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 .
Applicant’s Response
Applicant’s response, filed 04/29/2026, has been fully considered. Rejections and/or objections not reiterated from previous Office Actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claims Status
Claim 2 is canceled.
Claims 1 and 3-6 are pending.
Claims 1 and 3-6 are examined.
Drawings
The drawings filed 04/29/2026 are accepted.
Withdrawn Objections/Rejections
The objection to the drawings filed 09/23/2022 is withdrawn in view of the replacement drawings filed 04/29/2026
The rejection of claims 1, 5 and 6 under 35 USC 102(a)(1) and 102(a)(2) over Krueger is withdrawn.
The rejection of claims 2 and 4 under 35 USC 103 over Krueger in view of Rudin et al. is withdrawn.
The rejection of claim 3 under 35 USC 103 over Krueger in view of Rudin et al. and further in view of Becerra-Garcia et al. is withdrawn.
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 1 and 3-6 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. Any newly recited portion is necessitated by claim amendments.
With respect to claims 1 and 5, the claims recite the limitation of “to evaluate with accuracy the athletic performance of the observed person”. The claims are indefinite because “with accuracy” is a relative term which renders the claim indefinite. The term is not defined by the claim, and the specification does not provide a standard for ascertaining the degree of accuracy of the estimation.
With respect to claim 3, the claim recites the limitation of “the classifying has been trained”. The claim is indefinite because it is unclear what steps comprise “the classifying has been trained”. It is unclear if the claim requires a classifier or if the apparatus itself has been trained to perform this step. It is unclear what would allow an action itself to be able to be trained.
With further respect to claim 3, the claim recites the limitation of “the classification result being obtained by inputting the feature value obtained from the classifying based on the observed person”. The claim is indefinite because there is no classifier recited by the claim, or any sort of model. Thus, it is unclear what the feature value is being input in, whether this is a model or the apparatus itself, and what thus generates the classification result.
Claims 4 and 6 are rejected due to being dependent on indefinite claims without remedying the indefiniteness.
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 and 3-6 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. Any newly recited portion is necessitated by claim amendments.
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 the eyeball movement, wherein the feature value represents time-series information including a time when a microsaccade occurs and an amplitude of the microsaccade, based on the eyeball movement of an observed person who is observing movement of a target
estimating athletic performance of the observed person so that a case, in which the amplitude included in the feature value within a predetermined time period immediately before the target moves has a correlation with the movement of the target, corresponds to a higher level of athletic performance than otherwise to evaluate with accuracy the athletic performance of the observed person who is observing movement of the target
Dependent claims 3 and 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 3: “classifying the feature value obtained from the observed person into either a first category or a second category, wherein the classifying has been trained 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 represent high athletic performance, and the second category represents lower athletic performance than the first category, wherein the estimating further comprises obtaining 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 classifying based on the observed person”
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 5 recite the following additional elements that are not abstract ideas:
a processor configure to execute operations
obtaining an eyeball movement of an observed person who is observing movement of a target
The elements of a processor executing operations is 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)). Furthermore, the step of obtaining eyeball movement generates the data on which the judicial exceptions are performed and is thus directed to a data gathering step. Data gathering does not impose any meaningful limitation on the abstract idea, or how the abstract idea is performed. Data gathering steps are not sufficient to integrate an abstract idea into a practical application (MPEP 2106.05(g)).
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 a processor configured to execute operations and obtaining eyeball movement of an observed person who is observing movement of a target 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). Furthermore, the prior art to Piras et al. (“Microsaccades and Prediction of a Motor Act Outcome in a Dynamic Sport”, Visual Neuroscience, published July 2015) discloses showing a relationship between microsaccades and visual perception (page 4520, column 1, paragraph 2). 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.
Response to Arguments
Applicant states that “claim 1 recites additional limitations of ‘estimates athletic performance of the observed person to that a case, in which the time and the amplitude included in the feature value within a predetermined time period immediately before the target moves has a correlation with the movement of the target, corresponds to a higher level of athletic performance than otherwise to evaluate with accuracy the athletic performance of the observed person who is observing movement of the target.’ The additional limitations are not abstract grouping because it is impractical for the human mind to perform by use of pen and paper, or by applying the generic computing component, to estimate athletic performance of the observed person as described in the claim. The additional limitations are not insignificant extra-solution activities because these are integral part of estimating athletic performance. These additional limitations improve a technical field of estimating, based on given video data of eyeball movement, athletic performance of the observed person. The additional limitations further positive recite enabling evaluation with accuracy the athletic performance of a person who looks at movement of a target as an improvement to computer functionality, which the court in the Desjardins case found as patent eligible.”
It is respectfully submitted that this is not persuasive. It is the additional elements of the claims that are analyzed to determine whether the claims are integrated into a practical application (MPEP 2106.04(d).I; MPEP 2106.05(a-h)), and it is the additional elements that are examined to determine if there is an inventive concept (MPEP 2106.05.A i-vi). An improvement in the judicial exception itself is not an improvement that integrates the claims into a practical application. Steps of estimating values are mental processes because these can easily be performed within the mind. The claims do not require massive amounts of data or steps that are impossible to perform in the human mind. The claims simply comprise gathering of data and data analysis, performed on a computer. Claim limitations merely applying the use of judicial exceptions to a computer environment does not integrate the judicial exceptions into a practical application (MPEP 2106.05(f)). Furthermore, Data gathering steps are not sufficient to integrate an abstract idea into a practical application (MPEP 2106.05(g)). Therefore, the rejection under 35 USC 101 is maintained.
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.
Claims 1 and 3-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Piras et al. (“Microsaccades and Prediction of a Motor Act Outcome in a Dynamic Sport”, Visual Neuroscience, published July 2015). This is a new grounds of rejection as necessitated by claim amendments.
Regarding claims 1 and 5, Piras et al. teaches a method for athletic performance estimation comprising:
obtaining an eyeball movement of an observed person (page 4521, column 2, Section Eye Movement Recording) who is observing movement of a target (page 4521, column 1, Section Stimuli and Procedure, paragraph 3);
obtaining a feature value based on the eyeball movement, wherein the feature value represents time-series information including a time when a microsaccade occurs and an amplitude of the microsaccade, based on the eyeball movement (page 4521, column 2, Section Microsaccade Dynamics);
estimating athletic performance of the observed person so that a case, in which the amplitude included in the feature value within a predetermined time period immediately before the target moves has a correlation with the movement of the target, correspond to a higher level of athletic performance than otherwise to evaluate with accuracy the athletic performance of the observed person who is observing movement of the target (page 4522, column 2; page 4524, column 1, Section Discussion; Abstract Results and Conclusions).
Furthermore, Piras et al. inherently teaches a computer performing the method, as evidenced by disclosures of computing (page 4522, column 1, paragraph 3). Thus, Piras et al. teaches an apparatus comprising a processor configured to execute the operations.
Regarding claim 3, the claim is directed to classifying the feature value obtained from the observed person into either a first category or a second category, wherein the classifying has been trained 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 represent high athletic performance, and the second category represents lower athletic performance than the first category, wherein the estimating further comprises obtaining 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 classifying based on the observed person. Piras et al. teaches the apparatus of claim 1. Piras et al. also teaches performing data analysis on the feature values to classify the features values (page 4522, column 1), wherein participants’ responses are classified as having correct or incorrect response accuracy and are classified based on response time, with novices having longer response times than experts (page 4522, column 1, Section Results, Data Preprocessing and Anticipation Test; Figure 3). Piras et al. is determined to sufficiently teach the limitations of claim 3 due to issues of indefiniteness and lack of clarity regarding “classifying being trained”, as described in the 112(b) rejection above.
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 directed, the second feature value being obtained from the observed person when the target moves in a second direction different from the first direction. Piras et al. teaches the apparatus of claim 1. Piras et al. teaches the feature value being a normalized feature value by integrating several directions of the ball moving in the video, because in the videos shown to the participants, the ball is bouncing and bouncing to different sides (page 4521, column 1, Section Stimuli and Procedure, paragraph 3; page 4521, column 2, Section Eye Movement Recording).
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. Piras et al. teaches the apparatus of claim 1. Piras et al. teaches a generic computer apparatus (page 4522, column 1, paragraph 3) and thus inherently teaches a non-transitory computer-readable recording medium that stores a program for causing the computer to perform the steps as required by claims 1 and 5.
Response to Arguments
Applicant submits that “claim 1 incorporates limitations of previously pending dependent claim 2. In contrast, Krueger describes measuring behavior of the saccadic system, which is responsible for a saccade that brings the fovea on target, as a part of measuring vestibulo-ocular reflex, dynamic visual acuity, and/or dynamic visual stability by using a head-worn unit. Kruger, at para. [0021], [0029], [0075], and [0077]. Accordingly, Krueger focuses on measuring saccade, which is distinct from microsaccade as described in the claim. Specification, at para. [0012]. Rudin describes improving saccadic eye movements during a sport training activity. Accordingly, Rudin focuses on moving saccadic eye movements. Becerra-Garcia describes use of machine learning algorithms to identify non- spontaneous saccades. Accordingly, Becerra-Garcia focuses on identifying saccadic eye movements.
If one skilled in the art were to modify the saccade measurement of Krueger to combine with the teachings of Rudin and Becerra-Garcia, the result would still describe measuring occurrences of saccade, not a microsaccade The result would not describe estimating athletic performance according to the correlation between microsaccade amplitude and the movement of target. The result would not describe, "an analysis circuitry that obtains a feature value, which is time-series information including a time when a microsaccade occurs and an amplitude thereof, based on the eyeball movement; and an estimation circuitry that estimates athletic performance of the observed person so that a case, in which the amplitude included in the feature value within a predetermined time period immediately before the target moves has a correlation with the movement of the target, corresponds to a higher level of athletic performance than otherwise, whereby enabling an evaluation of athletic performance of the observed person who is observing movement of the target," as described in the claim. As such, claim 1 is allowable over Krueger in view of Rudin and further in view of Becerra-Garcia. The other independent claim, i.e., claim 5, recites similar limitations and is allowable over Krueger in view of Rudin and further in view of Becerra-Garcia for at least the same or similar reasons.”
It is noted that the previous limitations of claim 2 integrated into claim 1 did not recite any limitations regarding specifically microsaccades. Krueger et al. does not discuss microsaccades. A new grounds of rejection has been set forth in view of the amendments.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Larry D Riggs can be reached at (571)270-3062. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/E.A.S./Examiner, Art Unit 1686
/OLIVIA M. WISE/Supervisory Patent Examiner, Art Unit 1685
Prosecution Insights