I. ACKNOWLEDGEMENTS
This Office Action addresses U.S. Application No. 18/035105 (“’105 Application” or “instant application”). Based upon a review of the instant application, the actual filing date of the instant application is May 2, 2023. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This action is being issued following Applicant’s response of 11/3/2025, which included: 1) claim amendments and 2) arguments.
II. STATUS OF CLAIMS
Claims 1-20 were filed with the application. The amendment of 11/3/2025 amended claims 1, 4, 7, 9, 12, 15, 17, and 19 and cancelled claims 2-3, 10-11, and 18. Therefore, as of the date of this Office Action, the status of the claims is:
a. Claim 1, 4-9, 12-17, 19, and 20 (“Pending Claims”).
III. PRIORITY AND CONTINUING DATA
The ‘105 application is a National Stage Application filed from PCT/US2021/061566, filed December 2, 2021. The PCT claims priority to US Provisional Application 63/120244, filed December 2, 2020. Because the earliest possible effective filing date is after March 16, 2013, the first to file provision of the AIA , apply to this proceeding.
V. REJECTIONS UNDER 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, 4-9, 12-17, 19, and 20 are rejected under 35 USC 101 because the claimed invention is directed to an abstract idea without significantly more (See MPEP 2106.04(a)).
Claim 1 recites the limitations:
receiving an EEG output
determining a mathematical model of the brain using the EEG output, wherein the mathematical model comprises a plurality of ODEs that are determined based on the EEG output
characterizing brain activity using the mathematical model mathematical model, where the characterizing comprises comparing a plurality of Eigen Modes of the model to a plurality of Eigen Mode profiles and identifying an identity of the subject based on the comparison.
The first step in the 101 analysis, step 1 in MPEP 2106, is whether the claimed invention is in one of the 4 statutory classes of invention. Here, the claim is drawn to a method of characterizing brain activity, which is one of the 4 statutory classes of invention. Hence, step 1 is satisfied.
The next step in the analysis, step 2A prong one, is whether the claim is directed to judicial exception, i.e. a law of nature, a natural phenomenon, or an abstract idea. Here, determining and characterizing can be carried out in the mind or by a pen and paper. Alternatively, determining a plurality of ODEs and characterizing the brain activity using a plurality of ODEs is a mathematical process. Both mental processes and mathematical processes are recognized as judicial exceptions that recite an abstract idea. See MPEP 2164
In Step 2A, prong two of the analysis, the claim is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The only additional element recited is the step of receiving an EEG, which is an insignificant pre-solution activity step , i.e. data gathering, and does not integrate the exception into a practical application. See the discussion in the answer to arguments section. As such, the answer to step 2A, prong 2, is no.
The final step of the analysis, step 2B, where the claim is evaluated to determine whether the recited additional elements amount to significantly more than the judicial exception. Here, the additional step simply recites well-understood, routine, and conventional processing data. Hence, the step does not recite an inventive concept.
As such, claim 1 is directed to an abstract idea and is not patent eligible.
As to claims 4-6 and 8, the recite additional steps which either can be performed by pen and paper or are mathematical steps. In additional, claim 7 merely recites additional data gathering.
Claims 9 and 12-16 are non-statutory for essentially the same reasons as claims 1 and 4-8.
Claims 17 and 19-20 also are rejected as being non-statutory for the reasons given above. Claim 17 does recite structure, but the structure is generic stricture recited at a high level of generality and therefore, does not integrate the exception into a practical application.
VI. ALLOWABLE SUBJECT MATTER
Claims 3, 5, 7, 8, 11, 13, 15, 16, and 18-20 would be allowable if the 101 rejection were overcome.
Claims 1, 4-9, and 12-16 define over the art in that none of the art teaches characterizing brain activity by comparing a plurality of Eigen Modes of the model to a plurality of Eigen Mode profiles and identifying the identity of the subject based on the comparison.
Claims 5 and 13 define over the art in that none of the art has a different mathematical model for each cognitive state, as claimed.
Claims 17 and 19-20 define over the art in that none of the art teaches updating a plurality of Eigen Modes for the model based on the input.
VII. RESPONSE TO ARGUMENTS
Applicant has asserted that the claim represents an improvement over existing technology. Specifically, Applicant notes that in paragraph [0012], the current application states that noise is a problem in conventional ECG analysis and that using OMA overcomes this problem.
The Examiner notes that why the specification does state that using the models may allow the isolation of the underlying linear and non-linear patterns associated with the EEG signals. The disclosure is not using the models allows for the isolation. Secondly, the claim does not specify the improvement. Specifically, nothing in the claims discusses isolating the signals for noise or any type of noise reduction. As such, it is the Examiner’s position that the claims are not directed to an improvement in technology.
Applicant has also asserted that the claim ed invention is integrated into a practical application, i.e. biometric identification technology. The Examiner disagrees. The claim is not directed to biometric identification technology. Rather, it is directed to characterizing brain waves. As such, it is not integrated into a practical application, as the identification is part of the characterizing brain waves and not vice versa.
As such, the 101 rejection is being maintained.
VIII. CONCLUSION
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 ROBERT L NASSER whose telephone number is (571)272-4731. The examiner can normally be reached M-F 8-6.
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, Alexander Kosowski can be reached at (571) 272-3744. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT L NASSER/ Primary Examiner, Art Unit 3992
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