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 .
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.
Response to Amendment
This is a response to Applicant’s amendment filed on 17 July 2026, wherein:
Claims 1, 3-6, 11, 13-26, and 28-31 are amended.
Claims 2, 7, 9, 10, 12, 27, 32, and 34 are original.
Claims 8 and 33 are canceled.
Claims 1-7, 9-32, and 34 are pending.
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Claim Objections
Claims 26-32 and 34 are objected to because of the following informalities:
In line 6 of claim 26, the end of the limitation (“a control device”) ends with a colon when it should end with a semi-colon.
Appropriate correction is required.
Claim Interpretation
The text of those sections of Title 35, U.S. Code 112(f) not included in this action can be found in a prior Office action.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“an audio stimulator adapted to selectively apply an aversive aural stimulus” in claims 1, 14, and 26.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code 112(b) not included in this action can be found in a prior Office action.
Claims 13 and 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.
Regarding claims 13 and 25, it is unclear how “the series of cues is provided by the audio stimulator” in claim 13 and “wherein the physical cue device and the audio stimulator comprise a single device” in claim 25, particularly since the cues and the aversive aural stimulus are provided simultaneously and the disclosure is silent regarding any meaningful description of a single device performing this functionality. In particular, the only mention is a generic statement that “[i]n some cases, a single device may function as both the cue device and the physical stimulator (e.g. a speaker).” The specification merely reciting similar language as the claim does not disclose an embodiment capable of this functionality as it is silent regarding how a single device provides both the series of cues and the aversive stimulus at the same time. Thus, one of ordinary skill in the art would not be apprised of the metes and bounds of the patent protection sought.
The text of those sections of Title 35, U.S. Code 112(a) not included in this action can be found in a prior Office action.
Claims 13 and 25 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 13 and 25 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for a physical cue device providing the series of cues and a separate audio stimulator providing the aversive aural stimulus, does not reasonably provide enablement for “wherein the series of cues is provided by the audio stimulator” as claimed in claim 13 and “wherein the physical cue device and the audio stimulator comprise a single device” in claim 25. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the invention commensurate in scope with these claims. To be clear, the disclosure merely recites similar as the claims, but provides no description of the elements and functions necessary. For instance, In particular, the only mention is a generic statement that “[i]n some cases, a single device may function as both the cue device and the physical stimulator (e.g. a speaker).” The specification merely reciting similar language as the claim does not disclose an embodiment capable of this functionality as it is silent regarding how a single device (including a speaker) provides both the series of cues and the aversive stimulus at the same time. It is further noted that Applicant’s public disclosure of the claimed invention1, which was published after the effective filing date of the instant application, is silent regarding such an embodiment as it only discloses visual cues.
Claim Rejections - 35 USC § 101
The text of those sections of Title 35, U.S. Code 101 not included in this action can be found in a prior Office action.
Claims 1-7, 9-32, and 34 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 including additional elements that are sufficient to amount to significantly more than the judicial exception itself.
Step 1
The claims are directed to a method and products which fall under the four statutory categories (STEP 1: YES).
Step 2A, Prong 1
Independent claim 1 recites:
A method for obtaining digital information that is representative of underlying neurochemically mediated cognitive processes within a brain of a human subject to assist a clinician in diagnosing or treating the human subject, the method comprising:
providing a series of cues to the human subject;
in association with the cues, using an audio stimulator adapted to selectively apply an aversive aural stimulus to administer to the human subject, according to a predetermined pattern, a series of response states, wherein each of the response states is associated with a particular one of the cues;
responsive to each of the cues, receiving, from the human subject, via a physical actuator, a physical signal, wherein the physical signal is one of:
actuation of the physical actuator; and
non-actuation of the physical actuator within a predetermined time from initiation of the cue; and
recording each received physical signal in association with the respective response state;
wherein each response state in the series of response states is selected from the group consisting of:
an active-escape state, wherein:
the aversive aural stimulus is initially applied;
the actuation of the physical actuator will, according to a first probabilistic function, do one of:
decrease the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
increase the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
according to the first probabilistic function, the actuation of the physical actuator is more likely to decrease the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator than to increase the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator;
a passive-escape state, wherein:
the aversive aural stimulus is initially applied; and
the actuation of the physical actuator will, according to a second probabilistic function, do one of:
decrease the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
increase the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
according to the second probabilistic function, the actuation of the physical actuator is more likely to increase the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator than to decrease the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator;
an active-avoid state, wherein:
the aversive aural stimulus is initially withheld;
the actuation of the physical actuator will, according to a third probabilistic function, do one of:
maintain withholding of the aversive aural stimulus; and
initiate application of the aversive aural stimulus; and
according to the third probabilistic function, the actuation of the physical actuator is more likely to maintain withholding of the aversive aural stimulus than to initiate application of the aversive aural stimulus;
a passive-avoid state, wherein:
the aversive aural stimulus is initially withheld;
the actuation of the physical actuator will, according to a fourth probabilistic function, do one of:
maintain withholding of the aversive aural stimulus; and
initiate application of the aversive aural stimulus; and
according to the fourth probabilistic function, actuation of the physical actuator is more likely to initiate application of the aversive aural stimulus than to maintain withholding of the aversive aural stimulus; and
wherein the predetermined pattern includes:
at least one first sequence in which:
the active-escape state is more likely than the passive-escape state; and
the active-avoid state is more likely than the passive-avoid state;
at least one second sequence in which:
the passive-escape state is more likely than the active-escape state; and
the passive-avoid state is more likely than the active-avoid state; and
at least one reversal between respective ones of the at least one first sequence and the at least one second sequence;
transforming the physical signals according to a predefined model that incorporates the predetermined pattern to obtain a plurality of learning variables of the human subject;
applying the predefined model to the plurality of learning variables to classify an expected cause of an individual bias of the human subject toward or away from active-escape behaviour;
wherein:
the plurality of learning variables includes both of:
a belief decay rate of the human subject; and
a learning rate of the human subject.
Independent claim 14 recites:
A diagnostic instrument for obtaining digital information that is representative of underlying neurochemically mediated cognitive processes within a brain of a human subject to assist a clinician in diagnosing or treating the human subject, the diagnostic instrument comprising:
a control device;
a physical cue device coupled to the control device;
an audio stimulator coupled to the control device and adapted to apply an aversive aural stimulus to a human subject; and
a physical actuator coupled to the control device;
wherein the control device is configured to:
cause the physical cue device to provide a series of cues to the human subject;
in association with the cues, cause the audio stimulator to administer to the human subject, according to a predetermined pattern, a series of response states, wherein each of the response states is associated with a particular one of the cues;
responsive to each of the cues, receive, from the human subject, via the physical actuator, a physical signal, wherein the physical signal is one of:
actuation of the physical actuator; and
non-actuation of the physical actuator within a predetermined time from initiation of the cue; and
record each received physical signal in association with the respective response state;
wherein each response state in the series of response states is selected from the group consisting of:
an active-escape state, wherein:
the aversive aural stimulus is initially applied;
the actuation of the physical actuator will, according to a first probabilistic function, do one of:
decrease the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
increase the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
according to the first probabilistic function, the actuation of the physical actuator is more likely to decrease the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator than to increase the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator;
a passive-escape state, wherein:
the aversive aural stimulus is initially applied; and
the actuation of the physical actuator will, according to a second probabilistic function, do one of:
decrease the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
increase the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
according to the second probabilistic function, the actuation of the physical actuator is more likely to increase the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator than to decrease the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator;
an active-avoid state, wherein:
the aversive aural stimulus is initially withheld;
the actuation of the physical actuator will, according to a third probabilistic
function, do one of:
maintain withholding of the aversive aural stimulus; and
initiate application of the aversive aural stimulus; and
according to the third probabilistic function, the actuation of the physical actuator is more likely to maintain withholding of the aversive aural stimulus than to initiate application of the aversive aural stimulus;
a passive-avoid state, wherein:
the aversive aural stimulus is initially withheld;
the actuation of the physical actuator will, according to a fourth probabilistic function, do one of:
maintain withholding of the aversive aural stimulus; and
initiate application of the aversive aural stimulus; and
according to the fourth probabilistic function, actuation of the physical actuator is more likely to initiate application of the aversive aural stimulus than to maintain withholding of the aversive aural stimulus; and
wherein the predetermined pattern includes:
at least one first sequence in which:
the active-escape state is more likely than the passive-escape state; and
the active-avoid state is more likely than the passive-avoid state;
at least one second sequence in which:
the passive-escape state is more likely than the active-escape state; and
the passive-avoid state is more likely than the active-avoid state; and
at least one reversal between respective ones of the at least one first sequence and the at least one second sequence;
wherein the control device is further configured to:
transform the physical signals according to a predefined model that incorporates the predetermined pattern to obtain a plurality of learning variables of the human subject; and
apply the predefined model to the plurality of learning variables to classify an expected cause of an individual bias of the human subject toward or away from active-escape behaviour;
wherein:
the plurality of learning variables includes both of:
a belief decay rate of the human subject; and
a learning rate of the human subject.
Independent claim 26 recites:
One or more non-transitory computer-readable media comprising computer executable instructions for obtaining digital information that is representative of underlying neurochemically mediated cognitive processes within a brain of a human subject, wherein the instructions which, when executed by a diagnostic instrument comprising:
a control device:
a physical cue device;
an audio stimulator adapted to apply an aversive aural stimulus to a human subject; and
a physical actuator;
wherein the control device is coupled to each of the physical cue device, the audio stimulator and the physical actuator;
cause the control device to:
cause the physical cue device to provide a series of cues to the human subject;
in association with the cues, cause the audio stimulator to administer to the human subject, according to a predetermined pattern, a series of response states, wherein each of the response states is associated with a particular one of the cues;
responsive to each of the cues, receive, from the human subject, via the physical actuator, a physical signal, wherein the physical signal is one of:
actuation of the physical actuator; and
non-actuation of the physical actuator within a predetermined time from initiation of the cue; and
record each received physical signal in association with the respective response state;
wherein each response state in the series of response states is selected from the group consisting of:
an active-escape state, wherein:
the aversive aural stimulus is initially applied;
the actuation of the physical actuator will, according to a first probabilistic function, do one of:
decrease the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
increase the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
according to the first probabilistic function, the actuation of the physical actuator is more likely to decrease the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator than to increase the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator;
a passive-escape state, wherein:
the aversive aural stimulus is initially applied; and
the actuation of the physical actuator will, according to a second probabilistic function, do one of:
decrease the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
increase the duration of the aversive aural stimulus, relative to the non-actuation of the physical actuator; and
according to the second probabilistic function, the actuation of the physical actuator is more likely to increase the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator than to decrease the duration of the aversive aural stimulus relative to the non-actuation of the physical actuator;
an active-avoid state, wherein:
the aversive aural stimulus is initially withheld;
the actuation of the physical actuator will, according to a third probabilistic
function, do one of:
maintain withholding of the aversive aural stimulus; and
initiate application of the aversive aural stimulus; and
according to the third probabilistic function, the actuation of the physical actuator is more likely to maintain withholding of the aversive aural stimulus than to initiate application of the aversive aural stimulus;
a passive-avoid state, wherein:
the aversive aural stimulus is initially withheld;
the actuation of the physical actuator will, according to a fourth probabilistic
function, do one of:
maintain withholding of the aversive aural stimulus; and
initiate application of the aversive aural stimulus; and
according to the fourth probabilistic function, actuation of the physical actuator is more likely to initiate application of the aversive aural stimulus than to maintain withholding of the aversive aural stimulus; and
wherein the predetermined pattern includes:
at least one first sequence in which:
the active-escape state is more likely than the passive-escape state; and
the active-avoid state is more likely than the passive-avoid state;
at least one second sequence in which:
the passive-escape state is more likely than the active-escape state; and
the passive-avoid state is more likely than the active-avoid state; and
at least one reversal between respective ones of the at least one first sequence and the at least one second sequence;
wherein the instructions further cause the control device to:
transform the physical signals according to a predefined model that incorporates the predetermined pattern to obtain a plurality of learning variables of the human subject; and
apply the predefined model to the plurality of learning variables to classify an expected cause of an individual bias of the human subject toward or away from active-escape behaviour;
wherein:
the plurality of learning variables includes both of:
a belief decay rate of the human subject; and
a learning rate of the human subject.
All of the foregoing underlined elements amount to the abstract idea grouping of a certain method of organizing human activity because it is managing personal behavior or interactions between people (including social activities, teaching, and following rules or instructions) by collecting information, analyzing it, and outputting the results of the collection and analysis typically performed by a clinician, researcher, etc. This is explicitly identified by the preambles of independent claims 1, 14, and 26 which recite “for obtaining digital information that is representative of underlying neurochemically mediated cognitive processes within a brain of a human subject to assist a clinician in diagnosing or treating the human subject”. Similarly, the receiving, recording, transforming, and applying steps amount to the abstract idea grouping of mental processes as the claims, under their broadest reasonable interpretation, cover performance of the limitations in the mind with the aid of pen and paper (including observation, evaluation, judgment, opinion) but for the recitation of generic computer components. See MPEP 2106.04(a)(2)(III)(C) - A Claim That Requires a Computer May Still Recite a Mental Process. Lastly, the transforming and applying steps amount to the abstract idea grouping of mathematical concepts because they recite mathematical calculations as defined in MPEP 2106.04(a)(2)(I) which recites that a “claim that recites a mathematical calculation, when the claim is given its broadest reasonable interpretation in light of the specification, will be considered as falling within the ‘mathematical concepts’ grouping” because a “mathematical calculation is a mathematical operation (such as multiplication) or an act of calculating using mathematical methods to determine a variable or number, e.g., performing an arithmetic operation such as exponentiation. There is no particular word or set of words that indicates a claim recites a mathematical calculation. That is, a claim does not have to recite the word ‘calculating’ in order to be considered a mathematical calculation. For example, a step of ‘determining’ a variable or number using mathematical methods or ‘performing’ a mathematical operation may also be considered mathematical calculations when the broadest reasonable interpretation of the claim in light of the specification encompasses a mathematical calculation." This is further evidenced in the specification which recites that the “present disclosure provides for an automated analysis algorithm of a subject’s psychophysiological responses to a test protocol”. See para. 108 of the specification.
The dependent claims, except for claims 10-13 and 22-25 amount to merely further defining the judicial exception.
Therefore, the claims recite a judicial exception. (STEP 2A, PRONG 1: YES).
Step 2A, Prong 2
This judicial exception is not integrated into a practical application because the claims do not include additional elements that are sufficient to integrate the exception into a practical application under the considerations set forth in MPEP 2106.04(d). The elements of the claims above that are not underlined constitute additional elements.
The following additional elements merely generally link the judicial exception to a particular technological environment or field of use: reciting the information as “digital” (claims 1, 14, and 26), an audio stimulator (claims 1, 14, and 26); a physical actuator (claims 1, 14, and 26); a physical cue device including at least one of: a visual cue device comprising at least one of (i) at least one indicator light and (ii) at least one display screen, an audio cue device, or a haptic cue device (claims 10 and 22); reciting the audio stimulator is a speaker (claims 11 and 23); reciting the physical actuator is one of a button, a lever, a joystick, a switch, a foot pedal, or a touch screen (claims 12 and 24); a diagnostic instrument comprising a control device, a physical cue device coupled to the control device, an audio stimulator coupled to the control device, and a physical actuator coupled to the control device (claim 14); reciting the physical cue device and the audio stimulator comprise a single device (claim 25); one or more non-transitory computer-readable media comprising computer executable instructions (claim 26); and a diagnostic instrument comprising a control device, a physical cue device, an audio stimulator, and a physical actuator, wherein the control device is coupled to each of the physical cue device, the audio stimulator and the physical actuator (claim 26). Although the claims recite the elements identified above, these elements are recited at a high level of generality in a conventional arrangement for performing their basic computer functions (i.e., receiving, processing, outputting data) for computerized psychological testing. This is evidenced by at least Fig. 1, 10, and 11 which illustrate the components as non-descript black boxes or stock images while Fig. 2-9 illustrate that the claimed invention is focused on the judicial exception itself. Further evidence is provided by the specification. See also, for example, at least para. 25 and 103-122 of the specification which identify that any suitable combination of hardware, software, or firmware may be used to implement the judicial exception. Thus, the judicial exception is not implemented with, or used in, a particular machine or manufacture. Additionally, the claims do not recite any limitations that improve the functionality of the computer system as the computer system and its elements are merely recited to be used in the performance of the steps. For instance, the claimed steps do not integrate a judicial exception into a practical application because they are merely using a computer as a tool to perform an abstract idea as discussed in MPEP 2106.05(f) since the claims merely recite the use of a computer in its ordinary capacity to perform these tasks. See MPEP 2106.04(d). This also evidences that the claims do not recite any specific rules with specific characteristics that improve the functionality of the computer system as the claimed steps are wholly focused on the judicial exception itself while the computerized elements are merely recited to be used in their performance. Additionally, the audio stimulator and physical actuator, as recited and organized, act to merely add insignificant extra-solution activity to the judicial exception (e.g., mere extra-solution stimulating and data gathering in conjunction with a law of nature or abstract idea). This further identifies that none of the hardware offer a meaningful limitation beyond, at best, generally linking the performance of the steps to a particular technological environment, that is, implementation via computers. The claims do not apply or use a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition. For instance, the claims are explicitly identified as for obtaining information and is thus not limited in any way to any particular treatment or prophylaxis for any disease or medical condition. Additionally, the additional elements do not apply or use a judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, that is implementation with a computer. For instance, the claims, and disclosure as a whole, merely recite the use of conventional or generic technology in a nascent but well-known environment, without any assertion that the invention reflects an inventive solution to any problem presented in the technology, itself. Accordingly, based on all of the considered factors, these additional elements do not integrate the abstract idea into a practical application. Therefore, the claims are directed to the judicial exception. (STEP 2A, PRONG 2: NO).
Step 2B
The independent and dependent claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception under the considerations set forth in MPEP 2106.05. As identified in Step 2A, Prong 2, above, the claimed system and the process it performs does not require the use of a particular machine, nor does it result in the transformation of an article. The claims do not involve an improvement in a computer or other technology. Although the claims recite components (identified in Step 2A, Prong 2) for performing at least some of the recited functions, these elements are recited at a high level of generality in a conventional arrangement for performing their basic computer functions (i.e., receiving, processing, outputting data). This is at least evidenced by the manner in which this is disclosed 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 USC 112(a) as identified in Step 2A, Prong 2, above. Furthermore, the prior art is prolifically filled with the same elements for computerized psychological testing, especially for Pavlovian/active-escape bias tests. Thus, the judicial exception is not implemented with, or used in, a particular machine or manufacture. Furthermore, this also evidences that the components are merely an attempt to link the abstract idea to a particular technological environment, but do not result in an improvement to the technology or computer functions employed. Additionally, as identified in Step 2A, Prong 2, the mere inclusion of generically recited computerized elements conventionally configured to perform their conventional functions merely indicates a field of use or technological environment in which to apply a judicial exception. This further evidences that the claims do not recite any specific rules with specific characteristics that improve the functionality of the computer system. The focus of the claimed invention is on the analysis of the collected data, which is itself at best merely an improvement within the abstract idea. See pg. 2-3 in SAP America Inc. v. lnvestpic, LLC (890 F.3d 1016, 126 USPQ2d 1638 (Fed. Cir. 2018) which proffered “[w]e may assume that the techniques claimed are groundbreaking, innovative, or even brilliant, but that is not enough for eligibility. Nor is it enough for subject-matter eligibility that claimed techniques be novel and nonobvious in light of prior art, passing muster under 35 U.S.C. §§ 102 and 103. The claims here are ineligible because their innovation is an innovation in ineligible subject matter. Their subject is nothing but a series of mathematical calculations based on selected information and the presentation of the results of those calculations.” Additionally, the audio stimulator and physical actuator, as recited and organized, act to merely add insignificant extra-solution activity to the judicial exception (e.g., mere extra-solution stimulating and data gathering in conjunction with a law of nature or abstract idea). This further identifies that none of the hardware offer a meaningful limitation beyond, at best, generally linking the performance of the steps to a particular technological environment, that is, implementation via computers. Viewed as a whole, these additional claim elements do not provide meaningful limitation 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 of itself (STEP 2B: NO).
Therefore, the claims are rejected under 35 USC 101 as being directed to non-statutory subject matter.
Response to Arguments
Applicant's arguments with respect to the specification objection have been fully considered. The amendments obviate the objection. Thus, the objection is withdrawn.
Applicant's arguments with respect to the rejections of claims under 35 USC 112(b) and 112(a) related to claim interpretation in claim 1, 11, 14, 23, 26, and 33 under 35 USC 112(f) and to the language “characterized in that” in claims 1, 14, and 26 have been fully considered. The amendments obviate the associated rejections. Thus, these rejections are withdrawn.
Applicant's arguments with respect to the rejection of claims 13 and 25 under 35 USC 112(b) and 112(a) have been fully considered but they are not persuasive. In both pg. 18 and 19, Applicant asserts the claims have been amended to overcome the rejection and that para. 23 of the specification expressly states such an embodiment.
Examiner is not persuaded. Applicant is directed to the rejection above which has been updated to address the amendments to the claim. The embodiment recited in para. 23 is explicitly addressed as it is silent regarding how an audio cue and an aversive aural stimulus can be provided at the same time as claimed.
Applicant also asserts that para. 117 of the specification recites a smartphone having a display and a speaker, with input and output administered by the onboard computer system and I/O interface is an express description of a single-device implementation.
Examiner is not persuaded. Such an embodiment is not represented in claims 13 and 25. Claim 13 recites “wherein the series of cues is provided by the audio stimulator.” In the embodiment of para. 117, the cues are provided by the display, not the speaker. Claim 25 recites “wherein the physical cue device and the audio stimulator comprise a single device”. This means that the physical cue device and the audio stimulator are the same device. In contrast, the embodiment of para. 117 amounts to “a single device (i.e., the smartphone) comprises the physical cue device (i.e., the display) and the audio stimulator (i.e., the speaker)” as the display and the speaker are elements of a computer system represented by a smartphone.
Applicant's arguments with respect to the rejection of the claims under 35 USC 101 have been fully considered but they are not persuasive. In pg. 20, Applicant asserts that the amended claims are directed to a particular machine-implemented process for generating and transforming physical subject-response signals into digital information about an underlying biological process.
Examiner is not persuaded. Applicant is directed to the rejection above which has been updated to address the claim amendments. In particular, the rejection identifies that the claims are directed to, at best, an improvement in the analysis of data which is merely an improvement within the judicial exception itself.
In pg. 21-24, Applicant asserts the claims are patent eligible like those in CardioNet. Here, Applicant asserts present claims do not merely ask for medical or psychological information. They recite administering physical cues and an aversive physical stimulus according to defined active-escape, passive-escape, active-avoid, and passive-avoid response states; using a predetermined pattern having first and second sequences and at least one reversal; receiving physical signals from the human subject through a physical actuator; and transforming those physical signals according to a predefined model that incorporates the predetermined pattern. The resulting information is not an abstract label untethered to the physical testing process; as amended, it is digital information representative of underlying neurochemically mediated cognitive processes within the brain of the human subject.
Examiner is not persuaded. The administered test is the same test used across the entire field of psychology using the same equipment performing the same transformation of biological signals into digital information which is distinct from the claims found patent eligible in CardioNet which is focused on diagnosing physiological conditions – atrial fibrillation and atrial flutter in contrast to the instant claims which merely provide information that may “assist a clinician”. The instant disclosure is also silent regarding technical improvements like accommodating different types of processors without significantly compromising their individual performance and outperforming a prior art memory system armed with a cache many times larger than the cumulative size of the subject caches. CardioNet at pg. 15.
Applicant’s arguments with respect to the rejections of the claims under 35 USC 102 and 103 have been considered but are moot in light of the withdrawal of these rejections based on the amendments. It is noted that Millner does not teach “a belief decay rate of the human subject” as a learning variable.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/DANIEL LANE/Examiner, Art Unit 3715
1 Karvelis, P. & Diaconescu, A. O. (2022). A computational model of hopelessness and active-escape bias in suicidality. Computational Psychiatry, 6(1), 34. https://doi.org/10.5334/cpsy.80
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