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 .
Notice of Amendment
This communication is responsive to the amendment(s) and/or argument(s) filed 11/3/25. The previous ground(s) of objection and/or rejection is/are withdrawn. The following new and/or reiterated ground(s) of rejection is/are set forth hereinbelow.
Information Disclosure Statement
The accompanying information disclosure statement (IDS) submission(s) is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1 and 3-21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Although claims 1 and 14 find support as filed, the claimed “eye-tracking unit measuring the eye’s movement” in claim 1, the “analyzing unit outputting a metric result” in claim 1, and the “positioning unit to keep the tested person at a fixed location” in claim 14 are not described in the instant specification. No structural details, specifics, and/or descriptions appear provided as to what these “units” necessarily are. Given the lack of disclosed corresponding support or structure for the claimed “eye-tracking unit measuring the eye’s movement” in claim 1, the “analyzing unit outputting a metric result” in claim 1, and the “positioning unit to keep the tested person at a fixed location” in claim 14, the claims lack written description because the limitations were not described with sufficient detail such that one of ordinary skill would be apprised of possession of the claimed invention.
Depending claim 3-13 and 15-21 inherit and to not remedy the lack of written description due to failure to sufficiently describe the claim limitation structures, leading to lack of possession.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
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 3-21 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.
Although claims 1 and 14 find support as filed, the claimed “eye-tracking unit measuring the eye’s movement” in claim 1, the “analyzing unit outputting a metric result” in claim 1, and the “positioning unit to keep the tested person at a fixed location” in claim 14 are not described in the instant specification. No structural details, specifics, and/or descriptions appear provided as to what these “units” necessarily are. Given the lack of disclosed corresponding support or structure for the claimed “eye-tracking unit measuring the eye’s movement” in claim 1, the “analyzing unit outputting a metric result” in claim 1, and the “positioning unit to keep the tested person at a fixed location” in claim 14, the scope of the claims are indeterminate with respect to what necessarily must be explicitly, implicitly, and/or inherently required and/or excluded from the scope of the claims. One of ordinary skill in the art would not be apprised of the metes and bounds of the claimed invention, particularly in light of the instant Specification.
Depending claim 3-13 and 15-21 inherit and to not remedy the indefiniteness given the lack of disclosed detail what the structure(s) may and/or may not be.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1 and 3-21 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Hill et al. (WO 2018/006013 A1, 1/19/23 IDS Foreign Patent citation 2, and hereinafter Hill).
For claim 1, Hill discloses a device for providing an eye metric, comprising:
a display unit (122), producing a visual stimulus to an eye (Figs 1, 4, 5, 6) ([0024]),
an eye-tracking unit (112), measuring the eye's movements in response to said stimulus (Figs 1, 4, 6) ([0024]), and
an analyzing unit (102), outputting a metric result (110 (Fig 1) ([0026])),
characterized by
the display unit being configured to produce a moving stimulus (116) with at least one varying stimulus parameter ([0025-0029]) (Fig 4),
the eye-tracking unit being configured to detect the eye losing visual contact with the stimulus ([0026]) (Fig 4), and
the analyzing unit being configured to provide a metric result based on the value of said stimulus parameter at the time when loss of visual contact was detected ([0026]) (Fig 4),
wherein a varying stimulus parameter is the contrast between different parts of a moving symbol and/or between the moving symbol and the background (Figs 3-4) ([0031-0043]).
For claim 3, Hill discloses the device according to claim 1, wherein the symbol comprises a lighter field and a darker field (Figs 3-4) ([0031-0043]).
For claim 4, Hill discloses the device according to claim 3, wherein the contrast between the darker field and the lighter field is gradually decreased (Figs 3-4) ([0031-0043]).
For claim 5, Hill discloses the device claim 3, wherein pixels of the darker and the lighter field are increasingly shuffled (Figs 3-4) ([0031-0043]).
For claim 6, Hill discloses the device according to claim 1, wherein the average brightness of the symbol is the same as the background (Figs 3-4) ([0044-0045]).
For claim 7, Hill discloses the device according to claim 1, wherein the stimulus parameter is changed by decreasing the size of a moving symbol ([0025, 0028-0030, 0062-0072]).
For claim 8, Hill discloses the device according to claim 1, wherein the stimulus parameter is changed by changing the velocity, acceleration or turning radius of a moving symbol ([0025, 0028-0030, 0062-0072]).
For claim 9, Hill discloses the device according to claim 1, wherein the stimulus is a symbol moving along a path and repeatedly making jumps in different angles ([0025, 0028-0030, 0062-0072]).
For claim 10, Hill discloses the device according to claim 9, wherein the jump is made in a direction deviating from the symbol's direction of movement prior to the jump ([0025, 0028-0030, 0062-0072]).
For claim 11, Hill discloses the device according to claim 9, wherein when the tested person loses of visual contact with the symbol, an indicator is provided at the symbol to allow the tested person to regain contact ([0031]).
For claim 12, Hill discloses the device according to claim 1, wherein change of the stimulus parameter is reversed when the tested person loses of visual contact with the symbol (Fig 4) ([0025, 0028-0030, 0062-0072]).
For claim 13, Hill discloses the device according to claim 1, wherein the stimulus is provided with different colors (Fig 4) ([0025, 0028-0030, 0062-0072]).
For claim 14, Hill discloses the device according to claim 1, wherein the device includes a positioning unit ([0065], [0069]) to keep the tested person at a fixed location, the stimulus includes a moving symbol, and the display unit is configured to produce the moving object at different optical distances from the eye (Fig 4) ([0025, 0028-0030, 0062-0072]).
For claim 15, Hill discloses the device according to claim 14, wherein the display unit is angled with respect to the location of the tested person (Figs 1, 6).
For claim 16, Hill discloses the device according to claim 14, wherein the display unit comprises multiple displays at different distances to the location of the eye (Figs 1, 6) ([0031-0043]).
For claim 17, Hill discloses the device according to claim 1, wherein the display unit is configured to provide the stimulus in a pattern that is unpredictable to the tested person ([0025, 0028-0030, 0062-0072], esp [0067]).
For claim 18, Hill discloses the device according to claim 1, wherein the analyzing unit is configured to provide a metric result based on the value of said stimulus parameter at the time when loss of visual contact was detected ([0033-0043]) and based on a database (118) containing data of a plurality of tested persons having carried out a corresponding test ([0033-0043]).
For claim 19, Hill discloses the device according to claim 1, wherein a controllable lens (virtual reality goggles, [0028-0029]) is placed in close proximity to the tested eye ([0028-0030]).
For claim 20, Hill discloses the device according to claim 19, being configured to change cylindrical and spherical values of that lens ([0028-0030]).
For claim 21, Hill discloses the device according to claim 19, where the analyzing unit controls both the lens and the screen ([0028-0030], [0073]).
Response to Arguments
Applicant's arguments filed 11/3/25 have been fully considered but they are not persuasive.
Regarding the 112(f) rebuttal presumption, it is noted Applicant does not intend to invoke 112(f).
Regarding the previous claim objection, it has been withdrawn in view of amendment.
Regarding the arguments in response to the 112(a) and 112(b) rejections, Applicant specifically argues the following:
the eye-tracking unit measuring the eye's movement is described on page 4, lines 15-17. Furthermore, the specification explicitly states that the eye-trackers are well- known to one of ordinary skill in the art.
Additionally, one of ordinary skill in the art would readily understand that the analyzing unit includes any computer or processing device that seeks to analyze.
Lastly, the positioning unit to keep the tested person at a fixed location is fully described in both the specification and the figures. An example of the positioning unit is found in the head rest (3) of Fig. lA and described in page 4, lines 3-11.
The Examiner respectfully disagrees, maintains the rejection as set forth and reiterated above, and notes the following in response:
The instant Specification page 4 lines 15-17 merely recites: “The eyetracking may be based on any eyetracking technology, such as so-called bright and/or dark pupil measurements, iris detection, sclera movement observations or glint measurements or a combination thereof, as per se is well known in the art.”
The instant Specification page 4 lines 3-11 merely recites: “Fig 1A schematically shows a basic arrangement 1 for carrying out tests. The arrangement may optionally include a head rest 3 where the tested person's head 55 can rest during testing. The test person watches a screen 7 on which various visual stimuli is produced. An eyetracker 9 is used to track the user's eye movements, and an analyzing unit 10 compares the provided stimulus with the eyetracking response to determine a corresponding eye metric and/or other information. The analyzing unit may communicate with a database 12 which contains e.g. corresponding metrics from persons with e.g. known deficiencies etc. in order to provide a more elaborated result as will be discussed.”
The disclosure corresponding to the claimed “eye-tracking unit measuring the eye’s movement” in claim 1, the “analyzing unit outputting a metric result” in claim 1, and the “positioning unit to keep the tested person at a fixed location” in claim 14 does not include specific corresponding structure(s) described in sufficient detail to demonstrate possession of or render definite the claimed scope of structure(s) responsible for the eye-tracking, analyzing, or positioning.
Although the claimed “eye-tracking unit measuring the eye’s movement” could be associated to be described as “any eyetracking technology”, the Specification fails to mention the claimed eye-tracking unit and the cited portion does not comprise any specific corresponding disclosed structure. The claimed “eye-tracking unit measuring the eye’s movement” lacks written description and possession is not demonstrated because the claimed “eye-tracking unit measuring the eye’s movement” remains a black box of what structure(s) correspond thereto. Assuming arguendo that even if the instant Specification page 4 lines 15-17 were construed to describe the claimed “eye-tracking unit measuring the eye’s movement”, “any eyetracking technology” does not describe with sufficient specificity any corresponding structure(s), and instead merely recites functional accomplishments devoid of actual or particular structure.
Although the claimed “eye-tracking unit measuring the eye’s movement” could be associated to be described as “any eyetracking technology”, the Specification fails to mention the claimed eye-tracking unit and the cited portion does not comprise any specific corresponding disclosed structure. The scope of the claims remain indeterminate with respect to what necessarily must be explicitly, implicitly, and/or inherently required and/or excluded from the scope of the claims. One of ordinary skill in the art would not be apprised of the metes and bounds of the claimed invention, particularly in light of the instant Specification and the indeterminate recitation of “any eyetracking technology” that comprises an infinite number of combinations to accomplish the measurements.
Regarding the claimed “analyzing unit outputting a metric result” and in view of Applicant’s assertion that “one of ordinary skill in the art would readily understand that the analyzing unit includes any computer or processing device that seeks to analyze”, the Examiner respectfully notes that arguments by Applicant cannot take the place of evidence where evidence is necessary. See MPEP 716.01(c). It remains that there is no corresponding demonstrated possession of the claimed “analyzing unit outputting a metric result” in the instant Specification and that the scope of the claims remain indeterminate with respect to what necessarily must be explicitly, implicitly, and/or inherently required and/or excluded by the claimed “analyzing unit outputting a metric result”.
Although the claimed “positioning unit to keep the tested person at a fixed location” could be associated to be described as “head rest”, the Specification fails to mention the claimed positioning unit and the cited portion does not comprise any specific corresponding disclosed structure. The claimed “positioning unit to keep the tested person at a fixed location” lacks written description and possession is not demonstrated because the claimed “positioning unit to keep the tested person at a fixed location” remains a black box of what structure(s) correspond thereto.
The instant Specification fails to mention or describe the claimed “positioning unit to keep the tested person at a fixed location” and does not comprise any specific structure(s) corresponding thereto. The scope of the claims remain indeterminate with respect to what necessarily must be explicitly, implicitly, and/or inherently required and/or excluded from the scope of the claims.
Regarding the arguments in response to the 102(a)(2) rejection, Applicant specifically argues the following:
“Applicants have amended independent claim 1 to recite that a varying stimulus parameter is the contrast between different parts of a moving symbol and/or between the moving symbol and the background. The Office Action alleges that Hill discloses the aforementioned varying stimulus parameter by teaching a pursuit detector that examines the smooth movement of the eye as a visual stimulus moves at a relative velocity. However, the eye-tracking in Hill is not analyzed based on the contrast between the different parts of the moving symbol and/or the background, as recited in independent claim 1. “
Hill’s “…method is completely different in the present disclosure, where a symbol moves over a display with a decreasing visibility, and the eye-tracking device detects when the test subject is no longer capable of following the symbol. The measured "smoothness of the eye movement" of paragraph [0026] in Hill refers to the tested subject capability of producing a general smooth pursuit movement correlated to the material produced on the display as a whole rather than the capability of following an individual symbol. This is also illustrated in fig 2 where clearly the tested subject follows a stripe from one side of the display to the other until not being capable of beginning to following a stripe at all. Accordingly, Applicants respectfully submit that independent claim 1 is patentable over Hill.”
The Examiner respectfully disagrees, maintains the rejection as set forth and reiterated above, and notes the following in response:
Hill explicitly states at least the following:
[0003] “For example, the system can alter the contrast and spatial frequency of the stimulus to determine the limits of the subject's visual ability.”
[0007] “The pursuit detector can be configured to change a spatial frequency of the visual stimulus. The pursuit detector can be configured to change a contrast of the visual stimulus.”
[0008] “The pursuit detector can be configured to display a second visual stimulus from the first location to the second location. The second visual stimulus can have a spatial frequency or a contrast different than the visual stimulus”
[0013] “The method can include changing a spatial frequency of the visual stimulus. The method can include changing a contrast of the visual stimulus. The method can include generating an audible notification.”
[0014] “The method can include displaying a second visual stimulus from the first location to the second location. The second visual stimulus can have a spatial frequency or a contrast different than the visual stimulus.”
[0019] “FIG. 3 illustrates a plot of example contrast and spatial frequency settings.”
[0032] “The data processing system 102 can include a test protocol database 108. The test protocol database 108 can store a plurality of test protocols. The test protocols can be designed to test the visual acuity or ability of the subject. The test protocols can set the speed at which the visual stimulus 116 scrolls across the display 122. The test protocols can set the spatial frequency and contrast for the visual stimulus 116 for each trial of a test. In one example, the test protocol can set the spatial frequency and contrast to a range that the subject can track smoothly with their eyes. With each subsequent test, the test protocol can instruct the pursuit detector 106 to change the contrast or the spatial frequency of the visual stimulus 116, for example, decreasing the visual stimulus 116 until the subject cannot track the visual stimulus 116. In some implementations, the test protocol can call for the pursuit detector 106 to change the visual stimulus' s contrast, spatial frequency, speed, direction, or any combination thereof during a test.”
[0045] “FIG. 3 illustrates a plot 300 of example contrast and spatial frequency settings. As discussed above, the test protocol database 108 can include different test protocols that the pursuit detector 106 can follow to determine or test the visual acuity of the subject. During the tests, the protocols can call for the pursuit detector 106 to alter one or more of the contrast, the spatial frequency, speed, or direction of the visual stimulus 116. The spatial frequency and contrast can be adjusted to ranges that are beyond the visual capability of the subject. Under these conditions, the subject cannot see the visual stimulus 116 well enough to generate smooth eye movements. As the pursuit detector 106 adjusts the spatial frequency and contrast, the pursuit detector 106 can determine the boundary of the subject's visual acuity when the pursuit detector 106 detects the transition between smooth and non-smooth eye movements. In some implementations, the system 100 can include a light sensor that can set the contrast responsive to the ambient lighting conditions.”
[0046] “The plot 300 illustrates two of the dimensions along which the visual stimulus 116 can vary to make the visual stimulus 116 more or less difficult to see (and track). A higher spatial frequency means that the spatial details of the pattern are finer. Higher contrast means a starker difference between light and dark areas of the visual stimulus 116. Either or both of these parameters may be manipulated to find a subject's threshold— the spatial frequency above which, or the contrast below which, the stimulus can no longer be seen and/or tracked.”
[0065] “The statistical test is the same as the one used by the underlying algorithm to turn the music on or off, but instead of using a short sliding window it evaluates over the whole period of the trial. The clock that determines when a trial has elapsed, and the buffer that gathers data for evaluation, are both suspended while animated characters are visible. After a hit, the stimulus is made harder to see or to track (by decreasing contrast and/or increasing spatial frequency). After a miss, the stimulus is made easier to see or to track (by increasing contrast and/or decreasing spatial frequency). The software may be configured to stop as soon as the subject can no longer track, or a psychophysical staircase procedure may be implemented to home in more thoroughly on the subject's visual threshold.”
Thus, and as per emphasized above, Hill discloses inter alia (i) displaying a moving stimulus with a varying stimulus parameter that is the contrast between different moving symbol parts or between moving symbols or background, (ii) eye tracking for losing visual contact with the stimulus, and (iii) analyzing a metric result based on stimulus and losing eye contact parameters.
Further and in response to applicant's argument that Hill fails to disclose the claimed functions, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this instance Hill not only discloses the claimed structures executing the claimed functions, but also Hill discloses at least the structural equivalent of the claimed invention, regardless of the deficiencies of the instant Specification.
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 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 Jeffrey G. Hoekstra whose telephone number is (571)272-7232. The examiner can normally be reached Monday through Thursday from 5am-3pm EST.
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, Charles A. Marmor II can be reached at (571)272-4730. 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.
Jeffrey G. Hoekstra
Primary Examiner
Art Unit 3791
/JEFFREY G. HOEKSTRA/ Primary Examiner, Art Unit 3791