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 .
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 41-65 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 41 follows.
STEP 1
Regarding claim 11, the claim recites a series of steps or acts, including obtaining a set of signals representative of estimated positions (xi, zj) for the EEG electrodes when placed on the subject. 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 comparing the set of signals representative of estimated positions to a set of reference signals representative of reference positions (xi, zj), wherein the set of reference positions represents intended positions for the EEG electrodes when placed on the subject sets forth a judicial exception. This step describes 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. Claim 41 recites determining the calibration of positions of the EEG electrodes using a difference between a property of the obtained signals and the set of reference signals, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The determination of the calibration of positions of the EEG electrodes 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 calibration of positions of the EEG electrodes, 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 the additional step of obtaining a set of signals representative of estimated positions (xi, zj) for the EEG electrodes when placed on the subject, wherein each of the estimated positions represents a position of one of the EEG electrodes relative to the subject. Obtaining data (set of signals representative of estimated positions (xi, zj) for the EEG electrodes when placed on the subject) is well-understood, routine and conventional activity for those in the field of medical diagnostics. Further, the obtaining step is 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 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.
The same rationale applies to claim 56.
Regarding claim 56, the device recited in the claim is a generic device comprising generic components configured to perform the abstract idea. The recited EEG electrodes are generic sensors configured to perform pre-solutional data gathering activity and the controller 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 42, 43, 50, 57, 58, and 65 recite steps of pre-solution data gathering activity. Claims 43-45, 51, 52, 54, 55, and 58-60 recite abstract ideas (mental processes, mathematical process). Claims 46-49 and 61-64 recite additional elements that do not add anything significantly more than the abstract idea. 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 § 102
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 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.
Claims 41-48, 53, 55, and 56-63 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Svojanovsky ‘020 (US Pub No. 2011/0066020 – cited by Applicant).
Regarding claim 41, Svojanovsky ‘020 teaches a method for determining calibration of positions of electroencephalography (EEG) electrodes on a subject (Fig. 14 plurality of electrodes 10 and [0093]), the method being performed by a controller, the method comprising:
obtaining a set of signals representative of estimated positions (xi, zj) for the EEG electrodes when placed on the subject, wherein each of the estimated positions represents a position of one of the EEG electrodes relative to the subject ([0093]; “a plurality of electrodes 10 operable to sense an EEG signal, arranged in a three-dimensional pattern and each comprising the indicating unit 21 which, according to this embodiment, displays information at a position at which the electrode is placed ”);
comparing the set of signals representative of estimated positions to a set of reference signals representative of reference positions (xi, zj), wherein the set of reference positions represents intended positions for the EEG electrodes when placed on the subject ([0099]; “the processing device 72 may compare the position information with reference position information and decide whether the acquired position information deviates”); and
determining the calibration of positions of the EEG electrodes using a difference between a property of the obtained signals and the set of reference signals ([0099]; “…decide whether the acquired position information deviates. In case the acquired position information deviates, the electrode concerned may be re-positioned.”).
Regarding claim 42, Svojanovsky ‘020 teaches wherein the signals representative of estimated positions are obtained from location measurements of the EEG electrodes ([0099]; “position information for each electrode 10”).
Regarding claim 43, Svojanovsky ‘020 teaches wherein the location measurements are made on a test signal as picked up the EEG electrodes upon the test signal having been transmitted from at least one position (It is noted that “test signal” is interpreted broadly. [0099]; “position information for each electrode 10”).
Regarding claim 44, Svojanovsky ‘020 teaches wherein the test signal is an externally generated signal transmitted from an electrode at said at least one position other than that of the EEG electrodes ([0095]; “…the position detecting system 700 with the cameras is able to calculate the position information of electrode #15, and the calculated position information is allocated to the identification Cz of the electrode #15 e.g. by the processing device 72.”).
Regarding claim 45, Svojanovsky ‘020 teaches wherein the test signal is generated by, and transmitted from, at least one of the EEG electrodes at said at least one position ([0093]; “…a plurality of electrodes 10 operable to sense an EEG signal, arranged in a three-dimensional pattern and each comprising the indicating unit 21 which, according to this embodiment, displays information at a position at which the electrode is placed.”).
Regarding claim 46, Svojanovsky ‘020 teaches wherein each of the at least one position has a known relation relative to the subject ([0094]; “…each electrode has its identification and an electrode Cz, for example, should be positioned on top and at the centre of the head, i.e. at a coordinate position (0, 0).”).
Regarding claim 47, Svojanovsky ‘020 teaches wherein there are at least two positions with known relation relative the subject ([0094]; “…each electrode has its identification and an electrode Cz, for example, should be positioned on top and at the centre of the head, i.e. at a coordinate position (0, 0).”).
Regarding claim 48, Svojanovsky ‘020 teaches wherein the location measurements pertain to time of arrival values ([0094]-[0095]) or time difference of arrival values of the test signal at the EEG electrodes.
Regarding claim 53, Svojanovsky ‘020 teaches issuing a feedback signal representing that the EEG electrodes are correctly placed on the subject ([0099]; “…the system 700 may notify a user to check the positions of the electrodes, since the electrode with identification C1 is placed at the position of Cz.”).
Regarding claim 55, Svojanovsky ‘020 teaches issuing a feedback signal representing that the EEG electrodes are not correctly placed on the subject, in response to the difference being not less than a threshold value ([0099]).
Regarding claims 56-63, Svojanovsky ‘020 teaches a controller for determining calibration of positions of electroencephalography (EEG) electrodes on a subject, the controller comprising processing circuitry, as claimed as the subject matter of claim 56 is analogous to the subject matter of claim 41.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 49 and 64 are rejected under 35 U.S.C. 103 as being unpatentable over Svojanovsky ‘020 in view of Oh et al. ‘203 (KR Pub No. 2020/0049203 – cited by Applicant).
Regarding claims 49 and 64, Svojanovsky ‘020 teaches all of the elements of the current invention as mentioned above except for wherein each of the time arrival values or time difference of arrival values is representative of a distance (dij) between two of the EEG electrodes.
Oh et al. ‘203 teaches determining spatial distance between a plurality of EEG electrodes to obtain augmented resolution data (Page 3, Equation 3).
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 each of the time arrival values or time difference of arrival values of Svojanovsky ‘020 to include being representative of a distance (dij) between two of the EEG electrodes as Oh et al. ‘203 teaches that this will aid in obtaining augmented resolution data.
Conclusion
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