DETAILED ACTION
This office action is responsive to the amendment filed 4/2/2026. Claims 21-29, 31-33, 36-38, and 40-44 remain pending and under prosecution.
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 .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
No claim elements are interpreted under 112 sixth paragraph.
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 21-29, 31-33, 36-38, and 40-44 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more.
Claim 21 recites “calculating, from the microsaccadic eye movement dynamics, microsaccade rate over the time period including a time of the stimulus;
detecting whether a microsaccade rate suppression event is present in the measured microsaccadic eye movement relative to the stimulus being introduced;
determining the subject's attentional response to the stimulus based on the detection
generating a user-specific stimulus detection threshold based on the determined attentional response to the stimulus, the stimulus detection threshold defining a probability of the subject detecting the stimulus based on characteristics of the stimulus.”
Under the first of the two-prong inquiry of step 2A for evaluating 101, these limitations are considered a mental process because the “detecting, determining, and generating” functions when given their broadest reasonable interpretation may be performed in the user’s mind, i.e. the user can observe whether a microsaccade rate suppression event is present on a screen or looking at a device or the subject, the user can determine the subject’s attentional response mentally through observation, and the user can generate a stimulus detection threshold based on the determined attentional response to the stimulus, the stimulus detection threshold defining a probability of the subject detecting the stimulus based on characteristics of the stimulus, by thinking about it mentally. The “calculating” can also be performed in a user’s mind and is also considered a mathematical process, that can also be performed mentally in the user’s mind.
Under the second of the two-prong inquiry of step 2A, this judicial exception is not integrated into a practical application because there are no limitations that indicate improvements to the functioning of a computer or to the technology/technical field; effecting a particular treatment or prophylaxis for a disease/condition; applying the judicial exception with a particular machine (the control unit and sensor are recited with such generality that they are not considered a particular machine); effecting a transformation or reduction of a particular article to a different state/thing; applying the judicial exception in a meaningful way beyond generally linking to a particular technological environment. There are no limitations referring to any practical output or application in the claims.
Since the second of the two-prong inquiry of step 2A is not satisfied, the claim is then evaluated under step 2B.
Under step 2B for evaluating 101, the claim(s) does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the other limitations present do not impose meaningful limits on the abstract idea. The steps of “monitoring using an eye tracking device, eye movements of the subject over a time period, wherein the stimulus is introduced after the time period has begun” and “measuring microsaccadic eye movement dynamics of the subject based on the eye movements” are well-known, routine, and conventional and thus constitute data gathering steps that are understood as common in the eye monitoring art. Thus, they do not add significantly more to the abstract idea.
The processor added to the “calculating step” has been recited with such generality that it does not constitute a special machine to perform the method that amounts to significantly more. The eye tracking device also is well-known, routine, and conventional in the art and described with such generality that it does not add more and is only associated with the data gathering step.
Claims 22-26 only further add details to the above abstract ideas or add structure or steps that are not meaningfully more. The memory in host device of Claim 22 and eye tracking device of Claim 26 are recited with such generality and thus considered in this instance well-known, routine, and conventional data gathering structures that are understood as common in the eye monitoring art. The step of generating a report of Claim 24 is also considered in this instance well-known, routine, and conventional and thus an insignificant extra-solution activity step that is understood as common in the eye monitoring art. The step of receiving user input regarding whether the stimulus is acknowledged by the subject and correlating the subject's attentional response to the stimulus based on the determination and the user input is lastly recited with such generality and thus considered in this instance well-known, routine, and conventional data gathering structures that are understood as common in the eye monitoring art, without being significantly more.
Claim 27 recites “determine the subject's attentional response to the stimulus based on the microsaccadic eye movement dynamics relative to the time of the stimulus, wherein determining the subject's attentional response includes differentiating between one of an unconscious response, a conscious response, and a subconscious response.”
Under the first of the two-prong inquiry of step 2A for evaluating 101, these limitations are considered a mental process because the “determine” functions when given their broadest reasonable interpretation may be performed in the user’s mind, i.e. the user can observe the subject’s attentional response to the stimulus based on the microsaccadic eye movement dynamics relative to the time of the stimulus, and observe the differences between one of an unconscious response, a conscious response, and a subconscious response.
While Claim 27 recites a processor with computer readable storage medium to perform the above functions, the components are claimed with such a high level of generality that they do not constitute any specific machine or structure to perform the functions.
Under the second of the two-prong inquiry of step 2A, this judicial exception is not integrated into a practical application because there are no limitations that indicate improvements to the functioning of a computer or to the technology/technical field; effecting a particular treatment or prophylaxis for a disease/condition; applying the judicial exception with a particular machine (the control unit and sensor are recited with such generality that they are not considered a particular machine); effecting a transformation or reduction of a particular article to a different state/thing; applying the judicial exception in a meaningful way beyond generally linking to a particular technological environment. There are no limitations referring to any practical output or application in the claims.
Since the second of the two-prong inquiry of step 2A is not satisfied, the claim is then evaluated under step 2B.
Under step 2B for evaluating 101, the claim(s) does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the other limitations present do not impose meaningful limits on the abstract idea. The recited eye tracking system of Claim 27 to measure or receive eye movement traces in claim 27 is claimed generically as well-understood, routine, and conventional structures that operate as such, thus constituting merely a data gathering function by detecting or measuring eye movement traces over a time period including a time of the stimulus as is common in the eye monitoring art. Lastly, the function to generate a report of the subject’s attentional response constitutes common insignificant extra-solution activity that does not add significantly more.
Claims 28-29 and 36 do not recite anything that adds significantly more to the abstract idea as the display and user interface are claimed with such a high level of generality that they do not constitute any specific machine or structure to perform the functions that would be significantly more. Claims 31-33, 38, and 40 merely add additional abstract ideas without being significantly more. Claim 37 recites receiving user input including acknowledgement by the subject is lastly recited with such generality and thus is considered in this instance a well-known, routine, and conventional data gathering function that is understood as common in the eye monitoring art.
Claim 41 recites “correlating, via a processor, image data corresponding to the plurality of images with the eye movement traces;
measuring, from the eye movement traces via the processor, microsaccade rate over time;
determining a baseline rate of the microsaccade rate prior to the time of the stimulus;
detecting a suppression of the microsaccade rate below the baseline rate following presentation of the stimulus;
determining the subject's attentional response to the stimulus based on the detection.”
Under the first of the two-prong inquiry of step 2A for evaluating 101, these limitations are considered a mental process because “correlating,” “measuring,” “determining,” and “detecting” are functions when given their broadest reasonable interpretation may be performed in the user’s mind. For example, the user can visually observe or correlate the image data with the eye movement traces, the user can visually observe or “measure” from the eye movement traces the microsaccade rate over time, the user can mentally determine a baseline rate of the microsaccade rate prior to the time of the stimulus, the user can visually observe or detect a suppression of the microsaccade rate below the baseline rate following presentation of the stimulus, and the user can mentally observe the subject's attentional response to the stimulus based on the detection.
Under the second of the two-prong inquiry of step 2A, this judicial exception is not integrated into a practical application because there are no limitations that indicate improvements to the functioning of a computer or to the technology/technical field; effecting a particular treatment or prophylaxis for a disease/condition; applying the judicial exception with a particular machine (the control unit and sensor are recited with such generality that they are not considered a particular machine); effecting a transformation or reduction of a particular article to a different state/thing; applying the judicial exception in a meaningful way beyond generally linking to a particular technological environment. There are no limitations referring to any practical output or application in the claims.
Under step 2B for evaluating 101, the claim(s) does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the other limitations present do not impose meaningful limits on the abstract idea.
The step of “dynamically presenting a plurality of images to a user via a display, the plurality of images including the stimulus” and “tracking, via an eye tracking device, eye movement traces of the subject over a time period including a time the stimulus is presented” are drawn to the well-known data gathering in the art and do not affect the abstract ideas of correlating, measuring, determining, and detecting. Additionally, the recitation of the display, eye tracking device, and processor are presented with such generality as they do not constitute a special machine to perform the method thus are considered well-known, routine, and conventional structures within the art. Lastly, the step of “generating a report indicating the subject’s attentional response based on the determination” is also considered in this instance well-known, routine, and conventional and thus an insignificant extra-solution activity step that is understood as common in the eye monitoring art that does not add significantly more.
Claims 42-44 merely add details to the above abstract ideas and/or does not add any meaningful limits upon the above abstract ideas.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 21-23 and 25-26 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Martinez-Conde et al (Windows on the Mind – cited by applicant) in view of Martinez-Conde et al (US Pub No. 20100039617 – cited by applicant).
In regard to Claim 21, Martinez-Conde et al (Windows) disclose a method for determining a subject's attentional response to a stimulus, the method comprising the steps of:
monitoring eye movements of the subject over a time period (pg.62 graph bottom, left column first paragraph);
measuring microsaccadic eye movement dynamics of the subject based on the eye movements (pg.62 graph bottom, left column first paragraph);
calculating, from the microsaccadic eye movement dynamics, microsaccade rate over the time period including a time of the stimulus (pg. 62 text on left, graph on bottom);
detecting whether a microsaccade rate suppression event, i.e. reduction, is present in the measured microsaccadic eye movement relative to the stimulus being introduced (pg.62 graph bottom);
determining the subject's attentional response to the stimulus based on the detection, i.e. graph, indicating the subject's attentional response (pg.62-63).
However, Martinez-Conde et al (Windows) does not expressly disclose generating a user specific stimulus detection threshold based on the determined attentional response to the stimulus, the stimulus detection threshold defining a probability of the subject detecting the stimulus based on characteristics of the stimulus, nor the stimulus is introduced after the time period has begun. It is noted that Martinez-Conde et al (Windows) disclose a desire to quantify covert attention (pg.64 left).
Martinez-Conde et al (‘617) teach that it is well known in the art to provide an analogous microsaccadic analysis device generating a stimulus detection threshold, i.e. covert foci/likelihood map of interest based on the determined attentional response, i.e. overt foci or other eye tracking microsaccades, to the stimulus, the stimulus detection threshold defining a probability, i.e. high, of the subject detecting the stimulus based on characteristics about the stimulus (0027-0029, 0033-0036, 0039, 0044-0051), to effectively enable individuals with certain motives to be differentiated from those without said motives (0059-0062). The map of interest is considered user specific.
Martinez-Conde et al (‘617) also teach the stimulus may be introduced after the time period has begun, i.e. wherein the introduction of the stimulus is defined when the image/fixation spot is moved, which occurs randomly and thus not at the beginning of the monitoring time period (0029, 0036, 0039). The advantage to not having the stimulus introduced at the beginning of the monitoring time period is to prevent any conscious compensation or effort by the subject to change their attentional response to the stimulus. It is further submitted that it is well-known in the art to introduce a visual stimulus after the start of monitoring periods, i.e. to measure one eye at a time as well as introduce randomness that prevents the subject from affecting the integrity of the test by anticipating the stimulus (for example see, US Pat No. 6290357 – Col.4: 11-18).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the invention of Martinez-Conde et al (Windows) to include generating a user-specific stimulus detection threshold based on the determined attentional response to the stimulus, the stimulus detection threshold defining a probability of the subject detecting the stimulus based characteristics of the stimulus as taught by Martinez-Conde et al (‘617) to quantify the covert attention of the subject for applications such as identifying individuals with certain motives to be differentiated from those without said motives.
Further, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the invention of Martinez-Conde et al (Windows) such that the stimulus is introduced after the time period for monitoring eye movements has begun as taught by Martinez-Conde et al (‘617) to prevent the subject from affecting the integrity of the test by anticipating the stimulus, including its change, due to its introduction being random as opposed to fixed.
22. Martinez-Conde et al (Windows) as modified disclose the invention above but do not expressly disclose a memory. Martinez-Conde et al (‘617) disclose a memory in host device 18 for storing the generated stimulus detection threshold, best seen in Figure 1 (0024). Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the invention of Martinez-Conde et al (Windows) as modified by Martinez-Conde et al (‘617) such that there is storing, in memory of a host device, the generated stimulus detection threshold as taught by Martinez-Conde et al (‘617) as an effective configuration to do so.
23. Martinez-Conde et al (‘617) disclose the method of claim 21, wherein the stimulus detection threshold includes a first stimulus detection threshold defining a probability of a subconscious response and a second stimulus detection threshold defining a probability of a conscious response, the probabilities defined as likelihood values, with subconscious response being covert and a conscious response being overt – “to determine the overt and covert loci of attention through free viewing analysis of images. In this context, overt loci are a series of points within the center of an individual's gaze. In contrast, covert loci are those not in the center of an individual's gaze” (0015, 0018, 0045, 0047, 0050).
25. Martinez-Conde et al (Windows) disclose the method of claim 21, further comprising receiving user input, i.e. from a button, regarding whether the stimulus is acknowledged by the subject (pg. 62, left column, first paragraph) and correlating the subject's attentional response to the stimulus based on the determination and the user input (pg. 62 graph at bottom; pg. 62, right column, last paragraph — pg. 63).
26. Martinez-Conde et al (Windows) disclose the method of claim 21, wherein monitoring eye movement traces includes obtaining the eye movement traces from an eye tracking device (pg. 62, left column, first paragraph).
Claims 36-37, 40, and 41-43 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Martinez-Conde et al (Windows on the Mind – cited by applicant) in view of Jones (US Pat No. 7922670).
In regard to Claim 41, Martinez-Conde et al disclose a method for determining a subject's attentional response to a stimulus, the method comprising the steps of:
dynamically presenting a stimulus, i.e. target, to a user via a display, computer screen (pg. 62 graph bottom, see caption);
tracking, via an eye tracking device, eye movement traces of the subject over a time period including a time the stimulus is presented (pg.62 graph bottom, left column first paragraph), wherein the office takes Official Notice that an eye tracking device must be used – see Jones, eye tracker 110 (Col.3: 58);
measuring, from the eye movement traces via a processor (connected to the computer screen in graph of pg. 62), microsaccade rate over time (pg. 62 text on left, graph on bottom);
determining a baseline rate of the microsaccade rate prior to the time of the stimulus – 0 line on graph pg. 62;
detecting a suppression of the microsaccade rate below the baseline rate following presentation of the stimulus, seen by the arrow on graph, pg. 62 (left text);
determining the subject's attentional response to the stimulus based on the detection – subject’s attention shifted (pg. 62-63); and
generating a report indicating the subject's attentional response based on the determination, graph pg. 62.
However, Martinez-Conde et al do not expressly disclose dynamically presenting a plurality of images to a user via a display, the plurality of images including the stimulus and
correlating, via a processor, image data corresponding to the plurality of images with the eye movement traces.
Jones teach that it is well-known in the art to dynamically presenting a plurality of images to a user via a display, i.e. a video (Col.4: 7-22) and correlating, via a processor, image data corresponding to the plurality of images with the eye movement traces, best seen in Figure 9A-C, to determine attentional points of salience of the user as they watch the video (Col.8: 14-Col.9: 12).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to modify Martinez-Conde et al such that the stimulus includes dynamically presenting a plurality of images to a user via a display, the plurality of images including the stimulus and
correlating, via a processor, image data corresponding to the plurality of images with the eye movement traces as taught by Jones to effectively determine relevant attentional information of the subject during viewing of the dynamic images in addition to the attentional information already taught by Martinez-Conde et al.
36. Martinez-Conde et al (Windows) disclose the display can present a report to the subject, see the Figure on pg.62.
37. Martinez-Conde et al (Windows) disclose receiving user input from the subject, i.e. from a button, the user input including an acknowledgement from the subject that the stimulus is acknowledged by the subject (pg. 62, left column, first paragraph).
40. Martinez-Conde et al (Windows) disclose measuring a magnitude of the detected suppression from the baseline rate as seen on the graph (pg. 62) and correlating the magnitude of the detected suppression to a relative magnitude of the subject's attentional response (pg. 62, right column, last paragraph – pg. 63).
42. Martinez-Conde et al in combination with Jones disclose correlating, via the processor, the image data corresponding to the plurality of images with the eye movement traces further comprises correlating eye position data derived from the eye movement traces with the image data, best seen in Figure 9A-B (Col.8: 14-Col.9: 12).
43. Martinez-Conde et al disclose the generated report indicates whether the stimulus was sensed by the subject (due to the suppression event), when the stimulus was sensed (indicated by the time of the suppression in graph on pg. 62), and where in visual space the subject focused upon sensing the stimulus, i.e. the target (text left side of graph, pg. 62).
Claim 38 and 44 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Martinez-Conde et al (Windows on the Mind – cited by applicant) in view of Jones (US Pat No. 7922670), further in view of Martinez-Conde et al (US Pub No. 20100039617 – cited by applicant).
In regard to Claim 38, Martinez-Conde et al (Window) in combination with Jones disclose the invention but does not expressly disclose updating a stimulus detection threshold based on the user input, the stimulus detection threshold indicating a probability of the subject responding to the stimulus.
Martinez-Conde et al (‘617) teach that it is well known in the art to provide an analogous microsaccadic analysis device generating a stimulus detection threshold, i.e. covert foci/likelihood map of interest based on the determined attentional response, i.e. overt foci or other eye tracking microsaccades, to the stimulus, the stimulus detection threshold defining a probability, i.e. high, of the subject responding to the stimulus based on characteristics about the stimulus (0027-0029, 0033-0036, 0039, 0044-0051), to effectively enable detection of specific behavior as related to attention response (0059-0062).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Martinez-Conde et al (Windows) to include generating a stimulus detection threshold based on the determined attentional response to the stimulus, the stimulus detection threshold defining a probability of the subject detecting the stimulus based characteristics of the stimulus as taught by Martinez-Conde et al (‘617) to effectively enable detection of specific behavior as related to attention response, wherein in combination there can be updating a stimulus detection threshold based on the user input, which is already taught by Martinez-Conde et al (Windows).
In regard to Claim 44, Martinez-Conde et al (Window) in combination with Jones disclose the invention above but do not expressly disclose correlating the subject's attentional response to the stimulus to a threat level perceived by the user in response to the stimulus.
Martinez-Conde et al (‘617) teach that it is well known in the art to provide an analogous microsaccadic analysis device generating a stimulus detection threshold, i.e. covert foci/likelihood map of interest based on the determined attentional response, i.e. overt foci or other eye tracking microsaccades, to the stimulus, the stimulus detection threshold defining a probability, i.e. high, of the subject responding to the stimulus based on characteristics about the stimulus (0027-0029, 0033-0036, 0039, 0044-0051) and is considered a threat level perceived by the user as broadly as has been claimed, to effectively enable detection of specific behavior as related to attention response (0059-0062). This thus constitutes a correlating of the subject's attentional response to the stimulus to a threat level.
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to modify Martinez-Conde et al (Window) such that correlating the subject's attentional response to the stimulus to a threat level perceived by the user in response to the stimulus as taught by Martinez-Conde et al (‘617) to effectively enable detection of specific behavior as related to attention response such as during threat level.
Response to Arguments
Applicant's arguments filed with respect to the 101 rejections have been fully considered but they are not persuasive. Applicant contends that Claim 21 cannot be “practically” performed in the user’s mind because “an eye tracking device is required to capture microsaccadic dynamics and computational processing to calculate rates and detect suppression events” that include “involuntary eye movements that occur at sub-second timescales” that is “less than 1 degree in magnitude and suppression event occurs within about 500 milliseconds” (Remarks pg. 8-9). However, it is noted that the specific timing and degree details have not been recited in the claims. Moreover, as previously explained, the abstract ideas necessarily rely on well-known, routine, and conventional structures in the eye monitoring art such as said eye tracking device. The presence of actual generic data gathering structures in the art does not preclude the existence of an abstract idea. The abstract ideas exist because as recited, when the data is presented, a skilled artisan is able to perform the steps as claimed mentally or using pen and paper. The analysis of 101 also does not require that the user mentally perform the abstract ideas in any specific time frame.
While applicant presents various examples (Remarks pg. 8, 9, 11, 13), it is noted that the fact pattern of said examples do not appear to apply to the claims at hand. While applicant contends that “the claim requires specialized equipment performing functions that cannot practically be performed in the human mind” (Remarks pg. 9), this is not considered accurate because the 101 analysis allows for the existence of data gathering structures as well as well-known, routine, and conventional processors. There is no evidence that the eye tracking device and processor of the instant invention constitutes a specialized machine, either as recited in the claims or in the disclosure.
Lastly, while applicant contends that Claim 21 is “integrated into a practical application” (Remarks pg. 10), the claims do not set forth any practical applications considered as such as listed. The fact that the invention is a concrete device that can function in real life is not evidence of “practical application,” nor is the fact that the device has a specific purpose or solves a specific technical problem, i.e. determine user attentional response, adequate under 101 analysis. It is noted that the claims do not specify any advantages, improvements, or efficiency of the recited invention (Remarks pg. 11). Thus, no practical application is recited. While the “generating a user-specific stimulation detection threshold” might be specific and useful in general, it is currently recited as an abstract idea (Remarks pg. 12).
Similar responses are directed toward Claim 27 as well as newly introduced 101 rejections for new Claim 41.
In regard to Claim 21, applicant contends that Martinez-Conde et al ‘617 do not teach “a user-specific stimulus detection threshold” that defines “a probability of the subject detecting the stimulus based on the characteristics of the stimulus” because the foci of attention is related to “spatial confidence” that does not answer the question “whether and with what probability a subject will consciously detect a stimulus based on characteristics of that stimulus” (Remarks pg. 21). However, it is noted that Claim 21 does not require the detection threshold be “conscious” and does not provide any specifics regarding the nature of the detection threshold that cannot reasonably read on “spatial confidence” of covert attention of Martinez-Conde et al ‘617. Furthermore, since the detection threshold is associated with the user at hand, it is considered “a user-specific” stimulus detection threshold, as broadly as has been claimed, despite Martinez-Conde et al ‘617 teaching that a predetermined value is used in the determination (Remarks pg. 21-22). It is noted that applicant appears to be improperly reading limitations into the claims.
Lastly, applicant contends that Martinez-Conde et al ‘617 “fails to teach or suggest generating a probability of overt versus covert detection based on the subject's attentional response, or that such probability is based on characteristics of the stimulus” (Remarks pg. 22). This is not found persuasive because the limitation, as broadly as claimed, has been interpreted to mean that the threshold taught by Martinez-Conde et al ‘617 provides a “high” probability that the subject detects the stimulus based on characteristics of the stimulus, as broadly as has been claimed. Again, it appears that applicant is improperly reading limitations into the claims. Therefore, the rejection is maintained.
The terminal disclaimed filed 4/2/2026 has been acknowledged and the previous Double Patenting Rejections are hereby withdrawn. Claims 27-29 and 31-33 are therefore allowable as only Double Patenting rejections were previously presented.
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 Huong NGUYEN whose telephone number is (571)272-8340. The examiner can normally be reached 10 am - 6 pm.
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, 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.
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.
/H.Q.N/Examiner, Art Unit 3791
/JENNIFER ROBERTSON/Supervisory Patent Examiner, Art Unit 3791
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