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 .
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 5 – 7 and 16 – 18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim 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. With regard to claim 5, although drawn to an apparatus, the claim merely implies that a step is performed and thus it is unclear what further structural limitation is intended to be set forth. With regard to claims 6 and 16, the claims appear to be relying on a Markush group by indicating the feature “is selected from” (see MPEP 2117), but do not use the phrasing that the feature is selected from “the group consisting of” and thus do not properly recite the Markush group.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 2 – 4 and 13 – 15 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Each of claims 2, 3, 13, and 14 recite two aspects of a broader category, where taken together the two aspects cover all possible members of the broader category. As such, the dependent claims do not serve to further limit the claim from which they depend. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 – 22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims meet step 1 as they are all within at least one of the four categories. At step 2A, Prong 1, the claims recite the judicial exception/abstract idea of a processor that "receives eye tracking data”, “extracts data for one or more selected features”, “analyzes the data for the feature(s) [using a classifier to determine a condition]”, and “generates an output”. These abstract ideas are part of the Mental Processes group identified in the 2019 Revised Patent Subject Matter Eligibility Guidance published in the Federal Register (84 FR 50) on January 7, 2019 as these concepts may be performed in the human mind (including observation, evaluation, judgement and opinion). At Step 2A, Prong 2, the claims recite the additional element of using an eye tracker to track at least one of the subject’s eyes while the subject performs a viewing task (and a display device displaying visual scenes in claim 1). The additional elements are directed to a general-purpose processor and or extra-solution activity of insignificant data gathering. The additional elements do not integrate the abstract idea into a practical application because the abstract idea is simply implemented on generic computing components; the data-gathering step (obtaining) and the output do not add a meaningful limitation to the method as they are insignificant extra-solution activity; there is no improvement to a computer or other technology; there is no particular treatment or prophylaxis for a disease or medical condition; and nothing is done with the generated output. Per Step 2B, the additional elements do not amount to significantly more than the judicial exception itself, as they are well understood, routing and conventional as demonstrated by at least US 11,503,998 (see at least Fig 37A, 610, 612 and 614); US 10,413,176 (see at least 100, 110, 111 and 120), and US 9,962,119 (see at least 32 and 34).
In particular, with regards to collection of the eye tracking data under controlled display conditions/practical application, this is in the realm of merely linking the abstract idea to a field of use or technological environment. As discussed in MPEP 2106.05(h): “vi. Limiting the abstract idea of collecting information, analyzing it, and displaying certain results of the collection and analysis to data related to the electric power grid, because limiting application of the abstract idea to power-grid monitoring is simply an attempt to limit the use of the abstract idea to a particular technological environment, Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016)” and ”For instance, a data gathering step that is limited to a particular data source (such as the Internet) or a particular type of data (such as power grid data or XML tags) could be considered to be both insignificant extra-solution activity and a field of use limitation.”
Additionally, consistent with MPEP 2106.05(g), the data, while collected in conjunction with providing “at least one viewing task”, appears to merely amount to a necessary data gathering step to perform the abstract idea. “i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989)”.
Further, although the claim recites the analyzing “using a classifier”, Applicant is reminded that when determining whether a claim simply recites a judicial exception with the words “apply it” (or an equivalent), such as mere instructions to implement an abstract idea on a computer, examiners may consider: (1) whether the claim recites only the idea of a solution or outcome i.e., the claim fails to recite details of how a solution to a problem is accomplished; (2) whether the claim invokes computers or other machinery merely as a tool to perform an existing process; and (3) the particularity or generality of the application of the judicial exception. See MPEP 2106.05(f). Here, there are no details about a particular classifier or how the classifier operates to determine the condition other than that it is being used to determine the condition. The classifier is used to generally apply the abstract idea without placing any limitation on how the classifier operates to determine the condition as a function of the input signal. In addition, the limitation recites only the idea of determining the condition using a classifier without details on how this is accomplished. The claim omits any details as to how the classifier solves a technical problem, and instead recites only the idea of a solution or outcome. Also, the claim invokes a generic classifier merely as a tool for making the recited determination rather than purporting to improve the technology or a computer. See MPEP 2106.05(f). Therefore, the limitation represents no more than mere instructions to apply the judicial exception on a computer.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1 – 22 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lagun et al. (“Detecting cognitive impairment by eye movement analysis…” – cited by Applicant). Lagun et al. teaches an apparatus and corresponding method for detecting, diagnosing, and/or assessing a brain disorder in a subject [Abstract], comprising:
a display device and an eye tracker operatively connected to a processor [see section 2.1.1.]; wherein the display device displays visual scenes to the subject according to at least one viewing task [see Abstract; and Introduction section 1. discussing implementation of the VPC task including having the subject view visual stimuli on a computer screen];
wherein the eye tracker tracks at least one of the subject's eyes during the at least one viewing task and outputs eye tracking data [see section l discussing eye movements are monitored via non-invasive infrared eye tracking and section 2.1.1 indicating an ASL eye tracker was used for data collection];
wherein the processor receives the eye tracking data, extracts data for one or more selected feature, and analyzes the data for the one or more selected feature [see section 2.2-2.3; discussing determining eye movement characteristics/features];
wherein the processor analyzes data for the one or more selected feature using a classifier to determine a condition, and generates an output based on the determined condition for the one or more selected feature [see section 2.4-2.5 discussing prediction for a most likely class of the test subject is obtained (e.g. NC or MCI)];
wherein the output indicates the likelihood of the subject having a brain disorder [see section 2.4-2.5; predict whether subject has mild cognitive impairment].
Consistent with the description above, Lagun et al. discuss aspects of the viewing task signal generation [see section 1 and 2.1.1], eye tracking data collection [see section 2.2] and assessment of various features [see section 2.3], and signal processing with machine learning/SVM implementations [see section 2.5, particularly 2.5.3 discussing use of Support Vector Machines (SVM) for the classification]. Lagun et al. indicate assessment of mild cognitive impairment, generally in the context of development of Alzheimer’s Disease [see sections 2.4, Results/section 3].
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The prior art teaches additional apparatus and methods for using eye tracking to assess cognitive impairment, including De Villers-Sidani et al. (USPN 11,503,998 - cited by Applicant). Further, Mori et al. (USPN 10,413,176 – Figure 1), Port (USPN 9,895,100 – Figure 2), Macknik et al. (USPN 9,962,119 – Figures 1, 4), Tseng et al. (USPGPub 2010/0208205 – Summary), Agichtein et al. (USPGPub 2012/0059282 – Figure 4) teach additional systems for assessing cognitive status through analysis of eye movements.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC FRANK WINAKUR whose telephone number is (571)272-4736. The examiner can normally be reached Mon-Fri 9 am - 6 pm.
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/ERIC F WINAKUR/Primary Examiner, Art Unit 3791