DETAILED ACTION
Status of Claims
This is a non-final office action on the merits in response to the arguments and/or amendments filed on 11 May 2026 and the request for continued examination filed on 11 May 2026.
Claim(s) 1, 14, and 15 is/are amended. Claim(s) 16 is/are new.
Claim(s) 1 and 8-16 is/are currently pending and have been examined.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11 May 2026 has been entered.
Information Disclosure Statement
The information disclosure statement(s) (IDS(s)) submitted on 24 February 2026 and 9 April 2026 is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement(s) is/are being considered by the examiner.
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 and 8-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 15, which is representative of claim 1, recites a method for determining a modification or a change of an initial myopia control solution used by a myopic subject, comprising:
providing statistical data relative to a statistical evolution of said eye state parameter with time while said initial myopia control solution is implemented;
computing an expected ulterior value of a magnitude linked to said eye state parameter at said ulterior time based on said statistical data relative to the statistical evolution of said eye state parameter with time while said initial myopia control solution is implemented, and a real ulterior value of said magnitude;
comparing said real ulterior value of said magnitude with said expected ulterior value of said magnitude; and
determining said modification or change to said initial myopia control solution for said subject based on the result of this comparison, wherein
the method comprises: determining a high threshold value of statistically usual values for said magnitude at said ulterior time; comparing said real ulterior value of the magnitude with said high threshold value; and determining said modification or change of said initial myopia control solution taking into account the result of this comparison; and when said real ulterior value of the magnitude is comprises between said expected ulterior value and said high threshold value, the method comprises: when said magnitude increases when myopia degree of the eye increases, determining said modification or change of said initial myopia control solution as comprising a modification of at least one implementation parameter of said initial myopia control solution; or when said real ulterior value of the magnitude is higher than said high threshold value, the method comprises: when said magnitude increases when the myopia degree of the eye increases, determining said modification or change of said initial myopia control solution as comprising a change from said initial myopia control solution to a different myopia control solution, and when said magnitude decreases when the myopia degree of the eye increases, determining said modification or change of said initial myopia control solution as comprising a modification of at least an implementation parameter of said initial myopia control solution or a change to no myopia control solution, or
the method comprises: determining a high threshold value of statistically usual values for said magnitude at said ulterior time; comparing said real ulterior value of the magnitude with said high threshold value; and
determining said modification or change of said initial myopia control solution taking into account the result of this comparison; and when said real ulterior value of the magnitude is comprised between said expected ulterior value and said high threshold value, the method comprises: when said magnitude increases when the myopia degree of the eye increases, determining said modification or change of said initial myopia control solution as comprising a modification of at least one implementation parameter of said initial myopia control solution; or when said real ulterior value of the magnitude is higher than said high threshold value, the method comprises: when said magnitude increases when the myopia degree of the eye increases, determining said modification or change of said initial myopia control solution as comprising a change from said initial myopia control solution to a different myopia control solution, and when said magnitude decreases when the myopia degree of the eye increases, determining said modification or change of said initial myopia control solution as comprising a modification of at least an implementation parameter of said initial myopia control solution or a change to no myopia control solution.
These limitations describe a concept of comparing a change in eye parameters over time to an expected change in eye parameters to determine an adjustment to a treatment for myopia. This concept describes a mental process that an eye care provider should follow to determine how to adjust treatment for myopia, similar to the “mental process that a neurologist should follow when testing a patient for nervous system malfunctions” given in MPEP 2106.04(a)(2)(II)(C) as an example of managing personal behavior in the methods of organizing human activity sub-grouping. As such, these limitation set forth a method of organizing human activity. Alternatively, the identified concept is analogous to the examples of “observation”, “evaluation”, “judgement”, and “opinion” given in MPEP 2106.04(a)(2)(III) and can be performed in the human mind. As such, these limitations set forth a mental process. Therefore the claims are determined to recite an abstract idea.
MPEP 2106, reflecting the 2019 PEG, directs examiners at Step 2A Prong Two to consider whether the additional elements of the claims integrate a recited abstract idea into a practical application.
Claim 1 recites a system comprising: one or more memories and one or more processors. This additional element is recited at an extremely high level of generality, and may be interpreted as a generic computing device used to implement the abstract idea. Per MPEP 2106.05(f), implementing an abstract idea on a generic computing device does not integrate an abstract idea into a practical application in Step 2A Prong Two, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea on a generic computer. As such, this additional element does not integrate the abstract idea into a practical application.
Claim 1 recites the additional element of a device that includes circuitry to measure a real initial value and real ulterior value of an eye state parameter representative of a myopia degree of an eye of the subject at an initial time and at an ulterior time. Claim 15 recites the additional element of a similar measurement step. This additional element reflects no improvement in the functioning of a computer or another technology. Further, this additional element does use the judicial exception with a particular machine or manufacture. This additional element does not meaningfully limit the claim and instead amounts to necessary data gathering for the abstract idea. As such, this additional element is considered insignificant extra-solution activity. As such, this additional element does not integrate the abstract idea into a practical application.
There are no further additional elements. When considered as a combination, the additional elements amount to instructions to implement the abstract idea and insignificant extra-solution activity with a computing device. As such, the combination of additional elements does not integrate the abstract idea into a practical application. Therefore the independent claims are determined to be directed to an abstract idea.
At Step 2B of the Mayo/Alice analysis, examiners are to consider whether the additional elements amount to significantly more than the abstract idea.
As previously noted, claim 1 recites additional elements which may be interpreted as generic computing devices used to implement the abstract idea. However, per MPEP 2106.05(f), implementing an abstract idea on a generic computing does not add significantly more in Step 2B, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea on a generic computer. As such, these additional elements do not amount to significantly more.
As previously noted, the claims recite an additional element of a device that includes circuitry to measure a real initial value and real ulterior value of an eye state parameter representative of a myopia degree of an eye of the subject at an initial time and at an ulterior time or an equivalent measuring step. Shammas (US 2015/0216410 A1) demonstrates (“Measurements for the ophthalmic parameters AL, AND, RND, and NT in equations (1a) or (1b) may be obtained using the well-known LENSTAR LS 900.RTM. biometer.” [0055]) that such devices and measurements were well known before the priority date of the claimed invention. At Step 2B, the fact that an additional element is well-known supports a determination that the additional element is insignificant extra-solution activity. This additional element continues to be understood as necessary data gathering for the abstract idea. As such, this additional element does not amount to significantly more than the abstract idea.
There are no further additional elements. When considered as a combination, the additional elements amount to instructions to implement the abstract idea and insignificant extra-solution activity with a computing device. As such, the combination of additional elements does not amount to significantly more than the abstract idea.
Therefore, when considered individually and as a combination, any additional elements of the independent claims do not amount to significantly more than the judicial exception. Thus the independent claims are not patent eligible.
Dependent claim 8-14 and 16 further describes the abstract idea set forth by the claim, but these claims are determined to continue to recite an abstract idea, albeit a narrowed one. Dependent claims 8-14 and 16 recite no further additional elements. The previously identified additional elements, individually and as a combination, for the same reasons as articulated above, fail to integrate the narrowed abstract idea into a practical application. Therefore the claims remain directed to an abstract idea. At Step 2B, the previously identified additional elements, individually and as a combination, for the same reasons as articulated above, do not amount to significantly more than the narrowed abstract idea. Thus as the dependent claims remain directed to a judicial exception, and as the additional elements of the claims do not amount to significantly more, the dependent claims are not patent eligible.
Response to Arguments
Applicant’s Argument Regarding 101 Rejections of claims 1 and 8-15:
The Advisory Action indicated that the aforementioned argument is unclear. In response, it is kindly submitted that nothing in the claim recites anything that could be interpreted as being “fundamental economic principles”, “commercial or legal interactives,” or “managing personal behavior.”
The Office Action asserts that the claimed invention is similar to a “mental process” that a neurologist should follow when testing a patient for nervous system malfunctions” as in the In re Meyer case. … In re Meyer is unrelated to the present application. Here, Claim 1 is directed to system for determining a modification or a change of an initial myopia control solution used by a myopic solution.
The system comprises a device that includes circuitry configured to measure a real initial value and a real ulterior value of an eye state parameter representative of a myopia degree of an eye of the subject at an initial time and at an ulterior time, and comprises one or more memories and one or more processors, which are programmed to perform various functions. Contrary to the Office’s aforementioned assertion, this has nothing to do with what a person “should follow when testing a patient.”
The claims cannot be directed to a “mental process” because the claimed features cannot practically be performed in the human mind. … The system comprises a device that includes circuitry … and comprises one or more memory and one or more processors.
Claim 1 is over two (2) pages in length.
The features of Claim 1 simply cannot be performed in the human mind – let alone be practically performed in the human mind. … It is unclear to Applicant how such features could practically be performed in someone’s mind.
Calculating values based on statistical data is too complex for a human mind to perform in the mind. The claimed invention requires hardware (processor/memory) to perform the recited functions – this is why the recited values are “computed.”
The claimed invention sets forth how to adapt a technical solution used by the subject, namely the myopia control solution. In other words, the claimed invention limits the determination of a technical product. Therefore, it cannot be seen as an abstract idea since it has an effect on this technical product.
The Office Action asserts, on page 7, that “[t]he articulated improvement appears to be entirely of the abstract idea.” However, the Office provides no explanation or reasoning for reaching such conclusion.
The claims are also directed to “significantly more” at least … because the recited features are not “well-understood, routine, or conventional.” Further evidence of this is given by the fact that the claims are novel over the prior art as no art-based rejections have been set forth.
Examiner’s Response: Applicant's arguments filed 11 May 2026 have been fully considered but they are not persuasive.
It appears to the Examiner that Applicant may be interpreting the sub-groupings excessively narrowly. Examiner notes that MPEP 2106.04(a)(2)(II)(C) indicates that concepts such as “assigning hair designs to balance head shape” and “a series of instructions of how to hedge risk” fall within the “managing personal behavior” sub-grouping.
Examiner notes that the exemplary value of In re Meyer should not be understood as limited to cases involving testing nervous system malfunctions.
Applicant’s argument appears to rely on the presence of a computer to distinguish the claims from the In re Meyer example of MPEP 2106.04(a)(2)(II)(C). Examiner notes that the presence of a computer does not exclude a claim to a system from setting forth a concept falling in the managing personal behavior sub-grouping. Note BASCOM Global Internet v. AT&T Mobility, LLC where a claim to a “content filtering system” comprising “a local client computer” and a “remote ISP server” provides an example of managing personal behavior through the filtering of content. Thus the presence of circuitry in the present claims does not prevent the claims from setting forth a method of organizing human activity.
MPEP 2106.04(a)(2)(III)(A) states that “claims do recite a mental process when they contain limitations that can practically be performed in the human mind.” Examiner notes that the “practically performable” consideration is understood to apply to the limitations which set forth the abstract idea and does not apply to features which do not set forth a mental process. Note that MPEP 2106.04(a)(2)(III)(C) expressly indicates that the presence of a computer in a claim does not necessarily exclude a claim from setting forth a mental process, confirming that the “practically performable” consideration does not apply to additional elements.
Examiner is unaware of any USPTO guidance or court case which indicates that claim length is a factor for the eligibility analysis.
Examiner notes that Applicant does not articulate any basis for the assertion that the “features of Claim 1 simply cannot be performed in the human mind – let alone be practically performed in the mind.” Further, the claim unambiguously includes features which are practically performable by the human mind. For example feature (ii) highlighted by applicant (“compare said real ulterior value of said magnitude with said expected ulterior value of said magnitude”) describes a mere evaluation of two values to determine their relative size, and may be practically performed by the vast majority of humans.
Calculating values based on statistical data is not per se too complex for a human mind to perform. For example, the human mind is extremely capable of determining how many apples will be consumed over a week based on an average daily consumption of 2 apples per day. The present claim recites “compute an expected ulterior value of a magnitude linked to said eye state parameter at said ulterior time based on said statistical data relative to the statistical evolution of said eye state parameter with time while initial myopia control solution is implemented.” This limitation does not specify any specific calculation beyond the scope of the human mind. Further, the claim’s usage of the word “compute” does not take an operation outside the scope of the mental processes. A limitation of “compute the addition of two single digit numbers” plainly sets forth a mental process.
Applicant’s argument here does not appear to be tethered to any of the standard rationales for determining eligibility described in MPEP 2106. Applicant’s argument echoes the "useful, concrete, and tangible result” test of State Street Bank, however MPEP 2106(I) states that this test has been superseded.
The improvement appears to be provided by the limitations identified as setting forth the abstract idea rather than the additional elements of the claims or the combination of the additional elements with the abstract idea. For example, Claim 1 recites an additional element which may be interpreted as a generic computing device. This additional element doesn’t provide an improvement, instead the improvement is provided entirely by the abstract idea.
Examiner notes that any argument that the claims are eligible based on the unconventionality of the claims as a whole, effectively reduces the eligibility analysis to an enhanced novelty threshold, which is clearly contrary to current guidelines and caselaw.
Additional Considerations
The prior art made of record and not relied upon that is considered pertinent to applicant’s disclosure can be found in the PTO-892 of the prior office action dated 14 October 2025.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Bion A Shelden whose telephone number is (571)270-0515. The examiner can normally be reached M-F, 12pm-10pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kambiz Abdi can be reached at (571) 272-6702. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Bion A Shelden/Primary Examiner, Art Unit 3685 2026-05-20
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