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 1-20 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 1 – “Statutory Category Identification”
Claim 1 is directed to “a computer-based education system” (i.e. “a machine”), Claim 9 is directed to “a method” (i.e. “a process”), and claim 15 is directed to “a non-transitory computer-readable storage medium” (i.e. “a machine”), hence the claims are directed to one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter). In other words, Step 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 1 “Abstract Idea Identification”
However, the claims are drawn to the abstract idea of “teaching a user with fine motor coordination impairment to recognize characters,” either in the form of “certain methods of organizing human activity,” in terms of managing personal behavior or relationships or interactions between people (including social activities, teaching and following rules or instructions), or reasonably in the form of “mental processes,” in terms of processes that can be performed in the human mind (including an observation, evaluation, judgement or opinion). Regardless, the claims are reasonably understood as either “certain methods of organizing human activity;” and/or “mental processes;” which require the following limitations:
Per claim 1:
“characters displayable on the display;
sounds playable, each of said sounds corresponding to at least one of said characters,
display on the display at least a portion of said characters in a spaced-apart arrangement each at least at a minimum size with at least a minimum space provided between adjacent of said displayed characters, said minimum size and said minimum space being large enough to enable user selection by the user with fine motor coordination impairment of one of said characters using substantially only gross motor movements;
play said sound that corresponds to said character selected by the user when the user makes a selection of one of said characters by touching the display where said character selected by the user is being displayed.”
Per claim 9:
“providing characters displayable on the display and sounds playable, each of the sounds corresponding to at least one of the characters,
displaying on the display at least a portion of the characters in a spaced-apart arrangement each at least at a minimum size with at least a minimum space provided between adjacent of the displayed characters, the minimum size and the minimum space being large enough to enable user selection by the user with fine motor coordination impairment of one of the characters using substantially only gross motor movements; and
playing the sound that corresponds to the character selected by the user when the user makes a selection of one of the characters by touching the display where the character selected by the user is being displayed.”
Per claim 15:
“provides characters displayable on the display and sounds playable, each of the sounds corresponding to at least one of the characters,
displays on the display at least a portion of the characters in a spaced-apart arrangement each at least at a minimum size with at least a minimum space provided between adjacent of the displayed characters, the minimum size and the minimum space being large enough to enable user selection by the user with fine motor coordination impairment of one of the characters using substantially only gross motor movements; and
plays the sound that corresponds to the character selected by the user when the user makes a selection of one of the characters by touching the display where said character selected by the user is being displayed.”
These limitations simply describe a process of data gathering and manipulation, which is analogous to “collecting information, analyzing it, and displaying certain results of the collection analysis” (i.e. Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016)) and “a mental process of evaluating” (i.e. In re BRCA1 and BRCA2-Based Heredity Cancer Test Patent Litig., 774 F.3d 755, 763 (Fed. Cir. 2014)). Hence, these limitations are akin to an abstract idea which has been identified among non-limiting examples to be an abstract idea. In other words, Step 2A, Prong 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 2 – “Practical Application”
Furthermore, the applicants claimed elements of “a user computing device having at least one processor, a touch-sensitive display, and a speaker,” are merely claimed to generally link the use of a judicial exception (e.g., pre-solution activity of data gathering and post-solution activity of presenting data) to (1) a particular technological environment or (2) field of use, per MPEP §2106.05(h); and are applying the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea, per MPEP §2106.05(f). In other words, the claimed “teaching a user with fine motor coordination impairment to recognize characters,” is not providing a practical application, thus Step 2A, Prong 2 of the subject-matter eligibility analysis is “No.”
Step 2B – “Significantly More”
Likewise, the claims do not include additional elements that either alone or in combination are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g. of “a user computing device having at least one processor, a touch-sensitive display, and a speaker,” are claimed, these are generic, well-known, and conventional data gather computing elements. As evidence that these are generic, well-known, and a conventional data gathering computing elements (or an equivalent term), as a commercially available product, or in a manner that indicates that the additional elements are sufficiently well-known, the Applicant’s specification discloses these in a manner that indicates that the additional elements are so sufficiently well-known, that the specification does not need to describe the particulars of such an additional element to satisfy 35 U.S.C. § 112(a), per MPEP § 2106.07(a) III (a). As such, this satisfies the Examiner’s evidentiary burden requirement per the Berkheimer memo.
Specifically, the Applicant’s claimed “a user computing device having at least one processor, a touch-sensitive display, and a speaker,” as described in paras. [0026], [0033] and [0035] of the Applicant’s written description as originally filed, provides the following:
“[0035] With reference to FIG. 3, an exemplary system for implementing aspects described herein includes a computing device, such as computing device 100. In its most basic configuration, computing device 100 typically includes at least one processing unit 102 and memory 104.”
“[0033] FIG. 3 depicts an exemplary computing environment in which various embodiments of the invention may be implemented and upon which various embodiments of the invention may be employed. The computing system environment is only one example of a suitable computing environment and is not intended to suggest any limitation as to the scope of use or functionality. Numerous other general purpose or special purpose computing system environments or configurations may be used. Examples of well-known computing systems, environments, and/or configurations that may be suitable for use include, but are not limited to, personal electronic devices such as smart phones and smart watches, tablet computers, personal computers (PCs), server computers, handheld or laptop devices, multi-processor systems, microprocessor-based systems, network PCs, minicomputers, mainframe computers, embedded systems, distributed computing environments that include any of the above systems or devices, and the like.”
“[0026] FIGS. 1 and 2 depict schematic screenshots of an app in accordance with an embodiment of the invention. The app can be run on devices such as tablets, e.g., iPad, 9th generation wi-fi, model number MK2L3LL/A (as an illustrative example only) made by Apple, Inc. of Cupertino, CA, or any similar device with a touch-sensitive screen such as a computer, tablet, phablet, phone (if large enough), laptop, notebook computer, or the like.”
As such, the Applicant’s “user computing device having at least one processor, a touch-sensitive display, and a speaker,” merely provides a laundry list of computers. As such, this is reasonably interpreted to be a generic, well-known, and conventional data computing element that is considered ubiquitous, standard off-the-shelf equipment that is commercially available today.
Therefore, the Applicant’s own specification discloses ubiquitous standard equipment that is (1) generic, routine, conventional, and/or commercially available; and (2) does not provide anything significantly more. Thus, Step 2B, of the subject-matter eligibility analysis is “No.”
In addition, dependent claims 2-8, 10-14 and 16-20 do not provide a practical application and are insufficient to amount to significantly more than the judicial exception. As such, dependent claims 2-8, 10-14 and 16-20 are also rejected under 35 U.S.C. § 101, based on their respective dependencies to claim 1, 9 or 15. Therefore, claims 1-20 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject-matter.
Claim Rejections - 35 USC § 102
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 1, 3-6, 9, 11-13, 15 and 17-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Moreno (US 2017/0046971).
Regarding claim 1, and substantially similar limitations in claims 9 and 15, Moreno discloses software residing on a user computing device, the user computing device having at least one processor, a touch-sensitive display, and a speaker (see FIGS. 1 and 41; see para. [0066] Referring now to FIG. 1, there is shown a system of the present invention which is intended for use by a single user, or up to a few users who may participate either sequentially or jointly in the training. A device 14 may be a conventional personal computer. For example, a personal computer with at least the following elements: any Operating System, although at least a 32-bit system may be preferred; a Processor operating at a minimum of 1.6 GHz; Memory that is at least 2 GB; a Hard Drive that is at least80 GB; optical drive 17, and one or more External Ports 15 that may include a USB port, ethernet port, and/or other ports. A microphone 11 and webcam 13 may serve as a user interface to allow recording and measurement of user behavioral response. User input can also be obtained by various devices and controllers that communicate with the device 14 though a port 15 or wirelessly. Wireless connectivity is also helpful when the training is implemented over the internet in conjunction with a server configured to provide the training. The device 14 on which the training platform is wholly or partially realized may also be a laptop, video game console, gaming platform, an e-reader, a tablet, smartphone, an interactive book, a TV with wireless access, a video presentation (such as a television (TV) show, which may also have means for accepting user input through a port or wirelessly), or a website. Regardless of device 14, the training platform will often be provided with access to the internet, webcams, microphones, motion sensors, and other accessories that may be used by the training. The system of the present invention may further include any of the following: a video display 10 which may be touch sensitive; one or more sound or audio transducers such as speakers 12 or headphones 20; an input device such as mouse 16; and a touchpad or keyboard 18 all of which can be connected using wired or wireless means; see para. [0070] The overall cognitive training system as is depicted in FIGS. 1-42 includes a processor contained within a computer 14 where the processor is configured to present cognitive training to a user. At least one training program is contained within at least one of a set of computer modules associated with a series of training components as represented in FIG. 40 and detailed throughout the Specification. A visual display 456 (schematically represented in FIG. 41) is used in conjunction with an audio transducer 12 which are configured to be operated upon by the processor of the computer or computer device 14 to present visual and audio stimuli.),
said software including first code containing characters displayable on the display (see para. [0235] Musical ear (ME) exercises 80, may train a user to associate the particular musical cue 512 with, or without, a visual cue 514 of animal character. For example, the target musical note C4 may be associated with a turtle character. The training may use tones or vocal representations relating to musical notes, for example, such as Do-C4, Re-D4, Mi-E4, Fa-F4, So-G4, La-A4, Ti-B4, Do-C5, etc. Each of the above musical notes may be represented respectively by a visual-cue 512, such as visual-character or shape or image or color, and said corresponding visual shape/character/color which is associated with a sound-cue 512 corresponding to the musical note. The exercise may provide instructions and tasks designed for user to recognize the relationship between tones and characters);
second code containing sounds playable on the speaker, each of said sounds corresponding to at least one of said characters, the at least one processor being configured to execute the software to cause the user computing device to: display on the display at least a portion of said characters in a spaced-apart arrangement each at least at a minimum size with at least a minimum space provided between adjacent of said displayed characters (see para. [0129] The device 110, can be a PC tablet 450, as shown in the embodiment of FIG. 41, that may obtain information and training software from a remote server over its internet link. The device 110, has components such as a processor, memory, power, and other computer components which can implement the training according to training instructions, as are well known. The tablet is shown with additional common features of a tablet including a webcam, microphone, speaker, ports, and internet connectivity, and provide a first user response area 452a, and a second user response area 452b , whereby two users may respond to training exercises that are presented in the middle area 454 of the tablet display 456;
see para. [0235] Musical ear (ME) exercises 80, may train a user to associate the particular musical cue 512 with, or without, a visual cue 514 of animal character. For example, the target musical note C4 may be associated with a turtle character. The training may use tones or vocal representations relating to musical notes, for example, such as Do-C4, Re-D4, Mi-E4, Fa-F4, So-G4, La-A4, Ti-B4, Do-C5, etc. Each of the above musical notes may be represented respectively by a visual-cue 512, such as visual-character or shape or image or color, and said corresponding visual shape/character/color which is associated with a sound-cue 512 corresponding to the musical note. The exercise may provide instructions and tasks designed for user to recognize the relationship between tones and characters);
play on the speaker said sound that corresponds to said character selected by the user when the user makes a selection of one of said characters by touching the display where said character selected by the user is being displayed (see para. [0238] In one embodiment, musical ear exercises will require responses from the user which are related to audio-visual pairings that have been previously established. As shown in FIG. 39 these relationships can be established either in steps 500 to 514 or otherwise such as in a story module. In some exercises a cue 512 and/or 514 is presented simultaneously with the probe 520 and/or 522 (e.g., the delay implemented in step 516 is set to zero), while in others the probe presentation follows the cue presentation (e.g., the delay implemented in step 516 is set to a positive value). By requiring a user to match an auditory 520, visual 522, or audiovisual probe 518 to cue template (512 and/or 514), the success of the consolidation of audiovisual pairings may be assessed by evaluation of the user response 524 evaluated by the performance module 590);
see para. [0251] The musical ear training can include a set of exercises in which least one visual cue or the probe stimulus is followed by, preceded by, or simultaneously presented with, a sound stimulus. The user is normally instructed to provide a response that reflects a choice about the at least one probe stimulus. This response should be made in response to a particular question or instructing. The training may evaluate the user's choices and selections to determine if the user response was correct or incorrect).
Finally, the limitation of “said minimum size and said minimum space being large enough to enable user selection by the user with fine motor coordination impairment of one of said characters using substantially only gross motor movements...” is non-functional descriptive material because this limitation is directed toward conveying meaning to a human reader rather than towards establishing a functional relationship between the characters and the processor. In view thereof, the limitation does not impart a patentable distinction, since no functional relationship exists. See MPEP 2111.05.
Regarding claim 3, and substantially similar limitations in claims 4, 11, 12, 17 and 18, Moreno discloses wherein each of said characters is one of a letter in an alphabet, a number, a punctuation mark, or a symbol (see para. [0235] Musical ear (ME) exercises 80, may train a user to associate the particular musical cue 512 with, or without, a visual cue 514 of animal character. For example, the target musical note C4 may be associated with a turtle character. The training may use tones or vocal representations relating to musical notes, for example, such as Do-C4, Re-D4, Mi-E4, Fa-F4, So-G4, La-A4, Ti-B4, Do-C5, etc. Each of the above musical notes may be represented respectively by a visual-cue 512, such as visual-character or shape or image or color, and said corresponding visual shape/character/color which is associated with a sound-cue 512 corresponding to the musical note. The exercise may provide instructions and tasks designed for user to recognize the relationship between tones and characters).
Regarding claim 5, and substantially similar limitations in claims 13 and 19, Moreno discloses wherein said characters comprise a first set of characters embodied in a first shape and a second set of characters embodied in a second shape (see para. [0081] In addition to training with musical exercises, cartoons, and stories, other types of non-musical exercises may be used either to supplement the music-based training exercises or in their own right, as described herein. The present invention may employ exercises which create associations for, or require processing related to, color, shape, sounds, and visual tokens. Exercises may also promote or require processing related to spatial rotation and spatial relationships, reading, repeating, and singing. The exercises are designed to promote changes in brain processing involved in verbal intelligence, attention, reading and language skills;
see para. [0235] Musical ear (ME) exercises 80, may train a user to associate the particular musical cue 512 with, or without, a visual cue 514 of animal character. For example, the target musical note C4 may be associated with a turtle character. The training may use tones or vocal representations relating to musical notes, for example, such as Do-C4, Re-D4, Mi-E4, Fa-F4, So-G4, La-A4, Ti-B4, Do-C5, etc. Each of the above musical notes may be represented respectively by a visual-cue 512, such as visual-character or shape or image or color, and said corresponding visual shape/character/color which is associated with a sound-cue 512 corresponding to the musical note. The exercise may provide instructions and tasks designed for user to recognize the relationship between tones and characters).
Regarding claim 13, and substantially similar limitations in claims 5, 6 and 19, Moreno discloses wherein the characters comprise a first set of characters embodied in a first shape and a second set of characters embodied in a second shape, and wherein each of the characters include a letter in an alphabet, and the first set includes consonants in the alphabet and the second set includes vowels in the alphabet (see para. [0235] Musical ear (ME) exercises 80, may train a user to associate the particular musical cue 512 with, or without, a visual cue 514 of animal character. For example, the target musical note C4 may be associated with a turtle character. The training may use tones or vocal representations relating to musical notes, for example, such as Do-C4, Re-D4, Mi-E4, Fa-F4, So-G4, La-A4, Ti-B4, Do-C5, etc. Each of the above musical notes may be represented respectively by a visual-cue 512, such as visual-character or shape or image or color, and said corresponding visual shape/character/color which is associated with a sound-cue 512 corresponding to the musical note. The exercise may provide instructions and tasks designed for user to recognize the relationship between tones and characters).
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 2, 7, 8, 10, 14, 16 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Moreno) in view of Seim, et al., (hereinafter referred to as “Seim,” US 2015/0310762).
Regarding claim 2, and substantially similar limitations in claims 10 and 16, Moreno fails to explicitly disclose the user computing device further having a haptic feedback mechanism to deliver haptic feedback to the user, said software further including at least one haptic feedback response, the at least one processor being configured to execute the software to cause the user computing device to deliver the at least one haptic feedback response to the user when the user makes a selection of one of said characters. However, Seim teaches the user computing device further having a haptic feedback mechanism to deliver haptic feedback to the user, said software further including at least one haptic feedback response, the at least one processor being configured to execute the software to cause the user computing device to deliver the at least one haptic feedback response to the user when the user makes a selection of one of said characters (see para. [0009] Disclosed herein are methods, computer readable media, systems, and apparatuses to convey chorded input. In some embodiments, the chorded input is conveyed via (passive and/or active) haptic learning technology. Haptic, as used herein, means of or relating to the sense of touch. Haptic learning technology can include tactile feedback technology that recreates the sense of touch by, for instance, applying a sensation (e.g., via forces, vibrations, and/or motions) to the user via a wearable, tactile interface. Passive Haptic Learning (PHL) refers the acquisition of sensorimotor skills without active attention to learning (i.e., allowing a person to learn “muscle memory” through a sensory stimulus without devoting attention to the stimulus). The sensorimotor skills learned can relate to a variety of applications including, but not limited to, Braille, musical instruments, code-based systems, text-entry systems, rehabilitation, or the like.
Seim is analogous to Moreno, as both are drawn to the art of training. It would have been obvious to one of ordinary skill in the art to modify Moreno with Seim for the purpose of including at least one haptic feedback response, the at least one processor being configured to execute the software to cause the user computing device to deliver the at least one haptic feedback response to the user when the user makes a selection of one of said characters, since application domains that focus on tactile feedback on the hands include rehabilitation, accessibility, gaming, teleoperation, learning, and sensory augmentation.(see para. [0228]).
Regarding claim 14, and substantially similar limitations in claims 7, 8 and 20, Moreno and Seim fail to explicitly disclose further comprising the steps of: setting the minimum size to at least approximately ¾ inches wide; and setting the minimum space to at least approximately 5/16 inches. However, the Applicant’s use of setting the minimum size to at least approximately ¾ inches wide; and setting the minimum space to at least approximately 5/16 inches is an obvious design choice. Applicant has not disclosed that setting the minimum size to at least approximately ¾ inches wide; and setting the minimum space to at least approximately 5/16 inches solves any stated problem or is for any particular purpose. Moreover, it appears that any size using the device of Moreno and Seim or the Applicant would perform equally well. Therefore, it would have been prima facie obvious to modify Moreno and Seim to obtain the result as specified in claims 7, 8, 14 And 20, because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Moreno and Seim.
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 1-20 are rejected under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1, and substantially similar limitations in claims 9 and 15, recites the limitations “a user with fine motor coordination impairment to recognize characters,” “said minimum size and said minimum space being large enough to enable user selection by the user with fine motor coordination impairment of one of said characters using substantially only gross motor movements”. Specifically, the claim limitations of “a user with fine motor coordination impairment to recognize characters,” “said minimum space being large enough,” “the user with fine motor coordination impairment,” and “using substantially only gross motor movements,” are full of relative terms that fail to point out what is included or excluded by the claim language and is therefore deemed indefinite. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(S) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements. Therefore, claims 1, 9 and 15 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 pre-AIA the applicant regards as the invention. Dependent Claims 2-8, 11-14 and 16-20 are also rejected under 35 U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AIA ), second paragraph, based on their dependency to claim 1, 9 or 15.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT P. BULLINGTON whose telephone number is (313) 446-4841. The examiner can normally be reached on Monday through Friday from 8 A.M. to 4 P.M. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Peter Vasat, can be reached on (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 an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://portal.uspto.gov/external/portal. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at (866) 217-9197 (toll-free).
/Robert P Bullington, Esq./
Primary Examiner, Art Unit 3715