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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 14 May 2026 has been entered.
Response to Amendment
Claims 1-19 are currently pending. Claims 1, 18, and 19 have been amended. Claims 1, 18, and 19 have been amended to overcome the 35 U.S.C. 112(b) rejections set forth in the Final Office Action mailed on 23 February 2026.
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 1-19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
STEP 1
Regarding claim 1, the claim recites a series of structural elements, including a sensor interface circuitry. Thus, the claim is directed to a machine, which is one of the statutory categories of invention.
STEP 2A, PRONG ONE
The claim is then analyzed to determine whether it is directed to any judicial exception. The steps of:
wherein, in the calibration mode, the processing circuitry is configured to train a brain-physiological model for the user based on the first sensor data and the second sensor data,
wherein the sensor interface circuitry is further configured to receive the second sensor data in an operation mode, and
wherein, in the operation mode, the processing circuitry is configured to determine the information about the user’s brain resources by processing the second sensor data from the wearable device with the trained brain-physiological model, wherein the trained brain-physiological model determines brain energy increases and decreases based on the second sensor data independently of the electroencephalography sensor
set forth a judicial exception. These steps describe a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to a Mental Process, which is an Abstract Idea. Regarding the training step, this step also describes a concept of managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). Thus, the claim is also drawn to Organizing Human Activity, which is also an Abstract Idea.
STEP 2A, PRONG TWO
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Claim 1 recites determining the information about the user’s brain resources by processing the second sensor data from a wearable device with the trained brain-physiological model, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The determining of the information about the user’s brain resources does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the determined information about the user’s brain resources, nor does the method use a particular machine to perform the Abstract Idea.
STEP 2B
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the Abstract Idea, the claim recites additional steps of wherein, in a calibration mode, the sensor interface circuitry is configured to: receive first sensor data from an electroencephalography sensor only during calibration mode, the first sensor data being indicative of an electroencephalogram of the user including electrical signals measured from a scalp of the user; and receive second sensor data from a physiological sensor of a wearable device, the second sensor data being indicative of a physiological property of the user, wherein the electroencephalography sensor is separate from the wearable device. Obtaining data (first sensor data, second sensor data) is well-understood, routine and conventional activity for those in the field of medical diagnostics. Further, the receiving steps are each recited at a high level of generality such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the obtaining and comparing steps do not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Regarding claim 1, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited at least sensor interface circuitry is a generic sensor configured to perform pre-solutional data gathering activity and the processing circuitry is configured to perform the Abstract Idea. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application. [0063] of Wisbey et al. ‘222 (US Pub No. 2020/0401222 – previously cited) also shows that the sensor interface circuitry (EEG sensor and physiological sensor) and the processing circuitry are well-understood, routine, and conventional (WURC).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
The same rationale applies to claims 18 and 19.
The dependent claims also fail to add something more to the abstract independent claims. Claims 2-5, 9-11, and 13-15 recite steps that add to the Abstract Idea as each recite a step that could be performed mentally or by hand. Claims 6-8 and 16 recite additional elements that are not significantly more than the Abstract Idea. Claims 12 and 17 recite additional elements (mere outputting step) that does not integrate the judicial exception into a practical application. The steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Response to Arguments
Applicant has argued that the amendment of “the electroencephalography sensor is separate from the wearable device” would overcome the 35 U.S.C. 101 rejection. However, upon further consideration, it was found that the EEG sensor and the physiological sensor are not positively recited. The Applicant also argued that the training and determining steps could not be performed mentally or by hand. Regarding the training step, without agreeing or disagreeing, this step could also be seen as organizing human activity, where as user may update or train the brain-physiological model by inputting data into the model. Regarding the determining step, this step could merely be a user reviewing the output of the trained brain-physiological model to make a mental determination about the user’s brain resources.
Regarding the arguments on pages 10-11 of the Remarks filed 22 April 2026, as mentioned above, the EEG sensor and the physiological sensor are not positively recited. Examiner suggests to amend the independent claims to positively recite the sensors and that the EEG sensor is separate from the wearable device to potentially overcome the 35 U.S.C. 101 rejection. As such, Applicant’s arguments are not persuasive and the 35 U.S.C. 101 rejection has been maintained.
Applicant’s arguments with respect to the 35 U.S.C. 103 rejections have been fully considered and are persuasive. The 35 U.S.C. 103 rejections of claims 1-19 have been withdrawn.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Gevins et al. ‘987 (US Patent No. 5,724,987) teaches a hat with EEGs and electrodes or other sensors that could be connected by wires to the hat attached to the chest, back, limbs, neck or face to record other physiological signals (Fig. 1 and Column 8 Lines 45-67).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AURELIE H TU whose telephone number is (571)272-8465. The examiner can normally be reached [M-F] 7:30-3:30.
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/AURELIE H TU/ Primary Examiner, Art Unit 3791
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