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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 5/9/2023 is 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 § 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 1-9 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.
Each of Claims 1-9has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1-9 recites at least one step or instruction for decoding which flickering target a user islooking at from SSVEP data, which is grouped as a mental process under the 2019 PEG or a certain method of organizing human activity under the 2019 PEG. Accordingly, each of Claims 1-9 recites an abstract idea.
Specifically, Claim 1 recites obtain SSVEP, solve decoding templates, point position equivalent augmentation, task-related component analysis, rearrange verification signals, correlate and classify, build probability density functions, rearrange test signal, naïve Bayes and voting and output and label and execute a command.
Further, dependent Claims 2-9 merely include limitations that either further define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed.
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Step 2A, Prong 2
The above-identified abstract idea in each of independent Claims 1 (and their respective dependent Claims 2-9) is not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claims 1), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use. More specifically, the additional elements of: the processors in Claims 8 and 9 are generically recited computer elements in the dependent claims which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea identified above in independent Claims 1 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer (e.g., processors as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claims 1(and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B
None of Claims 1-9 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: processors.
The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Accordingly, in light of Applicant’s specification, the claimed term processors is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the processor. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional 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 Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the method, apparatus and program of Claims 1-9 are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself, or (ii) providing a technical solution to a problem in a technical field. None of Claims 1-9 provides meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1 (and their dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1-9 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1-9 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1-9 are not patent eligible and rejected under 35 U.S.C. 101.
Claim Rejections - 35 USC § 112
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 1-9 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.
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 1-10 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 claim 1, the limitation “SSVEP” in S1 renders the claim indefinite, because the limitation is an undefined anacronym within the claim body. For purposes of examination the indefinite limitation has been deemed to claim “steady-state visual evoked potentials (SSVEP)”.
Regarding claim 1, the limitation “the processed training set” in S1 lacks antecedent basis; S1 recites only “data preprocessing”. This limitation also lacks antecedent basis, as the claims previously set forth an “original training set”, not just a “training set” as set forth in the last line of S1.
Regarding claim 1, the limitation “solving decoding templates” in S1 renders the claim indefinite, the limitation gives no indication what is solved for or against what constraint.
Regarding claim 1, the term “point-position equivalent augmentation” in S2 is a relative term which renders the claim indefinite. The term “equivalent augmentation” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 1, the limitation “performing point-post equivalent augmentation on the original training set” in S2 renders the claim indefinite, because the original training set is preprocessed in S1. Therefore, it is unclear if the point-post equivalent augmentation is performed on the original training set or the preprocessed original training set.
Regarding claim 1, the limitation “each single-trial verification signal” in S4 lacks proper antecedent basis, because a single-trail verification signal has not been previously established in the claims.
Regarding Claim 1, the limitation, “each single-trial verification signals” renders the claim indefinite, because S4 sets forth each single-trial verification signal, so it is unclear if the single-trial verification signal in S4 is the same single-trial verification signal.
Regarding claim 1, the third recitation of “verification set” in S4 in unclear because it is unclear if these are the same verification sets as set forth earlier in S4.
Regarding claim 1, the second recitation of “rearranged data” in S4 in unclear because it is unclear if these are the same rearranged data as set forth earlier in S4.
Regarding claim 1, the limitation “its corresponding decoding template” in S4 renders the claim indefinite, because it is unclear if this is the same decoding template as set forth in S1.
Regarding claim 1, the term “full-frequency directed rearrangement” in S4 and S6 is a relative term which renders the claim indefinite. The term “full-frequency directed rearrangement” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 1, the second recitation of “the Pearsons correlation coefficient” renders the claim indefinite, because it is recited in the singular but the earlier set appears to recite multiple coefficients, e.g., one per arrangement per target.
Regarding claim 1, the term “known target labels” in S4 is a relative term which renders the claim indefinite. The term “known target labels” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 1, the term “the Pearsons correlation coefficient” in S5 (singular) classified as “incorrect prediction or correct prediction never recites coefficients so designated, and never recites plural coefficients at al.
The term “confidence level” in claim 1 step S5 is a relative term which renders the claim indefinite. The term “confidence level” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 1, the limitation “selecting confidence level and threshold” in S5 renders the claim indefinite, because it is unclear if the limitation is part of the building probability density functions, or a stand-alone limitation.
Regarding claim 1, the limitation “the equivalent arrangement set” in S6 renders the claim indefinite, because S4 recites plural equivalent arrangement sets.
Regarding claim 1, the limitation “to obtain rearranged data sets” in S6 renders the claim indefinite, because S4 already recites two other rearranged data sets, all the data sets, as claimed, appear unrelated.
Regarding claim 1, the limitation “calculating the Pearson correlation coefficients between the rearranged data and its corresponding decoding template” in S6 renders the claim indefinite, as this step already appears to be recited in S4.
Regarding claim 1, the limitation “the naïve Bayes method”, “the posterior probability”, “the rearranged data”, “the final identified label” and “the current test signal” in S6 lacks proper antecedent basis.
Regarding claim 1, the limitation “each Pearson correlation coefficient” in S6 renders the claim indefinite, because “each presupposes a previously recited plurality and only one Pearson.
Regarding claim 1, the limitation “incorrect prediction or correct prediction” in S6 lacks antecedent basis because S4 recites classifying a coefficient as such but never establishes these as defined categories.
Regarding claim 1, the limitation “voting between all targets” S6 lacks proper antecedent basis.
Regarding claim 1, the limitation “the highest number of correct prediction” in S6 lacks antecedent basis, nothing recites counting correct predictions.
Regarding claim 3:
“the original training set” traces to S1, but has the same raw/preprocessing ambiguity as S2.
“the position order of each point in” lacks antecedent basis in P, P sets is set forth as a set of numbers, not points.
“the start point of its cycle” lacks antecedent basis, “cycle” appears on via “number of sinusoidal cycles”
the “points” lack antecedent basis.
“each original order subvector” lacks antecedent basis, S22 recites “order subvector” and “other roder subvectors”, the plural class is never recited.
“all rearranged order subvectors” lacks antecedent basis, S23 recites generating them but “all” presupposes a defined set.
“cycle number of intra-cycle order” lacks antecedent basis.
“the threshold require” lacks antecedent basis and appears twice in S25 and S26.
“the already existing equivalent arrangement” lacks antecedent basis.
“the sequential…” lacks antecedent basis.
“other trials of the k-th target” lacks antecedent basis.
Regarding claim 3, the “threshold” renders the claim indefinite because arrangements are kept if a Kendall correction “meets the threshold requirement” but it’s never stated whether the value must be high or low, opposite test, both available.
Regarding claim 3, the “bootstrap” renders the claim indefinite because new arrangements are compared against ones already in L_k, but L_k is created in this same step. Nothing establishes a first member, so the step can’t be performed as written.
Regarding claim 3, the “second threshold” renders the claim indefinite, it is unclear what the threshold is.
Regarding claim 3, the “sequential forward selection process” renders the claim indefinite, which is named but never explained and not ascertainable meaning can be determined.
Regarding claim 4, the following limitations lack antecedent basis “the augmented training set”, “all trials”, “the cross covariance…”, “the all targets”, “the integrated spatial filter W”.
Regarding claim 4, the limitation “cross-variance” renders the claim indefinite because it is recited without saying what is cross-covaried.
Regarding claim 4, the limitation “solving a spatial filter” renders the claim indefinite because it says a filter is solved from the covariance and variance, but not what relationship is solved.
Regarding claim 4, the limitation “repeating S31-S32” renders the claim indefinite because repeating for what varies is unrecited.
Regarding claim 5, the following limitations lack antecedent basis: “the verification set”, “the u-th equivalent…” “the Pearsons correlation…”, “the rearranged data…” “the decoding templated…”, “the operations in S41”, “the equivalent arrangement set…”, “all Pearsons correlation coefficients…” “equivalent arrange sets of other targets”, “the known target label of Y”, “the all targets”, “other signals in the verification sets”.
Regarding claim 5, the following limitations render the claim indefinite: “performing rearrangements” because Claim 1 recites “full-frequency directed rearrangement” and S41 recites plain “rearrangements”; “repeating S41-S42 for Y” because S41-S42 were already performed on Y; “conversely others are classified as incorrect predictions” because “conversely” and “others” are indefinite and the complement set is never identified; “performing classification according to known labels” because it is not known which classifications are being referenced; the core problem is that it introduces symbols which are not defined.
Regarding claim 6, the following limitations lack antecedent basis: “correlation coefficients classified as correct prediction and incorrect prediction”, “the two categories”, “the correlation coefficients”.
Regarding claim 6, the claim is indefinite because claim 1 S5 recites two operations (building the PDFs and selecting confidence levels and threshold), but claim 6 says S5 “specifically comprises” only the kernel density estimation. The confidence level and threshold simply vanish, so it is unclear whether claim 6 limits S5.
Regarding claim 7, the following limitations lack antecedent basis: “the test signal B”, “the u-th equivalent”, “the data M” “the Pearsons correlation coefficient”, “the rearranged data”, “the decoding template”, “the operation in S61”, “remaining equivalent arrangements”, “all Pearsons correlation coefficients”, “equivalent arrange sets…”, “the all targets”, “the Pearsons correlation coefficients in S62 and S63”, “the maximum e_k”, “the final target”.
Regarding claim 7, the following limitations render the claim indefinite: “performing rearrangements” because S6 recites “directed rearrangement” and S61 recites plain “rearrangements”; “classification without the vote” because S64 classifies coefficients by greater probability, but S6 also requires voting between all targets; “the number of correct prediction coefficients” because nothing in S61-S64 recites counting; “target” vs. “label” because target and label appear to be claimed interchangeably; the core problem is that it introduces symbols which are not defined.
Regarding claims 8 and 9, the following limitations lack antecedent basis: “the apparatus are configured to”, “point-position equivalent augmentation”.
Regarding claims 8-10, the following limitations render the claim indefinite: claim 8 is an apparatus claim / article of manufacture depending from a method claim, mixing statutory categories.
Regarding claim 10, the following limitations lack antecedent basis: “the identified label”, “the terminal device”, “the specific command, “the command”.
Due to the great amount of ambiguity in the claims, the list of 35 U.S.C. 112(b) issues has been performed thoroughly but is not exhaustive. The applicant’s help is requested in identifying remaining issues.
Conclusion
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/SEAN P DOUGHERTY/Primary Examiner, Art Unit 3791
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