DETAILED ACTION
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 .
Claims Status
Claims 1-6 are pending.
Claims 1-6 are examined.
Priority
The instant application is a national stage application of PCT/JP2020/014494, filed 03/30/2020. Therefore, the Effective Filing Date (EFD) assigned to each of the claims 1-6 is the filing date of application of PCT/JP2020/014494, filed 03/30/2020.
Information Disclosure Statement
The Information Disclosure Statements filed 09/23/2022 is in compliance with the provisions of 37 CFR 1.97 and has therefore been considered. A signed copy of the IDS document is included with this Office Action.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference characters "1" and "2" have both been used to designate the “Athletic Performance Estimation Apparatus”. Corrected drawing sheets 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. 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 Rejections - 35 USC § 112
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 2 and 3 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.
With respect to claim 2, the claim recites the limitation of “so that a case in which the time and the amplitude included in the feature value and within a predetermined time period immediately before the target moves has a correlation corresponds to a higher level of athletic performance than otherwise”. The claim is indefinite because it is unclear which elements have a correlation and what corresponds to the higher level of athletic performance.
With respect to claim 3, the claim recites the limitation of “the classification being performed using both the feature value obtained from a person falling under the first category and the feature value obtained from a person falling under the second category”. The claim is indefinite because there is no antecedent basis for “the classification” and thus it is not clear what is being performed using both the feature value of the first category and the second category.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-6 are rejected under 35 U.S.C. 101 because the claimed inventions are directed to an abstract idea of mental steps, mathematic concepts, or a natural law without significantly more.
The MPEP at MPEP 2106.03 sets forth steps for identifying eligible subject matter:
(1) Are the claims directed to a process, machine, manufacture or composition of
matter?
(2A)(1) Are the claims directed to a judicially recognized exception, i.e. a law of nature,
a natural phenomenon, or an abstract idea?
(2A)(2) If the claims are directed to a judicial exception under Prong One, then is the
judicial exception integrated into a practical application?
(2B) If the claims are directed to a judicial exception and do not integrate the judicial
exception, do the claims provide an inventive concept?
With respect to step (1): Yes, the claims are directed to an apparatus, a method, and a non-transitory computer-readable recording medium.
With respect to step (2A)(1): The claims are directed to abstract ideas of mental processes and mathematical concepts.
“Claims directed to nothing more than abstract ideas (such as a mathematical formula or equation), natural phenomena, and laws of nature are not eligible for patent protection” (MPEP 2106.04). Abstract ideas include mathematical concepts (mathematical formulas or equations, mathematical relationships and mathematical calculations), certain methods of organizing human activity, and mental processes (procedures for observing, evaluating, analyzing/judging and organizing information (MPEP 2106.04(a)(2)). Laws of nature or natural phenomena include naturally occurring principles/relations that are naturally occurring or that do not have markedly different characteristics compared to what occurs in nature (MPEP 2106(b)).
Mental processes recited in claims 1 and 5:
obtaining a feature value based on eyeball movement of an observed person who is observing movement of a target
estimating athletic performance of the observed person from the feature value obtained from the observed person, based on the predetermined relationship between the feature value based on the eyeball movement and a level of athletic performance
Dependent claims 2-4 recite additional steps that either are directed to abstract ideas or further limit the judicial exceptions in independent claim 1, and as such, are further directed to abstract ideas. Hence, the claims explicitly recite numerous elements that individually and in combination constitute abstract ideas. The relevant recitations are:
Claim 2: “the feature value is time-series information including a time when a saccadic eye movement occurs and an amplitude thereof”; “estimates the athletic performance of the observed person so that a case in which the time and the amplitude included in the feature value and within a predetermined time period immediately before the target moves has a correlation corresponds to a higher level of athletic performance than otherwise”
Claim 3: “a classifier that has been trained in advance to classify the feature value obtained from the observed person into either a first category or a second category, the classification being performed using both the feature value obtained from a person falling under the first category and the feature value obtained from a person falling under the second category, the first category being of high athletic performance, the second category being of lower athletic performance than the first category”; “wherein the estimation circuitry obtains a classification result as an estimation result of the athletic performance of the observed person, the classification result being obtained by inputting the feature value obtained from the observed person into the classifier”
Claim 4: “the feature value is a normalized feature value obtained by integrating a first feature value with a second feature value, the first feature value being obtained from the observed person when the target moves in a first direction, the second feature value being obtained from the observed person when the target moves in a second direction different from the first direction”
The abstract ideas in the claims are evaluated under Broadest Reasonable Interpretation (BRI) and determined herein to each cover mental processes and mathematic concepts because the claims recite no more than calculating eye movement data and using this data to make an estimation of the athletic performance of an individual.
With respect to step (2A)(2): The claims must therefore be examined further to determine whether they integrate that abstract idea into a practical application (MPEP 2106.04(d)). The claimed additional elements are analyzed alone or in combination to determine if the judicial exception is integrated into a practical application (MPEP 2106.04(d).I.; MPEP 2106.05(a-h)). If the claim contains no additional elements beyond the judicial exception, the claim fails to integrate the abstract idea into a practical application (MPEP 2106.04(d).III).
Claims 1 and 6 recite the following additional elements that are not abstract ideas:
an analysis circuitry
an estimation circuitry
The elements of circuitry are interpreted as elements of a generic computer. The courts have weighed in and consistently maintained that when, for example, a memory, display, processor, machine, etc. ... are recited so generically (i.e., no details are provided) that they represent no more than mere instructions to apply the judicial exception on a computer, and these limitations may be viewed as nothing more than generally linking the use of the judicial exception to the technological environment of a computer (see MPEP 2106.05(f)). Thus, the elements of circuitry is not sufficient to integrate the judicial exceptions into a practical application.
Dependent claim 6 is directed to a generic computer element to which the steps are applied.
None of these dependent claims recite additional elements, alone or in combination, which would integrate a judicial exception into a practical application.
Lastly, the claims have been evaluated with respect to step (2B): Because the claims recite an abstract idea, and do not integrate that abstract idea into a practical application, the claims lack a specific inventive concept. Under said analysis, Applicant is reminded that the judicial exception alone cannot provide that inventive concept or practical application (MPEP 2106.05). Identifying whether the additional elements beyond the abstract idea amount to such an inventive concept requires considering the additional elements individually and in combination to determine if they provide significantly more than the judicial exception (MPEP 2106.05.A i-vi).
With respect to the instant claims, the additional elements described above do not rise to the level of significantly more than the judicial exception. As set forth in the MPEP at 2106.5(d).I, determinations of whether or not additional elements (or a combination of additional elements) may provide significantly more and/or an inventive concept rests in whether or not the additional elements (or combination of elements) represents well-understood, routine, conventional activity. Said assessment is made by a factual determination stemming from a conclusion that an element (or combination of elements) is widely prevalent or in common use in the relevant industry, which is determined by either a citation to an express statement in the specification or to a statement made by an applicant during prosecution that demonstrates a well-understood, routine or conventional nature of the additional element(s); a citation to one or more of the court decisions as discussed in MPEP 2106(d)(II) as noting the well-understood, routine, conventional nature of the additional element(s); a citation to a publication that demonstrates the well-understood, routine, conventional nature of the additional element(s); and/or a statement that the examiner is taking official notice with respect to the well-understood, routine, conventional nature of the additional element(s).
With respect to claims 1 and 5: The additional elements of an analysis circuitry and an estimation circuitry do not rise to the level of significantly more than the judicial exception. As exemplified in the MPEP at 2106.05(f) with reference to Alice Corp. 573 US at 223, 110 USPQ2d at 1983 “claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible”. Therefore, the device constitutes no more than a general link to a technological environment, which is insufficient to constitute an inventive concept that would render the claims significantly more than the abstract idea (see MPEP 2105(b)I-III). As such, it is recognized that these additional limitations are routine, well understood, and conventional in the art. These limitations do not improve the functioning of a computer, or comprise an improvement to any other technical field, they do not require or set forth a particular machine, they do not affect a transformation of matter, nor do they provide a non-conventional or unconventional step. As such, these limitations fail to rise to the level of significantly more.
With respect to claim 6: The additional element of a non-transitory computer-readable recording medium does not rise to the level of significantly more than the judicial exception. As exemplified in the MPEP at 2106.05(f) with reference to Alice Corp. 573 US at 223, 110 USPQ2d at 1983 “claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible”. Therefore, the device constitutes no more than a general link to a technological environment, which is insufficient to constitute an inventive concept that would render the claims significantly more than the abstract idea (see MPEP 2105(b)I-III). As such, it is recognized that these additional limitations are routine, well understood, and conventional in the art. These limitations do not improve the functioning of a computer, or comprise an improvement to any other technical field, they do not require or set forth a particular machine, they do not affect a transformation of matter, nor do they provide a non-conventional or unconventional step. As such, these limitations fail to rise to the level of significantly more.
The claims have all been examined to identify the presence of one or more judicial exceptions. Each additional limitation in the claims has been addressed, alone and in combination, to determine whether the additional limitations integrate the judicial exception into a practical application. Each additional limitation in the claims has been addressed, alone and in combination, to determine whether those additional limitations provide an inventive concept which provides significantly more than those exceptions. Individually, the limitations of the claims and the claims as a whole have been found lacking.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 5, and 6 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Krueger (US 2016/0007849 A1, published 01/14/2016).
Regarding claims 1 and 5, Krueger teaches a method for athletic performance estimation comprising:
obtaining a feature value based on eyeball movement of an observed person (Abstract) who is observing movement of a target (paragraphs [0012]; [0021]); and
estimating athletic performance of the observed person from the feature value obtained from the observed person, based on a predetermined relationship between the feature value based on the eyeball movement and a level of athletic performance (paragraphs [0001]; [0046]; [0168]; [0176]).
Furthermore, Krueger teaches a portable device (Abstract) comprising circuitry suitable as part of the system to perform the method (paragraph [0067]; Figure 2; paragraph [0077]).
Regarding claim 6, the claim is directed to a non-transitory computer-readable recording medium which stores a program for causing a computer to function as the athletic performance estimation apparatus according to claim 1. Rudin et al. teaches the apparatus of claim 1. Rudin et al. also teaches that a processor may execute instructions stored in a non-transitory computer readable medium, such as the memory, to control the functions of the system (paragraph [0135]).
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 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.
Claims 2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Krueger, as applied to claims 1, 5, and 6, in view of Rudin et al. (“Improvement of the Saccadic Eye Movements with the Sport Training Activity”, Proceedings of the 2nd International Colloquium on Sports Science, Exercise, Engineering and Technology 2015, published 2016).
Regarding claim 2, the claim is directed to the feature value being time-series information including a time when a saccadic eye movement occurs and an amplitude thereof; and the estimation circuitry estimating the athletic performance of the observed person so that a case in which the time and the amplitude included in the feature value and within a predetermined time period immediately before the target moves has a correlation corresponds to a higher level of athletic performance than otherwise. Krueger teaches the apparatus of claim 1. Krueger also teaches eye movement information comprising saccades (paragraphs [0106]; [0109]) and information comprising the moment when the saccadic eye movement occurs and the velocity of the signal (paragraph [0110]).
Krueger does not teach the claim elements of estimating the athletic performance of the observed person so that a case in which the time and the amplitude included in the feature value and within a predetermined time period immediately before the target moves has a correlation corresponds to a higher level of athletic performance than otherwise.
However, Rudin et al. teaches improvement of the saccadic eye movement with sport training activity. Rudin et al. teaches measuring the amplitude of saccadic eye movements of individuals (Table 4) and the latency of the saccadic eye movements (Table 2). Rudin et al. teaches individuals with higher athletic performance demonstration an amplitude of the saccadic eye moment indicating superior visual function as compared to individuals with less athletic performance (page 266, paragraph 4; page 267 paragraph 2).
Regarding claim 4, the claim is directed to the feature value being a normalized feature value obtained by integrating a first feature value with a second feature value, the first feature value being obtained from the observed person when the target moves in a first direction, the second feature value being obtained from the observed person when the target moves in a second direction different from the first direction. Krueger teaches the apparatus of claim 2 in view of Rudin et al.
Krueger does not teach the claim elements of -the feature value being a normalized feature value obtained by integrating a first feature value with a second feature value, the first feature value being obtained from the observed person when the target moves in a first direction, the second feature value being obtained from the observed person when the target moves in a second direction different from the first direction.
However, Rudin et al. teaches the target being a fixation light which alternated the simple rhythmic manner every 10 seconds, and that the test within which measurements were recorded lasted for 15 minutes and had 30 seconds of interval time for every alternated fixation light (page 264, paragraph 1), and the mean latency and amplitude of saccadic eye movement data obtained from the research was analyzed (page 264, Section 2.4).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated the measurement of saccadic eye movements of Rudin et al. to the system and method of Krueger because both Krueger and Rudin et al. are directed to the estimation of eye movements (Krueger Abstract, Rudin et al. page 261 Abstract). Krueger teaches using eyeball movements to estimate performance of an individual (paragraph [0001]) including athletic performance (paragraph [0176]), and Rudin et al. teaches the correlation of saccadic eye movements and athletic performance (page 261, Abstract). Thus, it would be obvious to one of ordinary skill in the art to combine the prior art references and one would have a reasonable expectation of success of determining a relationship between the movements of an individual’s eye and an athletic performance.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Krueger in view of Rudin et al., as applied to claims 2 and 4, and further in view of Becerra-Garcia et al. (“Data mining process for identification of non-spontaneous saccadic movements in clinical electrooculography”, Neurocomputing, 2017).
Regarding claim 3, the claim is directed to a classifier that has been trained in advance to classify the feature value obtained from the observed person into either a first category or a second category, the classification being performed using both the feature value obtained from a person falling under the first category and the feature value obtained from a person falling under the second category, the first category being of high athletic performance, the second category being of lower athletic performance than the first category, wherein the estimation circuitry obtains a classification result as an estimation result of the athletic performance of the observed person, the classification result being obtained by inputting the feature value obtained from the observed person into the classifier. Krueger teaches the apparatus of claim 2 in view of Rudin et al. Krueger also teaches a trained artificial neural network used to determine eye movement coordinates (paragraph [0105]).
Neither Krueger nor Rudin et al. teach the claim elements of a classifier that has been trained in advance to classify the feature value obtained from the observed person into either a first category or a second category.
However, Becerra-Garcia et al. teaches using machine learning algorithms including a Classification and Regression tree to identify no-spontaneous saccades in clinical electrooculography tests (Abstract). Becerra-Garcia et al. teaches impulses being classified into non-spontaneous saccadic movement or spontaneous saccadic movement using a machine learning model (page 29, column 1, paragraph 4), and teaches the model being trained with the input eye movement data (page 32, column 1, paragraph 2). Becerra-Garcia et al. teaches that the analysis of this kind of movement is often used in research conducted by the medical community (page 28, column 1, paragraph 2) and that non-spontaneous saccades are those performed following a visual stimulus, which are very useful in clinical studies because they allow control characteristics of the analyzed movements like amplitude, whereas spontaneous saccades are considered those that do not follow the visual stimuli, occurring at any time with any amplitude (page 28, column 2, paragraph 1).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art to have incorporated the classifier of Becerra-Garcia et al. to the method and apparatus of Krueger in view of Rudin et al. because Krueger is directed to using eyeball movements to estimate performance of an individual (paragraph [0001]) including athletic performance (paragraph [0176]) and teaches use of machine learning for computation of the eye movements (paragraph [0105]). Becerra-Garcia et al. is directed to using machine learning algorithms to identify no-spontaneous saccades in clinical electrooculography tests (Abstract). Thus, one of ordinary skill would have a reasonable expectation of success of using the classifier of Becerra-Garcia et al. in order to determine non-spontaneous saccades and remove noise from data (page 28, column 2) by combining the prior art references.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Emilie A Smith whose telephone number is (571)272-7543. The examiner can normally be reached 9am - 5pm.
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/E.A.S./Examiner, Art Unit 1686
/LARRY D RIGGS II/Supervisory Patent Examiner, Art Unit 1686