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 .
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 1-19 and 37 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. Claims 1, 19, 37 recite “identifying a cognitive frailty based on the entropy...outputting information associated with the identified cognitive frailty for use in adjusting the administration of the compound and administering the compound according to the identified cognitive frailty of the patient.” The specification does not describe or disclose this in the specification. The only mention of frailty is in paragraph 0067. This paragraph does not disclose the above mentioned claim language.
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 1-19 and 37 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. Claims 1, 19, 37 recite “cognitive frailty.” The specification does not explain or define “cognitive frailty”. The only mention of “frailty” is paragraph 0067 which states “Because strong and synchronous (e.g., low ApEn) alpha oscillations can correlate with good cognitive function and better outcomes after general anesthesia (See, e.g., References 10, 56, and 57) this parameter can be useful to identify patients with a ‘frail’ brain using EEG recordings during general anesthesia in the future”. The examiner interprets “cognitive frailty” to be the equivalent of determining the effect of the age and therefore, the art rejection is maintained.
Claim Rejections - 35 USC § 101
Claims 1-19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Each of Claims 1-19 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1-19 recites at least one step or instruction for observing, judging or evaluating data, which is grouped as a mental process under the 2019 PEG. Accordingly, each of Claims 1-19 recites an abstract idea.
Specifically, Claim 1 recites A non-transitory computer-accessible medium having stored thereon computer-executable instructions for identifying a cognitive frailty of a patient during an administration of a compound, wherein, when a computer arrangement (additional element) executes the instructions, the computer arrangement (additional element) is configured to perform procedures comprising: receiving electroencephalographic (EEG) information for a patient during the administration of the compound to the patient (observation, which is a mental process under the 2019 PEG);
receiving an entropy of the EEG information for the patient during the administration of the compound, (observation, which is a mental process under the 2019 PEG); and
identifying a cognitive frailty of the patient based on the entropy (judgement or evaluation, which is a mental process under the 2019 PEG);
outputting information associated with the identified cognitive frailty for use in adjusting the administration of the compound (judgement or evaluation, which is a mental process under the 2019 PEG).
Claim 19 recites a system for identifying a cognitive frailty of a patient during an administration of a compound, comprising: a computer hardware arrangement (additional element) configured to: receive electroencephalographic (EEG) information for the at least one patient during the administration of the compound to the at least one patient (observation, which is a mental process under the 2019 PEG); receive an entropy of the EEG information for the patient during the administration of the compound (observation, which is a mental process under the 2019 PEG); and output information associated with the identified cognitive frailty for use in adjusting the administration of the compound (judgement or evaluation, which is a mental process under the 2019 PEG) (judgement or evaluation, which is a mental process under the 2019 PEG).
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Further, dependent Claims merely include limitations that either further define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed.
Step 2A, Prong 2
The above-identified abstract idea in independent Claim 1, 19 (and its respective dependent Claims) is not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claim 1, 19), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use. More specifically, the additional elements of: computer hardware arrangement are generically recited computer elements in independent Claim 1, 19 (and its respective dependent claims) which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea identified above in independent Claim 1, 19 (and its respective dependent claims) are not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed system merely implements the above-identified abstract idea (e.g., mental process) using rules (e.g., computer instructions) executed by a computer (e.g.,memory and at least one computer processor as claimed). In other words, independent Claim 1, 19 and its dependent claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer and insignificant extra-solution activity related to a sensing unit collecting data. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claim 1, 19 (and its dependent claims) are not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claim 1, 19 (and its dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B
None of Claims 1-19 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: a sensing unit, a memory and at least one computer processor.
The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Accordingly, in light of Applicant’s specification, the claimed term “computer hardware” is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers or computer components, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the computer hardware. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). See paragraphs 0070-0072 of applicant’s filed specification.
The recitation of the above-identified additional limitations in Claims 2-18 amounts to mere instructions to collect data with extra-solution activity and implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the system of Claims 1-19 are directed to applying an abstract idea (e.g., mental process) on a general purpose computer without (i) improving the performance of the computer itself (as in McRO, Bascom and Enfish), or (ii) providing a technical solution to a problem in a technical field (as in DDR). In other words, none of Claims 1-19, 37 provides meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claim 1, 19 (and its dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. As such, the above-identified additional elements, when viewed as whole, do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1-19 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1-19 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1-19 are not patent eligible and rejected under 35 U.S.C. 101 as being directed to abstract ideas implemented on a generic computer in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al. and 2019 PEG.
Claim Objections
Claim 1, 19, and 37 recite the limitation "a patient". There is insufficient antecedent basis for this limitation in the claim.
Claim 16 recites the limitation "the at least one patient". There is insufficient antecedent basis for this limitation in the claim.
Claim 5 states “identify the cognitive frailty to determine the patient based on the PSD.” The examiner is unclear what is determined of the patient?
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claim(s) 1-8, 10-12, 16, 19, 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Purdon (US 20150080754) in view of Vierto-Oja (US 20080317672)
Regarding claim 1, Purdon discloses A non-transitory computer-accessible medium having stored thereon computer-executable instructions for identifying a cognitive frailty of a patient during an administration of a compound, wherein, when a computer arrangement executes the instructions, the computer arrangement is configured to perform procedures comprising: receiving electroencephalographic (EEG) information for a patient during the administration of the compound to the patient (PARAGRAPH 0089); identifying a cognitive frailty of the patient (paragraph 0091-0094), and outputting information associated with the identified cognitive frailty for use in adjusting the administration of the compound (paragraph 0091-0094).
Purdon discloses all of the limitations of the claim except receiving an entropy of the EEG information for the patient during the administration of the compound; identifying a cognitive frailty of the patient based on the entropy; and outputting information associated with the identified cognitive frailty for use in adjusting the administration of the compound. Vierto-Oja teaches receiving an entropy of the EEG information for the patient during the administration of the compound; identifying a cognitive frailty of the patient based on the entropy; and outputting information associated with the identified cognitive frailty for use in adjusting the administration of the compound (paragraph 0030, 0032, 0035-0037, 0042-0043). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Purdon which teaches the use of PSD/ratio of power gathered during administration of a compound in conjunction with EEG data to determine the cognitive frailty (a patient parameter) by Vierto-Oja which teaches the use of entropy data gathered during the administration of a compound in conjunction with EEG data to determine the effect of a patient parameter for the purpose of monitoring the cerebral state of a subject and prevent an abnormal response therefore, protecting the patient from harm.
Regarding claim 2, Purdon discloses identifying a cognitive frailty based on the patient parameter (paragraph 0091-0094). Purdon discloses all the limitations of the claims except receive the entropy of the patient during the administration of the compound; and identifying a cognitive frailty of the patient based on the entropy. Vierto-Oja teaches receive the entropy of the patient during the administration of the compound; and identifying a cognitive frailty of the patient based on the entropy (paragraph 0030, 0032, 0035-0037, 0042-0043). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Purdon which teaches the use of PSD/ratio of power gathered during administration of a compound in conjunction with EEG data to determine the cognitive frailty (a patient parameter) by Vierto-Oja which teaches the use of entropy data gathered during the administration of a compound in conjunction with EEG data to determine the effect of a patient parameter for the purpose of monitoring the cerebral state of a subject and prevent an abnormal response therefore, protecting the patient from harm.
Regarding claim 3, Purdon discloses The computer-accessible medium of claim 1, wherein the compound includes an anesthesia (ABSTRACT).
Regarding claim 4, Purdon discloses The computer-accessible medium of claim 3, wherein the anesthesia includes at least one of (i) sevoflurane (PARAGRAPH 0089), (ii) isoflurane, (iii) dexmedetomidine, (iv) propofol (PARAGRAPH 0089), (v) etomidate, (vi) desflurane, or (vii) a combination of ketamine and nitrous oxide.
Regarding claim 5, Purdon discloses The computer-accessible medium of claim 1, wherein the computer arrangement is configured to: identify the cognitive frailty to determine the patient based on the PSD (PARAGRAPH 0091-0093).
Regarding claim 6, Purdon discloses The computer-accessible medium of claim 5, wherein the computer arrangement is further configured to: determine a normalized PSD (nPSD) based on the PSD; and identify the cognitive frailty of the patient based on the normalized PSD (PARAGRAPH 0092, FIG 6).
Regarding claim 7, Purdon discloses The computer-accessible medium of claim 6, wherein the computer arrangement is configured to determine the nPSD by dividing the PSD by a sum in a particular frequency range (PARAGRAPH 0094-0095).
Regarding claim 8, Purdon discloses The computer-accessible medium of claim 7, wherein the particular frequency range is from about 0.4 Hz to about 30.5 Hz (PARAGRAPH 0091- 0092).
Regarding claim 10, Purdon discloses The computer-accessible medium of claim 5, wherein the computer arrangement is further configured to determine at least one of (i) a power in a range of about 0.530 Hz based on the PSD, (ii) an alpha-band power based on the PSD, (iii) a beta-band power based on the PSD, (iv) a delta-band power based on the PSD, or (v) theta-band power based on the PSD (paragraph 0091-0092).
Regarding claim 11, Purdon discloses The computer-accessible medium of claim 10, wherein (i) the alpha-band power is about 7.8-12.5 Hz, (ii) the beta-band power is about 12.5-25 Hz, (iii) the delta-band power is about 0.4-3.9 Hz, and (iv) the theta-band power is about 3.9-7.8 Hz (paragraph 0091).
Regarding claim 12, Purdon discloses The computer-accessible medium of claim 10, wherein the computer arrangement is configured to determine: the alpha-band power by dividing a first sum of the PSD in a first range of about 8Hz to about 12Hz by a second sum of the PSD in a second range of about 0.4 Hz to about 30Hz; and the beta-band power by dividing a third sum of the PSD in a third range of about 12Hz to about 25Hz by a fourth sum of the PSD in the second range (paragraph 0091-0096) (Fig 16-17).
Regarding claim 16, Purdon discloses The computer-accessible medium of claim 1, wherein the EEG information includes EEG information from a frontal region of a brain of the at least one patient (paragraph 0062).
Regarding claim 19, Purdon discloses A system for identifying a cognitive frailty of a patient during an administration of a compound (abstract), comprising: a computer hardware arrangement configured to: receive electroencephalographic (EEG) information for a patient during the administration of the compound to the patient (PARAGRAPH 0089-0096); identify a cognitive frailty (paragraph 0091-0094).
Purdon discloses all of the limitations of the claim except receiving an entropy of the patient during the administration of the compound; identify a cognitive frailty based on the entropy; and output information associated with the identified cognitive frailty for use in adjusting the administration of the compound. Vierto-Oja teaches receiving an entropy of the patient during the administration of the compound; identify a cognitive frailty based on the entropy; and output information associated with the identified cognitive frailty for use in adjusting the administration of the compound (paragraph 0030, 0032, 0035-0037, 0042-0043). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Purdon which teaches the use of PSD/ratio of power gathered during administration of a compound in conjunction with EEG data to identify cognitive frailty (a patient parameter) by Vierto-Oja which teaches the use of entropy data gathered during the administration of a compound in conjunction with EEG data to identify a patient parameter for the purpose of monitoring the cerebral state of a subject and prevent an abnormal response therefore, protecting the patient from harm.
Regarding claim 37, Purdon discloses A method for determining an effect of an age of at least one patient during an administration of a compound (abstract), comprising:
receiving electroencephalographic (EEG) information for the at least one patient during the administration of the compound to the at least one patient (paragraph 0089-0096);
using a computer hardware arrangement, determining the effect of the age of the at least one patient based on the EEG information (paragraph 0091-0094).
Purdon discloses all of the limitations of the claim except receiving an entropy of the at least one patient during the administration of the compound; determining the effect of a patient parameter of the at least one patient based on the EEG information and the entropy; and directing an adjustment of the administration of the compound based on the determined effect of the patient parameter of the at least one patient based on the EEG information and the entropy. Vierto-Oja teaches receiving an entropy of the at least one patient during the administration of the compound; determining the effect of a patient parameter of the at least one patient based on the EEG information and the entropy; and directing an adjustment of the administration of the compound based on the determined effect of the patient parameter of the at least one patient based on the EEG information and the entropy (paragraph 0030, 0032, 0035-0037, 0042-0043). Therefore, it would have been obvious at the effective filing date of the invention to one of ordinary skill in the art to modify Purdon which teaches the use of PSD/ratio of power gathered during administration of a compound in conjunction with EEG data to identify cognitive frailty (a patient parameter) by Vierto-Oja which teaches the use of entropy data gathered during the administration of a compound in conjunction with EEG data to identify a patient parameter for the purpose of monitoring the cerebral state of a subject and prevent an abnormal response therefore, protecting the patient from harm.
Claim(s) 9, 13-15, 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Purdon in view of Vierto-Oja further in view of Mirow (US 20090292180).
Regarding claim 9, Purdon is silent regarding the computer-accessible medium of claim 6, wherein the computer arrangement is further configured to determine a spectral entropy of the Npsd. Mirow teaches wherein the computer arrangement is further configured to determine a spectral entropy of the Npsd (paragraph 0222-0227). Therefore, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to Purdon by Mirow for the purpose of quantifying the complexity and information content of the spectrum offering insight into the randomness or predictability of the signal’s spectral features.
Regarding claim 13, Purdon is silent regarding The computer-accessible medium of claim 1, wherein the computer arrangement is further configured to decompose the PSD. Mirow teaches wherein the computer arrangement is further configured to decompose the PSD (paragraph 0071-0075, 0219-0220, 0236-0238). Therefore, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to Purdon by Mirow for the purpose of quantifying the complexity and information content of the spectrum offering insight into the randomness or predictability of the signal’s spectral features.
Regarding claim 14, Purdon is silent regarding The computer-accessible medium of claim 13, wherein the computer arrangement is further configured to decompose the PSD into a periodic component and an aperiodic component in the EEG information. Mirow teaches wherein the computer arrangement is further configured to decompose the PSD into a periodic component and an aperiodic component in the EEG information (paragraph 0071-0080, 0219-0220, 0236-0238, 0254-0256). Therefore, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to Purdon by Mirow for the purpose of quantifying the complexity and information content of the spectrum offering insight into the randomness or predictability of the signal’s spectral features.
Regarding claim 15, Purdon is silent regarding The computer-accessible medium of claim 13, wherein the computer arrangement is further configured to fit the aperiodic component based on a broadband offset, a frequency vector, and a slope. Mirow teaches wherein the computer arrangement is further configured to fit the aperiodic component based on a broadband offset, a frequency vector, and a slope (paragraph 0071-0080, 0219-0220, 0236-0238). Therefore, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to Purdon by Mirow for the purpose of quantifying the complexity and information content of the spectrum offering insight into the randomness or predictability of the signal’s spectral features.
Regarding claim 17, Purdon is silent regarding The computer-accessible medium of claim 1, wherein the computer arrangement is further configured to apply an adaptive filtering procedure to the EEG information. Mirow teaches wherein the computer arrangement is further configured to apply an adaptive filtering procedure to the EEG information (0247-0250, 0226-0227). Therefore, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to Purdon by Mirow for the purpose of quantifying the complexity and information content of the spectrum offering insight into the randomness or predictability of the signal’s spectral features.
Regarding claim 18, Purdon is silent regarding The computer-accessible medium of claim 17, wherein the computer arrangement is further configured to exclude edge effects cause by the adaptive filtering procedure. Mirow teaches wherein the computer arrangement is further configured to exclude edge effects cause by the adaptive filtering procedure (paragraph 0247-0250, 0226-0227). Therefore, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to Purdon by Mirow for the purpose of quantifying the complexity and information content of the spectrum offering insight into the randomness or predictability of the signal’s spectral features.
Response to Arguments
Applicant’s arguments with respect to claim(s) have been considered but not persuasive. Based on examiner’s interpretation of “cognitive frailty” which is equivalent to the prior “determining an effect of an age”, the claim rejections are maintained. Applicant on page 17 of the remarks states “a cognitive frailty of the patient- which is certainly different from a chronological age of the patient-using entropy that is derived from the EEG information itself.” Applicant also states that a functional brain age is a cognitive frailty, however the specification does not that state that. The term “cognitive frailty” is not used in the entire specification.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant argues that Purdon relies on EEG power characteristics, not entropy measures, and the examiner agrees. Vierto-Oja is used to teach entropy measures and based on the interpretation of “cognitive frailty” as established in the 112 rejection above, Purdon in view of Vierto-Oja discloses identification of a cognitive frailty of the patient based on the entropy. Paragraph 0061 is cited, however, that does not disclose using entropy measures for detecting cognitive changes that may be indicative of cognitive frailty.
In response to applicant’s arguments regarding the 101 rejection of claims 1 and 19, the amendment drawn to “outputting information associated with the identified cognitive frailty for use in adjusting the administration of the compound…” and “output information associated with the identified cognitive frailty for use in adjusting the administration of the compound” is not an active treatment step and does not apply or use a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition. Furthermore, the additional subject matter does not amount of significantly more.
In response to applicant’s arguments regarding the 101 rejection of claim 37, the amendment drawn to “administering the compound according to the cognitive frailty of the patient…” is an active treatment step and does apply or use a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YASMEEN S WARSI whose telephone number is (571)272-9942. The examiner can normally be reached Monday-Friday 9 am to 5 pm.
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/YASMEEN S WARSI/Examiner, Art Unit 3791
/MAY A ABOUELELA/Primary Examiner, Art Unit 3791