DETAILED ACTION
Remarks
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election with traverse of invention III (claims 8-10 and 12) in the reply filed on 11/14/25 is acknowledged. Further, Examiner has considered Applicant’s arguments filed on 11/14/25, and withdraws the restriction of inventions I and II. Accordingly, the claims of invention I, II, and III (claims 1-12) rejoined and are under examination. Invention IV (claim 13) remains distinct and would impose a serious search burden based on the reasons set forth in the restriction requirement mailed on 8/6/25. Examiner notes that Applicant acknowledges that claim 13 is directed to “distinct subject matter” in the reply filed 11/14/25. Therefore, claim 13 is withdrawn from examination.
Drawings Objections
The drawings are objected to because every figure includes blurry text, thus rendering every figure illegible. Corrected drawing sheets (i.e., FIGURE 1 and 2) in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 1 includes multiple sentences. Each claim must be in one sentence form only.
Claims 3-5 and 11 are objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim should refer to other claims in the alternative only. See MPEP § 608.01(n). In this case, each of claim 3 and 11 are dependent on both claims 1 and 2. Accordingly, the claims 3 and 11, and the dependent claims thereof, have not been further treated on the merits.
Claim Rejections - 35 USC § 112(b)
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.
Claims 1, 8-10, and 12 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 directed to a method defines the method as comprising:
“(a) Cognitive quotient measures the cognitive recollection of the user based on a subject's ability to navigate through the maze with respect to time. Outside a maze, it's the measure of a subject's ability to cognitively recollect complex scenarios or patterns with respect to time. (b) Learning rate measures an individual's ability to understand and apply new concepts introduced with respect to time.
However, neither step (a), nor step (b) positively recite a method step, but rather merely define the terms “Cognitive quotient” and “Learning rate”. Therefore, it is unclear what steps are required to perform the method of claim 1. Additionally, with respect to claim 1, it is unclear whether the term “Cognitive quotient” is defined as a measure of “the cognitive recollection of the user based on a subject's ability to navigate through the maze with respect to time” or “a subject's ability to cognitively recollect complex scenarios or patterns with respect to time”, or both, because the claim does not expressly define the method as being performed with respect to a maze or outside a maze. Therefore, claim 1, and the dependent claims thereof, are indefinite.
Claim 8 (and the dependent claims thereof) 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 pre-AIA the applicant regards as the invention. A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112, second paragraph. See In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303 (Fed. Cir. 2011). In Katz, a claim directed to “A system with an interface means for providing automated voice messages…to certain of said individual callers, wherein said certain of said individual callers digitally enter data” was determined to be indefinite because the italicized claim limitation is not directed to the system, but rather to actions of the individual callers, which creates confusion as to when direct infringement occurs. In re Katz, 639 F.3d at 1318 (citing IPXL Holdings v. Amazon.com, Inc., 430 F.2d 1377, 1384, 77 USPQ2d 1140, 1145 (Fed. Cir. 2005), in which a system claim that recited “an input means” and required a user to use the input means was found to be indefinite because it was unclear “whether infringement … occurs when one creates a system that allows the user [to use the input means], or whether infringement occurs when the user actually uses the input means.”); < Ex parte Lyell, 17 USPQ2d 1548 (Bd. Pat. App. & Inter. 1990) (claim directed to an automatic transmission workstand and the method of using it held ambiguous and properly rejected under 35 U.S.C. 112, second paragraph). In this case, claim 8 recites a system, e.g., “A system”, but also recite method steps, e.g., “the Supervisor registers the Learner…” in claim 8, and “the curriculum is tailored for varied forms of professional instruction” in claim 12. Because Applicant is claiming two separate statutory classes together in a single claim, claim 8 and the dependent claims thereof are deemed indefinite.
Claim Rejections - 35 USC § 101
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
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 8-10 and 12 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). Claim 8 recites a limitation that under the broadest reasonable interpretation includes a human organism, i.e., “Supervisor” and “Learner”.
Claims 1-2, 6-10, and 12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
STEP 1 = YES: The claimed invention is to a process and/or product, and thus fall under at least one of the four statutory categories (Step 1: YES).
STEP 2A, Prong 1 = YES: The claim(s) recite(s) a series of steps which can be practically performed by one or more humans through mental process (i.e., observation, evaluation, judgement, and/or opinion)(see MPEP § 2106.04(a)(2), subsection III), certain methods of organizing human activity (i.e., managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions) (see MPEP § 2106.04(a)(2), subsection II), and/or mathematical concepts (i.e., mathematical relationships, mathematical formulas or equations, mathematical calculations)(see MPEP § 2106.04(a)(2), subsection I). Moreover, the claims recite steps akin to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, which the court in Electric Power Group held to recite a mental process. Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016). This includes:
A quantification method of a subject's learning and intellectual abilities, the method comprising of: (a) Cognitive quotient measures the cognitive recollection of the user based on a subject's ability to navigate through the maze with respect to time. Outside a maze, it's the measure of a subject's ability to cognitively recollect complex scenarios or patterns with respect to time. (b) Learning rate measures an individual's ability to understand and apply new concepts introduced with respect to time (mental process: evaluation);
A method of assessing a subject's educational needs, the method comprising the steps of:(a) Providing the subject with an Initial Assessment, the results of the Initial Assessment comprising: a Cognitive Quotient, a Learning Rate, a Preferred Learning Style, and an Educational Level; (b) Creating a customized Educational Curriculum based on the results of the Initial Assessment, by forming a Learning Path determined by the Cognitive Quotient, Learning Rate, Preferred Learning Style and Educational Level (mental process: evaluation);
wherein the subject watches Lessons in the Educational Curriculum through the Learning Path and progresses through the Educational Curriculum (mental process: evaluation);
wherein the subject's Cognitive Quotient, Learning Rate, Educational Level, and Preferred Learning Style are updated based on the subject's progress through the Educational Curriculum (mental process: evaluation; certain methods of organizing human activity, interaction between individuals, including teaching);
A system for assessing a subject's educational needs, the system comprising: … the system configured such that:(a) the Supervisor registers the Learner … (mental process: evaluation; certain methods of organizing human activity: human interaction and/or teaching); (b) the Supervisor subjects the Learner to an Initial Assessment, wherein the results of the Initial Assessment are a Cognitive Quotient, a Learning Rate, a Preferred Learning Style, and an Educational Level; and these results are displayed to the Supervisor … (mental process: observation, evaluation of observations, and display results of evaluation; certain methods of organizing human activity: human interaction and/or teaching); (c) the Supervisor provides the Learner with an Educational Curriculum based on the results of the Initial Assessment, by forming a Learning Path for the Learner determined by the Learner's Cognitive Quotient, Learning Rate, Preferred Learning Style and Educational Level (mental process: evaluation and display results of evaluation; certain methods of organizing human activity: human interaction and/or teaching); (d) the Learner starts the Educational Curriculum and a Maze Game (mental process: evaluation); (e) the Supervisor contemporaneously monitors … one or more Learner's activities in the Educational Curriculum and Maze Game …( mental process: observation); and (f) the Learner's Learning Rate and Cognitive Quotient are recalculated based on the results of the Learner's progress through the Educational Curriculum and Maze Game (mental process: evaluation; mathematical concept: mathematical calculations of learner’s learning rate and cognitive quotient);… and wherein the curriculum is tailored for varied forms of professional instruction (mental process: evaluation; certain methods of organizing human activity: human interaction and/or teaching).
The steps identified above are akin to organizing human activity, mental processes, and/or mathematical concepts, and thus fall within an enumerated category of abstract ideas. Note that even if most humans would use a physical aid (e.g., pen and paper, a slide rule, or a calculator) to help them complete the recited steps above, the use of such physical aid does not negate the mental nature of these limitations. Therefore, the claims recite an abstract idea (Step 2A, Prong 1: YES).
STEP 2A, Prong 2 = NO: This judicial exception is not integrated into a practical application. At the outset, claims 1-2 and 6-7 do not recite additional elements and therefore, are not addressed under Prong 2 or Step 2B.
To the extent the claims recite additional elements related to defining a computer environment to implement the abstract idea above in claims 8-10 and 12 (i.e., defining the system as comprising Two apparatuses each comprising: a graphical interface, a central processing unit configured to accept input from a from a user through an input element … wherein the input element comprises a touch screen, microphone, keyboard, video camera or a picture scanner capable of scanning and uploading pictures or photographs; a third apparatus operated by a second Learner; wherein the two or more apparatuses are connected through a communicational link; and wherein the first apparatus is operated by a Supervisor, and the second apparatus is operated by a Learner; and performing various steps through the first apparatus or while operating the second apparatus), they are recited at a high level of generality such that they do not amount to a particular machine or technical improvement thereof, nor do they represent an improvement in any other technology. Rather, the generic manner which these additional elements are claimed amount to mere instructions to implement the abstract idea in a computer environment, i.e., field of use, and thus do not integrate the judicial exception into a practical application. Additionally, the claimed input element is recited at a high level of generality as merely configured to accept input from a user through an input element, and thus amounts to insignificant extra-solution data gathering activity.
It should be noted that because the courts have made it clear that mere physicality or tangibility of an additional element or elements is not a relevant consideration in the eligibility analysis, the physical nature of the physical components identified above does not affect this analysis. See MPEP 2106.05(I) for more information on this point, including explanations from judicial decisions including Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 224-26 (2014). Even when viewed in combination, these additional elements do not integrate the recited judicial exception into a practical application and the claim is directed to the judicial exception. Therefore, the claims are directed to an abstract idea (Step 2A, Prong 2: YES).
STEP 2B = NO: The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because as provided under Prong 2, the additional elements are recited at a high level of generality, and for the purpose of insignificant extra-solution activity. Moreover, the specification of the instant application further demonstrates that the additional elements are recited for their well-understood, routine and conventional functionality, which refers to elements of the computer system 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)(e.g., see par. 0025: the technology can be installed on individual computers, e.g., Android tablets). Thus, the additional elements defining the field of use as a computer-implemented environment, i.e., the apparatus identified under Step 2A, Prong 2, amount to merely automating a manual process using well-known, routine, and conventional computers, which the courts have held to be insufficient in showing an improvement in computer-functionality. See Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055, 123 USPQ2d 1100, 1108-09 (Fed. Cir. 2017); see also LendingTree, LLC v. Zillow, Inc., 656 Fed. App'x 991, 996-97 (Fed. Cir. 2016) (non-precedential).
Therefore, the claims are not directed to significantly more than the abstract idea (Step 2B: NO).
Therefore, claims 1-2, 6-10 and 12 are not directed to patent eligible subject matter.
Prior Art
Prior art cited in FORM 892 is deemed relevant to the disclosed invention, including:
US 2019/0051201 A1 to JO (par. 0002: Example embodiments relate to a learning situation determining method and apparatus, and more particularly, to a learning situation determining method and apparatus that determines cognitive load in a learner)
US 2024/0315549 A1 to KAMMER (par. 0131: The graders measure time to complete the maze)
US 2015/0343266 A1 to VARDY (par. 0049: Another useful test to diagnose mental and/or physical disorders, or track rehabilitation is to measure a patient's capacity for planning and foresight. One way to measure a patient's capacity for planning and foresight is through a maze test)
US 2021/0158721 A1 to STAVRICA (par. 0133: the CE system may target specific aspects of the user's memory by determining to vary a significant plurality or all test parameters within the test class with the exception of the desired cognitive characteristic being evaluated…Of these tests, a relatively small proportion (e.g., 25) may belong to a single test class that evaluates pattern recall).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James Hull whose telephone number is 571-272-0996. The examiner can normally be reached on Monday-Friday from 8:00am to 5:00pm MST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Xuan Thai, can be reached at telephone number 571-272-7147. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES B HULL/Primary Examiner, Art Unit 3715