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 § 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 a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Each of Claims 1-20 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1-20 recites at least one step or instruction for motion performance estimation in Claims 1, 7 and 8, which is grouped as a mental process under the 2019 PEG or a certain method of organizing human activity under the 2019 PEG. Accordingly, each of Claims 1-20 recites an abstract idea.
Specifically, Claim 1, 7 and 8 recites a device and method that outputs a success score (index) by comparing a subject’s eye movements (microsaccades) across two different visual scenarios, the first being where they look at an object at a first angle and a second being where they look at an object at a second angl (observation, judgment or evaluation, which is grouped as a mental process under the 2019 PEG);
Further, dependent Claims 2-6 and 9-20 are 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.
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Step 2A, Prong 2
The above-identified abstract idea in each of independent Claims 1, 7 and 8 (and their respective dependent Claims 2-6 and 9-20) is not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claims1, 7 and 8), 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 computer processor are generically recited computer elements in independent Claims 1 and 8 (and their respective dependent claims) 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 1 and 8 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG. It is noted that Claim 7 and respective dependent claims completely lack structure.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer (e.g., computer processor 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 1, 7 and 8 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claims 1, 7 and 8 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B
None of Claims 1-20 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 processor. The above-identified additional elements are 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.
Accordingly, in light of Applicant’s specification, the claimed term processor 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 processor. 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 1-20 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 apparatus and method of Claims 1-20 are 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 1-20 provide 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 1, 7 and 8 (and their 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 instruct the practitioner to 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 1-20 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 1-20 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1-20 are not patent eligible and rejected under 35 U.S.C. 101.
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) 1-5, 7-13 and 15-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Microsaccades precisely relocate gaze in high visual acuity task to Ko et al. (hereinafter, Ko).
Regarding Claims 1, 7 and 8, Ko discloses a motion performance estimation device, method, and a computer readable non-transitory recording medium storing a computer executable program to cause a computer to (see Apparatus, p. 1554, col. 1) inter alia:
obtaining and outputting an index, the index representing motion performance (motion performance being the detection microsaccades, p.1550, col. 1) of a subject on a basis of a difference (the comparison in microsaccades in fixed vs. free needle threading) between a first feature amount of a microsaccade of the subject (measured microsaccades during fixed needle threading, p.1550, col. 1) when performing a first task (fixed needle threading, p.1550, col. 1) according to movement of a first object (first moving needle used during fixed needle threading – eye fixation only on eye of needle) and a second feature amount of the microsaccade of the subject (measured microsaccades during free needle threading, p.1550, col. 1) when performing a second task according to movement of a second object (second moving needle used during free needle threading – when the subject is free to move their eyes and look at needle and thread), wherein a first magnitude of a first visual angle formed by the first object in an eye of the subject is distinct from a second magnitude of a second visual angle formed by the second object in the eye of the subject (p. 1550, cols.1-2 and p. 1554, col. 2, fixed needle threading is a first distinct magnitude because the subject is “maintaining accurate fixation on the eye of the needle, i.e., magnitude is effectively 0 and free needle threading is a second distinct magnitude because the subject can look about freely at the needle and thread, and around to 31’).
Regarding Claims 2, 10 and 16, Ko discloses the motion performance estimation device according to claim 1, wherein a first feature amount based on the microsaccade includes a third feature amount (e.g., “frequency”) representing an occurrence frequency or an attenuation coefficient of the microsaccade (“frequency”, p. 1550, col. 1, “…the probability of correcting the vertical position of the thread decreased with the microsaccade frequency at the end of the trial. That is, microsaccade rates reached their minimum at a time at which observers no longer adjusted the position of the thread.”).
Regarding Claims 3, 11 and 17, Ko discloses wherein the obtaining and outputting further comprise obtaining the index, the index represents that motion performance of the subject is at a first level when a difference in the third feature amount between the subject performing the first task according to movement of the first object and the subject performing the second task according to movement of the second object is equal to or less than a first threshold, and the obtaining and outputting further comprise obtaining the index, and the index represents that motion performance of the subject is at a second level that is lower than the first level when a difference in the third feature amount is larger than the first threshold (As previously established, first and second tasks are performed, with movement of their individual first and second objects (i.e., fixed needle threading with first needle vs. free needle threading with second needle). Under BRI, the claim is setting forth a process of determining if the third feature amount (e.g., detected frequency) is above or below a threshold during the first and second tasks. Ko sets forth at p. 1550, col. 2 that rate (e.g., frequency) of microsaccades are greater during free needle threading than fixed needle threading. The comparison of frequencies/rate during fixed needle threading vs. free needle threading and the known conditions of when a frequencies/rate is either a fixed or free needle threading reads on an index representing whether the detected frequencies/rate are indicative of either fixed or free needle threading during various consecutive tests).
Regarding Claims 4, 12 and 18, Ko discloses the motion performance estimation device according to claim 1, wherein the first feature amount based on the microsaccade includes a third feature (e.g., “amplitude”) amount representing an occurrence frequency or an attenuation coefficient of the microsaccade, and a fourth feature amount representing an amplitude or a unique angular vibration frequency of the microsaccade (“amplitude” p. 1550, col. 2 “In contrast, the amplitudes of saccades were spread more uniformly in free viewing, a condition in which saccades were more frequent than during the threading task…”).
Regarding Claims 5, 13 and 19, Ko discloses the motion performance estimation device according to claim 4, wherein the obtaining and outputting further comprises: obtaining the index, the index represents that motion performance of the subject is at a first level when a difference in the fourth feature amount between the subject performing the first task according to movement of the first object and the subject performing the second task according to movement of the second object is equal to or more than a second threshold and a difference in the third feature amount is equal to or less than a first threshold, and obtaining the index, the index represents that motion performance of the subject is at a second level that is lower than the first level when a difference of the fourth feature amount is equal to or more than the second threshold and a difference in the third feature amount is larger than the first threshold (As previously established, first and second tasks are performed, with movement of their individual first and second objects (i.e., fixed needle threading with first needle vs. free needle threading with second needle). Under BRI, the claim is setting forth a process of determining if the fourth feature amount (e.g., detected amplitude) is above or below a threshold during the first and second tasks. Ko sets forth at p. 1550, col. 2 that amplitudes of microsaccades were spread more uniformly in free needle threading than fixed needle threading. The comparison of amplitudes during fixed needle threading vs. free needle threading and the known conditions of when an amplitude is either a fixed or free needle threading reads on an index representing whether the detected amplitudes are indicative of either fixed or free needle threading during various consecutive tests).
Regarding Claims 9 and 15, Ko discoses wherein the difference between the first feature amount and the second feature amount indicates a size of an attention range of the subject (Ko discloses that the first task is fixed and the subject’s attention is restricted to the eye of the needle whereas the second task is free and the subject can look across a larger area, the different is microsaccade features between these tasks identifies the size of attention range), and the size of the attention range of the subject correlates with a reaction speed of the subject (Furthermore, Ko teaches that this attention shift correlates with reaction speed, as subjects were more likely to correct the threads position within one second of a microsaccade than before it (see p. 1150, col. 1 and p. 1551, col. 2).
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 6, 14 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ko.
Ko discloses the claimed invention except for expressly disclosing the motion performance estimation device according to claim 4, wherein the obtaining and outputting further comprises: obtaining the index, the index represents that motion performance of the subject is at a first level when a ratio of a difference in the third feature amount to a difference in the fourth feature amount between the subject performing the first task according to movement of the first object and the subject performing the second task according to movement of the second object is equal to or less than a third threshold, and obtaining the index, wherein the index represents that motion performance of the subject is at a second level lower than the first level when the ratio is larger than the third threshold.
However, it is noted that it is already disclosed above that Ko discloses that the third feature (e.g., frequency/rate) is a key identifier for the task type, and it shows that when the subject is free, the frequency is significantly higher than when they are fixed (p. 1550, col. 2) and discloses the fourth feature (e.g., amplitude) is also a key identifier for the task type, and it shows that when the subject is fixed, amplitudes are highly clustered, but when free, they are scattered (p. 1550, cols. 1-2) – therefore, the researchers are using frequency/rate and amplitude distribution to demonstrate that the eye behaves differently depending on the task. One having an ordinary skill in the art at the time the invention was filed would have found it notoriously obvious that Ko uses both frequency/rate and amplitude to determine task type, because any system measuring multiple feature amounts to determine a task type would use all available data to determine threading type. While Ko does not expressly disclose that determination is a ratio based on frequency/rate and amplitude, this concept would have been one of any number of concepts to quantify multiple microsaccade data into a single metric to be compared to a threshold, to determine if the threading falls into fixed or free. This is especially obvious since the both the frequency/rate data and the amplitude data are already compared to a threshold – such modification of Ko would essentially be duplication of essential working parts, because it is simply a repetition of comparing computer values to a threshold with combined third and forth features into a single ratio for threshold comparison.
Conclusion
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/SEAN P DOUGHERTY/Primary Examiner, Art Unit 3791