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 .
Election/Restrictions
Applicant’s election without traverse of claims 1-10 and 12-13 in the reply filed on 01/09/2026 is acknowledged.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
vestibulo ocular reflex data-acquiring unit in claim 1
angular velocity data-acquiring unit in claims 2-4, 8 and1 0
analysis unit in claim 4
warning unit in claim 9
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The corresponding structures of the claim limitation(s) within the published specification are is/are
vestibulo ocular reflex data-acquiring unit is the software of paragraphs [0162] and [0147]
angular velocity data-acquiring unit is the software of paragraph [0162] and [0147]
analysis unit is the “CPU” of paragraph [0162] and [0147]
The warning unit is the “output device” of paragraph [0161]
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claims 2-10 and 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In regards to claim 2 it is unclear how the second VOR data can be represented by the equation taught in line 6 wherein “A is an integral of the angular velocity data of the head and C is an integral of the angular velocity data of the eyes of the subject owing to catch-up saccades (CUS) during a time when the head is turned”, if in claim 1 the second VOR data is merely “acquired by subtracting at least a rotation angle owing to catch-up saccades (CUS) from the rotation angle of the head position to determine a residual rotation angle, followed by dividing the residual rotation angle with the rotation angle of the head position”. The same issue is present in claims 4 and 13.
Claim 2 recites the limitation " the angular velocity data-acquiring unit" in line 7. There is insufficient antecedent basis for this limitation in the claim. It is recommended the claim be amended to say “the vestibulo ocular reflex data-acquiring unit”. The same issue is present in claims 3, 8, and 10.
In regards to claim 3 it is unclear how the first VOR data can be represented by the equation taught in line 6 wherein “A is the integral of the angular velocity data of the head, and B is an integral of the angular velocity data of the eye movements during the time when the head is turned”, if in claim 1 the first VOR data is merely “acquired by dividing a rotation angle owing to a vestibulo ocular reflex with a rotation angle of a head position”. The same issue is present in claim 8.
Claim 4 contains an analysis unit configured to determine, the second vestibulo ocular reflex data. It is unclear what unit is determining the VOR data. In claim 1 it seems to be the “vestibulo ocular reflex data-acquiring unit” that determines a VOR value.
Claims 5-10 and 13 not explicitly rejected above are rejected because they depend from claims rejected above as indefinite.
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 1-10 and 12-13 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 12 follows.
STEP 1
Regarding claim 12, the claim recites a series of steps or acts, including acquiring first vestibulo ocular reflex data and second vestibulo ocular reflex data. Thus, the claim is directed to a process, 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 step of acquiring first vestibulo ocular reflex data and second vestibulo ocular reflex data where the first vestibulo ocular reflex data is acquired by dividing a rotation angle owing to a vestibulo ocular reflex with a rotation angle of a head position, and the second vestibulo ocular reflex data is acquired by subtracting at least a rotation angle owing to catch-up saccades (CUS) from the rotation angle of the head position to determine a residual rotation angle, followed by dividing the residual rotation angle with the rotation angle of the head position sets forth a judicial exception. This step describes a mathematical concept, 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. The calculating the VOR data 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 calculated VOR data, 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 no other additional elements/steps.
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 claim 1, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited vestibulo ocular reflex data-acquiring unit is a generic sensor and computer system 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 as they generally recite method steps pertaining to data gathering, display of data, and abstract ideas. Claims 2-10 and 13 contain abstract ideas in the form of mathematical processes. Claims 4, 9, and 13 also recite mere data gathering and displaying steps. The analyzing, displaying, and data gathering steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Examiner’s Note
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Krueger (US 20220133212 A1) teaches that VOR gain is defined as the change in the eye angle divided by the change in the head angle during the head rotation ([0160]).
Rah (US 20220354413 A1) teaches an apparatus and method for assessing VOR ([0001] [0078])
Krueger (US 20160007849 A1) teaches a portable VOR measuring device ([0055]).
Yamamoto (JP2019122459A Translation) teaches VOR gain as being defined by the ratio of the rotational angular velocity of head movement to the rotational angular velocity of eye movement in the normal state of human arousal ([0023]).
Ghajar (US 20170258397 A1) teaches “system and method for testing a subject for cognitive or oculomotor impairment includes presenting the subject with a display of an object, while presenting the display to the subject, and the subject's head moves horizontally or vertically within a predefined range of movement rates, measuring the subject's right eye positions and/or the subject's left eye positions” (abstract).
Zamaro (VORgain calculation methods in video head impulse recordings) teaches calculating and evaluating VOR in patients using a video head impulse test (introduction).
Regarding claims 1 and 13, none of the prior art teaches or suggests, either alone or in combination, a device or method comprising obtaining a second VOR value by subtracting at least a rotation angle owing to catch-up saccades (CUS) from a rotation angle of the head position to determine a residual rotation angle, followed by dividing the residual rotation angle with the rotation angle of the head position, in combination with the other claimed elements/steps.
Claims 1-10 and 12-13 contain no prior art rejections, however they are not in condition for allowance due to their rejections under 35 U.S.C. 101 and/or 35 U.S.C. 112(b).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUCY EPPERT whose telephone number is (571) 270-0818. The examiner can normally be reached M-F 7:30-5:00 EST.
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/LUCY EPPERT/Examiner, Art Unit 3791
/ADAM J EISEMAN/Primary Examiner, Art Unit 3791