DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Amendment Entered
This Office action is responsive to the Amendment filed on June 17th, 2026. The examiner acknowledges the amendments to claims 1, 4, 5, 6, 7, and 8.
Claims 1-8 remain pending in the application.
Response to Arguments
Applicant's arguments and amendments filed May 28th, 2026, with respect to the priority/benefit of prior applications have been fully considered. The benefit of priority of the claims of the instant application is reinstated with respect to Provisional Application No. 63/373228. However, the claims of instant application are not entitled to the benefit of priority of Application No. 18/227,577 (see the Priority section below for clarification). Accordingly, the claims of the instant application will be treated with an effective filing date of August 23rd, 2022 corresponding to Provisional Application No. 62/373,228.
Applicant's arguments and amendments filed May 28th, 2026, with respect to the drawing objections have been fully considered. Examiner notes that the proposed amendments would overcome the drawing objections. However, the drawing objections are maintained contingent upon submission of the proposed amendments.
Applicant's arguments and amendments filed May 28th, 2026, with respect to the claim objections have been fully considered. The objections to claim 7 are withdrawn. The objections to claim 5 are maintained and further clarified.
Applicant's arguments and amendments filed May 28th, 2026, with respect to the rejections under 35 U.S.C. 112(b) have been fully considered. The rejection of claims 1-6 under 35 U.S.C. 112(b) are withdrawn. Furthermore, claim 8 was not rejected under 35 U.S.C. 112(b) as being narrative and indefinite, rather claim 7 was rejected as being narrative and indefinite. Claim 7 is no longer narrative and indefinite, however claim 7 contains similar issues noted previously. The rejection of claim 7 under 35 U.S.C. 112(b) is maintained.
Applicant's arguments and amendments filed May 28th, 2026, with respect to the rejections under 35 U.S.C. 101 have been fully considered but are not persuasive.
At page 8, Applicant argues that the claims integrate at abstract idea into a practical application because the measurement is not performed in the human mind and the claimed combination of elements imposes meaningful limits on the evaluation and ties the evaluation to a specific technological environment. Examiner respectfully disagrees. The claims as a whole are 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 requesting a person to perform a task, the task requesting the person to virtually touch specified virtual objects each having a different specified feature, the specified virtual objects being presented in a three-dimensional (3D) virtual reality environment, the virtual objects moving toward or away from the person with a defined speed, acceleration and direction; repeating the requesting by requesting the person to perform the task a plurality of times for different ones of the virtual objects having different specified features; measuring eye movements and limb movements of the person while the person is viewing the virtual objects and performing the tasks, the limb movements being measured using one or more motion sensors and the eye movements being measured using an eye-tracker associated with the three-dimensional virtual reality environment, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The requesting, repeating, and measuring steps do not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the requesting, repeating, and measuring steps, nor does the method use a particular machine to perform the Abstract Idea. Furthermore, the system recited in the claim is a generic system comprising generic components configured to perform the abstract idea (as evidenced by the non-patent literature of record). The recited three-dimensional (3D) virtual reality device, eye tracker, and motion sensors are generic components/sensors configured to perform pre-solutional data gathering activity and the processor 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.
At page 9, Applicant argues that the ordered combination provides significantly more than the abstract idea because they claims require synchronizing VR task presentation with eye-movement and limb-movement measurements and calculating metrics from those measured responses. Examiner respectfully disagrees. The steps presenting VR tasks, measuring eye-movements, and measuring limb movements merely adds insignificant pre-solution activity to the judicial exception (MPEP 2106.05(g)) and is well-understood, routine, and conventional - as evidenced by the non-patent literature of record; Mutasim et al., Gaze Tracking for Eye-Hand Coordination Training Systems in Virtual Reality, 2020, Association for Computing Machinery, New York, NY, USA, doi:10.1145/3334480.3382924; Zhou, X., Jin, Y., Jia, L., & Xue, C. (2021). Study on Hand–Eye Cordination Area with Bare-Hand Click Interaction in Virtual Reality. Applied Sciences, 11(13), 6146. https://doi.org/10.3390/app11136146; Fooken et al.; Decoding go/no-go decisions from eye movements. Journal of Vision 2019;19(2):5. https://doi.org/10.1167/19.2.5; Clay V, König P, König S. Eye Tracking in Virtual Reality. J Eye Mov Res. 2019 Apr 5;12(1):10.16910/jemr.12.1.3. doi: 10.16910/jemr.12.1.3. PMID: 33828721; PMCID: PMC7903250; Kim, J., Jang, H., Kim, D., & Lee, J. (2023). Exploration of the Virtual Reality Teleportation Methods Using Hand-Tracking, Eye-Tracking, and EEG. International Journal of Human–Computer Interaction, 39(20), 4112–4125. https://doi.org/10.1080/10447318.2022.2109248 (published online 17 Aug 2022); Laivuori, N. (2021). Eye and Hand Tracking in VR Training Application. Theseus.fi. http://www.theseus.fi/handle/10024/503405. Furthermore, the improvement cannot be found in the abstract idea itself. “[I]t is important to keep in mind that an improvement in the abstract idea itself ... is not an improvement in technology.” MPEP 2106.05(a) Il. The claims recite steps for an evaluating data. The claims do not integrate the calculation into a practical application. Rather, the alleged improvement lies solely within the processing steps performed by the processor. “Merely adding generic computer components to perform the method is not sufficient. Thus, the claim must include more than mere instructions to perform the method on a generic component or machinery to qualify as an improvement to an existing technology." Id.
Applicant's arguments and amendments filed May 28th, 2026, with respect to the rejections under 35 U.S.C. 103 have been fully considered but are not persuasive.
At page 9, Applicant argues that the cited combination of references does not teach or suggest the integrated, simultaneous VR/eye-tracking/limb-sensing assessment framework because Josephson’s VR training environments does not supply a reason to modify Ettenhofer to calculat combined eye-movement and limb-movement metrics during repeated object-touching tasks. Examiner respectfully disagrees.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Ettenhofer discloses that the invention includes three-dimensional embodiments, the target signal moves in any one or more directions in three-dimensional space (e.g., in an X-Y-Z direction), and that metrics representing visual vs. body part movement performance can be compared, resulting in relative metrics that are relevant to neural function and task validity (para. [0061-0062, 0081, 0122-0123]) and discloses an exemplary workflow for neurocognitive assessment (para. [0145-0148). Josephson discloses virtual reality systems (para. [0177]) utilize eye tracking sensors/cameras (para. [0051, 0100-0102, 0177]), and motion sensors/hand part sensors gloves/a touch screen or multitouch screen sensor capable of sensing motion (para. [0048-0049, 0100-0102, 0177]) and that the term “VR” means virtual reality and encompasses computer-generated simulations of a three-dimensional environment (para. [0080]). Josephson further discloses that actions may be combined, i.e., in AR/VR environments, where motion of the eyes and finger and another hand (or body) may each or in combination have a predetermined axis or axes to display menus and control attributes or choices that may be stationary or dynamic, and may interact with each other, so different combinations of eye, body and hand may provide the same results (redundantly), or different results based on the combination or sequence of motions and holds, gazes, and even pose or posture in combination with these (para. [0123]) and determining performance metrics from the session data (para. [0086]). Ettenhofer and Josephine are both directed to apparatuses having motion sensors and eye tracking sensors and displaying virtual objects in a three-dimensional environment. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Ettenhofer to include a 3D virtual reality environment such that the specified virtual objects are being presented in the three-dimensional (3D) virtual reality environment, the virtual objects moving toward or away from the subject with a defined speed, acceleration and direction, in view of the teachings of Josephson, as this will aid in constructing training programs and routines for conducting assessments of the neurological and/or psychological status of a subject and would aid in determining performance metrics.
At page 10, with respect to claim 3, Applicant argues that the cited art does not teach the claimed calculation within the amended VR task in which the person virtually touches moving virtual objects while eye movement and limb movements are evaluated together. Examiner respectfully disagrees. Ettenhofer discloses an exemplary workflow for neurocognitive assessment to evaluate multiple components of attention and executive functions of a test human subject and that the primary measurements for eye movements included visual reaction time (saccadic RT) and the primary measurements for body part movement included manual reaction time (manual RT) (para. [0122, 0145-0148). Therefore, upon the modification of Ettenhofer to incorporate the 3D virtual reality environment of Josephson, Ettenhofer, as modified by Josephson, does disclose the that the claimed calculation is within the amended VR task in which the person virtually touches moving virtual objects while eye movement and limb movements are evaluated together (Ettenhofer, para. [0122, 0145-0148]).
At page 10, with respect to claim 5, Applicant argues that the rejection appears to rely on hindsight reconstruction using Applicant’s own disclosure as a roadmap. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Furthermore, Ettenhofer does disclose calculating a saccadic latency, saccadic latency representing an amount of time needed for the person to initiate a saccade to view a successively viewed object (“eye movement response latency ... time difference between when the target signal was displayed and when the eyes focused on the target”, para. [0060, 0096-0098]). Ettenhofer does not expressly disclose calculating the average saccadic latency. Fernandez and Ettenhofer are both directed to methods and systems for detecting neurological disorders and measuring general cognitive performance/assessing a human subject's neurological and/or psychological status and both Ettenhofer and Fernandez disclose systems comprising eye trackers. Fernandez directed to systems useful for detecting neurological disorders and for measuring general cognitive performance discloses determining metrics that include an average saccadic latency (“average saccadic latency”, para. [0068, 0258]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ettenhofer, as modified by Josephson hereinabove, such that the evaluating includes determining metrics that include an average saccadic latency, in view of the teachings of Fernandez, as this will aid in assessing the neurological and/or psychological status of a subject by incorporating the calculation of the average saccadic latency.
At pages 11, with respect to claim 7, Applicant argues that the rejection appears to rely on hindsight reconstruction using Applicant’s own disclosure as a roadmap. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Baeuerle was not relied upon to teach the VR object-touching tasks. Rather Ettenhofer and Josephine were relied upon to teach the VR object-touching tasks. Furthermore, Baeuerle does disclose that the systems can be in the form of a virtual reality/augmented reality device (para. [0008]) and discloses hand/body motion trackers and an eye tracking and measuring device (para. [0063, 0099]). Baeuerle further discloses system provides the user with a given set of tasks to be performed in a computer-generated environment or a virtual or augmented environment and identifying and evaluating performance dynamics. Ettenhofer and Baeuerle are directed to systems have motion sensors, eye trackers, and measuring/calculating performance metrics. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ettenhofer, as modified by Josephson hereinabove, to incorporate the one or more additional measurements as taught by Baeuerle, as this will aid in identifying and measuring bodily states/physiological status based on measures of performance dynamics.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 18/227,577 fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application.
The disclosure at the time of the effective filing date of Application No. 18/227,577 does not explicitly disclose a 3-D virtual reality environment, motion sensors, or measuring limb movements and does not disclose “measuring eye movements and limb movements of the person while the person is viewing the virtual objects and performing the tasks, the limb movements being measured using one or more motion sensors and the eye movements being measured using an eye-tracker associated with the three-dimensional virtual reality environment” and “calculating, from the measured eye movements and limb movements, one or more metrics including at least one eye-movement metric and at least one limb-movement metric, the one or more metrics being calculated during the plurality of times that the person performs the task; and evaluating the performance, motor skills and cognitive capabilities of the person based on the one or more calculated metrics”.
Accordingly, claims 1-8 are not entitled to the benefit of the Application No. 18/227,577 and will be treated with an effective filing date of August 23rd, 2022.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: “25”, “35” in fig. 1; & “535” in fig. 5 (should be 530, as mentioned in [0157] of the PGPUB). Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 5 is are objected to because of the following informalities:
Claim 5 line 5: “an average saccadic latency, saccadic latency representing” should recite “an average saccadic latency, the average saccadic latency representing …”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
Claim 7 is 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 7 recites the limitations "said stimulus image", “the gaze duration”, and “the visual stimulus”; “the left eye, the right eye”; “the hands and/or the feet”; “the hands”, “the touched green objects”; “the average time”, in lines 5, 6, 9, 11, 13, 15, 20, 21, & 23, respectively. There is insufficient antecedent basis for these limitations in the claim. The limitations are suggested to recite "said virtual objects", “a gaze duration”, and “the virtual objects”; “a left eye, a right eye”; “move a hand and/or foot”; “a hand”, “a touched green object”; “an average time”
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 1-8 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 claims 1 and 8 follows.
STEP 1
Regarding claims 1 and 8, the claims recite a series of steps or acts and/or a series of structural elements including a device. Thus, the claim is directed to a process and/or 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:
calculating, from the measured eye movements and limb movements, one or more metrics including at least one eye-movement metric and at least one limb-movement metric, the one or more metrics being calculated during the plurality of times that the person performs the task; and
evaluating the performance, motor skills and cognitive capabilities of the person based on the deviations one or more calculated metrics.
constitute an abstract idea that is part of the Mathematical Concepts and/or Mental Processes group identified in the 2019 Revised Patent Subject Matter Eligibility Guidance published in the Federal Register (84 FR 50) on January 7, 2019.
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.
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. Claims 1 and 8 recite requesting a person to perform a task, the task requesting the person to virtually touch specified virtual objects each having a different specified feature, the specified virtual objects being presented in a three-dimensional (3D) virtual reality environment, the virtual objects moving toward or away from the person with a defined speed, acceleration and direction; repeating the requesting by requesting the person to perform the task a plurality of times for different ones of the virtual objects having different specified features; measuring eye movements and limb movements of the person while the person is viewing the virtual objects and performing the tasks, the limb movements being measured using one or more motion sensors and the eye movements being measured using an eye-tracker associated with the three-dimensional virtual reality environment, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The requesting, repeating, and measuring steps do not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the requesting, repeating, and measuring steps, nor does the method use a particular machine to perform the Abstract Idea.
Furthermore, the system recited in the claims is a generic system comprising generic components configured to perform the abstract idea. The recited three-dimensional (3D) virtual reality device, eye tracker, and motion sensors are generic components/sensors configured to perform pre-solutional data gathering activity and the processor 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.
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:
requesting a person to perform a task, the task requesting the person to virtually touch specified virtual objects each having a different specified feature, the specified virtual objects being presented in a three-dimensional (3D) virtual reality environment, the virtual objects moving toward or away from the person with a defined speed, acceleration and direction;
repeating the requesting by requesting the person to perform the task a plurality of times for different ones of the virtual objects having different specified features; measuring eye movements and limb movements of the person while the person is viewing the virtual objects and performing the tasks;
the limb movements being measured using one or more motion sensors and the eye movements being measured using an eye-tracker associated with the three-dimensional virtual reality environment;
three-dimensional (3D) virtual reality device;
eye tracker;
motion sensors;
processor
The requesting, repeating, and measuring steps are well-understood, routine and conventional activities for those in the field of medical diagnostics. Further, the requesting, repeating, and measuring steps are each recited at a high level of generality such that it amounts to insignificant pre-solution 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 and comparing 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)).
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.
Regarding claims 1 and 8, the three-dimensional (3D) virtual reality device, eye tracker, motion sensors, and processor recited in the claim is a generic device comprising generic components configured to perform the abstract idea – as evidenced by the non-patent literature of record; Mutasim et al., Gaze Tracking for Eye-Hand Coordination Training Systems in Virtual Reality, 2020, Association for Computing Machinery, New York, NY, USA, doi:10.1145/3334480.3382924; Zhou, X., Jin, Y., Jia, L., & Xue, C. (2021). Study on Hand–Eye Cordination Area with Bare-Hand Click Interaction in Virtual Reality. Applied Sciences, 11(13), 6146. https://doi.org/10.3390/app11136146; Fooken et al.; Decoding go/no-go decisions from eye movements. Journal of Vision 2019;19(2):5. https://doi.org/10.1167/19.2.5; Clay V, König P, König S. Eye Tracking in Virtual Reality. J Eye Mov Res. 2019 Apr 5;12(1):10.16910/jemr.12.1.3. doi: 10.16910/jemr.12.1.3. PMID: 33828721; PMCID: PMC7903250; Kim, J., Jang, H., Kim, D., & Lee, J. (2023). Exploration of the Virtual Reality Teleportation Methods Using Hand-Tracking, Eye-Tracking, and EEG. International Journal of Human–Computer Interaction, 39(20), 4112–4125. https://doi.org/10.1080/10447318.2022.2109248 (published online 17 Aug 2022); Laivuori, N. (2021). Eye and Hand Tracking in VR Training Application. Theseus.fi. http://www.theseus.fi/handle/10024/503405.
The recited three-dimensional (3D) virtual reality device, motion sensors, and eye tracker are generic sensors configured to perform pre-solutional data gathering activity and the processor 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.
The dependent claims also fail to add something more to the abstract independent claims. Claims 2-7 are directed (mental process), which does not add anything significantly more. The steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
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 1-4 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Ettenhofer (US 20160022136 A1) in view of Josephson (US 20220270509 A1).
Regarding claim 1,Ettenhoffer discloses a method for evaluating performance, motor skills and cognitive capabilities of a person (“performance”; “neurocognitive function”; “motor function”, Abstract, para. [0046, 0188, 0145]), comprising: requesting a person to perform a task (“visual test … task”, para. [0054-0058, 0136]), the task requesting the person to virtually touch specified virtual objects each having a different specified feature (“virtual button … touch-sensitive screen … target … press the button”; “different locations and timings”, para. [0058, 0065, 0079-0081, 0086, 0150-0164], figs. 1-2), the specified virtual objects being presented in a three-dimensional (3D) virtual environment (“visual environment”; “three-dimensional embodiments … target signal … cue signals”, para. [0047, 0061-0062]); repeating the requesting by requesting the person to perform the task a plurality of times for different ones of the virtual objects having different specified features (“series of visual tests”; “different locations and timings”; “varying task characteristics across multiple trials”; “cue signals … different trial types were mixed within each subtest”, para. [0054, 0086,0144-0145, 0150-0164], figs. 4-5); measuring eye movements and limb movements of the person while the person is viewing the virtual objects and performing the tasks (“ track eye movement … body part movements … detected”; “measures the eye movement latency”; “measured and records ... body part response ... manual response time … body part movement latency”, para. [0077-0081, 0096-0097, 0104-0105]), the limb movements being measured using one or more motion sensors (“manual reaction time (manual RT), the latency in ms”; “button, joystick, virtual button”; “body movement sensors”, para. [0079, 0104, 00148, 171]) and the eye movements being measured using an eye-tracker (“visual reaction time (saccadic RT), the latency in ms”; “eye tracker”, para. [0148, 0171]) associated with the three-dimensional virtual reality environment (“three-dimensional embodiments”; “prototype ... body movement sensors ... eye tracker”, para. [0061-0062, 0148, 0171]); and calculating, from the measured eye movements and limb movements, one or more metrics including at least one eye-movement metric and at least one limb-movement metric (“calculated ... Visual RT metric”; “Manual reaction time (RT) ... calculated”; “measured parameters”, para. [0096-0098, 0104, 021, 0148]), the one or more metrics being calculated during the plurality of times that the person performs the task (“determined saccadic and manual reaction times ... for each trial type”, para. [0121-0125, 0137, 0174]); and evaluating the performance, motor skills and cognitive capabilities of the person based on the one or more calculated metrics (“metrics ... compared to a normative database ... standardized score representing the level of performance”; scores that are relevant to neurological and/or psychological status”; “diagnostic algorithm was applied … variability … normal … marginal … impaired … number and severity of impairment, para. [0122-0128, 0181, 0185]).
Ettenhofer does not disclose does not disclose the specified virtual objects being presented in a three-dimensional (3D) virtual reality environment, the virtual objects moving toward or away from the subject with a defined speed, acceleration and direction.
However, Josephson discloses directed to constructing training programs or routines and predictive training programs and routines implemented in a VR, AR, MR or XR environments including virtual objects (para. [0005, 0056]) discloses specified virtual objects being presented in a three-dimensional (3D) virtual reality environment (“selectable objects a-jj”, para. [0005, 0056, 0367-0368], fig. 3A), the virtual objects moving toward or away from the subject with a defined speed, acceleration and direction (“object … controllable”; “toward … velocity … acceleration … direction”, para. [0056, 0088, 0097]). Josephson further discloses the virtual reality systems (para. [0177]) utilize eye tracking sensors/cameras (para. [0051, 0100-0102, 0177]), and a touch screen or multitouch screen sensor/motion sensors/hand part sensors gloves (para. [0048-0049, 0100-0102, 0177]). Josephson further discloses actions may be combined, i.e., in AR/VR environments, where motion of the eyes and finger and another hand (or body) may each or in combination have a predetermined axis or axes to display menus and control attributes or choices that may be stationary or dynamic, and may interact with each other, so different combinations of eye, body and hand may provide the same results (redundantly), or different results based on the combination or sequence of motions and holds, gazes, and even pose or posture in combination with these (para. [0123]) and that before, during, and/or after training, the systems, apparatuses, interfaces, and methods for implementing them analyzes the interactions and determines performance metrics from the session data (para. [0086]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Ettenhofer to include a 3D virtual reality environment such that the specified virtual objects are being presented in the three-dimensional (3D) virtual reality environment, the virtual objects moving toward or away from the subject with a defined speed, acceleration and direction, in view of the teachings of Josephson, as this will aid in constructing training programs and routines for conducting assessments of the neurological and/or psychological status of a subject and would aid in determining performance metrics.
Regarding claim 2, Ettenhofer, as modified by Josephson hereinabove, discloses the method of claim 1, wherein the eye movements that are measured include at least one of a saccade amplitude, fixation duration and pupil behavior (“subject’s pupil’s dilation and/or constriction is detected … indicate distraction”; “visual reaction time … beginning of fixation”, para. [0077-0078, 0096; 0137-0138], fig. 1).
Regarding claim 3, Ettenhofer, as modified by Josephson hereinabove, discloses the method of claim 1, wherein the limb movements that are measured include a limb reaction time needed to perform a requested task (“manual reaction time … body movement part latency”, para. [0104, 0122, 0145-0148]).
Regarding claim 4, Ettenhofer, as modified by Josephson hereinabove, discloses the method of claim 1, wherein the different specified feature of the virtual objects is color (“color”; “red”, para. [0063, 0067, 0081]).
Regarding claim 8, Ettenhofer discloses a system for evaluating performance, motor skills and cognitive capabilities of a person (“performance”; “neurocognitive function”; “motor function”, Abstract, para. [0046, 0188, 0145]), comprising: a device (“computer system … electronic screen”, para. [0060-0061, 0140-0143, 0146]) configured to establish a 3D virtual environment in which a plurality of virtual objects is presented to the person (“visual environment”; “displays … three-dimensional embodiments … target signal … cue signals”; “two or more cue signals, simultaneously”, para. [0047, 0060-0062, 0065]), the objects having at least one feature that differs from one another (“visual cue signals … target signals … different locations and timings”, para. [0058, 0079-0081, 0086, 0150-0164], figs. 1-2; an eye-tracker (“eye tracker”, para. [0171]) configured to measure eye movements of the person while the person is viewing the virtual objects and performing requested tasks (“track eye movement … visual reaction time … eye movement latency”, para. [0077-0081, 0096-0097, 0148, 0171]), the requested tasks including multiple requests requesting the person to virtually touch specified virtual objects each having one of the specified features (“series of visual tests”; “different locations and timings”; “varying task characteristics across multiple trials”; “cue signals … different trial types were mixed within each subtest”, para. [0054, 0086,0144-0145, 0150-0164], figs. 4-5); one or more motion sensors (“button, joystick, virtual button”; “body movement sensors”, para. [0079, 0104, 0171]) configured to measure limb movements of the person while the person performs the requested tasks (“body part movements … detected”; “manual response time … body part movement latency”, para. [0059, 0077-0081, 0096-0097, 0104-0105]); a processor (“processor”, para. [0140-0141]) configured to receive data from the device, the eye-tracker and the one or more motion sensors while the person is performing the requested tasks (“automatically … store … data”; “retrieval”, “Exemplary Workflow for Neurocognitive Assessment ...”, para. [0060-0061, 0127, 0143-0148]) and being further configured to calculate, from the measured eye movements and limb movements, one or more metrics including at least one eye-movement metric and at least one limb-movement metric (“calculated ... Visual RT metric”; “Manual reaction time (RT) ... calculated”; “measured parameters”, para. [0096-0098, 0104, 021, 0148]), and evaluate the performance, motor skills and cognitive capabilities of the person based on the one or more calculated metrics (“metrics ... compared to a normative database ... standardized score representing the level of performance”; scores that are relevant to neurological and/or psychological status”; “diagnostic algorithm was applied … variability … normal … marginal … impaired … number and severity of impairment, para. [0122-0128, 0181, 0185]).
Ettenhofer does not disclose a three-dimensional (3D) virtual reality device configured to establish a 3D virtual reality environment in which a plurality of virtual objects is presented to the person, the objects moving toward or away from the person with a defined speed, acceleration and direction.
However, Josephson directed to constructing training programs or routines and predictive training programs and routines implemented in a VR, AR, MR or XR environments including virtual objects (para. [0005, 0056]) discloses a three-dimensional (3D) virtual reality device (“computer”; apparatus 300, para. [0005, 0056, 0367-0368]) configured to establish a 3D virtual reality environment (3D environment 302; “3D, and/or virtual reality (VR) environments”, para. [0005, 0056, 0367-0368]) in which a plurality of virtual objects is presented to the person (“selectable objects a-jj”, para. [0005, 0056, 00368], fig. 3A), the objects moving toward or away from the person with a defined speed, acceleration and direction (“object … controllable”; “toward … velocity … acceleration … direction”, para. [0056, 0088, 0097]). Josephson further discloses the virtual reality systems (para. [0177]) utilize eye tracking sensors/cameras (para. [0051, 0100-0102, 0177]), and a touch screen or multitouch screen sensor/motion sensors/hand part sensors gloves (para. [0048-0049, 0100-0102, 0177]). Josephson further discloses actions may be combined, i.e., in AR/VR environments, where motion of the eyes and finger and another hand (or body) may each or in combination have a predetermined axis or axes to display menus and control attributes or choices that may be stationary or dynamic, and may interact with each other, so different combinations of eye, body and hand may provide the same results (redundantly), or different results based on the combination or sequence of motions and holds, gazes, and even pose or posture in combination with these (para. [0123]) and that before, during, and/or after training, the systems, apparatuses, interfaces, and methods for implementing them analyzes the interactions and determines performance metrics from the session data (para. [0086]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Ettenhofer such that such that system comprises the three-dimensional (3D) virtual reality device configured to establish a 3D virtual reality environment in which a plurality of virtual objects is presented to the person, the objects moving toward or away from the person with a defined speed, acceleration and direction, in view of the teachings of Josephson, as this will aid in constructing training programs and routines for conducting assessments of the neurological and/or psychological status of a subject and would aid in determining performance metrics.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Ettenhofer in view of Josephson, as applied to claim 1 above, and further in view of Fernandez (US 20210174959 A1).
Regarding claim 5, Ettenhofer, as modified by Josephson discloses the method of claim 1 wherein the evaluating includes determining metrics that include: i. an inhibition process error, wherein the inhibition process error is determined from how many times the person touches the incorrect virtual objects (“manual omission errors … manual inhibition errors”, para. [0105-0107, 0145, 0148]); ii. a saccadic latency, saccadic latency representing an amount of time needed for the person to initiate a saccade to view a successively viewed object (“Saccadic reaction time (RT) … time … is calculated”, para. [0060, 0096-0098]).
Ettenhofer does not disclose determining metrics that include an average saccadic latency.
However, Fernandez directed to systems useful for detecting neurological disorders and for measuring general cognitive performance discloses determining metrics that include an average saccadic latency (“average saccadic latency”, para. [0068, 0258]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ettenhofer, as modified by Josephson hereinabove, such that the evaluating includes determining metrics that include an average saccadic latency, in view of the teachings of Fernandez, as this will aid in assessing the neurological and/or psychological status of a subject by incorporating the calculation of the average saccadic latency.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Ettenhofer in view of Josephson, as applied to claim 1 above, and further in view of Reneker (US 20220313143 A1), and further in view of Charvat (US 10188337 B1).
Regarding claim 6, Ettenhofer, as modified by Josephson hereinabove, discloses the method of claim 1, wherein the evaluating further comprises determining (ii) a degree of compromise in executive processes, with increased inhibition error (“trends … inhibition error trend: more or less over time”; “neuropsychological evaluation … evaluation executive functions”; “normal … marginal … impaired … scores”, para. [0064, 0101, 0107, 0121-0122, 0145, 0181]). Ettenhofer, as modified by Josephson hereinabove, does not disclose wherein the evaluating further comprises determining (i) a degree of compromise in processing speed with increased changes in the speed at which successive objects are presented to the person.
However, Reneker directed to a method and device for testing sensorimotor control to detect neurological impairment discloses determining (i) a degree of compromise in sensorimotor control with increased changes in the speed at which successive objects are presented to the person (“trials … object increasing in speed”; “degree of sensorimotor control”, para. [0036, 0065, 0080-0083]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ettenhofer, as modified by Josephson hereinabove, such that the evaluating further comprises determining (i) a degree of sensorimotor control in processing speed with increased changes in the speed at which successive objects are presented to the person, in view of the teachings of Reneker, in order to identify the degree of neurological impairment.
Ettenhofer, as modified by Josephson and Reneker hereinabove, does not disclose a degree of compromise in processing speed.
However, Charvat directed to computer-implemented measurement of responses to neuropsychiatric tests and automated analysis discloses a degree of compromise in processing speed (“generate … processing speed values or scores … brain type assessment”, col. 16 line 62 – col. 17 line 67).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ettenhofer, as modified by Josephson and Reneker hereinabove, to determine a compromise in processing speed, in view of the teachings of Charvat, as will aid in identifying the degree of neurological impairment.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Ettenhofer in view of Josephson, as applied to claim 1 above, and further in view of Baeuerle (US 20190307384 A1).
Regarding claim 7, Ettenhofer, as modified by Josephson hereinabove, discloses the method of claim 1 further comprising obtaining one or more additional measurements while the person is viewing the virtual objects and performing the tasks (“additionally … overshoot error”; “additional sensors … inputs … heart rate”; “additional variables”; para. [0078, 0102 , 0171, 0181]).
Ettenhofer, as modified by Josephson hereinabove, does not disclose the one or more additional measurements being selected from the group consisting of:
1. an amplitude of pupillary dilatation of the person;
2. a number of fixations made by the person on said stimulus image;
3. the gaze duration by the person on the stimulus image;
4. binocular disparity by the person while performing visual exploration and objects visualization;
5. target touched by the person and fixations of where the visual stimulus was before;
6. number of consecutive objects touched by the person when performing a trial;
7. number of blinks coming from the left eye, the right eye, or both eyes;
8. time taken to visually detect objects;
9. time from when the person starts to move the hands and/or feet until the
10. number of times the person touches or does not touch the virtual objects;
11. optimal place for target visualization and places where visualizing objects is less efficient;
12. tracking accuracy in maintaining visual focus on moving objects;
13. hand-reach depth toward the objects during the act of touching;
14. maximum hand velocity achieved by the hands during movement toward touched virtual objects;
15. dominant hand ratio of preferred hand usage during manual interactions;
16. prediction time measuring an average time it takes for the person to anticipate and initiate a response following visual cues; and
17. microsaccades.
However, Baeuerle directed to identifying and measuring bodily states and feedback systems comprising hand/body motion trackers and an eye tracking and measuring device (para. [0063, 0099]) discloses one or more additional measurements being selected from the group consisting of:
1. an amplitude of pupillary dilatation of the person (“pupillometry”, para. [0099]);
2. a number of fixations made by the person on said stimulus image (“fixations”, para. [0042]);
3. the gaze duration by the person on the stimulus image (“gaze tracking … duration”, para. [0041-0042]);
4. binocular disparity by the person while performing visual exploration and objects visualization;
5. target touched by the person and fixations of where the visual stimulus was before (“number of targets acquired”, para. [0080]);
6. number of consecutive objects touched by the person when performing a trial (para. [0080]);
7. number of blinks coming from the left eye, the right eye, or both eyes (“blink frequency”, para. [0042]);
8. time taken to visually detect objects;
9. time from when the person starts to move the hands and/or feet until the person touches or tries to touch the object (target acquisition time, para. [0080]);
10. number of times the person touches or does not touch the virtual objects (“number of targets hit as a percentage”, para. [0080]);
11. optimal place for target visualization and places where visualizing objects is less efficient;
12. tracking accuracy in maintaining visual focus on moving objects;
13. hand-reach depth toward the objects during the act of touching;
14. maximum hand velocity achieved by the hands during movement toward touched virtual objects;
15. dominant hand ratio of preferred hand usage during manual interactions;
16. prediction time measuring an average time it takes for the person to anticipate and initiate a response following visual cues; and
17. microsaccades (“micro-saccades”, para. [0042]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ettenhofer, as modified by Josephson hereinabove, such that the one or more additional measurements being selected from the group consisting of:
1. an amplitude of pupillary dilatation of the person;
2. a number of fixations made by the person on said stimulus image;
3. the gaze duration by the person on the stimulus image;
4. binocular disparity by the person while performing visual exploration and objects visualization;
5. target touched by the person and fixations of where the visual stimulus was before;
6. number of consecutive objects touched by the person when performing a trial;
7. number of blinks coming from the left eye, the right eye, or both eyes;
8. time taken to visually detect objects;
9. time from when the person starts to move the hands and/or feet until the
10. number of times the person touches or does not touch the virtual objects;
11. optimal place for target visualization and places where visualizing objects is less efficient;
12. tracking accuracy in maintaining visual focus on moving objects;
13. hand-reach depth toward the objects during the act of touching;
14. maximum hand velocity achieved by the hands during movement toward touched virtual objects;
15. dominant hand ratio of preferred hand usage during manual interactions;
16. prediction time measuring an average time it takes for the person to anticipate and initiate a response following visual cues; and
17. microsaccades,
in view of the teachings of Baeuerle, as this will aid in identifying and measuring bodily states/physiological status based on measures of performance dynamics.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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/A.E.H./Examiner, Art Unit 3791
/AURELIE H TU/Primary Examiner, Art Unit 3791
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