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 .
Status of Claims
This action is in reply to the amendment filed on 5/18/26.
Claims 1, 3, 6 have been amended and are hereby entered.
Claims 8-11 have been added.
Claims 1-11 are currently pending and have been examined.
This action is made FINAL.
Continuity
Applicant’s claim to the benefit of and priority to US Provisional Application 63/448,490 is acknowledged. Accordingly, a priority date of 02/27/23 has been given to this application.
Claim Objections/Claim Interpretations
Claim 1 is objected to because of the following informalities:
Claim 1 uses multiple instances of a letter followed by a period, e.g., Steps 5-7 contain parts “A.” and “B.”. Per MPEP 608.01(m), “Each claim begins with a capital letter and ends with a period. Periods may not be used elsewhere in the claims except for abbreviations.” Appropriate correction is required. If Applicant wishes to break Steps 5-7 into lettered sub-steps, Examiner recommends amending to “A)”, “B)”, etc.
Claim 1, at Step 3, recites the following, which appears to include grammatical and/or typographical errors and/or omissions:
“Establishing, for each the individual authorized player profile (A, B, C) a neurological baseline for that individual authorized player (their baseline) using a group of interactive digital games and a digital cognitive assessment tool called the Sign Inventory Tool (SIT) which is administered by an authorized caregiver…” which appears to contain accidental inclusion of “the” prior to “individual”. For purposes of examination, it is being interpreted as “Establishing, for each [[the]] individual authorized player profile…”. Please clarify claim language or explain on the record.
Claim 1 recites both terms “the player profile” and “the individual authorized player profile”. Examiner is interpreting these to be the same profile. Please streamline and use the same terminology across all claims for increased clarity and coherence of the claims.
Claims 2-11 are objected to as they inherit the deficiencies of parent Claim 1.
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 1-11 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.
Claims 1-11 are rejected as failing to define the invention in the manner required by 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. Claim 1 is narrative in form and replete with indefinite language as explained below. Note the format of the claims in the patent publications cited as prior arts.
Claim 1 recites the limitation "the player profile circle" at page 3, section (3) of Step 6B (line 14-15). There is insufficient antecedent basis for this limitation in the claim. It is unclear to what “circle” this refers. For purposes of examination, it is being interpreted as a circle on a player’s profile page.
Claim 1 recites the limitation “the individual brain performances” in Step 1, line 5-6. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this refers to each of the individual authorized player’s brain performances over time, or to what “brain performances” refers. For purposes of examination, it is being interpreted as “brain performances of individual authorized player”.
Claim 1 recites the limitation “the caregivers” (plural) in Step 4, line 2. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this refers to “an authorized caregiver” (singular) in Step 3. For purposes of examination, it is being interpreted as “the authorized caregiver of an individual authorized player”.
Claim 1 recites the limitation “the caregiver” in Step 5B(2) line 1. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this refers to the “authorized caregiver” in step 3, or a different caregiver. For purposes of examination, it is being interpreted as “the authorized caregiver”.
Claim 1 recites the limitation “the acceptable range” in Step 5A, line 4. There is insufficient antecedent basis for this limitation in the claim. For purposes of examination, it is being interpreted as “an acceptable range”.
Claim 1 recites the limitation “the screen” in Step 6B(1), line 1. There is insufficient antecedent basis for this limitation in the claim. For purposes of examination, it is being interpreted as “a screen”.
Claim 1 recites the limitation “the smart phone” in Step 6B(3), line 2. There is insufficient antecedent basis for this limitation in the claim. For purposes of examination, it is being interpreted as referring to the “electronic device” recited by Step 1.
Claim 1 recites the limitation “the specific profile” in Step 6B(3), line 5. There is insufficient antecedent basis for this limitation in the claim. For purposes of examination, it is being interpreted as “a specific profile”.
Claim 1, Step 6B(2)-(4) recites limitations pertaining to “the account” and “the account’s profile page” which render the metes and bounds of the claims indefinite. Step 1 recites limitations pertaining to “registering an account, and creating a profile of an individual authorized player”. Step 6B(3) recites “the account’s profile page”, which lacks antecedent basis. It is unclear if recitations of “account” refers to the player’s profile (e.g., the account that was created in Step 1), or to an administrator account per Steps 6B(3) and (4).
Claim 1 uses various terms pertaining to results, e.g., “interactive digital game result” (Step 5A, line 1 and 5), “the game result” (Step 5B, line 1), “their game result” (Step 5B line 4), “their result” (Step 6A line 3) and “the result” (Step 7 line 4) which renders the metes and bounds of the claims indefinite, as both the digital game and digital cognitive assessment tool (SIT) appear to have a “result”. Examiner recommends specifically labeling all instances of “result(s)” with the digital game or SIT to which they are associated. For purposes of examination, Examiner is interpreting “results” recited in the same limitation as digital game to be digital game results, and is interpreting “results” recited in the same limitation as SIT to be SIT results.
Claim 1 recites the limitations “the player profile’s game home page” (Step 6B(4) line 1) and “the profile’s game home page” (Step 7B line 6) which renders the metes and bounds of the claim indefinite. “Home page” does not appear to have antecedent basis. It is unclear if these two entities are the same home page or different homepages.
Claim 1 recites the limitation “the profile's game home page information window” in Step 7A lines 6-7 and Step 7B line 6, which renders the metes and bounds of the claim indefinite. This limitation does not appear to have antecedent basis. It is unclear if this refers to the “information window” in Step 6B(4) line 3, or something else.
Dependent Claims 2-11 inherit the deficiencies of parent Claim 1 and are subsequently rejected.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-11 are rejected under 35 U.S.C.101 because the claimed invention is directed to a judicial exception (an abstract idea) without significantly more.
Step 1
Claims 1-11 are drawn to a method, which is within the four statutory categories. Claims 1-11 are further directed to an abstract idea on the grounds set out in detail below.
Step 2A Prong 1
Claim 1 recites implementing the steps of:
Step 1: Registering an account and creating a profile of an individual authorized player (A, B, C) wherein a change in a cognitive status in each of the individual brain performances over time can be monitored;
Step 2: When able, accessing “Safe Brain” content by an account administrator and/or authorized individual;
Step 3: Establishing, for each individual authorized player profile (A, B, C), a neurological baseline for that individual authorized player using a group of interactive games and a cognitive assessment tool called the Sign Inventory Tool (SIT) which is administered by an authorized caregiver, wherein the interactive games measure various cognitive functions of the player profile including memory, reaction time, and coordination, and wherein the SIT evaluates various cognitive functions affected by head injury including orientation, memory, and sequential processing, and wherein the player profile baselines are established by each profile playing the interactive games a certain number of times and by each profile being administered the SIT by an authorized caregiver a certain number of times
Step 4: Periodically sending reminders and notifications to the caregivers and the individual authorized player profiles to instruct and encourage game play several times a week, wherein regular game play improves accuracy of the baseline of the individual authorized player and wherein changes in game results from the established baseline may reveal a change in cognitive status indicative of a potential concussion event that would otherwise go undetected
Step 5:
A. If an interactive game result of an individual authorized player falls within a predetermined threshold percentage of the baseline of the individual authorized player, using their score to further define the acceptable range and baseline of the interactive game result;
B. if the game result falls below the predetermined threshold percentage of the baseline of the individual authorized player,
(1) alerting the individual authorized player and informing the player that their game result fell beneath their acceptable range and request that the player gets focused and play again, and
(2) alerting the caregiver to immediately administer the SIT assessment and to consider further evaluation;
Step 6:
A. If the player profile is playing the interactive game again within a designated period of time and their result is falling within their acceptable range, no further action transpires;
B. If the player profile is playing the game and result are falling under the predetermined threshold percentage of the baseline of the individual authorized player a second time, or if the individual authorized player is not playing the game again within the designated period, four things occur:
(1) the player is informed that their game result fell below their acceptable range and that their caregiver has been notified,
(2) an alert is sent to an account administrator(s) and any other authorized party(ies) associated with the account informing them the player profile has scored below their acceptable range and needs attention,
(3) applying a red alert dot to indicate that a player profile within that account needs attention, and changing the player profile circle on the account’s profile page to red indicating the specific profile in the account that needs attention, and
(4) the player profile’s page viewable by the account administrator(s) is populated with an information and the account administrator is informed to either administer the SIT to the individual authorized player profile, or to consider further evaluation for the profile;
Step 7:
A. If the caregiver elects to administer the SIT and the result is below the predetermined threshold percentage of the individual authorized player profile’s SIT baseline, recommending they consider further evaluation and all red dot alerts and the profile’s game page information remains until the player profile either (1) successfully completes one of the games within their acceptable range, or (2) is administered the SIT and the result falls within their acceptable range;
B. If the caregiver elects to administer the SIT and the result falls within the predetermined threshold percentage of the player profile’s SIT baseline, stating the player profile is within range and removing all red dot alerts and the profile’s game page information;
Step 8: Maintaining a running history of each individual authorized player profile’s interactive game play results, their SIT results, and any alert notifications previously sent to an account administrator(s) based on results of both the individual authorized player profile’s game play results and the results of the SIT that was administered to them; and
Step 9: Repeating Steps 5 and 6 for each individual authorized player profile when preparing for an upcoming physical practice or game, when changing to a different type of physical activity, or when observing a change in the individual authorized player profile’s behavior.
These steps amount to managing personal behavior or relationships or interactions
between people and therefore recite certain methods of organizing human activity. Providing interactive games to a player to evaluate and identify signs of a concussion in the player by comparing a game score to a baseline score, subsequently notifying a caregiver when a player’s score is below a threshold to instruct the caregiver to conduct a cognitive assessment tool on the player, managing a history of a player’s results over time and repeating the process over time, are personal behaviors that may be performed by caregivers/healthcare providers.
The above claim is therefore directed to an abstract idea.
Step 2A Prong 2
This judicial exception is not integrated into a practical application because the additional
elements within the claims only amount to:
A. Instructions to Implement the Judicial Exception. MPEP 2106.05(f)
Independent claim 1 additionally recites:
a processor executing a mobile application on a computing device with internet capability as implementing the steps of the abstract idea
Downloading a mobile application called “Safe Brain” onto an electronic device with internet capability / logging into the mobile application called “Safe Brain” as a means of electronically accessing “Safe Brain” content using an electronic device
The Safe Brain application as implementing the steps of recommending the player consider further evaluation (Step 7A), stating the player profile is within range (Step 2B), maintaining a running history of each individual authorized player profile’s interactive game play results, their SIT results, and any alert notifications previously sent to an account administrator(s) based on results of both the individual authorized player profile’s game play results and the results of the SIT that was administered to them (Step 8);
digital game play/game play results and digital SIT as a means of electronically (digitally) providing game play/game play results and a cognitive assessment tool
the app icon of the smart phone as a means of displaying information on an electronic device
an alert window on the screen as implementing the step of informing the user that their game result fell below their acceptable range and that their caregiver has been notified
home page as a means of electronically tracking player profile information
an information window as a means of electronically displaying information via a computer window
The broad recitation of the aforementioned general purpose computing elements at a high level of generality only amounts to mere instructions to implement the abstract idea using computing components as tools. For example, the “electronic device” is understood to be a general purpose computing device functioning in its ordinary capacity, e.g., cell phone, computers, tablets, laptops, smart devices for manipulating data per para. [0039] of Applicant’s specification). The specification does not provide any details of the processor. Therefore, the “processor” is also understood to be a general purpose computing component functioning in its ordinary capacity – e.g., the processor of a laptop or cell phone. Downloading a mobile application to an electronic device, logging into the application, using the application to implement steps of the abstract idea, displaying information in a window on the screen of the electronic device, displaying an app icon on a smartphone, and using a “home page” to display information all amount to applying the abstract idea on a general purpose computing device. Recitation of “digital” game play and assessment tool only amounts to mere instructions to apply the assessment tools using an electronic device.
These elements are therefore not sufficient to integrate the abstract idea into a practical application. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually.
Claim 1, as a whole, is therefore directed to an abstract idea.
Step 2B
The present claims do not include additional elements that are sufficient to amount to
more than the abstract idea because the additional elements or combination of elements amount to no more than a recitation of:
A. Instructions to Implement the Judicial Exception. MPEP 2106.05(f)
As explained above, claim 1 only recites the aforementioned computing elements as tools for performing the steps of the abstract idea, and mere instructions to perform the abstract idea using a computer is not sufficient to amount to significantly more than the abstract idea. MPEP 2106.05(f).
Thus, taken alone, the additional elements do not amount to significantly more than the
above-identified judicial exception. Looking at the limitations as an ordered combination adds
nothing that is not already present when looking at the elements taken individually. Their
collective functions merely provide conventional computer implementation.
Depending Claims
Dependent claims 2-7 are similarly rejected because they either further define/narrow the abstract idea and/or do not further limit the claim to a practical application or provide an inventive concept such that the claims are subject matter eligible even when considered individually or as an ordered combination.
Claim 2 merely describes the type of electronic device, which further narrows the scope.
Claim 3 merely lists the names of the digital games, which further narrows the scope.
Claim 4 merely describes the parameters that are used to measure cognitive function, which further narrows the scope.
Claim 5 merely describes the type of cognitive functions evaluated by the SIT, which further narrows the scope.
Claim 6 merely describes the type of caregiver, which further narrows the scope.
Claim 7 merely describes the type of change in user’s behavior, which further narrows the scope.
Claim 8 merely describes the scope of a particular interactive game pertaining to reaction time and focus.
Claim 9 merely describes the scope of a second interactive game pertaining to short-term memory, which further narrows the scope.
Claim 10 merely recites the intended use (disguising cognitive assessments as games such that children engage in regular game play).
Claim 11 merely describes the neurological baseline as being an individual-specific baseline which is used for generating alerts and recommendations, which further narrows the scope.
Dependent claims 2-11, when analyzed as a whole, are held to be patent ineligible under 35 U.S.C. 101 because the additional recited limitation(s) fail(s) to establish that the claim(s) is/are not directed to an abstract idea without significantly more. These claims fail to remedy the deficiencies of their parent claims above, and are therefore rejected for at least the same rationale as applied to their parent claims above, and incorporated herein.
For the reasons stated, Claims 1-11 fail the Subject Matter Eligibility Test and are consequently rejected under 35 U.S.C. 101.
Response to Applicant’s Remarks/Arguments
Please note: When referencing page numbers of Applicant’s response, references are to page numbers as printed.
Abstract Objections
The objections to the Abstract are withdrawn in view of Applicant’s submission of revised Abstract on separate sheet.
Claim Objections
Applicant’s remarks have been fully considered and are partially persuasive. Examiner has reviewed the claim objections detailed in Non-Final Action and the amended claims filed 05/18/26, and respectfully submits that not all objections have been addressed. For example, Claim 1 still contains instances of a letter (A., B.) followed by a period in at least Step 5 and 6. Similarly, Examiner respectfully submits that not all identified terminology has been streamlined, e.g., the claims still recite both “the player profile” and “the individual authorized player profile”. Examiner has withdrawn the Claim Objections that have been addressed. The remaining Claim Objections are maintained.
35 USC 112(b) Rejections
Applicant’s remarks have been fully considered. Examiner has acknowledged and updated the 112(b) section above to remove the 112(b) issues that have been withdrawn in view of Applicant’s amendments to the claims; however, many 112(b) indefinite/antecedent basis issues have not been resolved. Examiner prospectively notes that the 112(b) rejections were not given for lack of adequate written description in the specification, e.g., citations to specification are not needed to overcome the 112(b) rejections. For example, while “authorized caregiver” is fully defined in and supported by the specification, the claims appear to use multiple terms interchangeably which leads to indefiniteness/antecedent basis issues: Claim 1 introduces the term “an authorized caregiver in Step 3, but Step 4 recites “the caregivers” and Step 5 recites “the caregiver”. It is unclear if “the caregivers” (plural)/”the caregiver” have antecedent basis in “an authorized caregiver” or refer to other caregivers. Further, Examiner notes that the claims recite “an authorized caregiver” at least 3 times. Once the limitation “an authorized caregiver” has been recited, subsequent recitations can use “the authorized caregiver” to refer back to the initial recitation of “an authorized caregiver”. Examiner has withdrawn the 112(b) rejections that have been addressed. The remaining 112(b) rejections are maintained.
35 USC 112(a) Remarks at page 9
Applicant has made remarks at page 9 pertaining to 35 USC 112(a) and Written Description. Examiner notes that no written description (112(a)) rejections were given in Non-Final Action. There are no 112(a) rejections to withdraw.
35 USC 101 Rejections
Applicant’s remarks have been fully considered but are not persuasive. Regarding remarks in first paragraph at page 10, the Examiner respectfully disagrees. MPEP 2106. 04(a)(2)(II) states that a claimed invention is directed to certain methods of organizing human activity if the identified claim elements contain limitations that encompass fundamental economic principles or practices, commercial or legal interactions, or managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). The Examiner submits that the identified claim elements represent a series of personal behaviors that a person or persons, with or without the aid of a computer, would follow to assess and monitor another individual for a concussion and track their progress over time. Because the claim elements fall under a series of personal behaviors that a person or persons would follow to assess and monitor another individual for a concussion and track their progress over time, the claimed invention is directed to an abstract idea. Regarding “particular components” remarks, e.g., mobile computing devices, interactive games, etc., this only amounts to mere instructions to apply the abstract idea on a computer (MPEP 2106.05(f)). Examiner notes that regarding “technological problem”, Examiner is unable to find a problem caused by the technological environment of the claim (a computing system). The claimed invention may solve a “medical” problem (e.g., the problem of the frequency of concussions and TBI’s in America’s youth and the lack of health care professionals present at youth sporting events); however, these problems (e.g., 767,000 youth visiting emergency rooms each year because of TBI’s) are not caused by the technological environment of the claim. This argument is not persuasive.
Regarding remarks on second paragraph at page 10, Examiner respectfully disagrees with Applicant’s position. Regardless of the specific games required, Examiner submits that “digital” games merely amount to using a computing device to deliver game content to an individual. Using specific games may narrow the scope of the abstract idea but does not remove the claim from being directed to an abstract idea. This argument is not persuasive.
Regarding remarks directed to Step 2A Prong 2 at page 10, the Examiner respectfully disagrees. Regarding remarks at (i) that “The Claims Improve Technology”,
the Examiner respectfully disagrees. MPEP 2106.04(d)(1) states “the word ‘improvements’ in the context of this consideration is limited to improvements to the functioning of a computer or any other technology/technical field, whether in Step 2A Prong Two or in Step 2B.” Here, there is no improvement to the computer (understood to be a general purpose computing device, e.g., laptop, cell phone, smart phone – functioning in its ordinary capacity), nor is there an improvement to another technology (the claims are confined to a general purpose computing device; because no other technology is recited in the claim, the claim cannot improve another technology (see, e.g., MPEP 2106.05(I)(A)(i) describing an example of an improvement to another technology where the abstract idea implemented on a computer improved the claimed additional element of a rubber molding machine)). Because neither type of improvement is present in the claims, an improvement to technology is not present and there is no practical application.
Applicant’s argument that the field of “mobile health applications and neurological assessment technology” is a technology and the claimed invention improves this field is not reflected in the claimed invention. The claims are confined to a general-purpose computing device. The claimed invention is using a computer as a tool and any improvement present is an improvement to the abstract idea of, to paraphrase, assessing a subject’s cognitive performance over time to determine if they may have a concussion or TBI. Per MPEP 2106.05(a), “It is important to note, the judicial exception alone cannot provide the improvement. The improvement can be provided by one or more additional elements.” Applicant has not provided, nor can Examiner find evidence of, how any of the additional elements identified above in main 101 analysis section are providing an improvement over prior art systems. Regarding the features cited by Applicant at bottom of page 10 continuing to page 11, Examiner submits that these all fall within the scope of the abstract idea – e.g., individually calibrating a baseline for an individual, disguising assessment through a game; and/or amount to mere instructions to apply the abstract idea (using a computing device to output an alert/notification). Finally, were Applicant’s line of reasoning correct, the invention in Alice Corp. would have been subject matter eligible because it was an improvement to the technology of “settlement risk mitigation”. This argument is not persuasive.
Regarding remarks to Enfish, Examiner respectfully disagrees that the claims are analogous. Regarding Enfish, the court concluded the claims were not directed to an abstract idea, but rather an improvement to computer functionality. It was the specification’s discussion of the prior art and how the invention improved the way the computer stores and retrieves data in memory in combination with the specific data structure recited in the claims that demonstrated eligibility (MPEP 2106.05(a)); the claimed invention improved the functioning of the computer itself. This argument is not persuasive.
Regarding remarks at page 11 pertaining to “particular machines” (ii), Examiner respectfully disagrees that reciting “a processor executing a mobile application on a computing device with internet capability” constitutes a “particular machine” per MPEP 2106.05(b):
The particularity or generality of the elements of the machine or apparatus, i.e., the degree to which the machine in the claim can be specifically identified (not any and all machines). One example of applying a judicial exception with a particular machine is Mackay Radio & Tel. Co. v. Radio Corp. of America, 306 U.S. 86, 40 USPQ 199 (1939). In this case, a mathematical formula was employed to use standing wave phenomena in an antenna system. The claim recited the particular type of antenna and included details as to the shape of the antenna and the conductors, particularly the length and angle at which they were arranged. 306 U.S. at 95-96; 40 USPQ at 203. Another example is Eibel Process, in which gravity (a law of nature or natural phenomenon) was applied by a Fourdrinier machine (which was understood in the art to have a specific structure comprising a headbox, a paper-making wire, and a series of rolls) arranged in a particular way to optimize the speed of the machine while maintaining quality of the formed paper web. Eibel Process Co. v. Minn. & Ont. Paper Co., 261 U.S. 45, 64-65 (1923).
MPEP 2106.05(b) further states “It is important to note that a general purpose computer that applies a judicial exception, such as an abstract idea, by use of conventional computer functions does not qualify as a particular machine.” As explained above, there is no indication that the operations recited in Claim 1 require any specialized computer hardware or other inventive computer components, invoke any allegedly inventive programming, or that the claimed invention is implemented using other than generic computer components as tools operating in their ordinary capacity. The computing device is understood to be a general purpose cell phone, computer, tablet, laptop or smart device (Claim 2). Therefore, this argument is not persuasive.
Regarding remarks at page 11 pertaining to “concrete, useful, tangible result” (iii), Examiner respectfully submits that everything Applicant is arguing either falls within the scope of the abstraction (e.g., individualized neurological baseline data for each player profile) and/or amount to mere instructions to apply the abstract idea (e.g., sending alerts to mobile devices or using visual indicators on a display). While the output of the SIT assessment may provide recommendations with specific outcomes, this falls within the scope of the abstract idea (e.g., a personal behavior; a healthcare provider can assess a patient for a TBI and provide recommendations based on the outcome). Regarding remarks directed to DDR holdings, the Examiner respectfully disagrees that the instant claims are analogous. MPEP 2106.04(d)(1) and MPEP 2106.05(a) indicates that a practical application may be present where the claimed invention provides a technical solution to a technical problem. See, e.g., DDR Holdings, LLC. v. Hotels.com, L.P., 773 F.3d 1245, 1259 (Fed. Cir. 2014) (finding that claiming a website that retained the “look and feel” of a host webpage provided a technological solution to the problem of retention of website visitors by utilizing a website descriptor that emulated the “look and feel” of the host webpage, where the problem arose out of the internet and was thus a technical problem). Here, the Examiner cannot find, nor has the Applicant identified, any technological problem that was caused by the technological environment to which the claims are confined (a general purpose computing device such as a smartphone or laptop). Therefore, this argument is not persuasive.
Regarding remarks at page 11 pertaining to Step 2B and “significantly more”, the Examiner respectfully disagrees. The “significantly more” analysis pertains to additional elements (MPEP 2106.05). Applicant has not identified, nor can Examiner find, evidence that the additional elements amount to anything more than using known general purpose computing devices functioning in their ordinary capacity to apply the abstract idea. Regarding remarks to “no prior art disclosed”, please see MPEP 2106.05(I) which states, “Although the courts often evaluate considerations such as the conventionality of an additional element in the eligibility analysis, the search for an inventive concept should not be confused with a novelty or non-obviousness determination. See Mayo, 566 U.S. at 91, 101 USPQ2d at 1973 (rejecting "the Government’s invitation to substitute §§ 102, 103, and 112 inquiries for the better established inquiry under § 101"). As made clear by the courts, the "novelty” of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter."
Regarding remarks to BASCOM, Examiner notes that the claims in BASCOM were not found to be eligible merely because they included a filtering step, but rather, because they presented a technology-based improvement to methods in which filtering was performed which overcame disadvantages with prior art systems. Unlike BASCOM, Applicant has not demonstrated how the claimed invention provides a technology-based improvement analogous to the filtering claimed by BASCOM.
Regarding citation to [0011] of instant specification, the Examiner submits that this amounts, at best, to an improvement to the abstract idea which is not enough to render the claimed invention subject matter eligible. For example, using game performance to monitor a subject’s cognitive performance over time by comparing the results to an individual baseline may improve the abstract idea itself (e.g., an improved method of screening for concussions vs. comparing to a general population score or by proactively monitoring vs. waiting for an injury to occur). Per MPEP 2106.05(a) improvements to the abstract idea are not sufficient. This argument is not persuasive.
Regarding arguments at (E), Examiner respectfully disagrees that the instant claims are analogous to any of the cited case law. Regarding Applicant’s reference to McRO, the Examiner respectfully submits that the instant claims are not analogous to McRO. In McRO, the claimed invention recited a very specific set of rules that allowed a computer to perform animation in a manner that was previously only performable by human animators. The very fact that the animation could not be previously performed by computers and that the rules applied by the claimed invention solved this problem was the reason the claimed invention in McRO was found to be not directed to an abstract idea. Here, there is no evidence on record that establishes that the claimed invention was only previously performable by humans in the manner of McRO. This argument is not persuasive.
Regarding Thales, Examiner respectfully disagrees with Applicant’s position. In Thales, the claimed invention utilized a location of additional elements that was non-routine and non-conventional. The claims recited a unique arrangement of inertial sensors that are used to track the location of a moving item based on a moving reference frame and the unique arrangement not routine and conventional in the art and thus provided a practical application. Here, there is no evidence on record of a unique arrangement of sensors or any other elements with supporting evidence that the arrangement/configuration is not routine and conventional. Regarding remarks to a “technological problem” or “undetected concussions in children”, Examiner submits that the problem of undetected concussions is not a “technological problem” as it is not caused by the technological environment of the claim (the computing device). This argument is not persuasive.
For all of the above reasons, Applicant’s remarks are not persuasive and the rejections of Claims 1-11 under 35 USC 101 are maintained.
Conclusion
In the interest of expediting prosecution, Examiner respectfully requests that Applicant provides citations to relevant paragraphs of specification for support for amendments in future correspondence.
The following relevant prior art not cited is made of record:
US Publication 20230277139 A1, teaching on a rapid diagnosis tool for potential traumatic brain injuries which uses received data to determine and alert a designated user that a screening and assessment for concussion and TBI by a medical professional is warranted
US Publication 20120238831 A1, teaching on a portable neurocognitive assessment and evaluation system
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANNE-MARIE K ALDERSON whose telephone number is (571)272-3370. The examiner can normally be reached on Mon-Fri 9:00am-5:00pm EST, and generally schedules interviews in the timeframe of 2:00-5:00pm 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, Fonya Long, can be reached on 571-270-5096. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANNE-MARIE K ALDERSON/Primary Examiner, Art Unit 3682
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