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 .
Response to Arguments
Applicant's arguments filed 3/27/26 have been fully considered but they are not persuasive. Regarding the rejection under 101, the applicant argues that the presently amended claims are self-evidently eligible for patentability by virtue of the newly incorporated limitations associated with the performance of a complexity assessment. It is asserted that said limitations cannot be performed within the mind.
As discussed in the prior action and below, the examiner considers the performance of a complexity assessment to be mentally performable. A physician can identify areas of complexity that are consistent, stable or repeatable, as distinguished from areas that do not exhibit such consistency. A physician may further perform any of the algorithms cited as they represent mathematical operations on data such as differentials, pupil-wave bandwidth. The algorithms further contain no limitations on their execution -merely assigning a name to the algorithm, with no limitations on any of the various steps required to perform the algorithm(s) that would remove the algorithm from the realm of mentally performable processes.
The Applicant further argues that a computer not a human by his/her mind for achieving the process is a better selection for the present disclosure. The claims do not restrict or require any specific accuracy that would limit a human from reviewing the data and making as assessment. Further, while it may be easier to use a computer to improve speed and efficiency of an existing process, simply adding a generic computer/processor and insignificant data gathering structure to perform the process has been considered by the courts to be insufficient for eligibility (MPEP 2106.05(f)). Additionally, as argued above, the claimed algorithms contain no limitations on their execution -merely assigning a name to the algorithm, with no limitations on any of the various steps required to perform the algorithm(s) that would remove the algorithm from the realm of mentally performable processes.
The additional element of the generic processor acts as a tool upon which the abstract idea is executed. It too functions in its usual capacity. As does the system of the pupil-wave bandwidth and the processor. The arrangement is further conventional in the pupil analysis art.
It is noted that the various complexity assessment algorithms discussed by the applicant are mentally performable and thus do not constitute additional elements. Furthermore, there are no specific steps recited associated with the various algorithms, so interpretations of what is a "emotional indicator”, etc., is not limited and could simply involve the mental steps a clinician might take to note that pupil-wave as compared to standard pupil-wave.
Under Step 2B analysis the applicant appears to be relying upon the abstract idea itself for eligibility. As stated above, the pupil-wave algorithms and combinations thereof are considered to be a part of the mentally performable abstract idea and thus are not additional elements. The additional elements of the recited claims, processor and generic pre-trained algorithm in the art whether taken alone or in combination, as it is a necessary arrangement in most any computerized medical system attempting to collect signals for processing, analyzing the signals.
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.
Claim(s) 1-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1- Claim 1
Claim 1 and dependent claims 2-12 are drawn to a method and thus meet the requirements for step 1.
Step 2a (prong 1) - Claim 1
Claims 1 recites the step of “calculating a bandwidth pupil-wave and a differential pupil-wave, wherein the bandwidth pupil-wave and the differential pupil-wave are linked to each of the emotions based on the standard pupil-wave”. Under the broadest reasonable interpretation, this step covers a concept capable of being performed in the human mind, and thus falls within the mental processes grouping of abstract ideas. Other than reciting the method is “computer-implemented” in the preamble, nothing in the claim precludes the step from practically being performed in the mind.
Accordingly, claim 1 recites an abstract idea.
Step 2a (prong 2) – Claim 1
The judicial exception is not integrated into a practical application. Claim 1 recites the additional elements of:
collecting a pupil-wave while a subject is in a calm state is insignificant extra-solution activity (i.e., data gathering),
acquiring emotional indicators and emotions corresponding to the emotional indicators configured to measure a mental state is insignificant extra-solution activity (i.e., data gathering),
gathering pupil-wave data from the subject experiencing various emotional states and designating the pupil-wave data as an emotional pupil-wave is insignificant extra-solution activity (i.e., data gathering/statistics),
derive index values of the emotional indicators is insignificant extra-solution activity (i.e., data gathering/statistics),
determining metnal states of the subject based on the index values of the emotional indicators is insignificant extra-solution activity (i.e., data gathering/statistics),
intervening promptly the subject to ensure mental and physical health of the subject is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data) is insignificant extra-solution activity (i.e., data output).
These steps do not integrate the abstract idea into a practical application because they are insignificant extra solution activity.
Step 2b- Claim 1
The additional elements when considered individually and in combination are not enough to qualify as significantly more than the abstract idea. As discussed above with respect to the integration of the abstract idea into a practical application, providing a (derive index values of the emotional indicators) is recited at a high level of generality (i.e., as generic devices, a “computer-implemented” method, performing generic computer functions like sending, receiving, and visually displaying data). Further collecting a pupil-wave while a subject is in a calm state and establishing the pupil-wave as a standard pupil-wave is considered data gathering. It is noted that the first and second electrodes are recited at a high level of generality.
The additional elements that were considered insignificant extra solution activity have been re-analyzed and do not amount to anything more than what is well-understood, routine and conventional when considered individually and in combination with evidence provided. Specifically:
collecting a pupil-wave while a subject is in a calm state is well understood, routine, and conventional (i.e., receiving data MPEP 2106.05(d)(II)).
acquiring emotional indicators and emotions corresponding to the emotional indicators configured to measure a mental state is well-understood routine and conventional (i.e., gathering data/statistics MPEP 2106.05(d)(II)).
calculating a bandwidth pupil-wave and a differential pupil-wave, wherein the bandwidth pupil-wave and the differential pupil-wave are linked to each of the emotions based on the standard pupil-wave is considered to be well-understood, routine, and conventional (i.e., performing routine calculations MPEP 2106.05(d)(II)).
intervening promptly the subject to ensure mental and physical health of the subject is considered to be well-understood, routine, and conventional (i.e., presenting data MPEP 2106.05(d)(II)).
Claim 1 is thus consider to be directed to an abstract idea without significantly more.
Claims 2-12 depend from claim 1. The type of data analyzed and the routine calculations performed as stated in claims 2-12 is considered extra solution activity. Thus, the dependent claim do not change the overall analysis that claims 2-12 are also directed to an abstract idea.
Conclusion
It is noted that the claims are rejected under 101 and 112 only. The closest prior art to Devani (U.S. Pub. 2023/0052100) teaches the use of pupil response curves to analyze psychosensory responses. However, Devani fails to teach calculating a bandwidth pupil-wave and a differential pupil-wave, wherein the bandwidth pupil-wave and the differential pupil-wave are linked to each of the emotions based on the standard pupil-wave; inputting standard, emotional, bandwidth, and differential pupil-wave data into a pre-trained deep convolutional neural network to derive index values of the emotional indicators.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REX R HOLMES whose telephone number is (571)272-8827. The examiner can normally be reached Monday-Thursday 7:00AM-5:30PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer McDonald can be reached at (571) 270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/REX R HOLMES/Primary Examiner, Art Unit 3796
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