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 .
Drawings
New corrected drawings in compliance with 37 CFR 1.121(d) are required in this application because certain of the drawings of record – in particular, Figures 4A, $B, and 6-9 do not have the requisite line quality. Under 37 CFR 1.84(b)(1), black and white photographs (and photocopies thereof) are generally not permitted in patent applications. Applicant is advised to employ the services of a competent patent draftsperson outside the Office, as the U.S. Patent and Trademark Office no longer prepares new drawings. The corrected drawings are required in reply to the Office action to avoid abandonment of the application. The requirement for corrected drawings will not be held in abeyance.
Claim Objections
Applicant is advised that should claims 1-6 be found allowable, claims 7-12 will be objected to under 37 CFR 1.75 as being substantial duplicates thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims recite a method and system for providing an assessment. Under MPEP 2106.04(a)(2)(lIl), concepts relating to mental processes are drawn to abstract ideas. This judicial exception is not integrated into a practical application because the provision of generic computer components does not add a meaningful limitation to the abstract idea.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception under the factors set forth in MPEP 2106. Such factors include:
• Improvements to another technology or technical field;
• Improvements to the functioning of the computer itself;
• Applying the judicial exception with, or by use of, a particular machine;
• Transformation or reduction of a particular article to a different state of being;
• Adding a specific limitation other than what is well-understood, routine and conventional in the field, or adding unconventional steps that confine the claim to a particular useful application; or
• Other meaningful limitations beyond generally linking the use of the judicial exception to a particular technological environment.
Further guidance is provided by Alice Corp. v. CLS Bank Int'l, 110 USPQ2d 1976 (U.S. 2014). Alice held that a method of mitigating settlement risk was drawn to an abstract idea. Alice further held that the performance of the method performed on a computer did not amount to “significantly more” than the abstract idea, and thus the claimed invention was drawn to a patent-ineligible abstract idea:
These cases demonstrate that the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it’” is not enough for patent eligibility. Mayo, supra, at_(slip op., at 3). Nor is limiting the use of an abstract idea “‘to a particular technological environment.’” Bilski, supra, at 610-611. Stating an abstract idea while adding the words “apply it with a computer” simply combines those two steps, with the same deficient result. Thus, if a patent's recitation of a computer amounts to a mere instruction to “implement]” an abstract idea “on ... a computer,” Mayo, supra, at_(slip op., at 16), that addition cannot impart patent eligibility. This conclusion accords with the preemption concern that undergirds our §101 jurisprudence. Given the ubiquity of computers, see 717 F.3d, at 1286 (Lourie, J., concurring), wholly generic computer implementation is not generally the sort of “additional feature]” that provides any “practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” Mayo, 566 U.S., at_(slip op., at 8-9).
Id at pp 1983-1984. Alice further held that apparatus claims drawn to a computer system were subject to the same analysis as the method claims, and were also not patentable subject matter:
Petitioner's claims to a computer system and a computer-readable medium fail for substantially the same reasons. Petitioner conceded below that its media claims rise or fall with its method claims. En Banc Response Brief for Defendant-Appellant in No. 11 -1301 (CA Fed.) p. 50, n. 3. As to its system claims, petitioner emphasizes that those claims recite “specific hardware” configured to perform “specific computerized functions.” Brief for Petitioner 53. But what petitioner characterizes as specific hardware— a “data processing system” with a “communications controller” and “data storage unit,” for example, see App. 954, 958, 1257—is purely functional and generic. Nearly every computer will include a “communications controller” and “data storage unit” capable of performing the basic calculation, storage, and transmission functions required by the method bclaims. See 717 F.3d, at 1290 (Lourie, J., concurring). As a result, none of the hardware recited by the system claims “offers a meaningful limitation beyond generally linking ‘the use of the [method] to a particular technological environment,’ that is, implementation via computers.” Id., at 1291 (quoting Bilski, 561 U.S., at 610-611).
Id. at pp 1984-1985. Turning to the claimed invention, a method and system for receiving and analyzing information, and displaying the results of the analysis, is directed to an abstract idea. See MPEP 2106.04(a)(2)(ll)(D) and Electric Power Group, LLC v. Alstom, S.A., 830 F.3d 1350, 1351 -52, 119 USPQ2d 1739, 1740 (Fed. Cir. 2016). Each of the recited underlying steps – providing a simulation of an activity involving a scenario, acquiring information pertaining to a user’s performance, identifying one or more features of a user based on the received information, and classifying a user based on the one or more features - is a mental process capable of being performed in the human mind, pertaining to receiving and analyzing information. The method is performed by a generic computing device which under Alice is not sufficient to impart patentability to the system or method.
Consideration of the factors listed above pertaining to what is significantly more than the judicial exception, as viewed in light of the holding in Alice, weighs against patentability. While the method includes the use of a computer, the method does not involve an improvement in the function of a computer or other technology. Rather, generic computer components are used in their usual and customary way to perform the method. Mere automation of mental processes to improve efficiency is not sufficient to show an improvement in computer functionality. See Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055, 123 USPQ2d 1100, 1108-09 (Fed. Cir. 2017), as cited in MPEP 2106.05(a)(I), and Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367, 115 USPQ2d 1636, 1639 (Fed. Cir. 2015), as cited in MPEP 2106.05(f). In this instance the use of a deep learning network amounts to implementation of a mental process in a particular technological environment under MPEP 2106.05(h), as the system and method involve the use of known networks rather than representing an improvement in the function of a deep learning network.
The claimed method does not require the use of a particular machine, as a generic computer system is not a “particular machine” under Alice, nor does it result in the transformation of a physical article. Rather, the result of the claimed method is a determination as to whether a calculated metric is outside a given set of ranges, which itself is an abstract concept.
While claims 1, 7 and 15 recite the use of a sensor to acquire a heart rate measurement and a heart rate variability measurement, the mere use of a sensor in this fashion is not sufficient to amount to substantially more than the abstract idea. Rather, the step of acquiring this information from a sensor is insignificant extra-solution activity under MPEP 2106.05(g). The claim recites a generic and well-known sensor, used in its customary way, and does not involve any advancement in the technology of heart rate measurements. The limitation further amounts to mere data gathering. See e.g. In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989), as cited in MPEP 2106.05(g), which held that performing clinical tests on individuals to obtain input for an equation was insignificant extra-solution activity. See also Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 (2012), which held that a generic step of determining a level of a biomarker in blood was similarly insignificant extra-solution activity. The step of using a sensor to determine neuropsychological performance is analogous to the steps of performing clinical tests on individuals to obtain input for an equation and determining a level of a biomarker in blood and is also not sufficient to constitute substantially more than the abstract idea.
Dependent claims 2-6, 8-14 and 16-20 also fail to recite limitations which would overcome the rejection. These claims are generally directed to the types of information being received and analyzed as part of the method. Again, generic computer components are being used in their routine and conventional way. While claims 13 and 14 recite a head mounted display, this is a generic and well-known type of display being used in its customary fashion. Because the claimed invention does not involve significantly more than the abstract concept of analyzing information, the claims are rejected under 35 USC 101.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KURT FERNSTROM whose telephone number is (571)272-4422. The examiner can normally be reached M-F 10-6.
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, Peter Vasat can be reached at 571-270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KURT FERNSTROM/Primary Examiner, Art Unit 3715
February 10, 2026