DETAILED ACTION
Notice of Pre-AIA or AIA Status.
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. Claims 1-20 filed and preliminary amended on 09/18/2023 are pending and being examined. Claims 1, 11, and 19-20 are independent form.
Priority
3. Acknowledgment is made of applicant's claim for PCT priority under 35 U.S.C. 371, where the benefit of foreign priority was further claimed.
Claim Interpretation
4. 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.
4-1. Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
4-2. 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.
4-3. 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:
“a derivation section that derives emotional information...” and “a classification section that classifies the emotional information...” in claim 1;
“a derivation section that derives emotional information...” in claim 11;
“an acquisition section that acquires at least one of biological information or action information...”, “a derivation section that derives emotional information ...”, and a classification section that classifies the emotional information...” in claim 19;
“a derivation section that derives emotional information ...” and a classification section that classifies the emotional information...” in claim 20.
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.
Claim Rejections - 35 USC § 101
5. 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.
6. Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed inventions are directed to non-statutory subject matter (an abstract idea without significantly more).
6-1. Regarding independent claim 1, the claim recites a biological information processing device comprising:
[1] a derivation section that derives emotional information about a target living body who is performing a specific task on a basis of at least one of biological information or action information acquired from the target living body; and
[2] a classification section that classifies the emotional information acquired by the derivation section on a basis of a predetermined classification index.
Step 1:
With regard to step (1), claim 1, is directed to a biological information processing device interpreted as a substitute for “means” that is a generic placeholder for performing the claimed function. The claim 1 therefore is one of statutory categories of invention, i.e., a machine and/or manufacture.
Step 2A-1:
With regard to 2A-1, The elements recited in claim 1, as drafted, under their broadest reasonable interpretation, encompass a process(es) which can be practically performed in human mind, or falls within mathematical concepts. For example, “deriv[ing] emotional information about a target living body who is performing a specific task on a basis of at least one of biological information or action information acquired from the target living body” in step [1] in the context of this claim, encompasses mental observation, evaluations, and/or judgments that can be performed in human mind, therefore the limitation falls within the “mental processes” grouping of abstract ideas. Similarly, “classify[ing] the emotional information acquired by the derivation section on a basis of a predetermined classification index” in step [2] in the context of this claim, encompasses mental observation, evaluations, and/or judgments that “can be performed in human mind, or by a human using a pen and paper”, therefore the limitation falls within the “mental processes” grouping of abstract ideas. Claim 1 therefore recites an abstract idea. If a claim limitation is directed to organizing human activity, can be practically performed in human mind, or falls within mathematical concepts, then the claim recites an abstract idea. See MPEP 2106.04(a)(2).
Step 2A-2:
The 2019 PEG defines the phrase "integration into a practical application" to require an additional element or a combination of additional elements in the claim to apply, rely on, or use the judicial exception. In the instant case, the additional elements of the “derivation section” and the “classification section” in steps [1] and [2] are recited at high level of generality and amount to no more than mere instruction to apply the exception using a generic computer. Therefore, the claim as a whole does not integrate the judicial exception into a practical application.
Step 2B:
As explained above, the biological information processing device comprising a generic computer for deriving and classifying, is at best the equivalent of merely adding the words “apply it” to the judicial exception. The claim therefore is ineligible.
6-2. Regarding dependent claims 2-10, they are viewed individually, these additional elements are under its broadest reasonable interpretation, either covers performance of the limitation in the mind, performing a mathematical algorithm or extra solution activity for data gathering and 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. And, when the claims are viewed as a whole, they do not improve a technology by allowing the technology to perform a function that it previously was not capable of performing; and they do not provide any limitations beyond generally linking the use of the abstract idea to a broad technological environment (i.e., computer-based analysis of generic data). Hence, the claimed invention does not constitute significantly more than the abstract idea, so the claims are rejected under 35 USC § 101 as being directed to non-statutory subject matter.
6-3. Regarding independent claims 11, 19, and 20, each of which essentially analogous to and even more broader than device claim 1, grounds of rejection analogous to those applied to claim 1 are applicable to claims 11, 19 and 20. Furthermore, the claim is a method that does not recite any additional elements, and according to step 2A-2 does not integrate the abstract idea into a practical application because it does not recite any additional elements that impose any meaningful limits on practicing the abstract idea. The claim recites an abstract idea.
Because the claim fails under (2A), the claim is further evaluated under (2B). The claim herein does not include any additional elements that are sufficient to amount to significantly more than the judicial exception. The claims are not patent eligible.
6-4. Regarding dependent claims 12-18 they are dependent from claim 11 and viewed individually, these additional elements are under its broadest reasonable interpretation, either covers performance of the limitation in the mind, performing a mathematical algorithm or extra solution activity for data gathering and 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. And, when the claims are viewed as a whole, they do not improve a technology by allowing the technology to perform a function that it previously was not capable of performing; and they do not provide any limitations beyond generally linking the use of the abstract idea to a broad technological environment (i.e., computer-based analysis of generic data). Hence, the claimed invention does not constitute significantly more than the abstract idea, so the claims are rejected under 35 USC § 101 as being directed to non-statutory subject matter.
Claim Rejections - 35 USC § 102
7. 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 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.
8. 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.
9. Claims 1-20 are rejected under 35 U.S.C. 102(a) as being anticipated by Noguchi (EP2111796, hereinafter “Noguchi”).
Regarding claim 1, Noguchi discloses a biological information processing device (the arousal state classification model generating device, see para.001; the hardware related features can be found by fig.3 and the corresponding paragraphs) comprising:
a derivation section that derives emotional information about a target living body who is performing a specific task on a basis of at least one of biological information or action information acquired from the target living body (wherein the emotion state of a person is derived by the arousal state information data which are obtained on the basis of the number of blinks of the person during a specific test, see fig.9, para.86-87); and
a classification section that classifies the emotional information acquired by the derivation section on a basis of a predetermined classification index (wherein the emotion states of a person are classified into three classes: the high
arousal state, the state of fighting against falling asleep, and the low arousal state; see para.87).
Regarding claim 2, Noguchi discloses the biological information processing device according to claim 1, further comprising an evaluation section that evaluates the target living body on a basis of a classification result by the classification section (the emotion state of the person may be in the high arousal state, in the state of fighting against falling asleep, or in the low arousal state; see para.87).
Regarding claim 3, 12-15, Noguchi discloses, further comprising a storage section, wherein every time the derivation section acquires the emotional information, the classification section stores, in the storage section, the classification result by the classification section in association with an identifier of the target living body, and the evaluation section selects a plurality of the identifiers suitable to constitute a specific group, on a basis of a plurality of the classification results stored in the storage section (see “the arousal state pattern model storage unit 92” and “the arousal state classification unit 93” in fig.11 and para.93-para.96; see the “the number of blinks” vs “the arousal state information data” obtained from the specific person to be tested and recorded in fig.9; see pg.14, lines 55-58: “the arousal state information data shown in FIG. 9 is used, in such a manner that the arousal state of an object person during an experiment is represented by three states of a high arousal state, a state of fighting against falling asleep, and a low arousal state based on a result speculated from the classification, consideration, and observation record using the physiological and biological data in the experiment.”).
Regarding claim 4, Noguchi discloses the biological information processing device according to claim 1, further comprising a storage section, wherein the derivation section derives a feature amount corresponding to the classification index, on a basis of the emotional information, and stores, in the storage section, the derived feature amount in association with an identifier of the target living body (ibid.).
Regarding claim 5, Noguchi discloses the biological information processing device according to claim 4, further comprising an image data generator that generates image data in which the classification index and the feature amount are associated with each other (see the graphic image indicate the relationship between “the number of blinks” and “the arousal state information data” obtained from the specific person to be tested and recorded in fig.9).
Regarding claim 6, Noguchi discloses the biological information processing device according to claim 4, wherein the derivation section derives time series data as the emotional information, and stores, in the storage section, the derived time series data in association with the identifier of the target living body (see the graphic image indicate the relationship between “the number of blinks” and “the arousal state information data” obtained from the specific person to be tested and recorded in fig.9).
Regarding claim 7, Noguchi discloses the biological information processing device according to claim 6, further comprising an image data generator that generates image data in which the classification index and the time series data are associated with each other (see the graphic image indicate the relationship between “the number of blinks” and “the arousal state information data” obtained from the specific person to be tested and recorded in fig.9).
Regarding claim 8, 16, Noguchi discloses, wherein the biological information comprises information about a brain wave, sweating, a heart rate, blood flow velocity, or a specific component contained in saliva (“brain waves”, see para.42).
Regarding claim 9, 17, Noguchi discloses, wherein the action information comprises information about facial expression, voice, or a reaction time (see “arousal” in fig.9).
Regarding claim 10, 18, Noguchi discloses, wherein the emotional information comprises at least one of an arousal level or comfort/discomfort of the target living body (see “arousal” in fig.9).
Regarding claims 11, 19, and 20, each of them is an inherent variation of independent claim 1 or an inherent variation of any of the combinations of independent claim 1 and its dependent claims, thus they are interpreted and rejected for the reasons set forth in the rejections of claims 1-10.
Conclusion
10. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
GROLEAU et al, WO 2019200474. Jawahar, et al, US 20170007165. HWOOI et al, “Deep Learning-Based Approach for Continuous Affect Prediction From Facial Expression Images in Valence-Arousal Space”, 2022. ANNOUNI et al, “Adaptive Emotion Detection Using the Valence-Arousal-Dominance Model and EEG Brain Rhythmic Activity Changes in Relevant Brain Lobes”, 2020.
11. Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUIPING LI whose telephone number is (571)270-3376. The examiner can normally be reached 8:30am--5:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, HENOK SHIFERAW can be reached on (571)272-4637. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUIPING LI/Primary Examiner, Ph.D., Art Unit 2676