Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 1 and associated dependent claims 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.
Regarding claim 1:
“executing a trial session for determining the visual acuity, wherein the trial session comprises a plurality of the visual stimuli that are presented, with the optical system to the left and/or the right eye of the test person” seems to claim that the optical system is positioned to the left/right eye of the test person; it is suggested that the claim should read “…, with the optical system, …” if the intent is to present the visual stimuli with the optical system. Clarification is requested.
“the left and/or the right eye” seems to indicate the visual stimuli can be presented to only the left OR the right eye, which would contradict the limitations of “independently project a visual stimulus to a left and a right eye of a test person” and “determining from the recorded data of the trial session at least the visual acuity by analyzing a movement of the left and the right eye of the test person in response to the presented visual stimuli of the trial session” in which both left AND right eyes are cited.
Regarding claim 9, “some patches the patches…” is ambiguous as to what patches are being claimed.
Regarding claim 12, “the size of the patches” lack antecedent basis – should the claim be dependent on claim 11 instead of 9? Additionally, it is not clear if “a spatial frequency of luminance distribution” is different from that of claim 1.
Regarding claim 17, the dependence on cancelled claim 14 renders it indefinite. For compact prosecution, it is assumed claim 17 depends on claim 1.
Regarding claim 19, there appears to be an extra hyphen “-“ in front of “or the position of the patches”.
Regarding claim 23, the dependence on cancelled claim 18 renders it indefinite. For compact prosecution, it is assumed claim 23 depends on claim 22 to further limit the Gabor patches.
Regarding claim 41, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 2, 5-13, 15, 21-23, 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over “Galloway”, GB 2375821A, in view “XP138”, “Chapter 4, Processing Imaging Structure” [NPL item #4, IDS 1/16/24].
Regarding claim 1, Galloway discloses a computer program comprising a non-transitory computer-readable storage medium having program code embodied therewith, the program code executable on at least one hardware processor, causing a system with a computer to execute a method, particularly a computer-implemented method for determining at least one functional ocular parameter, namely a visual acuity [pg.1, ~6th paragraph: “this invention describes a system of measuring eyesight using a video camera, a computer with a high-resolution graphics display … software algorithms to detect eye movement by processing image data captured on video”; pg.4, ~2nd paragraph: “results display the maximum grating resolution, an equivalent estimate of LogMAR acuity …”];
wherein the system comprises an optical system with a display system that is configured to independently project a visual stimulus to a left and a right eye of a test person [pg.3, ~2nd paragraph: “As with standard preferential-looking techniques an occluding patch is positioned over the left or right eye unless binocular acuity is to be assessed.”; interpreted as same visual stimulus that can be projected to left/right eyes in sequential manner independent of each other];
wherein the visual stimulus comprises a plurality of patches arranged on a background, an eye-tracking system configured to record a gaze direction of the left as well as the right eye, a computer configured to control the optical system and to receive recorded data from the eye-tracking system [pg.1, 3+: “a system of measuring eyesight using a video camera, a computer with a high-resolution graphics display showing linear gratings, and software algorithms to detect eye movement by processing image data captured on video”; “Computer-generated vertical gratings 4 of different spatial frequency are displayed either side of a central fixation target or video 5, simultaneous to an iso-luminant target 6 on the other side of the same target or video 5. The key to this automated device is computer control, eliminating inter-observer variability, and this better standardises the procedure. The system removes variability in human assessment that affects manual and other methods currently available. Several different vertical gratings are displayed in a pseudo-random order at predetermined points during the video presentation and eye movement is recorded at each point, before and after stimulus presentation”; ”web-camera with sufficient resolution (typically 640 X 480 pixels) and sufficient frame acquisition rate (typically 25 frames per second) may be used. Alternatively any video input may be employed, with software appropriately adjusted to correct for any variable timing of simultaneous presentation of video target display and video acquisition”];
the method comprising at least the steps of:
executing a trial session for determining the visual acuity, wherein the trial session comprises a plurality of the visual stimuli that are presented, with the optical system to the left and/or the right eye of the test person [see at least “standard preferential-looking techniques an occluding patch is positioned over the left or right eye unless binocular acuity is to be assessed”];
recording data during the trial session comprising information on the gaze direction [see at least “…different vertical gratings are displayed in a pseudo-random order at predetermined points during the video presentation and eye movement is recorded at each point, before and after stimulus presentation…”];
determining from the recorded data of the trial session at least the visual acuity by analyzing a movement of the left and the right eye of the test person in response to the presented visual stimuli of the trial session [see at least “results display the maximum grating resolution, an equivalent estimate of LogMAR acuity”];
wherein the patches are characterized in that the patches are iso-luminant with respect to the background [“Computer-generated vertical gratings 4 of different spatial frequency are displayed either side of a central fixation target or video 5, simultaneous to an iso-luminant target 6 on the other side of the same target or video 5”].
Galloway further discloses that the patches exhibit a luminance distribution that varies with a spatial frequency, and wherein each patch is a bounded set covering only a fraction of the background [see at least fig.2 and “vertical gratings 4 of different spatial frequency are displayed either side of a central fixation target or video 5, simultaneous to an iso-luminant target 6 on the other side of the same target or video 5”]. In essence, Galloway describes vertical gratings [patches] and an iso-luminant picture and indicates matching luminance between the grating and the iso-luminant image so that brightness alone doesn't bias gaze; but Galloway does not teach pulses/patches defined as bounded Gabor patches nor explicitly expresses the sinusoidal luminance distribution with Gaussian envelope
XP138, also involved with visual psychophysics and vision-testing methods using displays and controlled stimuli, teaches textbook knowledge of Gabor functions and how to design Gaussian-windowed sinusoidal patches – particularly that localized Gabor functions are constructed by multiplying a sinusoidal plane wave (sinusoidal luminance) by a Gaussian kernel, showing the standard Gabor form [Sec. 4.2.12 “Gabor functions”; Fig. 4.2.12 and 4.2.13], and discusses isotropic spatial frequency representations and ratio relationships [Fig. 4.2.12: discussion of wavelet/Gabor bandwidth and variance-to-period relationships]. XP138 thus provides predictable, standard implementations of the claimed “luminance distribution varying periodically with a spatial frequency” and “Gabor patch” structures.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus and methods of Galloway with the textbook teachings of XP138 for explicit detailed Gabor implementation of localized, bounded periodic patches (Gaussian-windowed sinusoidal/Gabor patches or bandpass noise patches) instead of or in addition to the full-frame gratings taught by Galloway. Galloway itself teaches using gratings at different spatial frequencies to measure acuity, and XP138 teaches that localized Gabor patches are a known, predictable way to present spatial-frequency content in a bounded patch form (XP138 Fig. 4.2.12; Sections 4.2.1–4.2.3). Combining these teachings is a predictable substitution: replacing a wide grating by a localized Gabor patch would improve stimulus locality and targeting of spatial frequency channels.
Regarding claim 2, Galloway discloses displaying multiple gratings in a pseudo-random order at predetermined points during video presentation and presents targets on one side and iso-luminant targets on the other — thus disclosing multiple stimuli that may be identical in appearance and differ in location/timing of presentation [Galloway: "Several different vertical gratings are displayed in a pseudo-random order ... and eye movement is recorded at each point"]. Galloway thereby teaches multiple instances of the same stimulus family (vertical gratings) presented at different locations/times. However, Galloway does not disclose explicitly the "patches are identical to each other"; nonetheless, it would have been obvious to one of ordinary skill in the art to program the Galloway system to present identical patches at different locations (routine software choice and implicit in "several different ... gratings" sequencing). XP138’s teachings permit using identical Gabor patches (same parameters) at different positions (XP138, Fig. 4.2.12; Section 4.2.2).
Regarding claim 5, Galloway and XP138 combined discloses wherein the luminance distribution varies at least along one direction with the spatial frequency [XP138: 4.2.1-4.2.12: i.e., sinusoidal].
Regarding claim 6, Galloway and XP138 combined did not disclose explicitly wherein the spatial frequency is isotropic, such that the spatial frequency is the same along all directions of the patch during a trial of the trial session. However, it would have been obvious to one of ordinary skill in the art to modify the spatial frequency to be isotropic, such that the spatial frequency is the same along all directions of the patch during a trial of the trial session, resulting in a circular [bulls eye] patch as there is no disclosed criticality to the patch shape.
Regarding claim 7, Galloway and XP138 combined discloses wherein a spatially averaged luminance of the patch equals a luminance of the background [Galloway: “Computer-generated vertical gratings 4 of different spatial frequency are displayed either side of a central fixation target or video 5, simultaneous to an iso-luminant target 6 on the other side of the same target or video 5”].
Regarding claims 8 and 9, Galloway and XP138 combined did not disclose explicitly at least some patches are iso-chromatic or of different color with the background. However, it would have been obvious to one of ordinary skill in the art to incorporate such modifications in order to test different pathways [XP138: Table 4.1.1; e.g., parvo/magno].
Regarding claims 10-13, Galloway already teaches varying spatial frequency by adjusting viewing distance and multiple gratings [pg.2+] and XP138 gives the textbook teachings of how spatial frequency and Gaussian variance determine number of cycles [Sec. 4.2.12+] – the combined teachings render the claimed size/period adjustments obvious in the gathering of data with known variables during trials/experiments.
Regarding claim 15, Galloway and XP138 combined discloses wherein the patches are arranged irregularly over and/or non-overlapping on the background [Galloway: fig.2a, 2b].
Regarding claim 21, Galloway discloses static framed gratings and does not teach moving patterned patches in a way that preserves fixed distances/relative positions while moving (Galloway describes static gratings and video target to hold attention, and mentions repeated flickers of eye movement between the grating and central target during presentation [“… a grating target is presented a typical response from the subject is not just a simple sustained alteration of gaze towards the new target, but repeated flickers of eye movement between the grating 4 and the central target 5. The eye tracking software therefore is required not merely to measure the position of the eye but make an overall assessment about the relative position of the eye…”]. Galloway discloses stimulus sequencing and central fixation but not moving patch clusters. However, it would have been obvious to an ordinary artisan to adapt Galloway’s display to present moving stimuli where the relative positions of patches remain fixed to preserve a pattern (motivated by attention capture and controlling for spatial relationships).
Regarding claim 22-23, 26, XP138 gives the textbook teachings of the Gabor form, Gaussian kernel modulation, and the wavelet/Gabor parameterization including variance-to-period considerations that an ordinary artisan would routinely modify to collect data for trials and experiments (Sec. 4.2.12, Fig.4.2.12 & Fig.4.2.13).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over “Galloway”, GB 2375821A in view of “XP138” as applied to claim 1 above, and further in view of “Greenwood”, “Crowding Changes Appearance” [NPL item #1, IDS 1/16/24].
Regarding claim 3, Galloway and XP138 combined teaches construction of Gabor patches of given size and shape (Gaussian envelope) [XP138 Sec. 4.2.12], but did not disclose explicitly the patches being the same. Greenwood is also involved with psychophysical stimulus design and demonstrates experiments with uniform patches [e.g., fig.1a]. Greenwood teaches that localized bandpass/Gabor patches produce reliable, orientation-selective percepts and predictable adaptation (Greenwood Fig.1 & Fig.3) — thus, replacing Galloway’s large framed gratings with localized uniform Gabor/bandpass patches would enable an ordinary artisan to perform the trials as taught by Greenwood.
Claim(s) 16-17, 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over “Galloway”, GB 2375821A in view of “XP138” as applied to claim 1 above, and further in view of “Griffiths”, “The Effect of Distractors on Saccades and Adaptation of Saccades in Strabismus” [NPL item #5, IDS 1/16/24].
Regarding claims 16-17, Galloway and XP138 combined did not disclose explicitly movement of the patches. Griffiths in the same field teaches moving targets, periodic motion, correlation of recorded eye movement to movement of patches [Procedure]. It would have been obvious to an ordinary artisan to incorporate the teachings of periodic motion profiles and repetitive motion patterns to perform oculomotor testing such as those in Griffiths.
Regarding claim 19, Galloway discloses automated calculation of acuity from eye movement responses and reliability indices as discussed previously; while Griffiths teaches correlating eye movement with moving target motion and using those correlations to analyze saccadic/pursuit responses [Procedure]. It would have been obvious to an ordinary artisan to further test acuity from the smallest patch size or highest spatial frequency for which the eye movements correlate above a threshold by using the combined teachings.
Claim(s) 41 is/are rejected under 35 U.S.C. 103 as being unpatentable over “Galloway”, GB 2375821A in view of “XP138” as applied to claim 1 above, and further in view of “Ho”, US Publication 20190265785.
Regarding claim 41, Galloway and XP138 disclose the automated testing algorithms and display plus camera-based eye tracking with Gabor patches as discussed above. Galloway did not disclose near-eye head-mounted-device (HMD) hardware [it uses stationary displays/projector] and does not disclose per-eye pupil-size-based calibration in a near-eye environment.
Ho teaches near-eye HMD displays [0009-0012] individually addressing each eye [0034–0036] including:
an eye-tracking system configured to record a gaze direction and a pupil size of the left as well as the right eye [0022–0026, 0032: an eye scanner detecting iris/pupil location and size and capability to record per-eye data];
a computer configured to control the optical system and to receive recorded data from the eye-tracking system, as well as program code stored on the computer to execute the computer program according to claim 1 [0034–0036, 0037–0043, 0057–0059];
wherein the optical system and the eye-tracking system comprises in a near-eye display, such as in VR-goggles [0009–0012, 0034: head-mounted near-eye display/HMD architecture];
wherein the near-eye display further comprises for each eye a lens assembly [0009–0012: HMD context in which lens systems and optics are part of HMD design] that is adjustable such that optical aberrations of each eye of a test person may be compensated by the lens assembly [0024–0026, 0034: per-eye calibration of physiological characteristics].
It would have been obvious to one of ordinary skill in the art to implement Galloway’s automated acuity-testing algorithms within a near-eye HMD environment as taught by Ho. Ho explicitly teaches performing per-eye calibration, scanning and display control on-device [0024–0026, 0034, 0040–0043]. The motivation is to realize portability, per-eye calibration, and stimulus control advantages in an HMD context. Ho itself states benefits of on-device pupil scanning and calibration [0032–0035]. The combination would result in the presenting of Gabor-type stimuli in an HMD while recording per-eye gaze/pupil size; and using the known analysis algorithms of Galloway will allow determination of visual acuity consistent with previously observed responses to such stimuli as discussed above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Tse Chen whose telephone number is (571)272-3672. The examiner can normally be reached M-F 7-3 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jonathan Moffat can be reached at 571-272-4390. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/TSE W CHEN/Supervisory Patent Examiner, Art Unit 3791