Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The drawings are objected to because FIG. 10 is a photograph. Black and white photos are not allowed unless they are the only practicable medium for illustrating the invention. Check 37 CFR 1.84(b). Additionally, FIG. 4 is difficult to read clearly. A less blurry version of the drawings is respectfully requested. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 17 is objected to because of the following informalities: At claim 17 line 1, “wherein the sensor or camera includes a function of detecting subject’s eye blinking” should read -- wherein the one or more sensors or cameras include a function of detecting subject’s eye blinking-- . Appropriate correction is required.
Claim 18 is objected to because of the following informalities: At claim 18 line 1, “wherein the sensor or camera detects the subject's eye blinking” should read -- wherein the one or more sensors or cameras detect the subject’s eye blinking --. Appropriate correction is required.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 3, 9, 13, and 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as failing to set forth the subject matter which the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the applicant regards as the invention.
Claim 3 recites the limitation “measuring the event-evoked potential”. There is insufficient antecedent basis for this limitation in the claim. It appears that the claim should be amended to be dependent on claim 2 rather than claim 1.
Claim 9 recites the limitation “expresses the 3D visual acuity in one or more selected from percentage and grade”. It is unclear what the “one or more” is referring to.
Claim 13 recites the limitation “the subject is viewing the plane image and provided.” It is unclear what this limitation is meant to say. This limitation will be interpreted as reading “the subject is viewing the plane image provided”.
Claim 20 recites the limitation “the display that provides the 3D image”. There is insufficient antecedent basis for this limitation in the claim.
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 non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
Step 1: Regarding claim 1, the claim recites a series of steps or acts, including making a subject cognize how to solve a problem, providing the subject with a 3D image including the problem, receiving the answer, measuring the brain waves of the subject, and determining a 3D visual acuity based on time elapsed from the 3D image being provided to a cognitive peak appearing in the brain waves. Thus, the claim is directed to a process, which is one of the statutory categories of invention.
Step 2A, Prong One: The claim is then analyzed to determine whether it is directed to any judicial exception. The steps of receiving the answer and determining a 3D visual acuity based on time elapsed from the 3D image being provided to a cognitive peak appearing set forth a judicial exception. The steps describe a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to a Mental Process, which is an Abstract Idea.
Step 2A, Prong Two: Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. While claim 1 recites determining 3D visual acuity, it fails to recite any practical application of determining 3D visual acuity. It is noted that there is no output or indication of the 3D visual acuity. The determination of 3D visual acuity does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the detection, nor does the method use a particular machine to perform the Abstract Idea.
Step 2B: Next, 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 making a subject cognize how to solve a problem, providing the subject with a 3D image including the problem, and measuring the brain waves of the subject. The steps of making a subject cognize how to solve a problem, providing the subject with a 3D image including the problem, and measuring the brain waves of the subject are recited at a high level of generality, such that it amounts to insignificant presolution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. 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 comparing activity 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 the providing and measuring steps do 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)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
The dependent claims also fail to add something more to the abstract independent claims as they generally recite method steps pertaining to data gathering or steps capable of being performed mentally and/or by hand. The dependent claims drawn to measuring event-evoked potential and providing a 3D image merely add insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The 3D glasses of claim 13, the one or more sensors or cameras of claims 16-18, and the display of claim 20 are generically claimed elements configured to perform pre-solutional data gathering activity. The providing, measuring, and determining steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-2, 7-8, 12, 14, and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tahara (US 20180125409 A1), hereinafter Tahara.
Regarding claim 1, Tahara recites a method comprising (a) making a subject cognize how to solve a problem ([0023], [0024]); (b) providing the subject with a 3D image including the problem ([0023], [0024]); and (c) receiving an answer to the problem from the subject, wherein steps (b) and (c) are performed together with measuring the brain waves of the subject, and a time from when the 3D image is provided in step (b) to when a cognitive peak for the answer to the problem appears in the brain waves is measured and used as data for determining the 3D visual acuity ([0122]).
Regarding claim 2, Tahara recites a method wherein the brain wave measurement is performed by measuring event-evoked potential ([0122]).
Regarding claim 7, Tahara recites a method wherein a time from when the 3D image is provided in step (b) to when a perceptual peak for the answer to the problem appears in the brain waves is measured and used as auxiliary data for determining the 3D visual acuity ([0122]).
Regarding claim 8, Tahara recites a method wherein the determination of the 3D visual acuity is performed using measurement time data accumulated by multiple 3D visual acuity measurement results as a reference ([0122]).
Regarding claim 12, Tahara recites a step wherein the 3D image is one of a printed 3D image, a 3D image displayed on a display device, a 3D video, and a demonstration material ([0123]).
Regarding claim 14, Tahara recites a method wherein in step (c), the answer to the problem is received verbally from the subject, or submitted by pressing a button, or by touching a screen ([0150]).
Regarding claim 20, Tahara recites in step (b), the display that provides the 3D image including the problem to the subject is a display in which the subject goes through an alignment process of two eyes to view the 3D image ([0043]).
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 3-6, 9, and 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over Tahara in view of Khaderi et al. (US 20170293356 A1), hereinafter Khaderi.
Regarding claim 3, Tahara discloses all of the limitations of the claim as discussed above except the cognitive peak is an evoked potential obtained by measuring the event-evoked potential. Khaderi teaches a method where the cognitive peak is obtained by measuring the event-evoked potential ([0524]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to obtain the cognitive peak by measuring the event-evoked potential, as taught by Khaderi, in a method like that of Tahara, because event-evoked potentials indicate comprehension.
Regarding claim 4. Tahara discloses all of the limitations of the claim as discussed above except the cognitive peak is a peak that occurs between 200ms and 800ms after the 3D image is provided. Khaderi teaches a method where the cognitive peak is a P300 peak, which occurs around 300 ms ([0524]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to look at the P300 peak, as taught by Khaderi, in a method like that of Tahara, in order to test 3D visual acuity because the P300 peak corresponds to comprehension and decision making.
Regarding claim 5, Tahara discloses all of the limitations of the claim as discussed above except the cognitive peak is a P300 peak. Khaderi teaches a method where the cognitive peak is a P300 peak ([0524]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to look at the P300 peak, as taught by Khaderi, in a method like that of Tahara, because the P300 peak corresponds to comprehension and decision making.
Regarding claim 6, Tahara discloses all of the limitations of the claim as discussed above except the cognitive peak is a peak that has morphological similarity to a reference peak prepared by extracting the cognitive peak for the answer to the problem from evoked potentials obtained by measuring the event-evoked potential while repeatedly performing steps (b) and (c). Khaderi teaches a method where the cognitive peak is compared to a reference peak by looking at the changes in amplitude while repeating the measuring process (Figure 19, [0524]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to compare the cognitive peak to a reference peak from repeated measurements of event evoked potential, as taught by Khaderi, in a method like that of Tahara, to more accurately locate cognitive peaks and reduce error due to noise.
Regarding claim 9, Tahara discloses all of the limitations of the claim as discussed above except the determination of the 3D visual acuity creates a reference arranged by statistically processing the accumulated measurement time data, and expresses the 3D visual acuity in one or more selected from percentage and grade by comparing the time measured from the subject with the reference. Khaderi teaches a method where a model distribution of reaction times to a stimulus is used as a reference and if a subject’s reaction time differs from the estimate by more than a certain percentage, the reaction is considered slow ([0452]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to compare subject reaction time to a reference using a percentage, as taught by Khaderi, in a method like that of Tahara, as the percentage can be used to find slow reaction times, which indicate a lower 3D visual acuity.
Regarding claim 16, Tahara discloses all of the limitations of the claim as discussed above except utilizing one or more sensors or cameras that measure and record a direction of a subject’s pupil and face. Khaderi teaches a method where one or more cameras record a subject’s pupil and face direction (Figure 3, [0360], [0396]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have cameras record a direction of a subject’s face and pupil, as taught by Khaderi, in a method similar to that of Tahara, to supplement data from the EEG measurement in order to have a more accurate assessment of visual acuity.
Regarding claim 17, Tahara discloses all of the limitations of the claim as discussed above except the sensor or camera includes a function of detecting subject’s eye blinking. Khaderi teaches a method where a camera detects a subject’s eye blinking ([0382]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have a camera that can detect blinking, as taught by Khaderi, in a method similar to that of Tahara, to obtain more data that can be used to determine visual acuity.
Regarding claim 18, Tahara discloses all of the limitations of the claim as discussed above except the sensor or camera detects the subject's eye blinking to determine a time the 3D image is displayed. Khaderi teaches a method where a sensor detects a subject’s blinking to determine when a stimulus is displayed ([0382]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to use eye blinking to determine the time that a 3D image is displayed, as taught by Khaderi, in a method similar to that of Tahara, in order to more accurately measure the time it takes a subject to answer the problem provided.
Claims 10 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Tahara in view of Whang et al. (US 20180220885 A1), hereinafter Whang.
Regarding claim 10, Tahara discloses all of the limitations of the claim as discussed above except when the answer received from the subject in step (c) above is incorrect, a retest is performed. Whang teaches a method where participants viewing a stereoscopic image performed a cognitive task, which was conducted until the participant reached an answer accuracy of 80% or higher ([0055]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to perform a retest when the subject answers incorrectly, as taught by Whang, in a method like that of Tahara, in order to get cognitive peaks that accurately reflect visual acuity.
Regarding claim 15, Tahara discloses all of the limitations of the claim as discussed above except the brain wave measurement is performed by presenting a video that attracts a subject's attention or by providing compensation for a subject's concentration. Whang teaches a method where subjects view a stereoscopic video while an EEG records their brain activity ([0055], [0056]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to use a video to test 3D visual acuity, as taught by Whang, in a method like that of Tahara, to get a more accurate evaluation of 3D visual acuity.
Claims 11, 13, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Tahara in view of Reichow et al. (US 20110304818 A1), hereinafter Reichow.
Regarding claim 11, Tahara discloses all of the limitations of the claim as discussed above except step (b) above further comprises having the subject wear 3D glasses. Reichow teaches a method wherein a subject is provided with 3D glasses (Figure 11, [0071]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to have the subject wear 3D glasses, as taught by Reichow, in a method like that of Tahara, because 3D glasses allow the subject to view the stereoscopic image.
Regarding claim 13, Tahara discloses all of the limitations of the claim as discussed above except before providing the 3D image in step (b), a plane image with binocular disparity removed from the 3D image to be provided to the subject is first provided, and the plane image is converted into the 3D image while the subject is viewing the plane image provided. Reichow teaches a method where a plane image without binocular disparity is first provided and the image is converted into an anaglyphic image while the subject is viewing the plane image (Figure 8, [0067]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to provide a plane image and covert it to a 3D image while the subject is viewing, as taught by Reichow, in a method like that of Tahara, in order to test the subject’s 3D visual acuity more accurately.
Regarding claim 19, Tahara discloses all of the limitations of the claim as discussed above except the plane image from which the binocular disparity has been removed is either a left image or a right image of the 3D image to be presented to the subject. Reichow teaches that the plane image with binocular disparity removed can be either a left image or a right image (Figure 8, [0067]). It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to provide a subject with a plane image which is a left or right image, as taught by Reichow, in a method like that of Tahara, to prepare the subject for viewing the 3D image, which allows for a more accurate test of 3D visual acuity.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EMILY R UCHITEL whose telephone number is (571)305-5153. The examiner can normally be reached Mon-Fri from 8:30am – 5:00pm.
Examiner interviews are available via a variety of formats. See MPEP § 713.01. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Marmor, can be reached at telephone number (571) 272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLES A MARMOR II/ Supervisory Patent Examiner
Art Unit 3791
/EMILY R UCHITEL/Examiner, Art Unit 3791
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