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 .
Rejections - 35 USC § 112
2. The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.--The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
3. Claims 1-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Regarding claims 1 and 12, the recitation of the term “an F value” renders the claims indefinite, because the definition of “F value” is unknown. Therefore, the examiner comprehends the claims based on his best interpretations to this term.
Claims 2-11 and 13 are rejected by virtue of their dependence to claim 1.
Claim Rejections - 35 USC § 101
4. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 101 that form the basis for the rejections under this section made in this Office action:
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.
5. Claims 1-13 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.
Under the 2019 PEG (now been incorporated into MPEP 2106), the revised procedure for determining whether a claim is "directed to" a judicial exception requires a two-prong inquiry into whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human interactions such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not "well-understood, routine, conventional" in the field (see MPEP § 2106.0S(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.
Claims 1-13 are directed to an abstract idea of translating brainwave into ordered music.
Specifically, representative claim 1 recites:
A method, performed by an electronic device, of matching a musical imaginary electroencephalogram (EEG) with a melody, the method comprising:
(a) obtaining an EEG generated by imagining music from a user;
obtaining at least one brain wave segment from the EEG;
identifying key points included in the at least one brain wave segment;
matching a pitch value to each of the at least one brain wave segment based on the identified key points; and
compensating for the pitch value matching the at least one brain wave segment based on a musical probability map.
The claim limitations in the abstract idea have been highlighted in bold above; the remaining limitations are “additional elements”.
The highlighted portion of the claim constitutes an abstract idea under the 2019 Revised Patent Subject Matter Eligibility Guidance and the additional elements are NOT sufficient to amount to significantly more than the judicial exceptions, as analyzed below:
Step
Analysis
1. Statutory Category ?
Yes.
Method
2A - Prong 1: Judicial Exception Recited?
Yes.
Under its broadest reasonable interpretation (BRI), each or the combination of the limitations (b), (c), (d) and (e) recited in the bolded portion of claim 1 encompasses processes of data acquisition, analysis, and/or manipulation that can be performed in the human mind or by a human using mental steps with the aid of pan and paper. According to MPEP 2106.04(a)(2).III: The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011).
The limitation “a musical probability map” is recited at a high level of generality, which is used like a math tool to assist in performing the otherwise mental processes.
Nothing in the bolded portion precludes the limitations (b), (c), (d) and (e) from practically being performed in the mind and/or using a pen and paper.
As such, the bolded portion of instant claim 1 falls within a combination of the “Mental Process” and “Mathematical Concepts” Groupings of Abstract Ideas defined by the 2019 PEG.
2A - Prong 2: Integrated into a Practical Application?
No.
The limitation (a) reads on merely a process of gathering the data/information necessary for performing the abstract idea identified above in 2A - Prong 1. According to MPEP 2106.05(g)(3): … that were described as mere data gathering in conjunction with a law of nature or abstract idea. As such, it represents an extra-solution activity to the judicial exception.
The ”electronic device” is recited at a high level of generality in the preamble of the claim. Under the BRI, it encompasses a general-purpose computer and related computing components. According to the MPEP 2106.04(a)(2), if a claim limitation, under its broadest reasonable interpretation, covers mental processes except for the mention of generic computer components performing computing activities via basic function of the computer, then the claim is likely considered to be directed to an ineligible abstract idea, as it essentially describes a mental process that could be performed by a human without the computer components adding any significant practical application beyond the abstract concept itself.
The claim does not specify how the EEG data/signals are obtained. It could just as easily relate to the acquisition of the data from, e.g., look-up tables as opposed to the generation of actual measurement data in real-time. Thus claim 1 would monopolize the abstract idea across a wide range of applications.
None of these additional elements recited in claim 1 is qualified for meaningful limitations to integrate the identified judicial exception into a practical application. See MPEP 2106.05(g) and 2106.04(d).
In general, the claim as a whole does not meet any of the following criteria to integrate the abstract idea into a practical application:
An additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
Various considerations are used to determine whether the additional elements are sufficient to integrate the abstract idea into a practical application. However, in all of these respects, the claim fails to recite additional elements which might possibly integrate the claim into a particular practical application. Instead, based on the above considerations, the claim would tend to monopolize the algorithm across a wide range of applications.
2B: Claim provides an Inventive Concept?
No.
Focusing on what the inventors have invented exactly, it is considered that the “core” of pending claim 1 is directed to an abstract idea of translating brainwave into ordered music. The claim, as a whole, does not recite any limitation that amounts to “significantly more” or reflects an “inventive concept” under MPEP 2106.05. See also the discussion of the prior art as set forth below in this Office action.
The claim is therefore ineligible under 35 USC 101.
The dependent claims 2-11 inherit attributes of the independent claim 1, but do not add anything which would render the claimed invention a patent eligible application of the abstract idea. These claims merely extend (or narrow) the abstract idea which do not amount for "significant more" because they merely add details to the algorithm which forms the abstract idea as discussed above.
Claims 12-13 are treated as ineligible subject matter under 35 U.S.C. § 101 for the same reasons as for claims 1-11.
Claim Rejections - 35 USC § 102
6. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
7. Claims 1-5, 7-8 and 10-13 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Forbes et al. (US 20220343882 A1).
Regarding claims 1, 12 and 13, Forbes discloses a method, performed by an electronic device (Fig. 1) and implemented by a computer program product (para. 0010), of matching a musical imaginary electroencephalogram (EEG) with a melody (Abstract; para. 0023), the method comprising: obtaining an EEG generated by imagining music from a user (para. 0066, 0078); obtaining at least one brain wave segment from the EEG (para. 0024, 0026, 0080); identifying key points included in the at least one brain wave segment (para. 0081); matching a pitch value to each of the at least one brain wave segment based on the identified key points (para. 0081: “For example, … beta affects the pitch of the note”; see also para. 0083, 0087); and compensating (e.g., velocity translator in step 508 or note adjustment in step 511) for the pitch value matching the at least one brain wave segment based on a musical probability map (para. 0087: discussion of steps 507 and 508; para. 0091: discussion of steps 511 and 512; note, the term “a musical probability map” is given a broad interpretation, e.g., the algorithm to determine the note velocity or the “note filters and effects” selected in step 510; see also para. 0083).
Regarding claim 2, Forbes discloses: wherein the obtaining of the EEG generated by imagining music from the user includes a preprocessing operation of removing noise unrelated to music imagination from the EEG obtained from the user (para. 0069, 0082: “The collected data is filtered to remove values above and below predetermined values so that a range of frequencies of the brainwaves is collected”).
Regarding claim 3, Forbes discloses: wherein the obtaining of the at least one brain wave segment from the EEG includes dividing the EEG into at least one brain wave segment based on a preset rhythm (para. 0023: by inherency, brainwaves obtained from EEG are rhythmic electrical patterns generated by synchronized activity of large groups of neurons, they are measured in cycles per second (hertz, Hz) and classified into distinct frequency bands, each linked to specific brain states. The main brainwave types and their rhythms may include: slowest rhythm (delta waves), moderate slow rhythm (theta waves), relaxed rhythm (Alpha waves), active rhythm (Beta waves), and fastest rhythm (gamma waves. As such, Forbes’ beta brainwave reads on the claimed “a preset rhythm”).
Regarding claim 4, Forbes discloses: identifying the key points included in the at least one brain wave segment based on an F value (e.g., the type of brainwave alpha, beta, delta, gamma, theta; note, the term “an F value” is given a broad interpretation) of the at least one brain wave segment (para. 0026).
Regarding claim 5, Forbes discloses: matching the pitch value to each of the at least one brain wave segment based on a statistical probability map (e.g., artificial intelligence or machine learning technology based on input data and previously collected data) determined according to a correspondence between a key point set included in a specific brain wave segment and the pitch value (para. 0083, 0091).
Regarding claim 7, Forbes discloses: wherein the statistical probability map is trained based on an EEG obtained as a user is provided with part of preset music and imagines part of the music following the provided part of the music (para. 0083: “ … machine learning technology based on input data and previously collected data”; para. 0088: “The program 110 is able to, through pre-programing or computer learning, generating complimentary notes based on the note generated by the user's brainwave(s)”).
Regarding claim 8, Forbes discloses: wherein the musical probability map is determined based on a melodic progression of a plurality of pieces of preset music (para. 0023: “uses a developed artificial intelligence, or machine learning system that takes the data output of an EEG headset or headband and translates it in real-time into melodic and harmonic counterpoint that simulates a unique human musical composition”).
Regarding claim 10, Forbes discloses: wherein the musical probability map is determined based on a harmonic progression of a plurality of pieces of preset music (para. 0023: “uses a developed artificial intelligence, or machine learning system that takes the data output of an EEG headset or headband and translates it in real-time into melodic and harmonic counterpoint that simulates a unique human musical composition”).
Regarding claim 11, Forbes discloses: wherein the method is identified in a plurality of modes (e.g., note velocity compensation mode in step 508 and note filters/effects compensation mode in steps 511/512) according to a degree of compensation for the pitch value matching the at least one brain wave segment based on the musical probability map (para. 0087, 0091).
Claim Rejections - 35 USC § 103
8. 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 of this title, 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.
9. Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Forbes et al. in view of DONOGHUE et al. (WO 2005092183 A1).
Regarding claim 6, Forbes discloses the claimed invention except for: determining a pitch value corresponding to the at least one brain wave segment according to the statistical probability map and the musical probability map through a Bayesian model.
DONOGHUE discloses determining a pitch value corresponding to the at least one brain wave segment according to a statistical probability map and a musical probability map through a Bayesian model (para. 013: “to detect electrocorticogram (ECoG) signals, electroencephalogram (EEG) signals”; para. 082: “the detected signals may be compared with any other suitable target signals, such as, for example, a target look-up table, neural nets, or a Bayesian probabilistic framework”; para. 0102: “the auditory indicator may generate a variety of different beeping sounds with different intervals or sounds with different pitch, tone, and/or volume”).
It would have been obvious to one ordinary skill in the art before the effective filing date of the claimed invention to modify Forbes’ statistical probability map and the musical probability map to arrive the claimed invention by incorporating DONOGHUE’s teaching of Bayesian model, as an intended use of the DONOGHUE invention. The mere application of a known technique to a specific instance by those skilled in the art would have been obvious. Further, one of ordinary skill in the art would have recognized that the results of such a combination were predictable for statistical probability mapping since the use of that known technique provides the rationale to arrive at a conclusion of obviousness.
Examiner’s Note
10. While there are related references that discuss techniques of translating EEG brainwave into ordered music, the prior art of record does not specifically provide teachings for the limitation as recited in instant claim 9: wherein the musical probability map includes probability information of occurrence of a following pitch value with respect to two preceding pitch value sets or probability information of occurrence of a following pitch value with respect to four preceding pitch value sets. It is this limitation found in the claim in combination with the rest of the limitations as claimed in claims 1 and 8, that has not been found, taught or suggested by the prior art of record, which makes claim 9 distinguish over the prior art of record.
Contact Information
11. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANCHUN QIN whose telephone number is (571)272-5981. The examiner can normally be reached 9AM-5:30PM EST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dedei Hammond can be reached on (571)270-7938. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JIANCHUN QIN/Primary Examiner, Art Unit 2837
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