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 .
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 21-40 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 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 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.
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.
Claims 27 and 34 recite “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 claims 27 and 34 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 28-30 and 35-36 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 and 38-40 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 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 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).
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 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).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 27 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 9854966. Although the claims at issue are not identical, they are not patentably distinct from each other because
both Claim 27 and the Patent disclose a system for determining a subject's attentional response to a stimulus, the system comprising:
an eye tracking system for detecting eye movement traces of the subject over a time period including a time of the stimulus;
a processor;
a computer readable storage medium having stored thereon instructions that, when executed by the processor, cause the processor to:
measure, from the eye movement traces, microsaccadic eye movement dynamics;
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; and
generate a report indicating the subject’s attentional response based on the determination.
Claims 28-30 and 32-33 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 9854966 in view of Martinez-Conde et al (Windows on the Mind – cited by applicant).
In regard to Claims 28-29, the Patent discloses the invention above but does not expressly disclose a display. Martinez-Conde et al (Windows) teach that it is well-known in the art to provide an analogous device using a display that presents the stimulus to the subject, see citation in the figure on pg. 62 – stimulus is small spot on computer screen. Martinez-Conde et al (Windows) also teach the display can presents a report to the subject, see the figure on pg.62.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the Patent such that a display that presents the stimulus to the subject and the display presents the report to the subject as taught by Martinez-Conde et al (Windows) as an obvious configuration to test and then display the report to the subject.
In regard to Claim 30, the Patent discloses the invention above but do not expressly disclose a user interface configured to receive user input from the subject, the user input including an acknowledgement from the subject that the stimulus is acknowledged by the subject.
Martinez-Conde et al (Windows) teach a user interface, i.e. with a button, configured to receive user input from the subject, the user input including an acknowledgement from the subject that the stimulus is acknowledged by the subject (pg. 62, left column, first paragraph) to effectively allow the subject to provide input into their attentional response based on the stimulus.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the Patent such that the device includes a user interface configured to receive user input from the subject, the user input including an acknowledgement from the subject that the stimulus is acknowledged by the subject as taught by Martinez-Conde et al (Windows) to effectively allow the subject to provide input into their attentional response based on the stimulus.
In regard to Claims 32-33, the Patent discloses the invention above but do not expressly disclose determining the subject's attentional response to the stimulus includes detecting a microsaccade rate suppression event relative to the time of the stimulus from the microsaccadic eye movement dynamics or measure a magnitude of the detected microsaccade rate suppression event as a difference between a suppressed rate during the detected microsaccade rate suppression event and a baseline rate; and correlate the magnitude of the detected microsaccade rate suppression event to a relative magnitude of the subject's attentional response.
Martinez-Conde et al (Windows) teach determining the subject's attentional response to the stimulus includes detecting a microsaccade rate suppression event, i.e. reduction, relative to the time of the stimulus from the microsaccadic eye movement dynamics (pg.62 graph bottom), with the graph on pg. 62 showing a measure a magnitude of the detected microsaccade rate suppression event as a difference between a suppressed rate during the detected microsaccade rate suppression event and a baseline rate – line zero/change on said graph pg. 62, and correlate the magnitude of the detected microsaccade rate suppression event to a relative magnitude of the subject's attentional response as shown on the graph, as a way to effectively quantify the subject’s attention response to the stimulus.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the Patent such that determining the subject's attentional response to the stimulus includes detecting a microsaccade rate suppression event relative to the time of the stimulus from the microsaccadic eye movement dynamics or measure a magnitude of the detected microsaccade rate suppression event as a difference between a suppressed rate during the detected microsaccade rate suppression event and a baseline rate; and correlate the magnitude of the detected microsaccade rate suppression event to a relative magnitude of the subject's attentional response as taught by Martinez-Conde et al (Windows) effectively quantify the subject’s attention response to the stimulus.
Claim 31 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 9854966 in view of Martinez-Conde et al (Windows on the Mind – cited by applicant), and further in view of Martinez-Conde et al (US Pub No. 20100039617 – cited by applicant).
The Patent in combination with Martinez-Conde et al (Windows) discloses the invention above but do not expressly disclose the computer readable storage medium further stores thereon a stimulus detection threshold indicating a probability of the subject responding to the stimulus, wherein the processor is further caused to update the stimulus detection threshold based on the user input.
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 the Patent as modified by Martinez-Conde et al (Windows) to include store a stimulus detection threshold based on the determined attentional response to the stimulus, the stimulus detection threshold indicating 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 as the user input is already taught by the Patent as part of quantifying the subject’s attentional response.
Claims 34, 37, and 39-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11602273. Although the claims at issue are not identical, they are not patentably distinct from each other because
Both Claim 34 and the Patent disclose a method for determining a subject's attentional response to a stimulus, the method comprising the steps of:
receiving eye movement traces of the subject over a time period including a time of the stimulus;
measuring, from the eye movement traces, microsaccadic eye movement dynamics;
determining 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; and
generating a report indicating the subject’s attentional response based on the determination.
Both Claim 37 and claim 3 of the Patent disclose the method of claim 34, further comprising receiving user input from the subject, the user input including an acknowledgement from the subject that the stimulus is acknowledged by the subject.
Both Claim 39 and claim 1 of the Patent disclose detecting a microsaccade rate suppression event relative to the time of the stimulus from the microsaccadic eye movement dynamics.
Both Claim 40 and claim 4 of the Patent disclose measuring a magnitude of the detected microsaccade rate suppression event as a difference between a suppressed rate during the detected microsaccade rate suppression event and a baseline rate and correlating the magnitude of the detected microsaccade rate suppression event to a relative magnitude of the subject's attentional response.
Claims 35-36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 11602273 in view of Martinez-Conde et al (Windows on the Mind – cited by applicant).
The Patent discloses the invention above but does not expressly disclose a display. Martinez-Conde et al (Windows) teach that it is well-known in the art to provide an analogous device using a display that presents the stimulus to the subject, see citation in the figure on pg. 62 – stimulus is small spot on computer screen. Martinez-Conde et al (Windows) also teach the display can presents a report to the subject, see the figure on pg.62.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the Patent such that a display that presents the stimulus to the subject and the display presents the report to the subject as taught by Martinez-Conde et al (Windows) as an obvious configuration to test and then display the report to the subject.
Claim 38 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 11602273 in view of Martinez-Conde et al (US Pub No. 20100039617 – cited by applicant).
The Patent discloses the invention above 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 the Patent 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 as the user input is already taught by the Patent as part of quantifying the subject’s attentional response.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Huong Q 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