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 .
Drawings
The drawings are objected to because
In Fig. 3 and Fig. 4, the callout number with the arched arrow in the top left corner appears to be cut-off, and the identification number is unknown.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities: at [0045] there appears to be a typographical error in “as the user is creating/metalizing the mental image” where there is an “n” missing from “mentalizing”.
Appropriate correction is required.
Claim Objections
Claim 1 is objected to because of the following informalities: for the term “engaging a subject in neurofeedback training over a time period; during each trial of the neurofeedback training:” is suggested to be revised to be “engaging a subject in neurofeedback training over a time period, the neurofeedback including one or more trials; during each trial of the neurofeedback training” for readability and consistency in the claims. Appropriate correction is required.
Claim 14 is objected to because of the following informalities: there appears to be a typographical error yielding an extra “wherein the mental image” in line 1, such that one instance “wherein the mental image” is suggested to be removed. Appropriate correction is required.
Claim 16 is objected to because of the following informalities: there appears to be a typographical error in line 2 of “short-tern memory” instead of “short-term memory”. Appropriate correction is required.
Claim 16 is objected to because of the following informalities: there appears to be a typographical error in line 1 with an extra space in “wherein”. Appropriate correction is required.
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 – 25 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 (line 6) and Claim 22 (line 7) each recite the term “the subject’s performance”. There is insufficient antecedent basis for this limitation in the claim. There is no such previously-recited performance. For the purposes of examination, the term “the subject’s performance” is deemed to claim “a performance of the subject”. Claims 2 – 21, and 23 – 25 are similarly rejected due to their dependence on Claims 1 and 22, respectively.
Claim 2 (line 2) and Claim 23 (line 2) each recite the term “the subject’s scalp”. There is insufficient antecedent basis for this limitation in the claim. There is no such previously-recited scalp. For the purposes of examination, the term “the subject’s scalp” is deemed to claim “a scalp of the subject”. Claims 3 – 5 and 24 – 25 are similarly rejected due to their dependence on Claims 2 and 23, respectively.
Claim 9 (line 2), Claim 11 (line 1 and line 2) recites the term “during the trial”. It is unclear if this is intended to be the same or different than the previously-recited each trial of the neurofeedback training. For the purposes of examination, the term “during the trial” is deemed to claim “during each trial of the neurofeedback training”.
Claim 10 (lines 1 - 2) recites the term “5 seconds after neural signals are recorded”. It is unclear if these neural signals are intended to be the same or different than the previously-recited “neural signals”. For the purposes of examination, the term “5 seconds after neural signals are recorded” is deemed to claim “5 seconds after the neural signals are recorded”.
Claim 13 (line 1) recites the term “forms a mental image”. It is unclear if this is intended to be the same or different than the previously-recited mental image. For the purposes of examination, the term “a mental image” is deemed to claim “forms the mental image”.
Claim 13 (lines 1 – 2) recites the term “wherein the subject forms a mental image without a prompt”. Looking to MPEP 2173.03, a claims may be “a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain”. The content of this claim recites a subject forming a mental image without a prompt, which would appear to encompass all independent thought. Regarding the “without a prompt” portion, it appears to be no prompt of any kind. Looking to the instant specification at [0045] “…the system 10 provides no prompt to the user regarding the content of the mental image (or even whether the mental image should be auditory, visual, tactile, or the like).” However, there is also described at [0044] a “fixation period” with “fix 42 point”, for the baseline module, which would seem to be a prompt. Additionally, the subject would be prompted to participate in the trial, in the form of instructions of wearing the headgear, etc. As such, it does not appear that the specification consistently discloses that no prompt at all is provided. For the purposes of examination, the term “wherein the subject forms a mental image without a prompt” is deemed to claim “wherein the method further comprises one or more prompt to the user to create the mental image without providing the exact content of the mental image within the prompt.”
Claim 15 (line 2) recites the term “improve the score in the future”. There is insufficient antecedent basis for this limitation in the claim. There is no particularly recited “score” previously-recited or “future”. For the purposes of examination, the term “improve the score in the future” is deemed to claim “improve a score of the subject’s performance in a future neurofeedback training trial.”
Claim 20 (lines 1 – 2) recites the term “illustrative of a success rate related to the visual working memory”. It is unclear if this is intended to be the same or different than the previously-recited success rate related to the visual working memory. For the purposes of examination, the term “illustrative of a success rate related to the visual working memory” is deemed to claim “illustrative of the success rate related to the visual working memory”. Claim 21 is similarly rejected due to its dependence on Claim 20.
The term “uniqueness of the mental image” in claim 21 is a relative term which renders the claim indefinite. The term “uniqueness” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The metes and bounds of what makes an image “unique” are not clear, and the level of uniqueness similarly cannot me ascertained. For the purposes of examination, the term “wherein the score reflects a uniqueness of the mental image or a familiarity of the mental image” is deemed to claim “wherein the score reflects a familiarity for the user of the mental image.”
Claim 22 (line 11) recites the term “a cognitive function of the subject”. It is unclear if this is intended to be the same or different than the previously-recited cognitive function. For the purposes of examination, the term “a cognitive function of the subject wherein the score reflects a uniqueness of the mental image or a familiarity of the mental image” is deemed to claim “the cognitive function of the subject”. Claims 23 – 25 are similarly rejected due to their dependence on Claim 22.
Claim 22 (line 11) recites the term “after the trial”. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this is intended to be the same or different than the previously-recited neurofeedback training trial. For the purposes of examination, the term “after the trial” is deemed to claim “after the neurofeedback training trial”. Claims 23 – 25 are similarly rejected due to their dependence on Claim 22.
Claim 24 (line 1) and Claim 25 (line 1) each recites the term “the scalp electrodes”. It is unclear if these are intended to be the same or different than the previously-recited plurality of scalp electrodes. For the purposes of examination, the term “the scalp electrodes” is deemed to claim “the plurality of scalp electrodes”.
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.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claim 1 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). The claim recites “the cognitive function of the subject improves after the time period”, which encompasses human thoughts of a human “improving”. The claim should be amended by either fully removing or revising the limitation, with an optional suggestion as “wherein the neurofeedback training is configured to improve cognitive function”. The forthcoming 101 analysis regarding Claim 1 is provided assuming that this amendment is made.
Claim 6 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). The claim recites “wherein the baseline neural activity is adaptively adjusted during the trial”, which encompasses the baseline neural activity itself of a human’s brain changing over the course of the trial. It is suggested to amend the term to be “wherein the baseline neural activity is re-calculated during the trial”. The forthcoming 101 analysis regarding Claim 6 is provided assuming that this amendment is made.
Claim 13 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). The claim recites “wherein the subject forms a mental image without a prompt”, which encompasses the independent formation of a mental image without a prompt, which is broadly human thought.
Claim 14 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). The claim recites “wherein the mental image is created based on a memory of the subject”, which encompasses human memory and recall per se.
Claims 1 - 25 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.
Regarding Claim 1, the claim recites "an act or step, or series of acts or steps" and is therefore a process, which is a statutory category of invention (Step 1). The claim is then analyzed to determine whether it is directed to any judicial exception (Step 2A, Prong 1).
Regarding Claim 22, the claim each recites an apparatus, which is one of the statutory categories of invention (Step 1). The claim is then analyzed to determine whether it is directed to any judicial exception (Step 2A, Prong 1).
Each of Claims 1 - 25 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1 - 25 recites at least one step or instruction for observations, evaluations, judgments, and opinions, which are grouped as a mental process under the 2019 PEG. The claimed invention involves making observations, evaluations, judgments, and opinions, which are concepts performed in the human mind under the 2019 PEG.
Accordingly, each of Claims 1 - 25 recites an abstract idea.
Specifically, Claims 1 - 25 recite (underlined are observations, judgments, evaluations, or opinions, which are grouped as a mental process under the 2019 PEG) (additional elements bolded, see Step 2A, prong 2);
Claim 1:
A method comprising:
engaging a subject in neurofeedback training over a time period;
during each trial of the neurofeedback training:
recording neural signals that quantify visual working memory related to a mental image using scalp electrodes;
scoring the subject's performance based on neural activity related to a cognitive function during an induction period within the neural signals; and
providing feedback to the subject based on the scoring to inform the subject of a success rate related to the visual working memory;
wherein the cognitive function of the subject improves after the time period. (or an amendment of “wherein the neurofeedback training is configured to measure improvement of cognitive function of the subject after the time period”)
Claim 22:
A system configured to engage a subject in a neurofeedback training trial, the system comprising:
a memory storing instructions; and
a processor configured to access the memory and execute the instructions to:
receive neural signals that quantify visual working memory related to a mental image from a plurality of scalp electrodes;
score the subject's performance based on neural activity related to a cognitive function during an induction period within the neural signals; and
provide feedback to the subject based on the scoring to inform the subject of a success rate related to the visual working memory, wherein a cognitive function of the subject improves after the trial.
(observation, judgment or evaluation, which is grouped as a mental process under the 2019 PEG);
These underlined limitations describe a mathematical calculation and/or a mental process, as a skilled practitioner is capable of performing the recited limitations and making a mental assessment thereafter. Examiner notes that nothing from the claims suggests that the limitations cannot be practically performed by a human with the aid of a pen and paper, or by using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time. Examiner additionally notes that nothing from the claims suggests and undue level of complexity that the mathematical calculations and/or the mental process steps cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps. For example, in Independent Claims 1 and 22, these limitations include:
Observation and judgment of scoring the subject's performance based on neural activity related to a cognitive function during an induction period within the neural signals
Observation and judgment of providing feedback to the subject based on the scoring to inform the subject of a success rate related to the visual working memory;
Observation and judgment of wherein the cognitive function of the subject improves after the time period (or an amendment of “wherein the neurofeedback training is configured to measure improvement of cognitive function of the subject after the time period”)
all of which are grouped as mental processes under the 2019 PEG.
Similarly, the dependent claims include the following abstract limitations, in addition the aforementioned limitations in Independent Claims 1 and 22 (underlined observation, judgment or evaluation, which is grouped as a mental process under the 2019 PEG):
comparing the neural activity related to the cognitive function during the induction period to a baseline neural activity.
Observation and judgment to compare the neural activity related to the cognitive function during the induction period to a baseline neural activity.
the baseline neural activity is determined during a fixation period before the induction period or determined during the induction period in an adaptive manner.
Observation and judgment to determine the baseline neural activity during a fixation period before the induction period or Observation and judgment to determine during the induction period in an adaptive manner.
the subject's performance is scored based on changes in slow cortical potentials in the neural activity relative to the baseline reflecting bilateral or unilateral hemispheric activity, or bilateral differences between the hemispheres.
Observation and judgment to score the subject's performance based on changes in slow cortical potentials in the neural activity relative to the baseline reflecting bilateral or unilateral hemispheric activity, or bilateral differences between the hemispheres.
Certain methods of directing human activity
the mental image wherein the mental image is created based on a memory of the subject.
after each trial of the neurofeedback training, instructing the subject to improve the score in the future.
all of which are grouped as mental processes or certain methods of directing human activity under the 2019 PEG.
Accordingly, as indicated above, each of the above-identified claims recite an abstract idea.
Step 2A, Prong 2
The above-identified abstract ideas in each of Independent Claims 1 and 22 (and their respective Dependent Claims) are not integrated into a practical application under 2019 PEG because the additional elements (identified above in Independent Claims 1 and 22), either alone or in combination, generally link the use of the above-identified abstract ideas to a particular technological environment or field of use. More specifically, the additional elements of:
“scalp electrodes”; “active electrodes”; “passive electrodes”; “plurality of scalp electrodes”
“monitor”
“memory”
“processor”
Additional elements recited include an “scalp electrodes”; “active electrodes”; “passive electrodes”; “plurality of scalp electrodes”, “monitor”, “memory”, “processor” in the Independent Claims 1 and 22, their dependent claims. These component are recited at a high level of generality, i.e., as a generic computer processor performing a generic function of processing data (the accessing, and executing) and a memory performing a generic function of storing data (the storing). These generic hardware component limitations for “scalp electrodes”; “active electrodes”; “passive electrodes”; “plurality of scalp electrodes”, “monitor”, “memory”, “processor” are no more than mere instructions to apply the exception using generic computer and hardware components. As such, these additional elements do not impose any meaningful limits on practicing the abstract idea.
Further additional elements from Independent Claims 1 and 22include pre-solution activity limitations, such as:
engaging a subject in neurofeedback training over a time period;
during each trial of the neurofeedback training:
recording neural signals that quantify visual working memory related to a mental image using scalp electrodes;
A system configured to engage a subject in a neurofeedback training trial, the system comprising:
a memory storing instructions; and
a processor configured to access the memory and execute the instructions to:
receive neural signals that quantify visual working memory related to a mental image from a plurality of scalp electrodes;
In addition the aforementioned extra-solution activity limitations in Independent Claims 1 and 22, additional extra-solution activity limitations recited in the dependent claims include:
during each trial of the neurofeedback training, positioning the scalp electrodes on the subject's scalp.
the scalp electrodes comprise active electrodes and/or passive electrodes.
establishing channels for the scalp electrodes, wherein the channels comprise one or more posterior parietal channels and/or one or more occipital channels.
the neural signals are measured from at least one of the one or more posterior parietal channels and/or at least one of the one or more occipital channels.
wherein the fixation period is 5 seconds or less before the induction period, and
wherein the induction period is 5 seconds or less.
the baseline neural activity is adaptively adjusted during the trial.
the feedback is displayed less than 5 seconds after neural signals are recorded.
the feedback is displayed throughout the trial and updated at an interval during the trial.
the cognitive function is related to visual attention, concentration, short-tern memory, emotion, or creativity.
the point is a shape on a monitor.
the feedback is provided as a visual stimulus, an auditory stimulus, and/or a tactile stimulus.
the feedback reflects a score illustrative of a success rate related to the visual working memory.
the score reflects a uniqueness of the mental image or a familiarity of the mental image.
the plurality of scalp electrodes configured to be positioned in predefined locations on the subject's scalp to record the neural signals.
each of the scalp electrodes is associated with a channel that is at least one of a posterior parietal channel or an occipital channel.
These pre-solution measurement elements are insignificant extra-solution activity, setting up the parameters of the system, and serve as data-gathering for the subsequent steps.
The “scalp electrodes”; “active electrodes”; “passive electrodes”; “plurality of scalp electrodes”, “monitor”, “memory”, “processor” as recited in Independent Claims 1 and 22 and their dependent claims are generically recited computer and hardware elements 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 ideas identified above in Independent Claims 1 and 22 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG.
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 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 and 22 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, Independent Claims 1 and 22 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B –
None of Claims 1 – 25 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: “scalp electrodes”; “active electrodes”; “passive electrodes”; “plurality of scalp electrodes”, “monitor”, “memory”, “processor” as recited in Independent Claims 1, 15, and 16 and their dependent claims.
The additional elements of the “scalp electrodes”; “active electrodes”; “passive electrodes”; “plurality of scalp electrodes”, “monitor”, “memory”, “processor” in Claims 1 - 25, as discussed with respect to Step 2A Prong Two, amounts to no more than mere instructions to apply the exception using generic computer and hardware components. The same analysis applies here in 2B, i.e., mere instructions to apply an exception using a generic computer component cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
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.
Per Applicant’s specification, the “scalp electrodes”; “active electrodes”; “passive electrodes”; and “plurality of scalp electrodes” are described generically at [0037] with “the scalp electrodes 12 can be EEG electrodes (e.g., traditional wet Ag/AgCI electrodes, active dry single gold pin-based electrodes, hybrid dry multiple spikes- based electrodes, passive dry solid-gel based electrodes, etc.)… may also use as many as 64 scalp electrodes.” The “scalp electrodes”; “active electrodes”; “passive electrodes”; and “plurality of scalp electrodes” are shown as generic block element “scalp electrodes 12” in Fig. 1.
Per Applicant’s specification, “monitor” is defined generically at [0038] as “The display 14 can include a monitor (e.g., capable of providing a visual stimulus)…” It is shown as “display 14” in Figure 1.
Per Applicant’s specification, the “memory” is defined generically at [0041] as “The one or more non-transitory memory devices 24 can be implemented, for example, as volatile memory (e.g., RAM), nonvolatile memory (e.g., a hard disk, flash memory, a solid state drive or the like) or combination of both.” It is shown as generic block element “memory(s) 24” in Figure 1.
Per Applicant’s specification, the “processor” is defined generically at [0040] and [0041] including “The one or more processors 20 (e.g., one or more processor core) can be configured in the system for accessing the one or more non- transitory memory devices 24 and executing the machine-readable instructions.” It is shown as generic block element “processor(s) 20” in Figure 1.
Accordingly, in light of Applicant’s specification, the claimed terms “scalp electrodes”; “active electrodes”; “passive electrodes”; “plurality of scalp electrodes”, “monitor”, “memory”, “processor” are reasonably construed as a generic computing and hardware devices. 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 “scalp electrodes”; “active electrodes”; “passive electrodes”; “plurality of scalp electrodes”, “monitor”, “memory”, “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 – 25 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 - 25 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 - 25 provides 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 for Step 2A Prong 2 in Independent Claims 1 and 22 (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 - 25 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 - 25 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1 - 25 are not patent eligible and are rejected under 35 U.S.C. 101.
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.
Claims 1 – 11 and 14 -25 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pei et. al., (“Effects of an Integrated Neurofeedback System with Dry Electrodes: EEG Acquisition and Cognition Assessment”, Ref V on PTO-892).
Regarding Claim 1 , Pei discloses
A method ([Abstract]) comprising:
engaging a subject in neurofeedback training over a time period ([Page 4, “2.3.1. Experimental Design” Section] “subjects…neurofeedback training…five sessions on different day…completed the study within 5 – 7 days”)
during each trial of the neurofeedback training ([Page 4, “2.3.1. Experimental Design” Section] “…each session of neurofeedback training…”)
recording neural signals that quantify visual working memory ([Page 9, “3.3.1. Memory Ability” Section] “…backward digit span test was measured to evaluate working memory”; Figure 2) related to a mental image ([Page 4, “2.3.1. Experimental Design” Section “…EEG baseline recording followed by six training blocks…” [Page 7, “3.2. Neurofeedback Performance” Section] “…EEG traces of alpha and non-alpha recordings from both training and testing electrodes…”; Figure 2) using scalp electrodes ([Figure 1 “Cognionics headset”; [Page 3, “2.2. Neurofeedback system” Section] “Quick-20 Cognionics…dry EEG sensors…self-don the headset…”, “…cognitive function test…neurofeedback training and EEG data assessment functional modules…memory and attention protocols”)
scoring the subject's performance based on neural activity related to a cognitive function ([Page 5, “2.3.3. Behavioral Tests”] “Subjects entered the digits in reverse order. The maximum score was 180 points, and every corrected digit was 1 point…”) during an induction period within the neural signals ([Page 5, “2.3.3. Behavioral Tests”] including “Each trial contained four to eight digits, and each digit lasted for 1 s.”; Figure 3, “the induced power of the alpha (8-12 Hz) frequency band…”)(Examiner notes that the images are induced and the data is taken during a trial that can be 4 or 5 digits, or 4 or 5 seconds, which is 5 seconds or less. Looking to Applicant’s specification at [0045], the induction period is “During the induction period 46, the user can create (or mentalize) a mental image and the scalp electrodes 12 can record the neural signals of the user as the user is creating/metalizing the mental image”); and
providing feedback to the subject based on the scoring to inform the subject of a success rate related to the visual working memory ([Page 4, “2.3.2” Neurofeedback Protocol” Section] “…Subjects can learn to control the EEG activity…picture “face” can be changed into “smiling” or “crying”; in particular, when the target frequency power was greater than the baseline, “smiling face” was awarded to subjects, otherwise “crying face”, appeared…” Figure 2b.)
wherein the cognitive function of the subject improves after the time period ([Page 9, “3.3.1. Memory Ability” Section] “The NF group showed extremely significant performance improvements in the backward digit span task after NF training”)
Regarding Claim 22, Pei discloses
A system configured to engage a subject in a neurofeedback training trial ([Abstract]; Figures 1 and 2), the system comprising:
a memory storing instructions (Figure 1 with laptop computer interface running “Brain Power 1.0 software”; [Page 4, “2.3.2. Neurofeedback Protocol” Section] “…quantitative EEG activities on a computer screen”; [Page 6, “2.3. EEG acquisition and EEG Data Analysis” Section])(Examiner notes that the laptop “computer” would have a memory storing instructions); and
a processor configured to access the memory and execute the instructions (Figure 1 with laptop computer interface running “Brain Power 1.0 software”; [Page 4, “2.3.2. Neurofeedback Protocol” Section] “…quantitative EEG activities on a computer screen”; [Page 6, “2.3. EEG acquisition and EEG Data Analysis” Section])(Examiner note that the laptop “computer” would have a processor to execute the program instructions) to:
receive neural signals that quantify visual working memory ([Page 9, “3.3.1. Memory Ability” Section] “…backward digit span test was measured to evaluate working memory”; Figure 2) related to a mental image ([Page 4, “2.3.1. Experimental Design” Section “…EEG baseline recording followed by six training blocks…” [Page 7, “3.2. Neurofeedback Performance” Section] “…EEG traces of alpha and non-alpha recordings from both training and testing electrodes…”; Figure 2) from a plurality of scalp electrodes ([Figure 1 “Cognionics headset”; [Page 3, “2.2. Neurofeedback system” Section] “Quick-20 Cognionics…dry EEG sensors…self-don the headset…”, “…cognitive function test…neurofeedback training and EEG data assessment functional modules…memory and attention protocols”);
score the subject's performance based on neural activity related to a function ([Page 5, “2.3.3. Behavioral Tests”] “Subjects entered the digits in reverse order. The maximum score was 180 points, and every corrected digit was 1 point…”) during an induction period within the neural signals ([Page 5, “2.3.3. Behavioral Tests”] including “Each trial contained four to eight digits, and each digit lasted for 1 s.”; Figure 3, “the induced power of the alpha (8-12 Hz) frequency band…”)(Examiner notes that the images are induced and the data is taken during a trial that can be 4 or 5 digits, or 4 or 5 seconds, which is 5 seconds or less. Looking to Applicant’s specification at [0045], the induction period is “During the induction period 46, the user can create (or mentalize) a mental image and the scalp electrodes 12 can record the neural signals of the user as the user is creating/metalizing the mental image”); and
provide feedback to the subject based on the scoring to inform the subject of a success rate related to the visual working memory ([Page 4, “2.3.2” Neurofeedback Protocol” Section] “…Subjects can learn to control the EEG activity…picture “face” can be changed into “smiling” or “crying”; in particular, when the target frequency power was greater than the baseline, “smiling face” was awarded to subjects, otherwise “crying face”, appeared…” Figure 2b.), wherein a cognitive function of the subject improves after the trial ([Page 9, “3.3.1. Memory Ability” Section] “The NF group showed extremely significant performance improvements in the backward digit span task after NF training”).
Regarding Claim 2, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 2, Pei discloses further comprising during each trial of the neurofeedback training, positioning the scalp electrodes on the subject's scalp ([Figure 1 “Cognionics headset”; [Page 3, “2.2. Neurofeedback system” Section] “Quick-20 Cognionics…dry EEG sensors…self-don the headset…”)
Regarding Claims 3 and 24, Pei discloses as described above, The method of Claim 2 and The system of Claim 24, respectively. For the remainder of Claims 3 and 24, Pei discloses wherein the scalp electrodes comprise active electrodes and/or passive electrodes ([Figure 1 “Cognionics headset”; [Page 3, “2.2. Neurofeedback system” Section] “Quick-20 Cognionics…dry EEG sensors…self-don the headset…”)(Examiner notes that including either active or passive electrodes would include all electrodes, as active and passive are antonyms.)
Regarding Claim 4, Pei discloses as described above, The method of Claim 2. For the remainder of Claim 4, Pei discloses further comprising establishing channels for the scalp electrodes, wherein the channels comprise one or more posterior parietal channels and/or one or more occipital channels ([Page 6, “2.4 EEG Acquisition and EEG Data Analysis” Section] “the EEG signals were acquired from 19 channels (Fp1, Fp2, F7, F3, Fz, F4, F8, T3, C3, Cz, C4, T4, T5, P3, Pz, P4, T6, O1 and O2) …”)
Regarding Claim 5, Pei discloses as described above, The method of Claim 4. For the remainder of Claim 5, Pei discloses wherein the neural signals are measured from at least one of the one or more posterior parietal channels and/or at least one of the one or more occipital channels ([Page 6, “2.4 EEG Acquisition and EEG Data Analysis” Section] “the EEG signals were acquired from 19 channels (Fp1, Fp2, F7, F3, Fz, F4, F8, T3, C3, Cz, C4, T4, T5, P3, Pz, P4, T6, O1 and O2) …”; [Page 4, “2.3.1. Experimental Design” Section “…EEG baseline recording followed by six training blocks…”)
Regarding Claim 6, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 6, Pei discloses wherein the scoring comprises comparing the neural activity related to the cognitive function during the induction period to a baseline neural activity ([Page 13, 2nd Full Paragraph] “…the relative alpha power was analyzed because of the difference in baseline in each subject.”; [Page 4, “2.3.1. Experimental Design” Section] “Each session contained a block of a 2 min EEG baseline recording followed by six training blocks of 6 min each..”; [Page 4, “2.3.4. Neurofeedback Protocol” Section] “…when the target frequency power was greater than the baseline, “smiling face” was awarded to subjects, otherwise “crying face”, appeared...”)
Regarding Claim 7, Pei discloses as described above, The method of Claim 6. For the remainder of Claim 7, Pei discloses wherein the baseline neural activity is determined during a fixation period before the induction period [Page 4, “2.3.1. Experimental Design” Section] “Each session contained a block of a 2 min EEG baseline recording followed by six training blocks of 6 min each..”; [Page 6, “2.4. EEG Acquisition and EEG Data Analysis” Section] “During the resting state collection, the subject was required to watch the fixation “cross” on the screen…”; [Page 5, “2.3.3. Behavioral Tests”] “Every trial started by a fixation (1 s)…”) or determined during the induction period in an adaptive manner.
Regarding Claim 8, Pei discloses as described above, The method of Claim 7. For the remainder of Claim 8, Pei discloses wherein the fixation period is 5 seconds or less before the induction period ([Page 5, “2.3.3. Behavioral Tests”] “Every trial started by a fixation (1 s)…”), and
wherein the induction period is 5 seconds or less ([Page 5, “2.3.3. Behavioral Tests”] including “Each trial contained four to eight digits, and each digit lasted for 1 s.”; Figure 3, “the induced power of the alpha (8-12 Hz) frequency band…”)(Examiner notes that the images are induced and the data is taken during a trial that can be 4 or 5 digits, or 4 or 5 seconds, which is 5 seconds or less. Looking to Applicant’s specification at [0045], the induction period is “During the induction period 46, the user can create (or mentalize) a mental image and the scalp electrodes 12 can record the neural signals of the user as the user is creating/metalizing the mental image”).
Regarding Claim 9, Pei discloses as described above, The method of Claim 6. For the remainder of Claim 9, Pei discloses wherein the baseline neural activity is adaptively adjusted during the trial ([Page 4, “2.3.1. Experimental Design” Section] “Before and after each session of neurofeedback training, spontaneous resting EEG was recorded for 1–2 min with eyes opened”; Fig. 2a)(Examiner notes that the baseline resting EEG is adaptively adjusted twice for each trial, at the beginning and the end).
Regarding Claim 10, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 10, Pei discloses wherein the feedback is displayed less than 5 seconds after neural signals are recorded ([Page 6, “2.4. EEG Acquisition and EEG Data Analysis” Section] “The power of the alpha (8–12 Hz) data…updated every second during the NF training… reward and punishment statistics were performed every five seconds. If the power data exceeded the threshold three times or above in five seconds, a reward display was given.”)
Regarding Claim 11, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 11, Pei discloses wherein the feedback is displayed throughout the trial (Figure 1, feedback smiley face and meter shown on the screen; [Page 6, “2.4. EEG Acquisition and EEG Data Analysis” Section]) and updated at an interval during the trial ([Page 4, “2.3.2. Neurofeedback Protocol” “… picture “face” can be changed into “smiling” or “crying”…”; Fig 1., Fig. 2b; [Page 6, “2.4. EEG Acquisition and EEG Data Analysis” Section] “The power of the alpha (8–12 Hz) data…updated every second during the NF training…If the power data exceeded the threshold three times or above in five seconds, a reward display was given.”)
Regarding Claim 14, Pei discloses as described above, The method of Claim 12. For the remainder of Claim 14, Pei discloses wherein the mental image wherein the mental image is created based on a memory of the subject (Figure 2, “Backward Digit Span Task”; [Page 5, “2.3.3. Behavioral Tests” Section] “A backward digit span task tested the capacity of working memory storage…”, “Each trial contained four to eight digits…Subjects entered the digits in reverse order.”)(Examiner notes that the subject is recalling the image of digits that they were shown and are intended to keep in working memory to enter for the task.)
Regarding Claim 15 Pei discloses as described above, The method of Claim 1. For the remainder of Claim 15, Pei discloses further comprising after each trial of the neurofeedback training, instructing the subject to improve the score in the future ([Page 4, “2.3.2” Neurofeedback Protocol” Section] “…Subjects can learn to control the EEG activity…picture “face” can be changed into “smiling” or “crying”; in particular, when the target frequency power was greater than the baseline, “smiling face” was awarded to subjects, otherwise “crying face”, appeared…” Figure 2b.; [Page 6, “2.4. EEG Acquisition and EEG Data Analysis” Section] “The power of the alpha (8–12 Hz) data…updated every second during the NF training…If the power data exceeded the threshold three times or above in five seconds, a reward display was given.”)(Examiner notes that the negative crying face feedback would broadly encourage the subject to strive for a smiling face feedback in the future).
Regarding Claim 16, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 16, Pei discloses wherein the cognitive function is related to visual attention, concentration, short-tern memory ([Page 5, “2.3.3. Behavioral Tests” Section] “…tested the capacity of working memory storage”; [Page 12, 1st Full Paragraph] “NF training with alpha power enhancement of 5 sessions may improve working memory,”; [Page 12, 2nd Full Paragraph] “the successful upregulation of the alpha power effectively improved working memory…”), emotion, or creativity.
Regarding Claim 17, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 17, Pei discloses wherein the user fixates on a point while imagining the mental image (Figure 2, “Backward Digit Span Task”; [Page 5, “2.3.3. Behavioral Tests” Section] “A backward digit span task tested the capacity of working memory storage…”, “Each trial contained four to eight digits, and each digit lasted for 1s. Every trial started by a fixation (1 s)…”; Figs 1 and 2)
Regarding Claim 18 Pei discloses as described above, The method of Claim 17. For the remainder of Claim 18, Pei discloses wherein the point is a shape on a monitor (Figure 2, “Backward Digit Span Task”; [Page 5, “2.3.3. Behavioral Tests” Section] “A backward digit span task tested the capacity of working memory storage…”, “Each trial contained four to eight digits, and each digit lasted for 1s. Every trial started by a fixation (1 s)…”; Figure 1)( Examiner notes that the subject fixated at least on the shapes of numbers for 1 s each and on the + shape for 1s shown in Fig 2c.)
Regarding Claim 19, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 19, Pei discloses where in the feedback is provided as a visual stimulus ([Page 4, “2.3.2” Neurofeedback Protocol” Section] “…Subjects can learn to control the EEG activity…picture “face” can be changed into “smiling” or “crying”; in particular, when the target frequency power was greater than the baseline, “smiling face” was awarded to subjects, otherwise “crying face”, appeared…” Figure 2b.), an auditory stimulus, and/or a tactile stimulus.
Regarding Claim 20, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 20, Pei discloses wherein the feedback reflects a score illustrative of a success rate related to the visual working memory ([Page 4, “2.3.2” Neurofeedback Protocol” Section] “…Subjects can learn to control the EEG activity…picture “face” can be changed into “smiling” or “crying”; in particular, when the target frequency power was greater than the baseline, “smiling face” was awarded to subjects, otherwise “crying face”, appeared…” Figure 2b.)
Regarding Claim 21, Pei discloses as described above, The method of Claim 20. For the remainder of Claim 21, Pei discloses wherein the score reflects a uniqueness of the mental image or a familiarity of the mental image ([Page 4, “2.3.2” Neurofeedback Protocol” Section] “…Subjects can learn to control the EEG activity…picture “face” can be changed into “smiling” or “crying”; in particular, when the target frequency power was greater than the baseline, “smiling face” was awarded to subjects, otherwise “crying face”, appeared…” Figure 2b.)(Examiner notes that the “smiling face” indicates that the user identified the correct information, which indicates that it is broadly familiar in their working memory.)
Regarding Claim 23, Pei discloses as described above, The system of Claim 22. For the remainder of Claim 23, Pei discloses further comprising the plurality of scalp electrodes configured to be positioned in predefined locations on the subject's scalp to record the neural signals ([Figure 1 “Cognionics headset”; [Page 3, “2.2. Neurofeedback system” Section] “Quick-20 Cognionics…dry EEG sensors…self-don the headset…”; [Page 4, “2.3.1. Experimental Design” Section “…EEG baseline recording followed by six training blocks…”)
Regarding Claim 25, Pei discloses as described above, The system of Claim 23. For the remainder of Claim 25, Pei discloses wherein each of the scalp electrodes is associated with a channel that is at least one of a posterior parietal channel or an occipital channel ([Page 6, “2.4 EEG Acquisition and EEG Data Analysis” Section] “the EEG signals were acquired from 19 channels (Fp1, Fp2, F7, F3, Fz, F4, F8, T3, C3, Cz, C4, T4, T5, P3, Pz, P4, T6, O1 and O2) …”)
Claim 13 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pei et. al., (“Effects of an Integrated Neurofeedback System with Dry Electrodes: EEG Acquisition and Cognition Assessment”, Ref V on PTO-892), as evidenced by Pearson, et. al., (“Mental Imagery: Functional Mechanisms and Clinical Applications”, Ref U on PTO-892)
Regarding Claim 13, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 13, Pei discloses wherein the subject forms a mental image without a prompt—(See above 112(b) interpretation of “wherein the method further comprises one or more prompt to the user to create the mental image without providing the exact content of the mental image within the prompt.”)(Figure 2, “Backward Digit Span Task”; [Page 5, “2.3.3. Behavioral Tests” Section] “A backward digit span task tested the capacity of working memory storage…”, “Each trial contained four to eight digits…Subjects entered the digits in reverse order.”)(Examiner notes that the subject is recalling digits that they were shown and independently creating a mental image in their brain to remember the digit, as evidence by Pearson, which teaches at [Page 590, “Mental Imagery” Section, Paragraph 2] “…‘mental imagery’ to refer to representations and the accompanying experience of sensory information without a direct external stimulus. Such representations are recalled from memory and lead one to re-experience a version of the original stimulus or some novel combination of stimuli...Note that not all mental imagery need be voluntary; …internal associations also can trigger a mental image, even if one does not want to experience the image at that time.” As such, a subject may broadly create any mental image during a memory recall-invoking task without particular prompting to specifically create a particular mental image.)
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.
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 12 is rejected under 35 U.S.C. 103 as being unpatentable over Pei et. al., (“Effects of an Integrated Neurofeedback System with Dry Electrodes: EEG Acquisition and Cognition Assessment”, Ref U on PTO-892) in view of Gevins (US 6,434,419 B1).
Regarding Claim 12, Pei discloses as described above, The method of Claim 1. For the remainder of Claim 12, Pei discloses wherein the subject's performance is scored ([Page 5, “2.3.3. Behavioral Tests”] “Subjects entered the digits in reverse order. The maximum score was 180 points, and every corrected digit was 1 point…”; [Page 4, “2.3.2. Neurofeedback protocol” section]) based on changes in cortical potentials in the neural activity relative to the baseline ([Page 4, “2.3.2” Neurofeedback Protocol” Section] “…Subjects can learn to control the EEG activity…picture “face” can be changed into “smiling” or “crying”; in particular, when the target frequency power was greater than the baseline, “smiling face” was awarded to subjects, otherwise “crying face”, appeared…” Figure 2b.) reflecting bilateral or unilateral hemispheric activity ([Page 4, “2.3.2” Neurofeedback Protocol” Section])(Examiner notes that bilateral or unilateral hemispheric activity encompasses all activity, since there are 2 hemispheres), or bilateral differences between the hemispheres.
Pei does not specifically disclose based on changes in slow cortical potentials.
Gevins teaches a testing method and system using EEG for evaluating mental acuity and changes in mental acuity. Specifically for Claim 12, Gevins teaches wherein the subject's performance is scored based on changes in slow cortical potentials in the neural activity relative to the baseline reflecting bilateral or unilateral hemispheric activity, or bilateral differences between the hemispheres ([Col 21, Lines 58 - 61] “Neurophysiological Attentional Index…the difference in Slow alpha power between the resting eyes open State and performance of the easy task, and the hemispheric asymmetry of slow alpha over central cortex in the difficult task…”)
Gevins provides a motivation to combine at [Col 21, Lines 26 – 29] with “Fatigue produced Several changes in the EEG, including producing an increase in slow alpha…activity…” and ([Col 21, Lines 58 - 61] “Neurophysiological Attentional Index…the difference in Slow alpha power between the resting eyes open State and performance of the easy task, and the hemispheric asymmetry of slow alpha over central cortex in the difficult task…”). A person having ordinary skill in the art before the effective filing date of the claimed invention would recognize that comparing the slow cortical alpha band potentials would be useful for quantifying if a person is experiencing fatigue during the attention trials measured with EEG.
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the working memory cognitive testing method with 4 – 8 digits (easy – more difficult task) using EEG and alpha band analysis to score a subject’s performance disclosed in Pei with Gevins’ taught evaluating the hemispheric asymmetry in slow alpha power in an “easy” cognitive task and “difficult” cognitive task to determine attention changes, creating a single EEG testing method that can track if attention is decreasing from hemispheric asymmetry measurands.
Conclusion
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/MELISSA JO MONTGOMERY/Examiner, Art Unit 3791
/JUSTIN XU/Primary Examiner, Art Unit 3791
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