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 .
Response to Amendment
Receipt is acknowledged of the amendment filed 3/16/2026. Claims 1, 3-15, and 17 are amended, claims 2 and 16 are cancelled, and claims 1, 3-15, and 17 are currently pending.
Election/Restrictions
Amended claims (Claims 11-15) directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: previously presented versions of these claims were substantially indistinguishably limited relative to the apparatus claim (Claim 1) and now provide distinct inventions considered a serious burden to examination.
For Claim 1 and Claim 11, the structure previously presented in Original Claim 2 distinguishes from the method of use in Claim 11 in that an apparatus limited as including a sensor capable of performing a function (i.e. responding to a condition) is distinct from a method requiring “determining, using the controlling circuit, the deviation of the body posture response information to the reference”. Further, Claim 15 has been amended to detail the structure of the non-transitory computer-readable medium with language that was neither required in the originally-filed and elected invention nor an obvious variant thereof. In particular, previously presented inventions did not require command signals causing display, did not limit measurement to “when the subject is wearing the eyewear”, did not limit further modifying a visual balance based on posture deviation.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 11-15 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Interpretation
Claims recite “the eyewear being configured to modify a visual balance between the left visual stimulus via the left side of the eyewear and the right visual stimulus via the right side of the eyewear”, phrasing that is at issue in the 3/16/2026 Remarks. It is noted that the claims are given their broadest reasonable interpretation in light of the Specification according to a person having ordinary skill in the art. As an example of modifying a visual balance Applicant discloses, for example, “the modification in visual balance may include a translation, or a rotation of at least one of the left visual stimulus and the right visual stimulus”, “the modification in visual balance may include a change in the luminance of at least one of the left visual stimulus and the right visual stimulus”, “the modification in visual balance may include a change in the contrast of at least one of the left visual stimulus and the right visual stimulus”, “the modification in visual balance may include a change in the spatial frequency content of at least one of the left visual stimulus and the right visual stimulus”. It is noted that the language includes the following species: changes in translation, luminance, contrast, or spatial frequency of (1) the left visual stimulus, (2) the right visual stimulus, or (3) both the left and the right visual stimuli. To a person having ordinary skill in the art, these exemplary species of a modification in visual balance are characteristics of every virtual image display providing left and right video images. In [0068], Applicant discloses “translation” as “geometric translation in Euclidean geometry” – describing a moving image. In [0072], Applicant discloses modifying luminance as “the luminance of the original image 450 may be modified, for example, may be decreased or increased to produce the modified image 452” – describing a moving image. In [0073], Applicant discloses “contrast” as “difference in the color (e.g. greyscale differentiation) and brightness of an object in relation to other objects in the same field of view of a given image” – describing a moving image. In [0074], Applicant discloses “spatial frequency” as “periodic distributions of light and dark within a field of view of a given image” – describing a moving image. Additionally, Applicant provides a more detailed example of modifying visual balance in [0085] including “the modification in visual balance 310 may provide a visual stimulus 116′ which favors the weaker eye (e.g. left eye), for instance by strengthening the signal (e.g. increasing the contrast and thus providing a contrast offset) of the left visual stimulus 112′”. In other words, there is a specie of modifying “visual balance between the left visual stimulus via the left side of the eyewear and the right visual stimulus via the right side of the eyewear” that effectuates separate adjustments and controls of the displays resulting in a “contrast offset”, i.e. a difference between that which is displayed to the left and to the right eye. Though “visual balance” does not require a visual imbalance or contrast between left and right stimuli. Further, modifying a visual balance between the stimuli does not require moving into or out of a state of contrast between the left and right stimuli. Under the broadest reasonable interpretation of the claim, utilizing a moving image to alleviate visual imbalance or disequilibrium.
The breadth of the claimed modification of visual balance unquestionably includes separate adjustments to the left and right displays controls resulting in an offset of values (e.g. contrast, luminance, spatial frequency, etc.), but also includes a scope extending to the discloses “translation, or a rotation of [both] the left visual stimulus and the right visual stimulus” – which appears to be beyond the scope of that which is argued in the 3/16/2026 Remarks. Examiner recommends amendments excluding the modification of both left and right stimuli to provide visual balance, e.g. “wherein the modified visual balance comprises a change in luminance of [at least one of] the left visual stimulus [and] or the right visual stimulus, and not the left visual stimulus and the right visual stimulus simultaneously” (Claim 4).
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 1, 3-10, and 17 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.
Claim 1 recites “an eyewear delivering a left visual stimulus via a left side of the eyewear and a right visual stimulus via a right side of the eyewear, the eyewear being configured to modify a visual balance between the left visual stimulus via the left side of the eyewear and the right visual stimulus via the right side of the eyewear; a sensor configured to measure a body posture of a subject's body of a subject when the subject is wearing the eyewear, the sensor being configured to measure the body posture in response to the modified visual balance by the eyewear; and a controlling circuit operably couplable to the eyewear and to the sensor, so that when operably coupled, the controlling circuit …determines a deviation of the body posture response information to a reference based on the left visual stimulus and the right visual stimulus”. The amended claim adds a recitation of “left visual stimulus” and “right visual stimulus” that does not allow for definite metes and bounds of the claimed invention. Referring to Applicant’s Figs. 7-8, the correspondence between that which is provided to the eyes by the eyewear and the body posture is critical to the definition of the invention in the iterative process to remedy that which posture deviation indicates. The claim phrase “determines a deviation … to a reference based on the left visual stimulus and the right visual stimulus” does not clearly define a scope of invention as it is unclear whether the visual stimuli limiting the claimed controller references an initial stimuli or corrected/modified stimuli. This is not a matter of breadth as the distinct interpretations of the phrasing result in mutually exclusive inventions. Under a first interpretation, determining a body posture deviation is “based on” initial visual stimuli and the adjective clause “based on the left visual stimulus and the right visual stimulus” is not understood to modify “a reference”. Under a second interpretation, determining a body posture deviation is “based on” modified visual stimuli, the adjective clause “based on the left visual stimulus and the right visual stimulus” may be understood to modify “a reference”, but the meaning of “deviation” becomes unclear unless the modification of visual balance is ineffective at effectuating a change in body posture. For the latter, the process implies an iterative approach in which visual balance is modified, body posture is measured and determined to be below a threshold distance from a reference, and visual balance is further modified. It would seem more appropriate to determine whether a current body posture, the current body posture determined at a time after modifying the visual balance, deviates from a reference body posture.
Claim 11 is indefinite on analogously grounds for improper antecedence related to “the left visual stimulus”, “the right visual stimulus”, “the body posture”, and “the reference”.
Claims 3-10 are rejected as dependent claims failing to cure the deficiencies of the base claim.
Claim 10 recites the limitation " the eyewear further comprises a filter, wherein the eyewear is coupled to an external display which displays an image, and wherein the filter is configured to alter a property of the image such that the visual stimulus is displayed as the left visual stimulus and the right visual stimulus and to modify the visual balance between the left visual stimulus and the right visual stimulus" in Lines 6-11. A person having ordinary skill in the art would not understand the metes and bounds of the claimed invention so-limited. The language muddles that which would be understood of the system structure as it relates to the filter, the function of filtering, the eyewear sides, the image provided by the external display, and respective visual stimuli impinging on the left and right eyes. According to the Specifications Fig. 6 and [0088]-[0090], passive or active filter 610 may alter a property of the visual stimuli output by the display 620 upon interaction with the filter 610 such that respective left stimulus 112 and right stimulus 114 impinging on the eyes is altered. The claim language fails to capture this in the amended form of the claim because it does not clearly establish that which is output, that which is altered, and that which impinges on respective eyes. One recitation frustrating clarity of the metes and bounds is the singular form of “filter” with respect to the eyewear, the image, the visual stimulus, the left visual stimulus and the right visual stimulus. There is no clear structure capable of the disclosed modification of visual balance between stimuli (e.g. adjusting values of respective contrast, luminance, etc. such that there is an off-set between left and right stimuli) with a single filter that filters uniformly. It is evident from Applicant’s disclosure that distinct structures capable of distinctly filtering the incoming light/image are required to provide two distinct visual stimuli to respective eyes. So while Applicant is entitled to refer to the combination of these distinct structures as “a filter” (Claim 10), the system is indefinite as the functionality of the distinct structures is muddled by the pending language.
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.
Claim 1, 3-4, 6-9, and 17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Pat. No. 10,684,469 to Smith et al. (hereinafter Smith).
Regarding claim 1, Smith discloses a system (e.g. Figs. 2-4) for detecting a body response to a visual stimulus, comprising: an eyewear (head-mounted display, Figs. 2-4) delivering a left visual stimulus via a left side of the eyewear and a right visual stimulus via a right side of the eyewear (display area 323-1 and display area 323-2, Fig. 3); the eyewear is configured to modify a visual balance between the left visual stimulus via the left side of the eyewear and the right visual stimulus via the right side of the eyewear (“modifying, in response to detecting a condition associated with motion sickness or visual fatigue, an operating parameter for the head-mounted display to, at least partially, mitigate the detected condition”; col. 16, ll. 36-col. 17, ln. 18); a sensor (inertial measurement unit 326 and eye tracking sensors 324-1 and 324-2, Fig. 3) configured to measure a body posture of a body of the subject when the subject is wearing the eyewear (“eye tracking sensor 324-1 may capture eye tracking information associated with the user's right eye and eye tracking sensor 324-2 may capture eye tracking information associated with the user's left eye. The eye tracking information may include one or more of a position of an eye, a location of an eye, a pupil location of an eye, an ocular center of an eye, an angle of an eye, and a direction of gaze of an eye (sometimes referred to herein as eye gaze tracking data), and other types of eye tracking information” and “inertial measurement unit 326 may include an accelerometer, a gyroscope, a magnetometer, an optical sensor, a global position system (GPS) device, or other types of devices. In various embodiments, the information provided by inertial measurement unit 326 may include a position of head-mounted display device 300, an orientation of head-mounted display device 300, a respective linear acceleration of head-mounted display device 300 in each of six degrees of freedom or axes, and/or an angular velocity of head-mounted display device 300”; col. 13, ll. 30-67), wherein the sensor further measures the body posture of the subject in response to the modification of the visual balance by the eyewear (col. 15, ln. 29-col. 17, ln. 18).; and a controlling circuit (information handling system 102 and SLAM subsystem 428, Figs. 2-5) operably couplable to the eyewear and to the sensor (Figs. 2-4), so that when operably coupled, the controlling circuit: receives measurements of the body posture from the sensor (e.g. Step 504 and calibration; col. 13, ll. 30-67 and col 15, ln. 29-col. 16, ln. 35); provides a body posture response information based on the measurements of the body posture (gradient threshold; col. 13, ll. 30-67 and col 15, ln. 29-col. 16, ln. 35); and determines a deviation of the body posture response information to a reference (gradient threshold based on calibration; col. 13, ll. 30-67 and col 15, ln. 29-col. 16, ln. 35), wherein based on the left visual stimulus and the right visual stimulus (eye-tracking and orientation analyzed with deviations from axes aligned with stimuli; col 15, ln. 29-col. 16, ln. 35).
Regarding claim 3, Smith discloses the modified visual balance comprises one or more of a translation (“expanding the field of view (810) may reduce the perception of speed and decrease motion sickness… to determine motion parallax on augmented and real world objects and, in response, a motion sickness controller, such as motion sickness controller 460 illustrated in FIG. 4… may modify the effective field of view of the head-mounted display device to mitigate any motion sickness or visual fatigue induced or enhanced due to motion parallax”; col. 19, ll. 39-55), a rotation, a slant of at least one of the left visual stimulus and the right visual stimulus. See Claim Interpretation Section above.
Regarding claims 4 and 17, Smith discloses the modified visual balance comprises a change in luminance, of at least one of the left visual stimulus and the right visual stimulus (“a certain degree of movement (e.g., movement with respect to six degrees of freedom: fore-aft (x-axis), lateral (y-axis), vertical (z-axis), yaw, pitch, and roll) … sudden and/or oscillatory changes in pitch and roll (independently or combined) can lead to motion sickness in a head-mounted display device wearer. Also, sudden and/or oscillatory changes in fore-aft (x-axis), lateral (y-axis), vertical (z-axis) movement can lead to motion sickness”; col. 9, ln. 56-col. 10, ln. 7). Moving images presented by the display areas 323-1 and 323-2 of display 322 necessarily change luminance in left and right stimuli.
Regarding claim 6, Smith discloses wherein the modified visual balance comprises a change in spatial frequency content, of at least one of the left visual stimulus and the right visual stimulus (“calculating, dependent on the timing data, frame rates for the head-mounted display device in terms of frames per second, applying a hysteresis-based averaging of the frame rates, and determining that the hysteresis-based average of the frame rates is less than a predetermined target frame rate”, “by narrowing the effective field of view, the spatial quality and/or the refresh rate of the displayed content may be improved, which may mitigate against any motion parallax that is happening”, “if it is determined that the IMU data with respect to one or more of the six degrees of freedom or axes is changing at a rate faster than the rate corresponding to their respective gradient threshold values, this may indicate the existence of a condition associated with motion sickness or visual fatigue”; col. 11, ll. 43-47 & col. 19, ll. 23-28).
Regarding claim 7, Smith discloses measurements of the body posture comprise a set of measurements of a first displacement in a first direction and a second displacement in a second direction (“inertial measurement unit 426 including six-degree-of-freedom sensors 430” and “this technique may be used to determine the gradient thresholds to be associated with each of the six degrees of freedom or with other measurements”; col. 15, ln. 29-col. 16, ln. 35), wherein the first direction is medial-lateral, wherein the second direction is anterior-posterior and perpendicular to the first direction (col. 15, ln. 29-col. 16, ln. 35).
Regarding claim 8, Smith discloses the body posture response information is based on: (i) the first displacement ; (ii) the second displacement; (iii) a ratio between the first displacement and the second displacement; or (iv) a combination thereof (“inertial measurement unit 426 including six-degree-of-freedom sensors 430” and “this technique may be used to determine the gradient thresholds to be associated with each of the six degrees of freedom or with other measurements”; col. 15, ln. 29-col. 16, ln. 35).
Regarding claim 9, Smith discloses the controlling circuit is further configured to determine a set of adjustment values and to modify the visual balance between the left visual stimulus and the right visual stimulus, to minimize the deviation between the body posture response information and the reference, or to reach the reference (“in response to determining that a condition associated with motion sickness or visual fatigue exists, an operating parameter for the head-mounted display device to mitigate the detected condition”, “Detecting the condition may also include determining that, for at least one of the six degrees of freedom or axes, the gradient exceeds a gradient threshold value for the corresponding degrees of freedom or axis… the gradient threshold value may be a predetermined default value, a value set through a calibration exercise, a user-specified value, or an application- or context-specific value” and “results of the calibration, e.g., the gradient threshold values, may subsequently be biased down or up based on an indication of the stressfulness or intensity of the content being displayed or based on user preferences indicating a low, medium, or high tolerance to motion sickness input through a user interface setup or configuration menu”; col. 3, ll. 24-35 & col. 15, ln. 29-col. 16, ln. 35).
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.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Smith as applied to claim 1, and further in view of CN 113031269 to Gao, et al. (hereinafter Gao).
Regarding claim 5, Smith discloses the claimed invention as cited above though does not explicitly disclose: wherein the modification in visual balance comprises a change in contrast, of at least one of the left visual stimulus and the right visual stimulus .
Gao discloses wherein the modification in visual balance comprises a change in contrast, of at least one of the left visual stimulus and the right visual stimulus (“modification of the image information includes: … increasing or reducing the pixel of the image information, or changing the brightness of the image information, color saturation or contrast …[t]he theory of most explaining the vertigo pathogenic is the theory of feeling the conflict and the theory of unstable posture”).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to change image contrast as taught by Gao with the system as disclosed by Smith. The motivation would have been to reduce the feeling of visual conflict and therefore posture imbalance.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Smith as applied to claim 1, and further in view of US Pat. 6,932,090 to Reschke et al. (hereinafter Reschke).
Smith discloses the claimed invention as cited above though does not explicitly disclose a filter.
Reschke discloses the eyewear further comprises a filter (shutter lens 12, Figs. 1 & 3), wherein the eyewear is coupled to an external display which displays an image (Figs. 1 & 3), and wherein the filter is configured to alter a property of the image such that the visual stimulus is displayed as the left visual stimulus and the right visual stimulus (Figs. 1 & 3; col. 9, ln. 57-col. 12, ln. 13), and to modify the visual balance between the left visual stimulus and the right visual stimulus (“to treat a variety of neuro-vestibular problems, ranging from balance disorders to postoperative recovery from head trauma or 8.sup.th cranial nerve damage (including surgical intervention)”).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to provide a filter as taught by Reschke with the system as disclosed by Smith. The motivation would have been to open for brief moments at a desired rate to permit the user to view the visual environment while simultaneously preventing image slip on the retina (col. 11, ll. 28-33).
Response to Arguments
Applicant's arguments filed 3/16/2026 have been fully considered but they are not persuasive.
On page 13 of the Remarks, Applicant argues “[r]educing the rendering resolution, spatial quality, or the effective field of view, as discussed in Smith, are global and symmetrical modifications applied to the entire rendering pipeline”. Discussed in the 35 U.S.C. 112 and Claim Interpretation sections above, “modifying the visual balance between the left visual stimulus and the right visual stimulus” is not as narrowly constructed as Applicant contends in the Remarks. In summary, a video display in which resolution, spatial quality, and/or field of view of a video display aimed to stabilize the wearer’s equilibrium and posture are within the broadest reasonable interpretation of “modifying the visual balance between the left visual stimulus and the right visual stimulus”. The claim does not capture an algorithmic solution whereby a reference state of a left stimulus is changed from by a different amount than a change of a reference state of a right stimulus. For example, the claim does not require a left-eye contrast ratio to be changed from a first ratio to a second ratio and a right-eye contrast ratio to be changed from a third ratio to a fourth ration, wherein the modifications are unequal. Rejections are maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER J STANFORD whose telephone number is (571)270-3337. The examiner can normally be reached 8AM-4PM PST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ricky Mack can be reached at (571)272-2333. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER STANFORD/Primary Examiner, Art Unit 2872
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