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 .
Applicant’s amendments dated 11/4/25 are hereby entered.
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 judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 1-20 are directed to an abstract idea without significantly more. The claims recite a mental process that can be performed by human being and/or recite a method of organizing human activity and/or mathematical concepts.
In regard to Claims 1, 14 and 16, the following limitations can be performed as a mental process by a human being in terms of claiming collecting data, analyzing that data, and providing outputs based on that analysis which has been held by the CAFC to be an abstract idea in decisions such as, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential); and/or recite a method of organizing human activity in terms of claiming the teaching/training/evaluation of a human subject’s which has been identified by MPEP 2106.04(a)(2)(II) as being a method of organizing human activity; and/or claim mathematical concepts as outlined at MPEP 2106.04(a)(2)(I), in terms of the Applicant claiming:
[a] method for improving a selected skilled sensory-cognitive-motor action of a user in the real world through sensorimotor training […] the method comprising:
[…]
(b) displaying [a simulated] environment to the user;
(c) providing […] instructions directing the user to physically execute two or more sensorimotor activities within a [simulated] environment selected to improve the selected skilled sensory-cognitive-motor action of the user, wherein the two or more sensorimotor activities comprise two or more of smooth pursuit, saccade, near point convergence, peripheral vision acuity, eyes-then-head, gaze stability, cervical proprioception and kinesthetic awareness, or cervical neuromotor control, at least one of the sensorimotor activities comprising the user tracking an object that moves within the [simulated] environment in an unpredictable movement pattern and remains visible while moving in the unpredictable movement pattern; and
(d) recording […] movement data of the user during execution of the two or more sensorimotor activities including measuring […] at least one of eye position or movement of one or both eyes in response to sensory stimuli;
(e) based on the recorded movement data, determining […] a baseline sensorimotor activity metric of the user indicating the user’s baseline proficiency in executing the two or more sensorimotor activities;
(f) providing […] additional instructions directing the user to repeat execution of the two or more sensorimotor activities within the [simulated] environment, and recording […] further movement data of the user during the repeated execution of the two or more sensorimotor activities;
(g) based on the recorded further movement data, determining […] a trained sensorimotor activity metric of the user indicating the user’s proficiency in executing the two or more sensorimotor activities following repeated execution of the two or more sensorimotor activities;
(h) comparing […] the trained sensorimotor activity metric to the baseline sensorimotor activity metric; and
(i) repeating steps (f) and (h) to provide until an increase in proficiency in performing the two or more sensorimotor activities within the [simulated] environment is determined […];
(j) upon determining […] an increase in proficiency in performing the two or more sensorimotor activities within the [simulated] environment, measuring the selected skilled sensory-cognitive-motor action of the user again, in the real world, and recording […] a trained skilled sensory-cognitive-motor action metric of the user,
wherein the method improves the selected skilled sensory-cognitive-motor action of the user in the real world as a result of increased proficiency by the user in performing the two or more sensorimotor activities within the [simulated] environment,
wherein the improved skilled sensory-cognitive-motor action of the user in the real world includes improved proficiency by the user in at least one activity that is outside of the [simulated] environment, and
wherein the improved skilled sensory-cognitive-motor action of the user in the real world is different than the increased proficiency by the user in performing the two or more sensorimotor activities within the [simulated] environment.
In regard to the dependent claims, they also claim an abstract idea to the extent that they merely claim further limitations that likewise could be performed as a mental process by a human being and/or recite a method of organizing human activity and/or claim mathematical concepts.
Furthermore, this judicial exception is not integrated into a practical application because to the extent that additional elements are claimed either alone or in combination such as, e.g., providing a virtual immersive environment, a computer system, a head-mounted display device for immersing the user in the virtual immersive environment, one or more position/motion sensors for recording movement data of the user within the virtual immersive environment, one or more processors, and/or
one or more hardware storage devices, these are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., data gathering), to embody the abstract idea on a general purpose computer, and/or do no more than generally link the use of a judicial exception to a particular technological environment or field of use. In this regard, see MPEP 2106.04(d)(I) in regard to “courts have also identified limitations that did not integrate a judicial exception into a practical application…”
Furthermore, the claims do not include additional elements that taken individually, and also taken as an ordered combination, are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g., providing a virtual immersive environment, a computer system, a head-mounted display device for immersing the user in the virtual immersive environment, one or more position/motion sensors for recording movement data of the user within the virtual immersive environment, one or more processors, and/or one or more hardware storage devices, these are generic, well-known, and conventional elements and are claimed for the generic, well-known, and conventional functions of collecting and processing data and/or providing an analysis/outputs based on that processing. To the extent that an apparatus is claimed as an additional element said apparatus fails to qualify as a “particular machine” to the extent that it is claimed generally, merely implements the steps of Applicant’s claimed method, and is claimed merely for purposes of extra-solution activity or field of use. See MPEP 2106.05(b). As evidence that these additional elements are generic, well-known, and conventional, Applicant’s specification discloses the support for these elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See, e.g., F1 in Applicant’s PGPUB and text regarding same.
Furthermore, to the extent to which Applicant claims method steps that require physical actions to be taken on or by a human being, such actions do not claim patent eligible subject matter to the extent that they human actions do not constitute a particular machine and/or the transformation of any article. See MPEP 2106.05.
Claim Rejections - 35 USC § 103
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.
Claims 1-11 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over PGPUB US 20190070512 A1 by Fuller et al (“Fuller”), in view of PGPUB US 20170229037 A1 by Gazzaley (“Gazzaley”), further in view of PGPUB US 20040146840 A1 by Hoover et al (“Hoover”), in view of admitted prior art.
In regard to Claim 1, Fuller teaches a method for improving a selected skilled sensory-cognitive-motor action of a user in the real world through sensorimotor training provided in a virtual immersive environment, the method comprising:
(see, e.g., p27-28, “rehabilitation, military training, and police training” in regard to “in the real world”; see, e.g., p88 in regard to “sensorimotor training in a virtual immersive environment”);
(a) […] a head-mounted display device…audio system […] and placing a hand tracking sensor in a hand of the user
(see, e.g., p48-49);
(b) displaying… the virtual immersive environment to the user;
(see, e.g., p48);
(c) providing…instructions directing the user to physically execute two or more sensorimotor activities within the virtual immersive environment selected to improve the selected skilled sensory-cognitive-motor action of the user, wherein the two or more sensorimotor activities comprise two or more of smooth pursuit, saccade, near point convergence, peripheral vision acuity, eyes-then-head, gaze stability, cervical proprioception and kinesthetic awareness, or cervical neuromotor control, at least one of the sensorimotor activities comprising the user tracking an object that moves within the virtual immersive environment in an unpredictable movement pattern and remains visible while moving in the unpredictable movement pattern; and
(see, e.g., paragraph 44 in regard to providing visual displays (“instructions”) directing the user to execute sensorimotor activities including visually following the zombie moving in one direction (“smooth pursuit”) and then reversing in direction (“saccade”));
(d) recording…movement data of the user during execution of the two or more sensorimotor activities including measuring, by the eye tracking system, at least one of eye position or movement of one or both eyes in response to sensory stimuli;
(see, e.g., p49);
(e) based on the recorded movement data, determining…a baseline sensorimotor activity metric of the user indicating the user’s baseline proficiency in executing the two or more sensorimotor activities;
(see, e.g., p34 in regard to calculating performance metrics (“baseline sensorimotor activity metric”) after the second of several “repeated trials”);
(f) providing…additional instructions directing the user to repeat execution of the two or more sensorimotor activities within the virtual immersive environment, and recording…further movement data of the user during the repeated execution of the two or more sensorimotor activities;
(see, e.g., p34 in regard to performing a third of the “repeated trials” (“providing additional instructions”); see, e.g., p44 regarding each of those trails comprising “two or more sensorimotor activities; and, e.g., p48-49 in regard to “recording further movement data”);
(g) based on the recorded further movement data, determining…a trained sensorimotor activity metric of the user indicating the user’s proficiency in executing the two or more sensorimotor activities following repeated execution of the two or more sensorimotor activities;
(see, e.g., p34 in regard to computing a median metric based on all of the “repeated trials” (“repeated execution of the two or more sensorimotor activities”));
(h) comparing…the trained sensorimotor activity metric to the baseline sensorimotor activity metric;
(see, e.g., Fig. 2 and p31 in regard to comparing the median metric to prior performances);
(i) repeating steps (f) and (h) to provide until an increase in proficiency in performing the two or more sensorimotor activities within the virtual immersive environment is determined…and
(see, e.g., p34 in regard to providing “repeated trials” (“repeating steps (d) and (e)”); see, e.g., p27 in regard to the sensorimotor training improving the player’s performance (“until an increase in proficiency…is determined”));
[…]
Furthermore, in regard to claimed step “j”, while Fuller teaches a system that can be applied for virtually training individuals in order to improve their performance at real world activities outside the virtual environment (see, e.g., paragraphs 27-28), it may fail to specifically teach applying that system by measuring the improvement of real-world performance of physical activities after virtual training that improved the player’s virtual performance, however, in an analogous reference Gazzaley teaches that functionality (see, e.g., paragraph 71);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of invention because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have added the teaching of Gazzaley to the method otherwise taught by Fuller, by measuring the improvement of the subject’s performance of real-world performance of physical tasks that are analogous to the virtual tasks after the user has engaged in virtual first-person training on those virtual tasks that improved the user’s virtual performance (claimed steps “k” and “l”), in order to guide future training decisions.
Furthermore, while Fuller combined with Gazzaley teaches measuring the improvement of the subject’s performance of real-world performance of physical tasks that are analogous to the virtual tasks after the user has engaged in virtual first-person training on those virtual tasks it may fail to specifically teach what those activities entail, however, in an analogous reference Hoover teaches a pistol training simulator for military and/or police training (see, e.g., paragraph 5);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of invention because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have added the teaching of Hoover to the method otherwise taught by Fuller and Gazzelly, by engaging the subject in real-world military/police weapons training after virtual training in order to measure the subject’s improvement and thereby guide future training decisions. The real-world training is different from the virtual training (because it is real world and not virtual) and, thereby, the improvement to the functional performance of the user is different. In other words, Applicant does not claim in what specific manner the improved performance is different.
Furthermore, while the cited prior art may fail to specifically teach placing the head-mounted display device over the user’s head so that the display is visible to the user,
the Examiner takes OFFICIAL NOTICE that a person placing a head-mounted display over his/her head was old and well-known at the time of Applicant’s filing its invention. Such functionality allows for the person to see the display. As such it would have been obvious to one of ordinary skill in the art at the time of invention to implement the claimed functionality within the invention of the cited prior art so as to allow the person to see the display;
Furthermore, the Applicant failed to adequately traverse the Examiner’s taking of official notice in a prior Office action and, therefore, these claimed limitations are now admitted prior art. See MPEP 2144.03.
In regard to Claim 2, Fuller teaches this feature. See, e.g., Figure 1.
In regard to Claim 3, Fuller teaches this feature. See, e.g., paragraph 49.
In regard to Claim 4, Fuller teaches this feature. See, e.g., Figure 1.
In regard to Claim 5, Fuller teaches this feature. See, e.g., paragraph 49.
In regard to Claim 6, Fuller teaches this feature. See, e.g., paragraph 48.
In regard to Claims 7-8, see rejection of Claim 1. For example, the user’s hand-eye “coordination” and “agility” in being able to move his/her hand and eyes quickly and easily are improved as a result of training.
In regard to Claims 9-11, Fuller teaches this feature. See, e.g., paragraph 44.
In regard to Claim 16, see rejection of Claim 1. In regard to employing hand-eye coordination training such as that taught by Fuller in order to treat traumatic brain injury (“concussion injury”), see Gazzaley at, e.g., paragraph 2;
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of invention because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have employed the method taught by the combination of Fuller and Gazzaley in order to treat TBI, so as to provide a portable and convenient means by which to treat the injury.
In regard to Claim 17, Fuller teaches this feature. See, e.g., paragraph 49.
In regard to Claim 18-20, Fuller teaches this feature. See, e.g., paragraph 44.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Fuller, in view of Gazzaley, further in view of Hoover, further in view of admitted prior art, further in view of PGPUB US 20150050629 A1 by Pease et al (“Pease”).
In regard to Claim 12, Pease teaches the claimed limitations (see, e.g., paragraphs 54-55);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of invention because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have added the functionality taught by Pease to the method otherwise taught by the otherwise cited prior art, in order to add difficulty to the training by employing the unstable surface that forced the user into a variable standing position as taught by Pease.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Fuller, in view of Gazzaley, further in view of Hoover, further in view of admitted prior art, further in view of PGPUB US 20170258397 A1 by Ghajar et al (“Ghajar”).
In regard to Claim 15, Ghajar teaches computer training individuals with impairments (see, e.g., paragraph 57);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of invention because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have added the functionality taught by Ghajar to the method otherwise taught by the otherwise cited prior art, by employing the training method taught by Fuller to subjects with the impairments taught by Ghajar, in order to try and improve their functional performance.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Fuller, in view of admitted prior art, further in view of Ghajar.
In regard to Claim 14, see rejection of Claim 1. To the extent that Fuller may fail to also teach “an object configured to move…head movement of the user”, Ghajar teaches this feature (see, e.g., paragraph 63);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of invention because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have added the functionality taught by Ghajar to the method otherwise taught by the otherwise cited prior art, in order to add an additional mode of training wherein the user’s head motion was mirrored to some extent in the object’s motion so as to maintain the subject’s interest.
In regard to Claim 15, Fuller teaches this feature. See, e.g., paragraph 44 in regard to providing visual displays (“instructions”) directing the user to execute sensorimotor activities including visually following the zombie moving in one direction (“smooth pursuit”) and then reversing in direction (“saccade”)).
Response to Arguments
All of Applicant’s claims have been rejected under 35 USC 101 under the Mayo test as claiming abstract ideas and without claiming “significantly more”. The Mayo test is a legal test and, as such, the question in regard to making such a rejection is what is the most analogous case law in terms of identifying whether an applicant has claimed patent eligible versus ineligible subject matter. To that end, the 101 rejections made supra cite legal authorities in regard to why the Applicant is alleged to have claimed patent ineligible subject matter under the Mayo test. Applicant’s arguments made in its Remarks, however, cite no relevant legal authority in support and, therefore, provide no basis or rationale under the Mayo as to why the 101 rejections should be withdrawn. To the extent that Applicant appears to be arguing that its claimed invention improves human performance and that renders patent eligible subject matter that argument is unpersuasive. Again, Applicant cites no legal authority in support of that argument. What is more, Applicant’s claimed invention is directed to collecting data, analyzing that data, and providing some output based on that analysis and the CAFC has held repeated that such subject matter was patent ineligible under the Mayo test as being directed to an abstract idea in the form of a mental process. One decision by the CAFC in this regard was in Yousician (non-precedential) where the Court invalidated claims directed to collecting sensor data regarding a human physical performance, analyzing that data by comparing it to a metric, and then providing a differential visual output based on that comparison, which is likewise what Applicant is claiming. What is more, the independent claims in Yousician included limitations that the claimed exercises being performed by the human subject were directed to improving human performance (emphasis added):
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In other words, the CAFC invalidated limitations very similar to those claimed by the Applicant in terms of the invention being directed to improving human performance. The CAFC also held similarly in, e.g., Trading Technologies v. IBG LLC, (2017-2257; 4/18/19), slip. op., page 9, that a claimed computer program which improved human performance was not patent eligible as it did not constitute a technological improvement (“This invention makes the trader faster and more efficient, not the computer. This is not a technical solution to a technical problem,” emphasis original). For these reasons the 101 rejections are maintained.
Applicant argues on page 17 of its Remarks in regard to the rejections made under 35 USC 103 that the cited prior art allegedly fails to teach the claimed “instructions”. Applicant’s argument is not persuasive. As cited in the FAOM, Fuller teaches providing certain visual displays to the user. To the extent that said displays may not take on the visual appearance of “instructions”, however, this appearance has no functional relationship to the claimed computer display upon which it appears and, thereby, fails to patentably distinguish over the cited prior art. See MPEP 2111.05: “Additionally, where the printed matter and product do not depend upon each other, no functional relationship exists. For example, in a kit containing a set of chemicals and a printed set of instructions for using the chemicals, the instructions are not related to that particular set of chemicals. In re Ngai, 367 F.3d at 1339, 70 USPQ2d at 1864.
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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 Mike Grant whose telephone number is 571-270-1545. The Examiner can normally be reached on Monday through Friday between 8:00 a.m. and 5:00 p.m., except on the first Friday of each bi-week.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's Supervisory Primary Examiner, Peter Vasat can be reached at 571-270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C GRANT/Primary Examiner, Art Unit 3715