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 .
Response to Arguments
The rejections of the office action of 10/23/25 have been overcome. However, a new rejection has been given as set forth below. Consequently, this office action is not made final.
Claim Rejections - 35 USC § 101
Claims 1-18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1
Claims 1-9 are for a device, and claims 10-18 are for a computer readable medium, storing instructions. Thus, the claims are for statutory subject matter.
Step 2a, prong 1
Claim 1 includes a determination unit that compares brain a activity threshold and an index value ratio. This step is considered to be an abstract idea in the form of a mental process. That is, the determination can be performed in the user’s head. Further, the courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation. See, e.g., Benson, 409 U.S. at 67, 65, 175 USPQ at 674-75, 674 (noting that the claimed "conversion of [binary-coded decimal] numerals to pure binary numerals can be done mentally," i.e., "as a person would do it by head and hand."); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1139, 120 USPQ2d 1473, 1474 (Fed. Cir. 2016) (holding that claims to a mental process of "translating a functional description of a logic circuit into a hardware component description of the logic circuit" are directed to an abstract idea, because the claims "read on an individual performing the claimed steps mentally or with pencil and paper"). Nor do the courts distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer. As 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). See also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318, 120 USPQ2d 1353, 1360 (Fed. Cir. 2016) (‘‘[W]ith the exception of generic computer-implemented steps, there is nothing in the claims themselves that foreclose them from being performed by a human, mentally or with pen and paper.’’); Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324, 117 USPQ2d 1693, 1699 (Fed. Cir. 2016) See MPEP 2106.04(a).
Claim 10 also includes a determination unit that compares a brain activity threshold and an index value ratio, and thus includes an abstract idea.
Step 2a, prong 2
Claim 1 also includes a chaos index value calculation unit, a reference value data retention control unit, and a determination target chaos index value calculation unit and an index value ratio calculation unit. These are all used to gather and produce data for use with the abstract idea. Thus, they do not integrate the abstract idea into a practical application since they do not improve the functioning of a computer or technical field, or treat a particular medical condition. Further, use of 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 integrate a judicial exception into a practical application or provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). See MPEP 2106.05(f).
Claims 2-9 also only set forth further details of the data gathering steps, and further details about the abstract idea itself. Thus, there are no elements that integrate the abstract idea into a practical application. Claim 10, similar to claim 1, also includes data gathering steps, separate from the abstract idea itself. Thus, there are no elements that integrate the abstract idea into a practical application. Claims 11-18 also, similar to claims 2-9, only set forth further details of the data gathering steps, and further details about the abstract idea itself. Thus, there are no elements that integrate the abstract idea into a practical application.
Step 2b
The above claims include calculation units and control unit. These elements are described in applicant’s specification as being a computer. Computers are considered to be well understood, routine and conventional in the art. For example, Minusa (2024/0282414) teaches a processor and storage along with various evaluation units, as well as a sensor to measure RRI, see figure 1. Also, Tanaka (2023/0211780) teaches processor, memory and sensors that determine RRI.
Allowable Subject Matter
The prior art does not teach the device set forth in claims 1,10 including a chaos index calculation unit for calculating a chaos index, a determination target chaos index value calculation unit, an index value calculation unit and a determination unit as set forth in the claims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Scott M. Getzow whose telephone number is (571)272-4946. The examiner can normally be reached M-F 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Klein can be reached at 571-270-5213. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Scott M. Getzow/Primary Examiner, Art Unit 3792
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