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 .
Amendment Entered
In response to the amendment filed on July 7th, 2026, amended claims 11-12, 14-17, 19-20 and new claims 21-30 are entered. Claims 1-10 are canceled. Claims 17-20 remain withdrawn from consideration. Claims 11-16 and 21-30 are currently under examination.
Response to Arguments
Applicant's remarks and amendments with respect to the claim objections have been fully considered. The objections are withdrawn in view of the amendment.
Applicant's remarks and amendments with respect to the claim interpretations under 35 U.S.C. 112(f) have been fully considered but they are not persuasive. The claim interpretations are maintained in view of the amendment.
Although the claims do not include “means” or “step” elements, the claim limitations still use a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.
With respect to the first prong of this analysis, the claim limitations use generic placeholders (a term that is simply a substitute for the term “means”) that do not limit the scope of the claim to any specific manner or structure for performing the claimed function. The term “arrangement” is a non-structural term, having no specific structural meaning for performing the claimed function. The following is a non-exhaustive list of non-structural generic placeholders that may invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, paragraph 6: “mechanism for,” “module for,” “device for,” “unit for,” “component for,” “element for,” “member for,” “apparatus for,” “machine for,” or “system for.” See MPEP 2181.
With respect to the second prong of this analysis, the claims merely state the underlying function without recitation of structure for performing that function. It is clear that “arrangement” is set forth by the function it performs as opposed to the specific structure, material, or acts that perform the function.
With respect to the third prong of this analysis, the claim limitations are not modified by sufficient structure, material, or acts for achieving the specified function. In order to determine whether a word, term, or phrase coupled with a function denotes structure, (1) the specification must provide a description sufficient to inform one of ordinary skill in the art that the term denotes structure; (2) general and subject matter specific dictionaries provide evidence that the term has achieved recognition as a noun denoting structure; and (3) the prior art provides evidence that the term has an art-recognized structure to perform the claimed function. Ex parte Rodriguez, 92 USPQ2d 1395, 1404 (Bd. Pat. App. & Int. 2009) (precedential). There is no indication that “arrangement” denotes structure.
Applicant's remarks and amendments with respect to the double patenting rejections under 35 U.S.C. 112(b) have been fully considered but are not persuasive. At Pg. 8 of the Reply, Applicant states that a terminal disclaimer has been submitted. However, no terminal disclaimer has been received.
Applicant's remarks and amendments with respect to the rejection under 35 U.S.C. 112(b) have been fully considered. The rejection is withdrawn in view of the amendment.
Applicant's remarks and amendments, filed on July 7th, 2026, with respect to the rejections under 35 U.S.C. 101 have been fully considered. The rejections are maintained, and further clarified, in view of the amendment.
At Pgs. 9-10 of the Reply, Applicant argues that the newly amended claim limitations cannot practically be performed in the human mind. Examiner respectfully disagrees. The steps of filtering and extracting still recite mental processes performed on a computer control system. Furthermore, the Applicant refers to the Specification in order to discuss features of the application that cannot be performed in the human mind. These arguments are moot because the claims are significantly broader than the Specification; therefore, the Applicant’s arguments regarding the Specification will not be considered.
In this case, the computer is simply used as a tool. The “Federal Circuit has explained, ‘[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind.’ Versata Dev. Group v. SAP Am., Inc., 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015).” MPEP 2106.04(a)(2) III. There is no time limit recited for performing the steps. The claimed steps can be performed via pen and paper or in a person’s mind with no time limit. The computer is merely utilized as a tool to perform the mental steps.
Furthermore, the sensing arrangement is considered a part of extra-solution activity, in the form of data-gathering, not part of the abstract idea. Furthermore, mere data-gathering is recognized by the court as insignificant, extra-solution activity. “As explained by the Supreme Court, the addition of insignificant extra-solution activity does not amount to an inventive concept, particularly when the activity is well-understood or conventional. Parker v. Flook, 437 U.S. 584, 588-89, 198 USPQ 193, 196 (1978)” MPEP 2106.05(g).
At Pg. 11 of the Reply, Applicant argues that the amended claims recite extracting parameters in “real-time”, which the human mind ifs not equipped to do. The Examiner would like to clarify that everything occurs in “real-time”, as there is no other standard of time that is being referred to. It appears that the Applicant may be equating “real-time” to “high-speed”, but those two terms are not equivalent to each another.
Further at Pg. 11 of the Reply, Applicant argues that the invention is directed to patentable subject matter for at least the same reasons that the Court found the claims eligible in Research Corp. Techs. V. Microsoft Corp., SRI Int’l, Inc. v. Cisco Systems, Inc., and Electric Power Group, LLC v. Alstom S.A.
Regardless of the analysis of the Federal Circuit decisions in Research Corp. Techs. V. Microsoft Corp., SRI Int’l, Inc. v. Cisco Systems, Inc., and Electric Power Group, LLC v. Alstom S.A, each case is judged on its own merit. Furthermore, the Examiner is not asserting that the whole claim is an abstract idea. Rather, the Examiner is arguing that the abstract idea is only coupled with limitations that are insufficient in showing integration into practical application or amounting to significantly more than the abstract idea itself.
At Pgs. 12-13 of the Reply, Applicant argues that the claims provide an improvement. Examiner respectfully disagrees, as the claimed steps do not improve the functioning of the data acquisition or the signal exchange. “It is important to note, the judicial exception alone cannot provide the improvement.” MPEP 2106.05(a). The data acquisition and signal exchange appear to perform the same with or without the abstract idea. Therefore, any improvement resides solely within the abstract idea.
“The full scope of the claim under the BRI should be considered to determine if the claim reflects an improvement in technology (e.g., the improvement described in the specification).” MPEP 2106.05(a). “That is, the claim must include the components or steps of the invention that provide the improvement described in the specification.” Id.
“[I]n McRO, the court relied on the specification’s explanation of how the particular rules recited in the claim enabled the automation of specific animation tasks that previously could only be performed subjectively by humans, when determining that the claims were directed to improvements in computer animation instead of an abstract idea.” MPEP 2106.05 (a). There is no improvement to a computer or other technology. Unlike McRO, the claimed system invokes a computer as a tool to perform a mathematical concept and/or mental process.
The processor and units perform the same with or without the claimed abstract idea. Therefore, it is unclear how the abstract idea can improve the standard functions of the additional elements.
The Examiner would once again like to clarify that the limitations regarding the sensing arrangement is considered data-gathering. Furthermore, the step of “generating an alert” is considered as part of the abstract idea, but the actual act of alerting the subject is considered as data-outputting. Both data-gathering and data-outputting are not considered part of the abstract idea, and instead categorized as insignificant extra-solution activity.
At Pgs. 13-14 of the Reply, Applicant argues that the invention is directed to patentable subject matter for at least the same reasons as the claims eligible in Examples 40, 42, and CardioNet, LLC v. InfoBionic, Inc. Examiner respectfully disagrees. Regardless of the analysis of Examples 40, 42, and CardioNet, LLC v. InfoBionic, Inc, each case is judged on its own merit. In this case, the computer is simply used as a tool. Even with the new amendments, the claims still recite mental processes performed on a computer control system. The “Federal Circuit has explained, ‘[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind.’ Versata Dev. Group v. SAP Am., Inc., 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015).” MPEP 2106.04(a)(2) III. There is no time limit recited for performing the steps. The claimed steps can be performed via pen and paper or in a person’s mind with no time limit. The computer is merely utilized as a tool to perform the mental steps.
At Pgs. 15-16 of the Reply, Applicant argues that the claims include additional elements that amount to significantly more than the judicial exception. Examiner respectfully disagrees. The additional elements recited in Claim 11 include a “sensing arrangement” and a “control unit”. For Claim 21, the additional elements are a “sensing arrangement comprising one or more sensors” and a “control unit comprising a model data store”. These two additional elements are recited at a high level of generality and thus, recite a combination of claim elements that are well-understood, routine, and conventional. Examiner further notes that the “specific ordered combination recited in amended claim 11” argued by the Applicant is referring to the combination of steps that make up the abstract idea, instead of the combination of additional elements. Therefore, the Examiner would like to clarify that under Step 2B, it is the combination of additional elements that are considered, rather than the combination of parts that make up the abstract idea.
In regard to the Applicant’s arguments regarding the inventiveness of the claims, the Examiner would like to clarify that even newly discovered abstract ideas are considered abstract. The Court recognized that “a novel and useful structure created with the aid of knowledge of scientific truth” might be patentable. Id., at 67 (quoting Mackay Radio, 306 U. S., at 94). But it held that simply implementing a mathematical principle on a physical machine, namely a computer, was not a patentable application of that principle. For the mathematical formula had “no substantial practical application except in connection with a digital computer.” Benson, supra, at 71. Hence the claim (like the claims before us) was overly broad; it did not differ significantly from a claim that just said “apply the algorithm.” See Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012).
Furthermore, under Step 2B, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the abstract idea, the claim recites additional steps of data-gathering (sensing arrangement that collects eye movement data of a subject) and data-outputting (alerting). These steps are each recited at a high level of generality such that they amount to insignificant pre-solution and post-solution activity. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering and storing engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as “sensing arrangement” and use of a hardware “control unit” does not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)). Thus, the claimed invention does not amount to significantly more than the abstract idea.
Applicant’s arguments, filed on July 7th, 2026, with respect to the rejections under 35 U.S.C. 102 and 103 have been considered but are moot because the new ground of rejections does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “sensing arrangement” in claim 11. According to [0023] of the Applicant’s Specification, the “sensing arrangement” may be interpreted to include “one or more sensors suitable for collecting the eye movement data. Such sensors may include a camera or other imaging or motion tracking device capable of recording at a suitably high speed and level of detail so that the subject's eye movement dynamics, including saccades and intersaccadic drift, are captured. A monocular arrangement of one or more sensors for one of the subject's eyes may be used, or one or more sensors may be included for each eye to obtain binocular data. In some embodiments, the sensors may be miniaturized or otherwise compact, portable, and non-invasive. The sensors may further be vehicle-independent, and may be wireless, to facilitate integration of the sensors into any deployment of the detection system 10. For example, the sensing arrangement 12 may include sensors that are integrated into eyewear, such as on the frame or within the lenses of a pair of glasses. This allows for eye movement data collected even as the subject turns his head, and allows the sensors to be positioned close to the eyes. In another example, the sensors may be integrated into a "lie detector" testing device. In yet another example, the sensors may be integrated into existing personal devices, such as mobile phones and tablet computers. That is, the system 10 may use, as a sensor or array of sensors, the camera of the personal device in the sensing arrangement 12, and may use other native or add-on devices as well”.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Examiner notes that claim 21 was deemed not to invoke claim interpretations under 35 U.S.C. 112(f) because it recited sufficient structure for the “sensing arrangement”.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 11-16 and 21-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 10,743,806. Although the claims at issue are not identical, they are not patentably distinct from each other because the examined application claim is anticipated by the reference claims. Claims 11-12 and 21-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 11,759,134. Although the claims at issue are not identical, they are not patentably distinct from each other because the examined application claim is anticipated by the reference claims.
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 11-16 and 21-30 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. Each of Claims 11-16 and 21-30 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 1
Claims 11-16 and 21-30 recite a system. Thus, the claims are directed to a machine, which is one of the statutory categories of invention.
Step 2A, Prong 1
Each of Claims 11-16 and 21-30 recites at least one step or instruction for comparing eye movement data, which is grouped as a mental process under the 2019 PEG. Claims 11 and 21 recite an abstract idea in the form of mental processes, as consistent with Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012). If a claim, under its broadest reasonable interpretation, covers performance in the mind but for the recitation of generic computer components, then it is still in the mental processes category unless the claim cannot practically be performed in the mind, see Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016). Filtering, extracting, comparing eye movement data, and generating an alert may be performed by a human. This applies for all claims dependent on Claims 11 and 21. Accordingly, each of Claims 11-16 and 21-30 recites an abstract idea.
Specifically, Claim 11 recites the abstract idea of: “filter the eye movement data comprising a continuously sampled time-series to produce filtered eye movement data retaining signal elements of the eye movement data; extract, in real-time, one or more intersaccadic parameters from the filtered eye movement data, the one or more intersaccadic parameters characterizing eye movement during intersaccadic intervals; compare the one or more intersaccadic parameters to one or more baseline measurements of eye movement dynamics to identify whether the subject is lying; and responsive to an indication that the one or more intersaccadic parameters diverge from the one or more baseline measurements by a threshold amount corresponding to an indication that the subject is lying, generate an alert for delivery to the subject”.
Similarly, Claim 21 recites the abstract idea of: “filter the eye movement data comprising a continuously sampled time-series to produce filtered eye movement data retaining signal elements of the eye movement data; extract, in real-time, one or more intersaccadic parameters from the filtered eye movement data, the one or more intersaccadic parameters characterizing eye movement during intersaccadic intervals; compare the one or more intersaccadic parameters to the one or more baseline measurements stored in the model data store; identify a deceptive intent of the subject when the one or more intersaccadic parameters diverge from the one or more baseline measurements by a threshold amount; and responsive to an identification of the deceptive intent, generate an alert for delivery to the subject”.
Further, dependent Claims 12-16 and 22-30 merely include limitations that either further define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed. The Examiner notes that collecting eye movement data of a subject is considered as a data-gathering step, and that alerting the subject is considered as a data-outputting step (although the step of generating the alert responsive to identification of deceptive intent is part of the abstract idea).
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Step 2A, Prong 2
The abstract idea (underlined above) in independent Claims 11 and 21 (and dependent Claims 12-16 and 22-30) is not integrated into a practical application under 2019 PEG because the additional elements, either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use. More specifically, the additional elements of: a “sensing arrangement” and a “control unit” in independent Claim 11 and a “sensing arrangement comprising one or more sensors” and a “control unit comprising a model data store” in independent Claim 21 are generically recited elements used for data-gathering and/or computer elements in which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea identified above in independent Claims 11 and 21 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed system merely implements the above-identified abstract idea (e.g., mental process) using rules (e.g., computer instructions) executed by a computer (e.g., “control unit” as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 11 and 21 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claims 11 and 21 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B
None of Claims 11-16 and 21-30 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: a “sensing arrangement” and a “control unit” in independent Claim 11 and a “sensing arrangement comprising one or more sensors” and a “control unit comprising a model data store” in independent Claim 21. The above-identified additional elements are generically recited elements used for data-gathering and/or generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Those in the relevant field of art would recognize the above-identified additional elements as being well-understood, routine, and conventional means for data-gathering and computing, as demonstrated by:
Applicant’s specification (e.g. paragraphs [0023-0029]) which discloses that the additional elements comprise generically recited elements used for data-gathering and/or generic computer components that are configured to perform the generic computer functions (e.g. comparing and generating) that are well-understood, routine, and conventional activities previously known to the pertinent industry.
Applicant’s Background in the specification; and
The cited prior art and non-patent literature of record in the application.
Accordingly, in light of Applicant’s specification, the claimed term “control unit” is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the “control unit”. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional 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 Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 11-16 and 21-30 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the system of Claims 11-16 and 21-30 is directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself, or (ii) providing a technical solution to a problem in a technical field. None of Claims 11-16 and 21-30 provides meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 11 and 21 (and their respective dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 11-16 and 21-30 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 11-16 and 21-30 amounts to significantly more than the abstract idea itself. Accordingly, Claims 11-16 and 21-30 are not patent eligible and rejected under 35 U.S.C. 101.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 11, 13, 15-16, 21, 25-26, and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Tegreene (U.S. Publication No. 2013/0139258; cited by Applicant) in view of Bedziouk et al (U.S. Publication No. 2008/0188777).
Regarding Claim 11, Tegreene discloses a system (Deceptive indicia profile generation from communications interactions; Abstract), comprising:
a sensing arrangement (the physiological data capture device 112 may include a high-resolution camera; [0039]) that collects eye movement data of a subject (participant 103), the sensing arrangement recording the eye movement data at a speed and level of detail sufficient to capture saccades and intersaccadic intervals (The high-resolution camera may image the facial region of the content-generating participant 103…the movements of various facial features (e.g. the eyes and, more specifically, pupil dilation) may be measured (e.g. pixel counts, reflectivity fluctuations, brightness, color, etc. in the facial region image) and monitored for changes over time. For example, in the case of a right-handed person, movement of the eyes to the up and left may be indicative of a “constructed” response which may be indicative of deception; [0039]); and
a control unit in communication with the sensing arrangement (The deceptive indicia detection module 113 may receive signals associated with the image of the facial region and detect the locations of one or more facial features; [0039]), the control unit being configured to:
compare the eye movement data to one or more baseline measurements of eye movement dynamics to identify whether the subject is lying (The deceptive indicia detection module 113 may receive signals associated with the image of the facial region and detect the locations of one or more facial features. The movements of various facial features (e.g. the eyes and, more specifically, pupil dilation) may be measured (e.g. pixel counts, reflectivity fluctuations, brightness, color, etc. in the facial region image) and monitored for changes over time. For example, in the case of a right-handed person, movement of the eyes to the up and left may be indicative of a “constructed” response which may be indicative of deception. Further, certain brief, involuntary facial movements (e.g. “micro-expressions”) may be associated with certain underlying emotions of the content-generating participant 103. For example, the Facial Action Coding System (FACS) developed by Paul Ekman and Wallace Friesen has mapped various facial movements to underlying emotions. As certain physical movements (e.g. pupil dilation, eye movement, micro-expressions, etc.) may be an indicator of deceptive communications content 102, a computed facial movement (e.g. pupil dilation) in excess of the deceptive indicia threshold value (e.g. movement duration, movement distance, movement frequency) may be detected as indicia of deception in the communications content 102; [0039-0040]); and
responsive to an indication that the eye movement data diverges from the one or more baseline measurements by a threshold amount corresponding to an indication that the subject is lying, generate an alert for delivery to the subject (the communications content transmitting system 100 may include a deceptive indicia notification module 116. The deceptive indicia notification module 116 may receive one or more signals from the deceptive indicia detection module 113 indicating the presence or absence of deceptive indicia in communications content 102 being provided to the content-receiving participant 109. Upon the receipt of one or more signals associated with the presence of indicia of deception in communications content 102 from the deceptive indicia detection module 113, the deceptive indicia notification module 116 may, in turn provide one or more signals to a presentation module 117 so that an indicator associated with the indicia of deception is presented to the content-generating participant 103; [0045]).
Tegreene fails to specifically teach filtering the eye movement data comprising a continuously sampled time-series to produce filtered eye movement data retaining signal elements of the eye movement data; extracting, in real-time, one or more intersaccadic parameters from the filtered eye movement data, the one or more intersaccadic parameters characterizing eye movement during intersaccadic intervals; and wherein the eye movement data that is being compared is specifically one or more intersaccadic parameters.
In a similar technical field, Bedziouk teaches a system and method for mental workload measurement based on rapid eye movement (Abstract), comprising a sensing arrangement that collects eye movement data of a subject (an ocular sensor 136 for obtaining the eye movement data; [0086]), the sensing arrangement recording the eye movement data at a speed and level of detail sufficient to capture saccades and intersaccadic intervals ([0040-0053]);
filtering the eye movement data comprising a continuously sampled time-series to produce filtered eye movement data retaining signal elements of the eye movement data (The step 112 of computing eye movement speed can itself include sub-steps, identified as steps 118 and 120. Step 118 includes smoothing the eye movement data with a low-pass digital filter to remove noise. Step 120 includes numerically differentiating the filter output from step 118…as described previously in relation to FIG. 2, this includes first smoothing with a low-pass digital filter to remove noise and then numerically differentiating the filter output. This helps to filter out frequencies in which saccadic movement is not observed; [0049-0050]);
extracting, in real-time ([0099]), one or more intersaccadic parameters from the filtered eye movement data (The device can include electro-oculogramic (EOG) sensors for measuring oculometric potentials from the human face…extracting the saccades, calculating ISIs, and then determining quantitative criteria of mental workload based on the ISIs; [0033]), the one or more intersaccadic parameters characterizing eye movement during intersaccadic intervals ([0047-0048]); and wherein the eye movement data that is being compared is specifically one or more intersaccadic parameters (Step 112 includes computing eye movement speed based on the eye movement data. Step 114 includes comparing the computed speed to a threshold value. Step 116 includes determining the presence of a saccade if the computed speed is above the threshold. Essentially, these steps include measuring a speed of the eye movement, comparing the measured speed to a stored threshold value, and if the measured speed exceeds the threshold, a start of a saccade is identified, whereas if the measured speed is lower than the threshold, an end of a saccade is identified; [0048]; The computed speed is compared to an empirically determined threshold value, separating saccadic movements from fixations and drifts. An example of such a threshold level is 5 degrees per second. If the computed speed is above the threshold, it is determined as saccadic, whereas if it is less than the threshold, it is considered as fixation or drift. For blink detection, a special symmetric scheme of two saccades analysis is used; [0050]; FIG. 3 is a flowchart illustrating steps involved in the step of computing inter-saccadic intervals of FIG. 1…a start of a saccade can be identified in response to a measured speed of eye movement being more than a threshold. An end of the saccade can be identified in response to a measured speed of eye movement being less than a threshold; [0052-0053]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have incorporated the intersaccadic teachings of Bedziouk into those of Tegreene as the use of the measurement of intersaccadic interval for measuring mental workload has a much more direct relationship with the actual performance of a task and is less affected by external factors than the methods and systems used in the prior art (Bedziouk [0110]).
Regarding Claim 13, Tegreene fails to specifically disclose wherein the eye movement data comprises one or more saccade parameters.
In a similar technical field, Bedziouk teaches a system and method for mental workload measurement based on rapid eye movement (Abstract), wherein the eye movement data comprises one or more saccade parameters (Step 112 includes computing eye movement speed based on the eye movement data. Step 114 includes comparing the computed speed to a threshold value. Step 116 includes determining the presence of a saccade if the computed speed is above the threshold. Essentially, these steps include measuring a speed of the eye movement, comparing the measured speed to a stored threshold value, and if the measured speed exceeds the threshold, a start of a saccade is identified, whereas if the measured speed is lower than the threshold, an end of a saccade is identified; [0048]; The computed speed is compared to an empirically determined threshold value, separating saccadic movements from fixations and drifts. An example of such a threshold level is 5 degrees per second. If the computed speed is above the threshold, it is determined as saccadic, whereas if it is less than the threshold, it is considered as fixation or drift. For blink detection, a special symmetric scheme of two saccades analysis is used…FIG. 3 is a flowchart illustrating steps involved in the step of computing inter-saccadic intervals of FIG. 1…a start of a saccade can be identified in response to a measured speed of eye movement being more than a threshold. An end of the saccade can be identified in response to a measured speed of eye movement being less than a threshold; [0050-0053]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have incorporated the intersaccadic teachings of Bedziouk into those of Tegreene as the use of the measurement of intersaccadic interval for measuring mental workload has a much more direct relationship with the actual performance of a task and is less affected by external factors than the methods and systems used in the prior art (Bedziouk [0110]).
Regarding Claim 15, Tegreene discloses wherein the one or more baseline measurements comprise one or more bio-signatures each corresponding to one of one or more response conditions (For example, in the case of a right-handed person, movement of the eyes to the up and left may be indicative of a “constructed” response which may be indicative of deception; [0039]).
Regarding Claim 16, Tegreene discloses wherein the one of the one or more response conditions is a deceptive answer to a question (As shown in FIG. 2A, the deceptive indicia display device 118 may display a video conferencing interface 120 configured to present audio/video content from the content-receiving participant 109 during a communication interaction (e.g. at least one of audio and visual communication between at least the content-generating participant 103 and content-receiving participant 109)…further, it will be noted that certain eye movements may be indicia of deception. For example, in the case of a right-handed person, movement of the eyes to the up and left may be indicative of a “constructed” response which may be indicative of deception. Conversely, movement of the eyes up and to the right may be indicative of a “memory recall” response which may be indicative of truthfulness. The above referenced conventions may be reversed for a left-handed person; [0046-0047]; Examiner’s Note: Figure 2A shows that the interface 120 is configured to present a question, and wherein the one or more response conditions would be equivalent to, in the case of a right-handed person, movement of the eyes to the up and left may be indicative of a “constructed” response, which may be indicative of a deceptive answer to said question).
Regarding Claim 21, Tegreene discloses a system for detecting deceptive intent (Deceptive indicia profile generation from communications interactions; Abstract), comprising:
a sensing arrangement comprising one or more sensors (the physiological data capture device 112 may include a high-resolution camera; [0039]) configured to collect eye movement data of a subject (participant 103) at a speed and level of detail sufficient to capture saccades and intersaccadic intervals (The high-resolution camera may image the facial region of the content-generating participant 103…the movements of various facial features (e.g. the eyes and, more specifically, pupil dilation) may be measured (e.g. pixel counts, reflectivity fluctuations, brightness, color, etc. in the facial region image) and monitored for changes over time. For example, in the case of a right-handed person, movement of the eyes to the up and left may be indicative of a “constructed” response which may be indicative of deception; [0039]); and
a control unit in communication with the sensing arrangement (The deceptive indicia detection module 113 may receive signals associated with the image of the facial region and detect the locations of one or more facial features; [0039]), the control unit comprising a model data store storing one or more baseline measurements (The deceptive indicia detection module 115 may sample a portion of the communications content 102 containing the detected incidence of indicia of deception and store an audio/video file containing the sampled portion of the communications content 102 containing the detected incidence of indicia of deception to a deceptive indicia library database 123; [0052]; electrical circuitry forming a memory device (e.g., forms of random access memory); [0214-0216]), the control unit being configured to:
compare the eye movement data to the one or more baseline measurements stored in the model data store (The deceptive indicia detection module 113 may receive signals associated with the image of the facial region and detect the locations of one or more facial features. The movements of various facial features (e.g. the eyes and, more specifically, pupil dilation) may be measured (e.g. pixel counts, reflectivity fluctuations, brightness, color, etc. in the facial region image) and monitored for changes over time; [0039-0040]);
identify a deceptive intent of the subject when the eye movement data diverge from the one or more baseline measurements by a threshold amount (For example, in the case of a right-handed person, movement of the eyes to the up and left may be indicative of a “constructed” response which may be indicative of deception. Further, certain brief, involuntary facial movements (e.g. “micro-expressions”) may be associated with certain underlying emotions of the content-generating participant 103. For example, the Facial Action Coding System (FACS) developed by Paul Ekman and Wallace Friesen has mapped various facial movements to underlying emotions. As certain physical movements (e.g. pupil dilation, eye movement, micro-expressions, etc.) may be an indicator of deceptive communications content 102, a computed facial movement (e.g. pupil dilation) in excess of the deceptive indicia threshold value (e.g. movement duration, movement distance, movement frequency) may be detected as indicia of deception in the communications content 102; [0039-0040]); and
responsive to an identification of the deceptive intent, generate an alert for delivery to the subject (the communications content transmitting system 100 may include a deceptive indicia notification module 116. The deceptive indicia notification module 116 may receive one or more signals from the deceptive indicia detection module 113 indicating the presence or absence of deceptive indicia in communications content 102 being provided to the content-receiving participant 109. Upon the receipt of one or more signals associated with the presence of indicia of deception in communications content 102 from the deceptive indicia detection module 113, the deceptive indicia notification module 116 may, in turn provide one or more signals to a presentation module 117 so that an indicator associated with the indicia of deception is presented to the content-generating participant 103; [0045]).
Tegreene fails to specifically teach filtering the eye movement data comprising a continuously sampled time-series to produce filtered eye movement data retaining signal elements of the eye movement data; extracting, in real-time, one or more intersaccadic parameters from the filtered eye movement data, the one or more intersaccadic parameters characterizing eye movement during intersaccadic intervals; and wherein the eye movement data that is being compared is specifically one or more intersaccadic parameters.
In a similar technical field, Bedziouk teaches a system and method for mental workload measurement based on rapid eye movement (Abstract), comprising a sensing arrangement comprising one or more sensors configured to collect eye movement data of a subject (an ocular sensor 136 for obtaining the eye movement data; [0086]) at a speed and level of detail sufficient to capture saccades and intersaccadic intervals ([0040-0053]);
filtering the eye movement data comprising a continuously sampled time-series to produce filtered eye movement data retaining signal elements of the eye movement data (The step 112 of computing eye movement speed can itself include sub-steps, identified as steps 118 and 120. Step 118 includes smoothing the eye movement data with a low-pass digital filter to remove noise. Step 120 includes numerically differentiating the filter output from step 118…as described previously in relation to FIG. 2, this includes first smoothing with a low-pass digital filter to remove noise and then numerically differentiating the filter output. This helps to filter out frequencies in which saccadic movement is not observed; [0049-0050]);
extracting, in real-time ([0099]), one or more intersaccadic parameters from the filtered eye movement data (The device can include electro-oculogramic (EOG) sensors for measuring oculometric potentials from the human face…extracting the saccades, calculating ISIs, and then determining quantitative criteria of mental workload based on the ISIs; [0033]), the one or more intersaccadic parameters characterizing eye movement during intersaccadic intervals ([0047-0048]); and wherein the eye movement data that is being compared is specifically one or more intersaccadic parameters (Step 112 includes computing eye movement speed based on the eye movement data. Step 114 includes comparing the computed speed to a threshold value. Step 116 includes determining the presence of a saccade if the computed speed is above the threshold. Essentially, these steps include measuring a speed of the eye movement, comparing the measured speed to a stored threshold value, and if the measured speed exceeds the threshold, a start of a saccade is identified, whereas if the measured speed is lower than the threshold, an end of a saccade is identified; [0048]; The computed speed is compared to an empirically determined threshold value, separating saccadic movements from fixations and drifts. An example of such a threshold level is 5 degrees per second. If the computed speed is above the threshold, it is determined as saccadic, whereas if it is less than the threshold, it is considered as fixation or drift. For blink detection, a special symmetric scheme of two saccades analysis is used; [0050]; FIG. 3 is a flowchart illustrating steps involved in the step of computing inter-saccadic intervals of FIG. 1…a start of a saccade can be identified in response to a measured speed of eye movement being more than a threshold. An end of the saccade can be identified in response to a measured speed of eye movement being less than a threshold; [0052-0053]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have incorporated the intersaccadic teachings of Bedziouk into those of Tegreene as the use of the measurement of intersaccadic interval for measuring mental workload has a much more direct relationship with the actual performance of a task and is less affected by external factors than the methods and systems used in the prior art (Bedziouk [0110]).
Regarding Claim 25, Tegreene fails to disclose wherein the one or more sensors are integrated into a computing device of the subject.
In a similar technical field, Bedziouk teaches a system and method for mental workload measurement based on rapid eye movement (Abstract), wherein the one or more sensors are integrated into a computing device of the subject (For the measurement of eye movements, any of the following elements can be used: video or cine-camera means; photo-electrical means; photo-optical means with mirror sensor; electromagnetic sensor means. Digital computer means coupled with the sensor means can be used for computing the saccadic eye movement data; [0088]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have incorporated the camera teachings of Bedziouk into those of Tegreene in order to obtain a very accurate measurement of eye movement can be obtained (Bedziouk [0087]).
Regarding Claim 26, Tegreene fails to disclose wherein the control unit is further configured to calibrate the one or more baseline measurements to the subject by recording a calibration set of eye movement data of the subject under normal conditions and adapting the one or more baseline measurements based on the calibration set.
In a similar technical field, Bedziouk teaches a system and method for mental workload measurement based on rapid eye movement (Abstract), wherein the control unit is further configured to calibrate the one or more baseline measurements to the subject by recording a calibration set of eye movement data of the subject under normal conditions and adapting the one or more baseline measurements based on the calibration set (Moreover, for user-specific transition EOG data in eye movement amplitude, a calibration step can preferably precede the data measurement. During the calibration, the human subject moves their view a few times between two points on a computer display, preferably without head movement and blinking. The distance between these points can then be established, in angular degrees and time of point fixation (about 1-2 seconds), thereby completing the calibration; [0051]; Software that can be used with a system and method according to an embodiment of the present invention is designed for singling out saccades and evaluating ISIs in real time as well as displaying, in the form of a diagram, duration of ISIs. It is also possible to directly record EOG signals into a file, which allows their visualization and interactive analysis. To determine sensitivity of the measurements, a calibration regime can be provided, which operates based on two or more marks given on the display; [0055]).
Regarding Claim 29, Tegreene discloses wherein the one or more baseline measurements are derived from the eye movement data recorded under one or more of a known deceptive condition and a known non-deceptive condition (The deceptive indicia detection module 113 may receive signals associated with the image of the facial region and detect the locations of one or more facial features. The movements of various facial features (e.g. the eyes and, more specifically, pupil dilation) may be measured (e.g. pixel counts, reflectivity fluctuations, brightness, color, etc. in the facial region image) and monitored for changes over time. For example, in the case of a right-handed person, movement of the eyes to the up and left may be indicative of a “constructed” response which may be indicative of deception. Further, certain brief, involuntary facial movements (e.g. “micro-expressions”) may be associated with certain underlying emotions of the content-generating participant 103. For example, the Facial Action Coding System (FACS) developed by Paul Ekman and Wallace Friesen has mapped various facial movements to underlying emotions. As certain physical movements (e.g. pupil dilation, eye movement, micro-expressions, etc.) may be an indicator of deceptive communications content 102, a computed facial movement (e.g. pupil dilation) in excess of the deceptive indicia threshold value (e.g. movement duration, movement distance, movement frequency) may be detected as indicia of deception in the communications content 102; [0039-0040]).
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Tegreene and Bedziouk, as applied to claim 11 above, and further in view of Wetzel et al (U.S. Publication No. 2016/0022137; cited by Applicant).
Regarding Claim 27, Tegreene and Bedziouk fail to specifically disclose wherein the one or more intersaccadic parameters comprise an intersaccadic drift velocity.
In a similar technical field, Wetzel teaches an automated analysis system for the detection and screening of neurological disorders and defects (Abstract), wherein the one or more intersaccadic parameters comprise an intersaccadic drift velocity (FIG. 6 illustrates an intersaccadic interval (ISI) analysis stage 28. The intersaccadic interval defines the behavior or the eye during periods of fixation and or smooth pursuit eye movement…d) the mean eye velocity during ISI 126 and absolute mean eye velocity during ISI 126′ can be determined and stored 128 and 128′ with, in some instances, the advancement of increment storage counter; e) the RMS velocity during ISI can be determined 130 and stored 132 with, in some instances, advancement of an increment storage counter…based on the target position and/or velocity 146 (as can be determined from the preprocessing of X or Y position 36, and computation of eye velocity 44), the ISI interval can be used to compute smooth pursuit gain 148 (where the gain equals the response velocity divided by the target velocity…with respect to Table 1, the types of saccadic parameters determined to be generally of interest include peak velocity (e.g., whether or not the peak velocity is speeded up or slowed down relative the peak velocity for normal subjects, and, if so, by how much), latency (whether or not the latency (response to movement of the light source) is similar to normal subjects or slowed down (and if slowed down, by how much), and saccadic measurements (e.g., whether or not there is a hypometric saccadic refixation (e.g., a slowed response or undershoot) or hypermetric saccadic refixation (e.g., overshooting of the target). In the practice of the invention, one or a plurality of saccadic measurements for a subject are determined and automatically compared with stored saccadic measurements for normal subjects and for control subjects with diagnosed neurological diseases, disorders or conditions; [0036-0037]; Figure 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have incorporated the saccadic analysis teachings of Wetzel into those of Tegreene and Bedziouk in order to provide an automated analysis of recorded eye movement behavior in order to identify variances between different types of eye movements in individuals (Wetzel [0023-0025]).
Conclusion
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 CHANEL J YOON whose telephone number is (571) 272-2695. The examiner can normally be reached on Monday-Friday 9:00AM-5:00PM.
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/CHANEL J YOON/Examiner, Art Unit 3791
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