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 .
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.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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 1-2, 4-5, and 10-15 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.
Regarding Claims 1 and 15, the limitation “calculating, exclusively within all or part of the determined one or more eye fixations, from the obtained positions...a gaze direction evolution” is indefinite. It is unclear what is means to calculate a gaze direction evolution within one or more eye fixations given that an eye fixation is obtained by determining a position of the first and second eyes. How can one calculate an evolution of gaze within a single position? Additionally, what does it mean to calculate a gaze direction evolution within a position (eye fixation)? Is this referring to calculating a gaze direction evolution based on the resulted positions of the eye fixations? Is this referring to calculating a gaze direction evolution during the time in which an eye fixation occurs; meaning to calculate a gaze direction evolution during the same time as to which the eye fixation has been obtained? It is unclear how a calculation of a direction occurs within an obtained position (emphasis added).
Regarding Claims 1 and 15, the limitation “determining, exclusively within all or part of the determined one or more eye fixations, a motion synchrony evolution” is indefinite. It is unclear what is means to determine a motion synchrony evolution within one or more eye fixations whenever an eye fixation is obtained by determining a position of the first and second eyes. How can one determine an evolution of motion within a single position? Additionally, what does it mean to determine a motion synchrony evolution within a position (eye fixation)? Is this referring to determining a motion synchrony evolution based on the resulted positions of the eye fixations? Is this referring to determining a motion synchrony evolution during the time in which an eye fixation occurs; meaning to determine a motion synchrony evolution during the same time as to which the eye fixations have been obtained? It is unclear how a determination of motion occurs within an obtained position (emphasis added).
Claims not explicitly rejected above are rejected due to their dependence on the above claims.
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 1-2, 4-5, and 10-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of Claim 1 follows.
STEP 1
Regarding Claim 1, the claim recites a series of steps or acts, including displaying one or more stimuli aimed at attracting attention of the person; obtaining positions of the first and second eyes; calculating a gaze direction evolution for each of the first and second eyes; calculating corresponding angular velocity evolution for each of the gaze directions; determining a motion synchrony evolution of the first and second eyes; and measuring the attention of the person. Thus, the claim is directed to a process, which is one of the statutory categories of invention.
STEP 2A, PRONG ONE
The claim is then analyzed to determine whether it is directed to any judicial exception. The steps of determining a motion synchrony evolution of the first and second eyes and measuring the attention of the person depending on the determined motion synchrony set forth a judicial exception. These steps describe a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to a Mental Process, which is an Abstract Idea.
STEP 2A, PRONG TWO
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Claim 1 fails to recite any application of determining a motion synchrony evolution of the first and second eyes and measuring the attention of the person in a manner that imposes a meaningful limitation on the Abstract Idea. The Abstract Idea alone does not provide an improvement to the technological field, the method does not affect a particular treatment or effect a particular change based on a determined motion synchrony evolution or measured attention of the person, nor does the method use a particular machine to perform the Abstract Idea.
STEP 2B
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the Abstract Idea, Claim 1 recites additional steps of displaying one or more stimuli aimed at attracting attention of the person, obtaining positions of the first and second eyes over time, calculating a gaze direction evolution for each of the first and second eyes, and calculating corresponding angular velocity evolution for each of the gaze directions. The obtaining and calculating steps are recited at a high level of generality such that they amount to insignificant pre-solution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the obtaining, calculating, and determining/comparing steps do not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
Regarding Claim 15, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited “display” is a generic device configured to perform displaying one or more stimuli as mere pre-solution data gathering; the “eye tracker” is a generic camera device configured to perform tracking eye positions as mere pre-solution data gathering; and the “one or more processors” and “memory” are generic computer programs configured to perform calculating gaze direction evolution, determining motion synchrony evolution, and measuring the attention of a person as well as perform the Abstract Idea. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application.
Dependent Claims 2, 4-5, and 10-14 fail to add something more to the abstract independent claims as they generally recite steps pertaining to data gathering and processing.
The displaying, obtaining, calculating, determining, and measuring steps recited in the independent claims, Claims 1 and 15, maintain a high level of generality even when considered in combination with the dependent claims.
Examiner’s Note
Claims 1-2, 4-5, and 10-15 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action as well as the rejections under 35 U.S.C. 101. It is noted by the examiner that the limitation recited by the applicant pertaining to “a motion synchrony evolution of the first and second eyes by comparing the calculated angular velocity evolution of the first eye with the calculated angular velocity evolution of the second eye” (emphasis added), as best understood by the examiner’s interpretation and their research, appears to be an innovative concept not covered by other prior art when considered in combination with the other claimed elements.
Response to Arguments
Applicant's arguments filed 01 April 2026 have been fully considered and they are not entirely persuasive.
Applicant’s amendments have overcome the prior 35 U.S.C. 112f interpretations.
Applicant’s amendments have overcome the prior 35 U.S.C. 112b rejections. However, the amendments have created additional 112b rejections that are addressed in Paragraph 4 above.
Application’s amendments and reasons regarding overcoming the prior 35 U.S.C. 101 rejections were considered, but were found not to be persuasive. The applicant argues that when citing in Step 2B under the 101 section "obtaining and calculated steps are recited at a high level of generality such that they amount to insignificant pre-solution activity…when recited at this high level of generality, there is no meaningful limitation…distinguishes it from well-understood, routine, and conventional data gathering", the examiner has failed to provide the proper "Berkheimer citation" and therefore do not properly show "fail eligibility". In response to the applicant's response to analysis of Step 2B under 101, the following reference Hans Super’224 (U.S. Patent Application 20150112224) teaches the methods used to obtain and calculate the data are "widely used and well known" (Paragraph [0048] - The most widely used current designs are video-based eye trackers; Paragraph [0051] - Said algorithms, which are mainly based on trigonometric calculations, are well known). Additionally, applicant admits within their own specification in paragraphs [0038] and [0066] that the algorithms and calculations used may be "well known" and "according to any known methods" respectively. Furthermore, applicant admits in their own specification in paragraph [0071] that the eye tracker system obtaining positions can be "any known gaze/eye-controlled video game". It is noted that attention to the relevance of these citations are directed towards MPEP 2106.05(d) Section I - Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018) as well as TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016). A detailed examination for the rejection under 35 U.S.C. 101 is addressed in Paragraph 5 above.
Applicant’s amendments/arguments have been found to be persuasive to overcome the current prior art rejections under 35 U.S.C. 102/103. More specifically, the examiner notes that the prior art was unable to read on the limitation elements as addressed in Paragraph 6 above.
Applicant’s arguments regarding the double patenting rejection under Hans Super’224 (U.S. Patent 10602972) have been found to be persuasive. Specifically, the examiner has considered the arguments pertaining to the limitation “angular velocity evolution” and how this limitations is not recited in the claims of Hans Super’224. The previous Double Patenting rejections are withdrawn.
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 SARAH ANN WESTFALL whose telephone number is (571) 272-3845. The examiner can normally be reached Monday-Friday 7:30am-4:30pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Robertson can be reached at (571) 272-5001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SARAH ANN WESTFALL/Examiner, Art Unit 3791
/ETSUB D BERHANU/Primary Examiner, Art Unit 3791
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