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 .
Response to Arguments
I. Previous Rejections under 35 U.S.C. § 101
Applicant’s remarks concerning the previous rejections under 35 U.S.C. § 101 have been fully considered but are not persuasive.
Regarding Step 2A, Prong One, Applicant argues that claim 1 recites “a specific, complex process that far exceeds the practical capabilities of the human mind.” To support this, Applicant argues that (1) the human mind is not equipped to simultaneously receive and process continuous, multi-model data streams from multiple individuals and then apply a dynamic, context-aware weighting scheme in real time, and (2) the closed-loop process of “learning” from the results of earlier recommendations to update future behavior/recommendations is “an inherently machine-based process.” The Examiner respectfully disagrees. Concerning (1), the human mind is fully capable of evaluating multiple types of data from multiple individuals, particularly when using a basic physical aid such as pen and paper. The human mind is also fully capable of making calculations using multiple data inputs, and is fully capable of recognizing different contexts and applying weightings to different data based on context. For example, a human could mentally decide that, due to the particular activity of the individuals, one type of biomarker data will be weighted twice as much as another type of biomarker data when calculating the group synchrony score. Concerning (2), the human mind is obviously capable of learning from prior recommendations and refining future recommendations based on that learning. A human who is providing the recommended actions is clearly capable of observing the results of that recommendation to learn how it affected the actual outcome, and then deciding how to refine future recommendations to lead to a better outcome.
Regarding Step 2A, Prong Two, Applicant argues that the claims recite an improvement to computer technology. Specifically, Applicant argues that the system here does not simply collect data and display a result, but rather it includes other steps such as analyzing the data, generating a recommended action, and learning and adapting by monitoring the result of the action and computationally learning the relationship between the action and its outcome, thereby improving future recommendations. The Examiner respectfully disagrees. None of these actions is a technological improvement because none of them changes any of the underlying technology being used here. As noted in the paragraph above, all of these steps mentioned by Applicant here are steps that could be carried out entirely mentally and/or on pen and paper. Performing them on a computer does not automatically mean that a technological improvement has taken place. In this case, the implementation of those steps on a generic processor/computer does not result in any technological changes or improvements. Rather, the exact same benefits are provided as if the process had been done mentally, except that it is done with the increased speed inherent to general purpose computers.
II. Previous Rejections under 35 U.S.C. § 102
Applicant’s remarks concerning the § 102 rejections have been fully considered. Applicant presents four arguments against the Stevens reference. The Examiner agrees with Applicant’s second and fourth arguments that Stevens fails to teach “weighting [the data] according to a determined contextual relevance or importance” and “determining … an outcome of the recommended action by monitoring a subsequent change … to learn a relationship between the recommended action and the outcome.” As such, the § 102 rejections are withdrawn. However, after further search and consideration, updated grounds of rejection are made in view of a newly discovered prior art reference.
The Examiner respectfully disagrees with Applicant’s other arguments (i.e. Arguments 1 and 3) concerning the Stevens reference. Since those remarks are still relevant to the updated rejections, they will be addressed below.
Applicant’s first argument is that Stevens “does not teach or suggest collecting or processing social cue data like facial expressions or contextual speech.” The Examiner respectfully disagrees. This limitation was addressed in the previous Office Action in the rejection of claims 12-14 which pointed to Paras. 43-45 and 59 of Stevens. Those portions of Stevens discuss various data that can be collected and processed including “measures of cognitive or emotional state (e.g. attention, workload, engagement, interest, distractions, confusion, boredom, interest, etc.) obtained by non-neurophysiologic means (e.g., eye tracking, electrooculography (EOG), functional MRI, near-infrared spectroscopy, etc) or other neurophysiologic methods” (Para. 43) and “body movement data … behavioral responses data” (Para. 59).
Applicant’s third argument is that Stevens fails to teach an automated behavior engine that generates a recommended action in response to the determined effect. Applicant argues that, in contrast, Stevens allegedly only provides feedback to a human instructor, who then decides on any intervention. The Examiner respectfully disagrees. Stevens explicitly teaches that feedback can be provided directly to the team/team members, and can include recommended actions/commands (see e.g. Para. 180).
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in China on April 29, 2022. It is noted, however, that applicant has not filed a certified copy of the CN202210472911.9 application as required by 37 CFR 1.55.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a mental process without significantly more.
Step 1: All of claims 1-20 are directed either to a method/process (claims 1-14) or to a system/machine (claims 15-20).
Step 2A, Prong One: The claims recite a mental process including steps such as “receiving biomarker data …” and “computing … a group synchrony score …” and “determining … an effect …” and “… generating … a recommended action …” and “determining … an outcome …” (see e.g. claim 1 – all of the steps except for the last output step can be performed mentally) which could be performed by the human mind and/or by a human with a physical aid such as pen and paper. For example, a human such as a doctor, coach etc. could mentally receive biomarker data from multiple users in a group, and then mentally compute a group synchrony score and making determinations and recommendations in the manner claimed here.
Step 2A, Prong Two: This judicial exception is not integrated into a practical application because the claims merely implement the mental process using generic processing technology and add insignificant extra-solution activity. Specifically: the step of “receiving biomarker data collected from one or more sensors …” is considered insignificant pre-solution activity of mere data gathering, since it merely collects the data necessary to carry out the mental process (note that in Prong One above, this step may also simply be considered part of the mental process, since the human mind can mentally receive data); the step of “providing the group synchrony score as an output in a user interface of a device” is considered insignificant post-solution activity since it merely outputs the result of the mental process using a generic output modality. Furthermore, merely carrying out mental steps using generic computing technology such as “at least one processor,” “computer-executable instructions stored in a memory” and “at least one memory including computer program code” [see e.g. claim 15] etc. is well established to not amount to an integration into a practical application under the § 101 analysis. See, e.g., MPEP §§ 2106.04(a)(2)(III)(C) and 2106.04(d)(I) and 2106.05(f).
Step 2B: The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the only additional elements recited in the claims are generic processing/computing components such as “at least one processor” and “at least one memory” etc., and generic data collection and output components such as “sensors” and “a user interface.” The Examiner previously took official notice that these are basic, generic components which are well-understood, routine and conventional in the medical diagnostic arts, and the claims here merely use them for their well-understood, routine and conventional functions. Applicant’s subsequent reply did not traverse the Examiner's assertion of official notice; therefore, the facts under official notice are now taken to be admitted prior art. See MPEP § 2144.03(C) (“If applicant does not traverse the examiner' s assertion of official notice or applicant' s traverse is not adequate, the examiner should clearly indicate in the next Office action that the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant either failed to traverse the examiner' s assertion of official notice or that the traverse was inadequate.”). As such, those additional elements cannot be considered “significantly more” than the judicial exception in Step 2B of the § 101 analysis.
Dependent Claims 2, 4, 7-8, 16 and 19 merely add details to the mental step and clarify that the insignificant post-solution activity of outputting includes those additional details of the mental step.
Dependent Claims 3, 6, 9, 17 and 20 merely add details to the mental step.
Dependent Claim 5 merely adds detail to the insignificant pre-solution data gathering activity (“recording the biomarker data …”) and repeats the insignificant post-solution activity (“replaying …”).
Dependent Claim 10 merely links the mental step to a computer tool/environment.
Dependent Claim 11 merely adds detail to the insignificant pre-solution data gathering activity and adds detail to the mental step to take into account the extra data gathered.
Dependent Claims 12-14 merely add detail to the insignificant pre-solution data gathering activity.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention 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 35 U.S.C. 103 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 the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 20110213211 A1 to Stevens et al. (hereinafter “Stevens”) in view of US 2013/0046151 A1 to Bsoul et al. (hereinafter “Bsoul”) in view of US 10,292,585 B1 to Talwai et al. (hereinafter “Talwai”).
Regarding Claims 1, 15 and 18, Stevens teaches a method comprising:
receiving, by at least one processor, multi-model biomarker data collected from one or more sensors for a group of at least two users, wherein the biomarker data includes a plurality of biomarker value streams combined with social cue data, the social cue data comprising at least one of a facial expression, a movement, contextual speech, or a verbal cue (see e.g. “monitoring neurophysiologic indicators of the members of a team while performing one or more collaborative tasks” in the abstract; see examples of sensor types in e.g. Paras. 43-45 and 59);
computing, by the at least one processor, a group synchrony score (see e.g. Paras. 46-48 discussing task and team metrics, and e.g. Para. 56 describing “neurophysiological synchronies”);
determining, by the at least one processor from the group synchrony score over a designated period of time, an effect of one or more actions performed by the group on the group synchrony score (see generally Paras. 46-48 and 56);
automatically generating, by a behavior engine comprising computer-executable instructions stored in a memory and executed by the at least one processor, a recommended action to be performed by the group to change the group synchrony score in response to the determined effect (see e.g. Paras. 84-86)
providing the recommended action as an output in a user interface of a device (see e.g. discussions of the user interface in Paras. 81-82, 104, 143, 151; see e.g. Paras. 84-86 discussing the providing of the recommended action).
Concerning the generic computer details, see e.g. Paras. 74-76 which discuss a processor, memory, etc.
Stevens fails to teach (1) that “computing … a group synchrony score” is based on “weighting of the [data] according to a predetermined contextual relevance or importance,” and (2) “determining … an outcome of the recommended action by monitoring a subsequent change in the group synchrony score after the recommended action is performed to learn a relationship between the recommended action and the outcome.”
Concerning (1) above, another reference, Bsoul, teaches the computation of a single index based on data fusion of multiple sensor types, and further teaches that each sensor may be separately weighted based on context information (see e.g. Paras. 57-60). It would have been obvious to one of ordinary skill in the art as of Applicant's effective filing date to modify Stevens to allow each data type to be weighted based on context, as seen in Bsoul, because it would predictably and advantageously increase the accuracy of the resulting score since different data types could be more or less important in different contexts.
Concerning (2) above, another reference, Talwai, teaches a system for making recommendations to team members in which the system tests the effectiveness of its own recommendations to learn the relationship between the recommendations and actual outcomes, thereby helping improve future recommendations (see e.g. Col. 2 lines 59-64: “One of many useful aspects to this measure-prompt change-remeasure system is how the mental state measurement system gets more effective over time. The mental state measurement system will keep track of what works for whom and when, and adapt to situations over time to prompt the most effective changes”, Col. 8 lines 33-42: “Embodiments provide a virtuous cycle, where the system measures frustration or fatigue of a user, recommends the user move to a place where members have a measured mental state with a better mental state metric, and again measure if the user's mental state metric improves after moving to the recommended place. This cycle tests the effectiveness of the system's recommendations (i.e. is a member's mental state better after the recommendations) and reinforces the effect (i.e. members learn where their mental state improves)”; also see claim 2). It would have been obvious to one of ordinary skill in the art as of Applicant's effective filing date to further modify Stevens to determine an outcome of the recommended action by monitoring a subsequent change in the group synchrony score after the recommended action is performed to learn a relationship between the recommended action and the outcome, akin to that seen in Talwai, because doing so would predictably and advantageously help improve future recommendations based on actual effectiveness of prior recommendations.
Regarding Claim 2, 8, 16 and 19, see e.g. Paras. 47-48 discussing comparisons to “expert” data which is a reference group interaction. Also see “expected or acceptable levels” in Para. 47 and Para. 80: “the expert data can include expected team performance under certain conditions and/or interpretations of neurophysiologic synchronies expressed by a team during a monitored performance.”
Regarding Claim 3, 7, 11, 17 and 20, see e.g. Para. 99 discussing the normalization process.
Regarding Claim 4, see e.g. Paras. 84-86 discussing feedback and recommendations.
Regarding Claims 5-6, see e.g. “Assessments of team performance can be performed in real time and feedback can also be provided in real time” in the abstract; also see e.g. Paras. 49-50.
Regarding Claim 9, see the discussion of prediction in Paras. 125, 144 and 153.
Regarding Claim 10, see e.g. discussion of artificial neural networks in Paras. 118-119.
Regarding Claims 12-14, see examples of sensor types in e.g. Paras. 43-45 and 59.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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 JOHN R DOWNEY whose telephone number is (571)270-7247. The examiner can normally be reached Monday-Friday 8:30am-5:00pm ET.
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/JOHN R DOWNEY/Primary Examiner, Art Unit 3792