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 amendments dated 6/9/26 are hereby entered.
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 1-4, 6-11, 13-18, and 20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 1-4, 6-11, 13-18, and 20 are directed to an abstract idea without significantly more. The claims recite a mental process that can be performed by a human being, a method of organizing human activity, mathematical concepts, the rules of a game, and/or claim training/employing a machine learning algorithm in a particular environment.
In regard to Claims 1, 8, and 15, the following limitations can be performed as a mental process by a human being in terms of claiming collecting data, analyzing that data, and providing outputs based on that analysis which has been held by the CAFC to be an abstract idea in decisions such as, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential); recite a method of organizing human activity in terms of claiming the teaching/training/evaluation of a human subject’s which has been identified by MPEP 2106.04(a)(2)(II) as being a method of organizing human activity; claim mathematical concepts as outlined at MPEP 2106.04(a)(2)(I); claim the rules of a game which has been identified by the CAFC as being an abstract ides in decisions such as, e.g., Savvy Dog Systems v. Pennsylvania Coin (non-precedential; 2023-1073; 3/21/24), in terms of the Applicant claiming:
[a] method for biometric mixed-reality emotional modification, the method comprising:
collecting […] biometric information on a user during a […] session, wherein the biometric information comprises a plurality of stress biomarkers in sweat of the user […];
[displaying] a plurality of [visual] content elements to the user;
generating a list of the elements along with user mental states provoked by the elements based on the biometric information;
identifying, by one or more [algorithms], a mental state of the user based on a concentration of the stress biomarkers within the biometric information; and
responsive to determining that the mental state does not match an intended emotion associated with [an] experience, modifying the […] experience with one or more [visual] content elements selected from the generated list that are associated with the intended emotion.
In regard to Claims 1, 8, and 15, Applicant claims training/employing a machine learning algorithm in a particular environment which has held by the CAFC to be abstract in, e.g., Recentive Analytics v. Fox Corp (2023-2437; 4/18/25), in terms of the Applicant claiming.
In regard to the dependent claims, they also claim an abstract idea to the extent that they merely claim further limitations that likewise could be performed as a mental process by a human being, a method of organizing human activity, mathematical concepts, the rules of a game, and/or claim training/employing a machine learning algorithm in a particular environment.
Furthermore, this judicial exception is not integrated into a practical application because to the extent that additional elements are claimed either alone or in combination such as, e.g., embodying Applicant’s abstract idea as a computer program stored in a memory that is executed on a processor, biosensors comprising a densely packed array, training/employing machine learning models, and/or employing mixed-reality, these are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., data gathering), to embody the abstract idea on a general purpose computer, and/or do no more than generally link the use of a judicial exception to a particular technological environment or field of use. In this regard, see MPEP 2106.04(d)(I) in regard to “courts have also identified limitations that did not integrate a judicial exception into a practical application…”
Furthermore, the claims do not include additional elements that taken individually, and also taken as an ordered combination, are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g., embodying Applicant’s abstract idea as a computer program stored in a memory that is executed on a processor, biosensors comprising a densely packed array, training/employing machine learning models, and/or employing mixed-reality, these are well-understood, routine, and conventional elements and are claimed for the well-understood, routine, and conventional functions of collecting and processing data and/or providing an analysis/outputs based on that processing. To the extent that an apparatus is claimed as an additional element said apparatus fails to qualify as a “particular machine” to the extent that it is claimed generally, merely implements the steps of Applicant’s claimed method, and is claimed merely for purposes of extra-solution activity or field of use. See MPEP 2106.05(b). As evidence that these additional elements are well-understood, routine, and conventional, Applicant’s specification discloses the support for these elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See, e.g., F1 in Applicant’s specification and text regarding same; see, e.g., p15 specifically regarding biosensors comprising a densely packed array; see, e.g., p27-28 and 56 regarding training/employing machine learning models; and/or see, e.g., p19 regarding employing a mixed-reality device.
Claim Rejections - 35 USC § 103
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.
Claims 1-2, 6, 8-9, 13, 15-16, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over PGPUB US 20200201434 A1 by Aliamiri (“Aliamiri”), in view of PGPUB US 20180289296 A1 by Heikenfeld et al (“Heikenfeld”).
In regard to Claim 1, Aliamiri teaches a processor-implemented method for biometric mixed-reality emotional modification, the method comprising:
training a sensor array comprising a plurality of biosensors by measuring a sensor array response to a plurality of […] biomarkers and adjusting parameters of one or more neural networks based on the sensor array response […];
(see, e.g., p66);
collecting, by the plurality of biosensors, biometric information on a user during a mixed-reality session, wherein the biometric information comprises the plurality of […] biomarkers […];
(see, e.g., p24 and F8, S202);
administering, within a control missed-reality environment, a plurality of virtual content elements to the user;
(see, e.g., F8, S205);
generating a list of the elements along with user mental states provoked by the elements based on the biometric information;
(see, e.g., F8, S205 and p72, “[t]he control neural network 100 may be trained to better correspond to a user's individual affective state responses to different content and/or visual stimulus.”);
identifying, by the one or more neural networks, a mental state of the user based on […] the biometric information; and
(see, e.g., F5, 54 and F7, 54);
responsive to determining that the mental state does not match an intended emotion associated with a mixed-reality experience, modifying the mixed-reality experience with one or more virtual content elements selected from the generated list that are associated with the intended emotion
(see, e.g., p69);
Furthermore, to the extent that Aliamiri may fail to specifically teach the remaining claimed limitations, however, in an analogous reference Heikenfeld teaches employing the claimed device to sample sweat biomarkers and to identify a physiological state of the user based on the concentrations of those biomarkers (see, e.g., p47, 57, and 87-88);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of filing because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have employed the sensor array and method of processing sensor data taught by Heikenfeld as part of the method otherwise taught by Aliamiri in order to better identify the user’s physiological states.
In regard to Claim 2, Aliamiri teaches these limitations. See, e.g., p71 and F8.
In regard to Claim 6, Aliamiri teaches these limitations. See, e.g., F8.
In regard to Claim 8, see rejection of Claim 1.
In regard to Claim 9, see rejection of Claim 2.
In regard to Claim 13, see rejection of Claim 6.
In regard to Claim 15, see rejection of Claim 1.
In regard to Claim 16, see rejection of Claim 2.
In regard to Claim 20, see rejection of Claim 6.
Claims 3, 10, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Aliamiri, in view of Heikenfeld, further in view of PGPUB US 20180024626 A1 by Sanger et al (“Sanger”).
In regard to Claims 3, 10, and 17, while Aliamari teaches employing the data from multiple biosensors in order to determine the user’s affective state (“one or more dominant emotions) (see, e.g., F6), it may not, however, specifically teach employing feature vectors for this purpose, however, in an analogous reference Sanger teaches that functionality (see, e.g., p13);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of filing because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have added the functionality taught by Sanger to the method otherwise taught by Aliamiri, in order to add an additional dimension to the data analysis.
Claims 4, 11, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Aliamiri, in view of Heikenfeld, further in view of admitted prior art.
In regard to Claims 4, 11, and 18, while Aliamari teaches employing neural networks to determine the user’s affective state based on the biosensor data (see, e.g., F6), it may not, however, specifically teach those networks employing weightings, however,
the Examiner takes OFFICIAL NOTICE that employing weightings as part of neural networks was old and well-known at the time of Applicant’s filing its invention. Such functionality allows for the networks to be trained by adjusting the weightings in order to make more accurate predictions. As such it would have been obvious to one of ordinary skill in the art at the time of filing to implement the claimed functionality within the invention of the cited prior art so as to allow for the networks to be trained by adjusting the weightings in order to make more accurate predictions of affective states;
Furthermore, the Applicant failed to adequately traverse the Examiner’s taking of official notice in a prior Office action and, therefore, these claimed limitations are now admitted prior art. See MPEP 2144.03.
Claims 7 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Aliamiri, in view of Sanger.
In regard to Claims 7 and 14, while Aliamari teaches employing the data from multiple biosensors, it may not, however, specifically teach employing the two claimed biosensors, however, in an analogous reference Sanger teaches that functionality (see, e.g., p61);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of filing because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have added the functionality taught by Sanger to the method otherwise taught by Aliamiri, in order to add an additional dimension to the data analysis.
Response to Arguments
Applicant argues on pages 9-10 of its Remarks in regard to the rejections made under 35 USC 101 that it does not claim an abstract idea in the form of the “rules of game”. Applicant’s argument is unpersuasive in light of its own PGPUB which discloses the invention as being embodied as a game:
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Applicant argues on page 11 of its Remarks:
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Applicant’s argument is unpersuasive because the claimed sensors are not identified as being part of the alleged abstract idea.
Applicant argues on page 12 of its Remarks:
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Applicant’s argument is unpersuasive because Applicant claims its sensor for data collection, as opposed to claiming any improvement to the sensor itself as far as, e.g., making it run faster, yield more precise results, and/or be manufactured more cheaply. Consistent with the CAFC’s opinions in the cited legal authorities, such a use of a sensor does not add “significantly more” to Applicant’s claimed abstract idea.
Applicant argues on page 13 of its Remarks:
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Applicant’s argument is unpersuasive because Applicant’s alleged improvement is in regard to the accuracy of its claimed algorithm in terms of how well it correlates biometric data to a classified emotional state (“the technical issue of non-ideal biosensor selectivity”). Such an improvement to an algorithm, however, does not in and of itself render patent eligible subject matter under the Mayo test. See, e.g., the CAFC’s opinion in In re: Board of Trustees of the Leland Stanford Junior University (2020-1012; 3/11/21) in this regard. Again, Applicant’s claimed invention makes no improvement to its claimed sensor qua sensor.
Applicant’s arguments in regard to the art rejections are addressed by the updated statements of rejection made supra in that regard, which were necessitated by Applicant’s amendments.
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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 Mike Grant whose telephone number is 571-270-1545. The Examiner can normally be reached on Monday through Friday between 8:00 a.m. and 5:00 p.m., except on the first Friday of each bi-week.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's Supervisory Primary Examiner, Peter Vasat can be reached at 571-270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MICHAEL C GRANT/Primary Examiner, Art Unit 3715
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