DETAILED ACTION
This application is being examined under AIA first-to-file provisions.
Status of claims
Canceled:
none
Pending:
1-20
Withdrawn:
none
Examined:
1-20
Independent:
1-2
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"
112/b "Means for"
BRI
Broadest Reasonable Interpretation
112/a Enablement,
Written description
CRM
"Computer-Readable Media" and equivalent language
112 Other
IDS
Information Disclosure Statement
x
102, 103
JE
Judicial Exception
101 JE(s)
112/a
35 USC 112(a) and similarly for 112/b, etc.
x
101 Other
N:N
page:line
Double Patenting
XXDATE
date format
Priority
As detailed on the 6/13/2023 filing receipt, this application claims priority to no earlier than 2/28/2020. All claims have been interpreted as being accorded this priority date.
Objection to the specification: title
The title should be amended to more specifically reflect the claims, particularly referencing steps/elements: setting the context of the invention, particular to all claims, and distinguishing the instant application from any related applications, for example: biological information. The title should be "descriptive" and "as... specific as possible" (MPEP 606, 1st para. and 37 CFR 1.72; also MPEP 606.01 pertains).
Claim objections
Claims 1-20 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
1-20
The claim font is pixelated. The next filing should be of higher font quality, e.g. not pixelated. The font is not amenable to character recognition (i.e. does not scan -- this effect may be seen by downloading from PAIR the amendment as actually entered into the record). "Legibility includes ability to be... scanned so that... paper can be electronically reproduced by use of digital imaging and optical character recognition" (MPEP 608.01.I."Paper Requirements," 2nd to last para.).
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 1-20 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)
1-2
biologica1 infom1ation acquisition unit
Indefinite under 112/b after invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "biologica1 infom1ation acquisition") 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. 3:33, 4:16-19, 5:21-25, 6:24-31, 9:8-11, 11:10-16), 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.
1-2
inference unit
Indefinite under 112/b after invoking 112/f. Recites means (or an equivalent, nonce term, here "unit") and function and/or result (here "inference") 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. 1:31-34, 3:34 through 4-7), 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.
2
trained model
The training associated with the model is ambiguous as to whether it should be interpreted as product-by-process (PbP) or whether it should be interpreted as a process required in conjunction with the other recited processes of the recited "apparatus," e.g. the required "acquire biological information."
If PbP, then the recited "trained model" would be interpreted as a PbP element, i.e. the recited "model" limited according to any structure clearly required by the recited PbP limitation of having been "trained." The recited process or step of having been "trained" would not itself be claimed and would be limiting only to the extent that the structure of the "model" would be clearly required to be limited by that process or step. Regarding PbP limitations within a claim, MPEP 2113 pertains, as well as, for example, Biogen MA, Inc. v. EMD Serono, Inc. (Fed. Cir. 9-28-2020, precedential).
The training is recited as "trained" in the past tense and as part of a PbP construction, i.e. "trained model." Also, the training is not explicitly recited as a positive step performed by an element of the "apparatus," and it is not clear that any particular element of the "apparatus" performs the training. These issues weigh in favor of a PbP interpretation.
However, the training is further recited as requiring "the biological information and the efficiency of the subject," each of which is generated by elements of the claimed "apparatus," implying that they are only available for training during or after use of the "apparatus."
4, 14
test taken by the subject
Relatedly, in claim 4, the same issues above regarding the "trained model" also apply to the recited "test taken," similarly rendering the claim indefinite. Claim 14 is rejected similarly.
5, 15
time taken...
test taken...
Relatedly, in claim 5, the same issues above regarding the "trained model" also apply to the recited "time taken" and "test taken," similarly rendering the claim indefinite. Claim 15 is rejected similarly.
10, 20
the biological information is information obtained by processing a biological signal
Relatedly, in claim 10, the same issues above regarding the "trained model" also apply to the recited "information obtained," similarly rendering the claim indefinite.
Relatedly, claim 10 also is rejected as directly reciting a machine and a process in the same claim. A claim to a machine, e.g. here an "apparatus," cannot directly recite a process step such as "information is information obtained by processing." MPEP 2173.05(p).II pertains. Possibly such a step may be claimed indirectly via the structure of stored computer instructions. Or, it may suffice to add "configured to" before the process step so as properly focus on claimed structure. Regarding any software-embodied steps, it should be clear whether such steps are in fact software-embodied, and it should be clear whether such software is comprised by the claimed machine or manufacture. MPEP 2173.05(p).II pertains regarding a claim directed to both product and process.
Claim 20 is rejected similarly.
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 1-9 and 11-19
Claims 1-9 and 11-19 are rejected under 35 USC 103 as unpatentable over Berzak (as cited on the attached "Notice of References Cited" form 892) in view of Roberts (as cited on the attached "Notice of References Cited" form 892).
Regarding claim 1, the recited biological information acquisition reads on the inventions of Berzak generally, including FIG. 1, embodiment 100, and the disclosed "eye tracker" (Berzak: FIG. 1; [32-34]; and entire document).
The recited efficiency inference reads on the Berzak's FIG. 1, embodiment 100, "Comparison Module" and "Proficiency Score" (Berzak: FIG. 1; [34-35]; and entire document).
To the extent that Berzak teaches language proficiency in lieu of language learning efficiency or aptitude, then Roberts teaches the latter in a similar eye tracking environment as "proficiency, cognitive capacity, and processing speed" (Roberts: p. 214, 1st para.; p. 223, 2nd para.; and entire document)
The art is applied to claim 2 as described above for claim 1. Also, claim 2 specifies a trained model, which reads on "model" and the "system trains the model" (Berzak: [33]; and entire document).
The art is applied to claims 3 and 13 as described above for claim 1.
Claims 4 and 14 specify testing and percentage correct answers, which reads on "number of correctly answered comprehension questions" (Berzak: FIG. 1; [80]; and entire document). It would have been prima facie obvious to substitute a percentage correct for a total correct.
Claims 5, 8, 15 and 18 specify time taken, which reads on "duration" (Berzak: [48-51]; and entire document).
Claims 6 and 16 specify work efficiency, which reads on "tasks that measure real-time processing" (Roberts: p. 214; and entire document).
Claims 7 and 17 specify accuracy and mistakes, which reads on "a range of comprehension failures" (Roberts: p. 216; and entire document) and a "number of correctly answered comprehension questions on the" (Berzak: FIG. 1; [80]; and entire document).
Claims 9, 11-12 and 19 specify particular information types, at least one of which reads on eye movement and tracking (Berzak: title; and entire document; also Roberts: title; and entire document).
Combining Berzak and Roberts
In the absence of a secondary consideration to the contrary, it would have been prima facie obvious for PHOSITA to modify the eye tracking teaching of Berzak using the related teaching of Roberts. As motivation to combine, an advantage taught by Roberts of modifying methods such as those of Berzak would have been the teaching of Roberts that "The major benefit of the eye-tracking method is that it can tap into real-time (or online) comprehension processes during the uninterrupted processing of the input, and thus, the data can be compared to those elicited by other, more metalinguistic tasks to offer a broader picture of language acquisition and processing" (p. 213). Thus, PHOSITA would have been motivated to modify Berzak using the above techniques of Roberts in order to achieve the above advantage. One would have had a reasonable expectation of success in doing so because Berzak and Roberts are generally drawn to related teaching, and PHOSITA would have understood how to and would have been motivated to apply the teaching of Roberts to the related teaching of Berzak.
Claims 10 and 20
Claims 10 and 20 are rejected under 35 USC 103 as unpatentable over Berzak and Roberts as applied to claims 1-2 above and further in view of Van Engen (as cited on the attached "Notice of References Cited" form 892).
Claim 10 specifies drowsiness, arousal, concentration or fatigue, at least one of which reads on "pupillometry specifically to assess cognitive load during adverse listening conditions. We focus on challenges associated with signal degradation (including the effect on cognitive load, fatigue, and attention, in respective order) and listener-related factors (including age and hearing loss)" (Van Engen: p. 61, 2nd para.; and entire document).
The art is applied to claim 20 as described for claim 10.
Combining Berzak and Van Engen
Previously cited references are combined as described above.
In the absence of a secondary consideration to the contrary, it would have been prima facie obvious for PHOSITA to modify the eye tracking teaching of Berzak using the related teaching of Van Engen. As motivation to combine, an advantage taught by Van Engen of modifying methods such as those of Berzak would have been the teaching of Van Engen that "many everyday conditions complicate the situation: we talk to each other in noisy spaces, we come from different language and dialect backgrounds, and some of us cope with the added challenges of speech, hearing, or language impairments. All of these situations can reduce the intelligibility of spoken language" (p. 57). Thus, PHOSITA would have been motivated to modify Berzak using the above techniques of Van Engen in order to achieve the above advantage. One would have had a reasonable expectation of success in doing so because Berzak and Van Engen are generally drawn to related teaching, and PHOSITA would have understood how to and would have been motivated to apply the teaching of Van Engen to the related teaching of Berzak.
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 1-20 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
Claims 1-20 are rejected under 35 USC 101 because the claimed invention is directed to non-statutory subject matter.
Claim 1 is to "an... apparatus," which is not, in all embodiments within a BRI, interpreted as belonging to any category listed in 101. In a BRI, the claim reads on data and/or software comprising no structure other than data and/or software. The claim is not recited as a process, and the claim is not limited to any particular structure as a 101 machine or manufacture. The claim reads on transitory propagating signals which are not proper patentable subject matter because it does not fit within any of the four statutory categories of invention (In re Nuijten, Federal. Circuit, 2006).
In a BRI, the recited "apparatus," "biological information acquisition unit" and "inference unit" each read on data or software in at least some embodiments.
None of the dependent claims remedy this rejection.
As appropriate, this rejection can be overcome by, for example, amending to recite structure such as non-transitory computer-readable storage medium comprising computer instructions stored and structurally configured to store the recited data and to accomplish the recited steps.
[Step 1: claims 1-20: NO]
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.
A shortened statutory period for reply is set to expire THREE MONTHS from the mailing date of this communication.
Inquiries
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The examiner for this Office action, G. Steven Vanni, may be contacted at:
(571) 272-3855 Tu-F 8-7 (ET).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Larry D. Riggs, II, may be reached at (571) 270-3062.
/G. STEVEN VANNI/Primary patents examiner, Art Unit 1686