriate, these rejections may be overcome, for example, (i) by narrowing to clearly supported embodiments and/or (ii) by clarifying on the record where support can be found and how that support relates to the recitations.
In general, it is requested that any claim amendment in this regard be accompanied by citations to support in the original disclosure.
MPEP 2163 generally pertains.
Claim interpretations
The following claim interpretations apply to all instances of the following terms throughout all claims:
Claim
Recitation
Comment
1-10
...a helmet for detection of brainwaves of testers; ....
the brainwave detector for transmitting brainwaves from the brainwave detector
In for example claim 1, recitations beginning with "for...," "to...," "so as to...," etc. are interpreted as intended use not clearly limiting the instantly claimed inventions. Such recitations occur throughout the claims.
Claim rejections - 35 USC 103
In the event the determination of the status of the application as subject to AIA 35 USC 102 and 103 is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 USC 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 of this title, 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.
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 USC 102(b)(2)(C) for any potential 35 USC 102(a)(2) prior art against the later invention.
Claims 1-6
Claims 1-6 are rejected under 35 USC 103 as unpatentable over Amores (as cited on the attached "Notice of References Cited" form 892) in view of Samarnggoon (on the attached "Notice of References Cited" form 892).
Regarding claim 1, the recited helmet and processing element read on "wearable EEG," (Amores: title; and entire document).
Amores does not teach radio communication, but Samarnggoon does as "wireless headset," (Samarnggoon: §2.1.3.2; and entire document).
The recited analysis reads on "computed the Relax score in real-time" (Amores: §IV.B; Fig. 4; and entire document).
Regarding claim 2, the claim reads on the longitudinal analysis of Amores "Evaluation" (Amores: §IV; and entire document), including the seven gradations of the "Relax" scale.
Regarding claims 3 and 5, the recited pre- and formal- testing read on "Neutral" and "VR, Scent, Audio" phase (Amores: §IV; and entire document).
Regarding claim 4, the recited like and unlike read on a "questionnaire" (Amores: §IV; and entire document).
Regarding claim 6, the recited "Olfaction," "Visual," and "Hearing" read on "Eessence olfactory necklace" and "Samsung Gear VR headset" (Amores: §IV; and entire document). The recited "Taste" reads on "tasting" (Samarnggoon: §2.5.5.1; and entire document). The recited "Touch" reads on "touching" (Samarnggoon: Appendix J, attached "Real time Virtual Simulation of an Underactuated Pendulum-Driven Capsule System," p. 569; and entire document).
Combining Amores and Samarnggoon
In the absence of a secondary consideration to the contrary, it would have been prima facie obvious for PHOSITA to modify the EEG teaching of Amores using the related teaching of Samarnggoon. As motivation to combine, an advantage taught by Samarnggoon of modifying methods such as those of Amores would have been the teaching of Samarnggoon that "The advancement in headset technologies makes the EEG monitoring processes easier and more comfortable especially for patients" (§2.1.3.2). Thus, PHOSITA would have been motivated to modify Amores using the above techniques of Samarnggoon in order to achieve the above advantage. One would have had a reasonable expectation of success in doing so because Amores and Samarnggoon are generally drawn to related teaching, and PHOSITA would have understood how to and would have been motivated to apply the teaching of Samarnggoon to the related teaching of Amores.
Claims Not in Condition for Complete Examination
At this point in examination, considering the art of record and the art in the search results, no art rejection applies to claims 7-10. However, the present claims raise interpretation issues as detailed in the above 112 rejections, and it presently is not possible to fully examine the claims with respect to 102 and 103 (MPEP 2173.06.II, 2nd para., 2nd approach). Where there is a great deal of confusion and uncertainty as to the interpretation of a claim, it is not proper to reject the claim over prior art. An art rejection should not be based on excessive speculation as to the meaning of terms nor excessive assumptions as to claim scope.
Claim rejections - 101
35 USC 101 reads:
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.
For each rejection below, dependent claims are rejected similarly as not remedying the rejection, unless otherwise noted.
Judicial exceptions (JE) to 101 patentability
Claims 1-10 are rejected under 35 USC 101 because the claimed inventions are not directed to patent eligible subject matter. After consideration of relevant factors with respect to each claim as a whole, each claim is directed to one or more JEs (i.e. an abstract idea, a natural phenomenon, a law of nature and/or a product of nature), as identified below. Any elements or combination of elements beyond the JE(s) (i.e. "additional elements") are conventional and do not constitute significantly more than the JE(s). Thus, no claim includes additional elements amounting to significantly more than the JE(s), as explained below.
In Alice, citing Mayo and Bilski, two Mayo/Alice questions determine eligibility under 101: First, is a claim directed to a JE? And second, if so, does the claim recite significantly more than the JE?
MPEP 2106 organizes JE analysis into Steps 1, 2A (1st & 2nd prongs) and 2B as follows below.
MPEP 2106 and the following USPTO website provide further explanation and case law citations: www.uspto.gov/patent/laws-and-regulations/examination-policy/examination-guidance-and-training-materials.
Step 1: Are the claims directed to a process, machine, manufacture, or composition of matter? -- MPEP 2106.I and 2106.03
[Step 1: claim 1: YES]
Step 2A, 1st prong: Do the claims recite a judicially recognized exception, i.e. a law of nature, a natural phenomenon, or an abstract idea? -- abstract idea -- MPEP 2106.I and 2106.04
Preliminarily, in a 1st prong of Step 2A, elements of independent claim 1 are interpreted as directed to the abstract idea of determining psychological preference including the JE elements of "...analyzes the brainwaves by using big data technologies...," "...for contrasting...," each of which, including all recitation within each listed element, in at least some embodiments within a BRI, involves only manipulation of data. While manipulation of data is not per se directed to an abstract idea, in this instance the above-identified elements are directed to the abstract ideas identified below.
BRIs of the claims are analogous to an abstract idea in the form of at least a mental process, at least equivalent to a computer-implemented process, including obtaining and comparing intangible data (e.g. Cybersource, Synopsys and Electric Power Group). In a BRI, it is not clear that the claim embodiments are limited so as to require complexity precluding analogy to a mental process.
As in Alice (at 306, as cited in the MPEP above) and Bilski (as cited in Alice, id), an abstract idea may comprise multiple abstract elements or steps (i.e. from Alice: "a series of steps" at 306) and need not be a single equation, relationship or principle.
It is not clear that the identified elements must represent other than an abstract idea according to any relevant analysis or case law.
[Step 2A, 1st prong, abstract idea: claim 1: YES]
Step 2A, 2nd prong: If the claims recite a judicial exception under the 1st prong, then is the judicial exception integrated into a practical application? -- MPEP 2106.I and 2106.04(d)
MPEP 2106.04(d).I lists the following example considerations for evaluating whether a judicial exception is integrated into a practical application:
An improvement in the functioning of a computer or an improvement to other technology or another technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception, as discussed in MPEP § 2106.05(e).
In Step 2A, 1st prong above, claim steps and/or elements were identified as part of one or more judicial exceptions (JEs).
In Step 2B below, any remaining steps and/or elements are therefore in addition to the identified JE(s). Any such additional steps and additional elements are further discussed in Step 2B.
Here in Step 2A, 2nd prong, no additional step or element clearly demonstrates integration of the JE(s) into a practical application.
At this point in examination it is not yet the case that any of the Step 2A, 2nd prong considerations enumerated above clearly demonstrates integration of the identified JE(s) into a practical application. Referring to the considerations above, none of 1. an improvement, 2. treatment, 3. a particular machine or 4. a transformation is clear in the record.
For example, regarding the first consideration at MPEP 2106.04(d)(1), the record, including for example the specification, does not yet clearly disclose an explanation of improvement over the previous state of the technology field. The claims do not yet clearly result in such an improvement (e.g. specification: 9:9-20).
[Step 2A, 2nd prong: claim 1: NO]
Step 2B: Do the claims recite a non-conventional arrangement of additional elements in addition to the identified JEs? -- MPEP 2106.I and 2106.05
Addressing the second Mayo/Alice question, all elements of claim 1 are part of one or more identified JEs (as described above), except for elements identified here as conventional elements in addition to the above judicial exceptions:
The recited "helmet" and "processing unit" are conventional elements of a laboratory and/or computing environment and/or conventional data gathering/input elements, as exemplified in MPEP 2106.05(d).II and 2106.05(f-g) and by Amores (as cited on the attached "Notice of References Cited" form 892) and Samarnggoon (on the attached "Notice of References Cited" form 892), and generally it is understood that the examples in the reference are well-known and routine.
It is emphasized that, outside of an improvement argument, analysis of what is conventional generally pertains to the above-identified additional elements and not to elements identified as part of a JE.
[Step 2B: claim 1: NO]
Summary and conclusion regarding claim 1
Summing up the above analysis of claim 1, each viewed as a whole and considering all elements individually and in combination, no claim recites limitations that transform the claim, finally interpreted as directed to the identified JE(s), into patent eligible subject matter, and it is not clear that any claim is sufficiently analogous to controlling case law identifying an example of an eligible claim.
Remaining claims
Claims 2-3 and 5-10 add elements which also are part of the identified JEs for the same reasons described above regarding the independent claims and therefore do not provide the something significantly more necessary to satisfy 101.
Elements of the following claims are additional elements but nonetheless are conventional elements of a laboratory or computing environment, conventional data gathering elements or conventional post-processing elements, as in the following specific examples which also are understood to be well-known and routine:
claim 4: "objects...," are conventional elements of a laboratory and/or computing environment and/or conventional data gathering/input elements, as exemplified by Amores (as cited on the attached "Notice of References Cited" form 892) and Samarnggoon (on the attached "Notice of References Cited" form 892), and generally it is understood that the examples in the reference are well-known and routine.
None of the dependent claim elements provides the something significantly more than the identified JE(s) necessary to satisfy 101.
Citations to art
In the above citations to documents in the art, rejections refer to the portions of each document cited as example portions as well as to the entirety of each document, unless otherwise noted in the situation of lengthy, multi-subject documents. Other passages not specifically cited within a document may apply as well.
Conclusion
No claim is allowed.
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/G. STEVEN VANNI/Primary patents examiner, Art Unit 1686