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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/1/26 has been entered.
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 1-12 and 15 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.
Claims 1-12 and 15 are directed to an abstract idea without significantly more. The claims recite a mental process that can be performed by human being and/or recite a method of organizing human activity and/or training/employing machine learning models in a particular technological environment.
In regard to Claims 1 and 15, the following limitations can be performed as a mental process by a human being in terms of claiming collecting data, analyzing that data, and providing outputs based on that analysis which has been held by the CAFC to be an abstract idea in decisions such as, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential); and/or recite a method of organizing human activity in terms of claiming the teaching/training/evaluation of a human subject’s which has been identified by MPEP 2106.04(a)(2)(II) as being a method of organizing human activity, in terms of the Applicant claiming:
A brain training [method] comprising:
[…]
[…] acquire [data regarding] a brain signal of a user acting in a first action state based on a non-invasive brain activation measurement method,
determine whether an intention of the user is recognized, by selecting preset intention data that matches data of the brain signal by a preset percentage or greater, the selected preset intention data being intention data accumulated by an [algorithmic] method;
[provide a first output] based on whether the intention is recognized, and
control playback of training content […] to correspond to the [first output],
[…] determine whether the intention of the user is recognized by
determining that the intention is successfully recognized based on the selected intention data of the user related to a second action state, and
determining that the intention is unsuccessfully recognized based on the selected intention data of the user related to the first action state,
[…] control the [first output] by
controlling the [first output] for the second action state based on determining that the intention of the user is successfully recognized, and
controlling the [first output] for the first action state based on determining that the intention of the user is unsuccessfully recognized,
wherein the training content comprises at least one [visual display that changes] based on whether the intention of the user is recognized, and
wherein the training content further comprises a first [visual display] related to an action with which the user is to be trained, and a second [visual display] related to the selected intention data of the user.
In regard to Claims 1 and 15, Applicant also training/employing a machine learning model in a particular technological environment, which has been identified by the CAFC as being an abstract idea in decisions such as, e.g., Recentive Analytics.
In regard to the dependent claims, they also claim an abstract idea to the extent that they merely claim further limitations that likewise could be performed as a mental process by a human being and/or recite training/employing a machine learning model in a particular technological environment.
Furthermore, this judicial exception is not integrated into a practical application because to the extent that additional elements are claimed either alone or in combination such as, e.g., a memory, a processor, a training apparatus, a non-invasive brain activation measurement method, and/or employing a machine-learning model, these are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., data gathering), to embody the abstract idea on a general purpose computer, and/or do no more than generally link the use of a judicial exception to a particular technological environment or field of use. In this regard, see MPEP 2106.04(d)(I) in regard to “courts have also identified limitations that did not integrate a judicial exception into a practical application…”
Furthermore, the claims do not include additional elements that taken individually, and also taken as an ordered combination, are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g., a memory, a processor, a training apparatus, a non-invasive brain activation measurement method, and/or employing a machine-learning model, these are generic, well-known, and conventional elements and are claimed for the generic, well-known, and conventional functions of collecting and processing data and/or providing an analysis/outputs based on that processing. To the extent that an apparatus is claimed as an additional element said apparatus fails to qualify as a “particular machine” to the extent that it is claimed generally, merely implements the steps of Applicant’s claimed method, and is claimed merely for purposes of extra-solution activity or field of use. See MPEP 2106.05(b). As evidence that these additional elements are generic, well-known, and conventional, Applicant’s specification discloses the support for these elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See, e.g., F1 and F2 in Applicant’s PGPUB and text regarding same, and see, e.g., p101-102 in regard to training/employing a machine learning model.
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 1, 3-4, 7-12, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over PGPUB US 20140277582 A1 by Leuthardt et al (“Leuthardt”), in view of PGPUB US 20090264789 A1 by Molnar et al (“Molnar”), further in view of PGPUB US 20180116543 A1 by Miller et al (“Miller”).
In regard to Claim 1, Leuthardt teaches a brain training simulator comprising:
at least one memory; and
at least one processor configured to acquire a brain signal of a user acting in a first action state based on a non-invasive brain activation measurement method,
(see, e.g., F2, 220);
determine whether an intention of the user is recognized, by selecting preset intention data that matches data of the brain signal […]
(see, e.g., F8C, 846 and p100);
control an operation of the training apparatus based on whether the intention is recognized, and
(see, e.g., F8C, 852);
control playback of training content displayed on the training apparatus to correspond to the operation of the training apparatus
(see, e.g., F8C, 848);
[…]
wherein the training content comprises at least one virtual avatar that operates based on whether the intention of the user is recognized, and
wherein the training content further comprises a first virtual avatar related to an action with which the user is to be trained, and a second virtual avatar related to the selected intention data of the use
(see, e.g., F9A, 908 (“at least one virtual avatar”); see, e.g., F9A, 910 (“first virtual avatar”), and, e.g., F9A, 908 (“second virtual avatar”); furthermore, to the extent that the visual features taught by Leuthardt may fail to have the appearance of the claimed “avatars” such appearances are non-functional printed matter and does not distinguish over the cited prior art to the extent that the “avatars” have no functional relationship to the claimed computer display other than to merely appear upon it. See MPEP 2111.05.);
Furthermore, in regard to the claimed limitations of
wherein the at least one processor is configured to determine whether the intention of the user is recognized by
determining that the intention is successfully recognized based on the selected intention data of the user related to a second action state, and
determining that the intention is unsuccessfully recognized based on the selected intention data of the user related to the first action state,
the at least one processor is configured to control the operation of the training apparatus by
controlling the operation of the training apparatus for the second action state based on determining that the intention of the user is successfully recognized, and
controlling the operation of the training apparatus for the first action state based on determining that the intention of the user is unsuccessfully recognized,
while Leuthardt teaches a cued mode where “visual prompts are provided to direct the device…through a series of actions”, wherein as part of each action the user’s intent is recognized or not recognized based on whether or not the user’s brain signals are identified (F8C, 842 and 844), it may not specifically teach in that embodiment that each prompt is continued to be provided if/until the user’s intentions are recognized, the user completes a certain action and then another prompt is provided, however, Leuthardt teaches in a possibly different embodiment generating successive prompts which are then maintained/changed “based on…current progress by the user” (p48);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of filing because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have combined the teachings of Leuthardt and maintained a training prompt if/until the user’s intentions were recognized and an action was performed and then providing a successive prompt, in order to make training more effective.
Furthermore, while Leuthardt teaches matching EEG data to reference data it may not teach requiring that the data match by a certain preset percentage or greater, however, Molnar teaches that functionality (see, e.g., p232);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of filing because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have added the functionality taught by Molnar to the system otherwise taught by Leuthardt in order to more accurately identify the user’s intentions.
Furthermore, to the extent that Leuthardt may fail to specifically teach accumulating the personal data based on a machine learning method, however, in an analogous reference Miller teaches this feature (see, e.g., p18);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of filing because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have employed the ML methods as taught by Miller as part of the system otherwise taught by Leuthardt, so as to better identify the user’s intentions.
In regard to Claims 3 and 12, while Leuthardt teaches a cued mode where “visual prompts are provided to direct the device…through a series of actions”, wherein as part of each action the user’s intent is recognized or not recognized based on whether or not the user’s brain signals are identified (F8C, 842 and 844), it may not specifically teach in that embodiment that each prompt is continued to be provided if/until the user’s intentions are recognized, the user completes a certain action and then another prompt is provided, however, Leuthardt teaches in a possibly different embodiment generating successive prompts which are then maintained/changed “based on…current progress by the user” (p48);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of filing because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have combined the teachings of Leuthardt and maintained a training prompt if/until the user’s intentions were recognized and an action was performed and then providing a successive prompt, in order to make training more effective.
In regard to Claim 4, Leuthardt teaches these limitations. See, e.g., p107 and p119.
In regard to Claim 7, Leuthardt teaches these limitations. See, e.g., p107 and p119.
In regard to Claim 8, Leuthardt teaches these limitations. See, e.g., p107 and p119.
In regard to Claim 9, Leuthardt teaches these limitations. See, e.g., F8C, 846 and p100.
In regard to Claim 10, Miller teaches these limitations. See rejection of Claim 1.
In regard to Claim 11, Leuthardt teaches these limitations. See, e.g., p103.
In regard to Claim 15, see rejection of Claim 1.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Leuthardt, in view of Molnar, further in view of PGPUB US 20150080753 A1 by Miyazaki et al (“Miyazaki”).
In regard to Claim 2, Miyazaki teaches the claimed feature (see, e.g., p99);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of filing because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have employed NIRS in order to measure changes in cerebral blood flow in order to better characterize the subject’s brain function over time.
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Leuthardt, in view of Molnar, further in view of Miller.
In regard to Claims 5-6, while Leuthardt teaches a system capable of being employed by a variety of users as well as teaches storing various data in regard to a user (see, e.g., p61) it may fail to teach the other claimed limitations, however, Miller teaches these features (see, e.g., p6 and 18);
Furthermore, the combination of the cited prior art would have been obvious to one of ordinary skill in the art at the time of filing because the cited prior art includes each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the cited prior art being the lack of actual combination of the elements in a single prior art reference; one of ordinary skill in the art could have combined the elements as claimed by known methods, and that in combination, each element merely performs the same function as it does separately; and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Specifically, it would have been obvious to have employed a database of subjects in order to diagnose a brain disorder such as stroke so as to increase the diagnostic reliability by employing a large dataset.
Response to Arguments
Applicant argues on pages 9-10 of its Remarks in regard to the rejections made by applying the Mayo test under 35 USC 101:
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Applicant’s argument is not persuasive. Applicant’s claims are directed to collecting sensor data regarding human performance; analyzing that data by, e.g., comparing it to a certain metric (i.e., successfully versus unsuccessfully recognized intention); and then providing a differential output based on that comparison. Such subject matter was held to be patent ineligible by the CAFC in, e.g., Ubisoft vs. Yousician (non-precedential) as being directed to a mental process and, thereby, not patent eligible under the Mayo test. Applicant cites no legal authority to the contrary.
Applicant argues on page 10 of its Remarks in regard to the rejections made by applying the Mayo test under 35 USC 101:
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Applicant’s argument is not persuasive. At best, as described supra, Applicant’s invention may constitute an improvement to training a human being. Improvements to human performance, potentially resulting from using a claimed computer program, are not patent eligible under the Mayo test. See, e.g., the CAFC’s opinion in Trading Technologies v. IBG LLC (2017-2257; 4/18/19), slip. op., page 9 (“This invention makes the trader faster and more efficient, not the computer. This is not a technical solution to a technical problem”, emphasis original).
Applicant argues on page 12 of its Remarks in regard to the rejections made under 35 USC 103:
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Applicant’s argument is not persuasive because Applicant provides no basis or rationale why the claimed “avatars” have a functional relationship with the substrate upon which they appear (i.e., the computer display). The computer display merely serves as support for the claimed visual display of the “avatars” and, thereby, no functional relationship exists. See MPEP 2111.05(I)(B).
Conclusion
The prior art made of record and not relied upon is listed in the attached PTO-Form 892 and is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Mike Grant whose telephone number is 571-270-1545. The Examiner can normally be reached on Monday through Friday between 8:00 a.m. and 5:00 p.m., except on the first Friday of each bi-week.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's Supervisory Primary Examiner, 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 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://pair-direct.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MICHAEL C GRANT/Primary Examiner, Art Unit 3715
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