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 .
Claim Status
Claims 1-20 are pending.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,481,353 B1. An analysis of the claims is provided in the claim chart below:
Claim 1 of the instant application
Claim 1 of the ‘353 Patent
Similarities and Differences
1. A method comprising:
A method comprising:
receiving camera images of a player of a computer simulation;
determining, based on a first image generated by a camera, baseline movement patterns for a computer simulation;
The instant application recites a broader embodiment that requires receiving camera images of a player of a computer simulation that does not require the additional elements of baseline movement patterns and showing a head-mounted display (HMD) worn by a player.
receiving a second image generated by the camera, the second image showing a head-mounted display (HMD) worn by a player of the computer simulation;
and based at least in part on the images,
determining a potential for motion sickness based on comparing the second image and the baseline movement patterns;
The instant application recites a broader embodiment that just requires based on the received images that recites a broader embodiment of based on the images which does not require the additional elements of determining a potential for motion sickness through a comparison of particular images.
presenting an advisory respecting motion sickness.
and presenting an advisory associated with the potential for motion sickness.
The instant application recites a broader embodiment of the claim invention that is an advisory respecting motion sickness as opposed to the ‘353 which requires the additional association with the potential for motion sickness
Although the claims at issue are not identical, they are not patentable distinct from each other because the patented claims anticipate the more generic or broader claims now pending (instant Claims 1-20). That is, the rationale of In re Goodman applies here in that once Applicant has received a patent for a species or a more specific embodiment, Applicant is not entitled to a patent for the generic or broader invention without maintaining common ownership and ensuring that the term of the latter issued patent will expire at the end of the original term of the earlier issued patent.
Similarly, independent Claims 13 and 19 of the instant application are the more generic or broader claims and anticipated by independent Claims 13 and 19 of the ‘353 for substantially the same reasons.
Claim 2 of the instant application is anticipated by Claim 2 of the ‘353 Patent for substantially the same reasons.
Claim 3 of the instant application is anticipated by Claim 3 of the ‘353 Patent for substantially the same reasons.
Claim 4 of the instant application is anticipated by Claim 4 of the ‘353 Patent for substantially the same reasons.
Claim 5 of the instant application is anticipated by Claim 5 of the ‘353 Patent for substantially the same reasons.
Claim 6 of the instant application is anticipated by Claim 6 of the ‘353 Patent for substantially the same reasons.
Claim 7 of the instant application is anticipated by Claim 7 of the ‘353 Patent for substantially the same reasons.
Claim 8 of the instant application is anticipated by Claim 8 of the ‘353 Patent for substantially the same reasons.
Claim 9 of the instant application is anticipated by Claim 9 of the ‘353 Patent for substantially the same reasons.
Claim 10 of the instant application is anticipated by Claim 10 of the ‘353 Patent for substantially the same reasons.
Claim 11 of the instant application is anticipated by Claim 11 of the ‘353 Patent for substantially the same reasons.
Claim 12 of the instant application is anticipated by Claim 12 of the ‘353 Patent for substantially the same reasons.
Claim 14 of the instant application is anticipated by Claim 14 of the ‘353 Patent for substantially the same reasons.
Claim 15 of the instant application is anticipated by Claim 15 of the ‘353 Patent for substantially the same reasons.
Claim 16 of the instant application is anticipated by Claim 16 of the ‘353 Patent for substantially the same reasons.
Claim 17 of the instant application is anticipated by Claim 17 of the ‘353 Patent for substantially the same reasons.
Claim 18 of the instant application is anticipated by Claim 18 of the ‘353 Patent for substantially the same reasons.
Claim 20 of the instant application is anticipated by Claim 20 of the ‘353 Patent for substantially the same reasons.
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 1-17 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a grouping of abstract ideas without significantly more. The claims, as exemplified by independent Claim 1, recites limitations directed to a grouping of abstract ideas such as:
1. A method comprising: receiving camera images of a player of a computer simulation; and based at least in part on the images, presenting an advisory respecting motion sickness -certain method of organizing human activity and/or mental process.
The claims are found to recite a certain method of organizing human activity because they are directed to managing a computer simulation which is analogous to managing a social activity. Moreover, the claims are found to recite a mental process because they recite an observation, judgement, opinion, and/or evaluation for motion sickness of a player. For at least these reasons, the claims, as exemplified by independent Claim 1, are found to recite a grouping of abstract ideas under Step 2A-prong 1.
This judicial exception is not integrated into a practical application because the additional limitations such as: “receiving camera images of a player of a computer simulation” amount to mere data gathering, selecting a particular data source or type of data to be manipulated or insignificant application that is similar to what the courts have identified as being directed to insignificant extra solution activity (see MPEP 2106.05(g)). For at least these reasons, the additional limitations are not found to integrate the claims, as exemplified by independent Claim 1, into a practical application under Step 2A-prong 2.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because independent Claim 1 does not recite any additional elements that amount to significantly more than the abstract idea but recite mere instructions to invoke a computer as a tool to implement the abstract idea (e.g., computer simulation), recites insignificant extra solution activity, and/or provide a technological environment in which to perform the abstract idea (see MPEP 2106.05(f)-(h)). For at least these reasons, the claim when viewed as individual elements and/or as a combination of elements does not amount to significantly more than the abstract idea under Step 2B.
With respect to independent Claims 13 and 19, the claims recite substantially the same subject matter as addressed with independent Claim 1 above. The analysis is incorporated herein. Independent Claim 13 additional recites “a processor system” which does not change and/or alter the analysis of independent Claim 1 as “a processing system” is a highly-generalized and commercially available general purpose computer, similar to Alice v. CLS, that is invoked merely as a tool to implement the abstract idea, perform insignificant extra solution activity, and/or provide a technological environment in which to perform the abstract idea (see MPEP 2106.05(f)-(h)). Independent Claim 19 additionally recites “A device comprising: at least one computer memory that is not a transitory signal and that includes instructions executable by at least one processor system” which when viewed individually and/or as a collection of elements amount to a invoking a highly-generalized commercially available device, similar to Alice v. CLS, that is invoked merely as a tool to implement the abstract idea, perform insignificant extra solution activity, and/or provide a technological environment in which to perform the abstract idea (see MPEP 2106.05(f)-(h)). For at least these reasons, independent Claims 13 and 19 are found for substantially the same reasons as discussed with respect to independent Claim 1 above, to be directed to a grouping of abstract ideas without significantly more.
With respect to dependent Claims 2-12, 14-18, and 20, the limitations have been reviewed and were found to recite at least one of: limitations that recite a grouping of abstract ideas, mere instructions to invoke a computer as a tool (see MPEP 2106.05(f), insignificant extra solution activity (see MPEP 2106.05(g)); and/or provide a technological environment in which to perform the abstract idea (see MPEP 2106.05(h)). For at least these reasons, claims 1-20 are found to be directed toa grouping of abstract ideas without significantly more.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 3, 13-14, 17, and 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Watson (US 2016/0228771 A1).
Regarding claim 1, Watson disclose a method comprising: receiving camera images of a player of a computer simulation (see Watson, camera 104 of Fig. 1, 0030-0031, 0091, wherein the motion sickness detection module monitors the user by analyzing images taken by a camera aimed at the user); and based in at least part of the images (see Watson, 0025, 0030-0031, 0041-0043, 0091), presenting an advisory respecting motion sickness (see Watson, Fig. 3, 7A, 0025, 0041-0043, 0090-0094, wherein the advisory respecting motion sickness is a supplemental sound to decrease the motion sickness).
Regarding claim 3, Watson discloses the method of Claim 1, wherein the advisory is presented on at least one speaker (see Watson, Fig. 3, 7A, 0025, 0040-0043, 0090-0094, wherein the advisory is a supplemental sound presented on at least one speaker of the HMD)
Regarding claim 13, Watson discloses a processor system configured to (see Watson, Fig. 1, 0027): process images from at least one camera of a player of a computer simulation (see Watson, camera 104 of Fig. 1, 0030-0031, 0091, wherein the motion sickness detection module monitors the user by analyzing images taken by a camera aimed at the user); and based at least in part on the process, present at least one indication of motion sickness (see Watson, Fig. 3, 7A, 0025, 0041-0043, 0090-0094, wherein the indication is a supplemental sound to decrease the motion sickness).
Regarding claim 14, Watson discloses the processor system of Claim 13, wherein the indication is presented on at least one video display and/or at least one speaker (see Watson, Fig. 3-4, 0053-0057).
Regarding claim 17, Watson discloses the processor system of Claim 13, wherein the processor system is configured to: after presenting the indication, continue to monitor player motion over time (see Watson, Figs. 3-4, 0053-0057, wherein the system tracks a profile of the user to identify characteristics to determine when to apply motion-sickness fighting methods); and based at least in part on continued monitoring of player motion over time, alter at least one display setting (see Watson, Fig. 4, 0056, wherein the device based on the monitoring may reduce the speed of change setting on the display, reduce the number of elements, reduce the colors, or event freezing the display, or add elements to the display to reduce motion sickness).
Regarding claim 19, Watson discloses a device (see Watson, Fig. 1, 0027) comprising: at least one computer memory that is not a transitory signal and that includes instructions executable by at least one processor system to: receive images of a player of a computer game (see Watson, camera 104 of Fig. 1, 0030-0031, 0091, wherein the motion sickness detection module monitors the user by analyzing images taken by a camera aimed at the user), the images representing motion of the player (see Watson, 0025, 0030-0031, 0041-0043, 0091); and responsive to the motion of the player represented by the images, present an indication perceptible by the player that motion sickness may ensue (see Watson, Fig. 3, 7A, 0025, 0041-0043, 0056, wherein the indication is a change in the display to the user such as reducing the speed of change, the number of elements or colors; 0090-0094, wherein the indication is a supplemental sound perceptible to the player to decrease the motion sickness that may ensue).
Regarding claim 20, Watson discloses the device of Claim 19, wherein the instructions are executable to: after presenting the indication, continue to monitor player motion over time (see Watson, 0053-0057, wherein the system tracks a profile of the user to identify characteristics to determine when to apply motion-sickness fighting methods); and based at least in part on continued monitoring of player motion over time, alter at least one display setting (see Watson, Fig. 4, 0056, wherein the device based on the monitoring may reduce the speed of change setting on the display, reduce the number of elements, reduce the colors, or event freezing the display, or add elements to the display to reduce motion sickness).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-2, 4, 6-10, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Smith et al. (US 2020/0124845 A1) in view of Watson (US 2016/0228771 A1).
Regarding claim 1, Smith discloses a method comprising: receiving images of a player of a computer simulation (see Smith, 0045, 0048, wherein the system relies on images of the eye taken without any physical contact; 0053, wherein a player of a computer simulation is a virtual reality system including head-mounted display device); and based at least in part on the images (see Smith, 0012-0013, 0015, 0018, determining, dependent upon the sensor image data whether a condition associated with motion sickness exists), presenting an advisory respecting motion sickness (see Smith, 0065, 0077, wherein the motion sickness controller may prompt the user by presenting an alert or warning). Although, Smith discloses eye tracking sensors and that the system supports peripheral devices such as a camera, it is silent as to the received images being camera images.
Watson teaches a method of monitoring physical characteristics of a user while wearing a head-mounted display and cameras for tracking a gaze of a user that is wearing the HMD (see Wason, 0009-0010). One would have been motivated to use known techniques with similar devices to track the eyes of the user HMD by camera images to monitor motion sickness (see Watson, Fig. 1, 0010). Therefore it would have been obvious to one of ordinary skill in the art to receive camera images of a player of a computer simulation.
Regarding claim 2, the combination of Smith and Watson teaches the method of Claim 1. The combination further teach wherein the advisory is presented on at least one video display (see Smith, 0077, 0092, wherein the alert may be a prompt that is overlayed to be displayed on the head-mounted display device which is a video display).
Regarding claim 4, the combination of Smith and Watson teach the method of Claim 1. The combination further teach determining motion over time based at least in part on the images (see Smith, 0057, 0065-0069, 0094, wherein the sensor image data is captured and reported over 800 times per second; wherein the sensor data is measured across time to using known deviations of user to determine motion sickness), the advisory being presented responsive to the motion over time (see Smith, 0065-0069, wherein the prompt is presented to deter or alleviate the symptoms of motion sickness).
Regarding claim 6, the combination of Smith and Watson teach the method of Claim 1. The combination further teach comprising using at least one machine learning (ML) model to determine whether to present the advisory (see Smith, 0068).
Regarding claim 7, the combination of Smith and Watson teach the method of Claim 1. The combination further comprising: after presenting the advisory, continuing to monitor player motion over time (see Smith, Fig. 4-5, 0062, 0068-0074); and based at least in part on continued monitoring of player motion over time, altering at least one display setting (see Smith, Fig. 4-5, 0054, wherein the display is adjusted by narrowing the effective field of view and/or refresh rate; 0078-0083, 0092).
Regarding claim 8, the combination of Smith and Watson teach the method of the method of Claim 7. The combination further teach wherein the display setting comprises field of view (FOV) (see Smith, 0054, 0057, wherein the action taken to mitigate the motion sickness may be to change the effective field of view).
Regarding claim 9, the combination of Smith and Watson teach the method of Claim 7. The combination further teach wherein the display setting comprises refresh rate (see Smith, 0054, adjusting the refresh rate adjustment may mitigate any motion parallax).
Regarding claim 10, the combination of Smith and Watson teach the method of Claim 7, comprising receiving manual input of altering the display setting (see Smith, 0060, 0078, wherein the user preferences may be input through a user interface setup or configuration menu).
Regarding claim 12, the combination of Smith and Watson teach the method of claim 7. The combination further teach the method comprising automatically altering the display setting (see Smith, 0054, 0057-0058, 0065, 0073, wherein the head-mounted display may change display settings (e.g., spatial quality, effective field of view, refresh rate which may be adjusted for user-specific variances).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Smith and Watson as applied to claim 4 above, and further in view of Bulut et al. (US 2020/0337623 A1).
Regarding claim 5, the combination of Smith and Watson teach the method of claim 4. Although, Smith and Watson teach providing an indication of motion sickness responsive to detection of motion sickness they are silent as to deriving at least one Fourier Transform of motion over time indicated by the images.
Bulut teaches a system and method of detecting motion sickness through using at least one Fourier Transform of motion over time indicated by the images from the camera directed at the user (see Bulut, 0006, 0048-0053, wherein the physiological signals of the users vital signs may be transformed by using a Fast Fourier Transform wherein the Fourier transform is used to generate vital signs of the user). Specifically, Bulut teaches the indication being presented responsive to the Fourier transform (see Bulut, 0006, 0048-0053, wherein the detection of motion sickness from the acquired sequence of video images alerts the subject so that they can react and avoid or reduce the effects and provide a course of action). One would have been motivated to incorporate the teachings of Bulut with the combination of Smith and Watson to yield the predictable result to detect the onset of motion sickness by the users vital signs (see Bulut, 0006). Therefore it would have been obvious to one of ordinary skill in the art at the time of filing the application to derive at least one Fourier Transform of motion over time indicated by the images and the indication being presented responsive to the Fourier transform.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Smith and Watson as applied to claim 10 above, and further in view of Bulut et al. (US 2020/0337623 A1).
Regarding claim 11, the combination of Watson and Smith teach the method of Claim 10. Although, the combination teach wherein the manual input is entered into a UI, it is silent to using a slider element.
Zhou teaches a slider bar for providing multi-precision control of a user interface for a head-mounted display such as in a CR or AR system (see Zhou, Fig. 3, 0006, 0085-0086). One of ordinary skill in the art would have been motivated to incorporate a slider element into the user interface to yield the predictable result for fine control for adjusting parameters in the system (see Zhou, 0005-0006). Therefore it would have been obvious to one of ordinary skill in the art at the time of filing the application wherein the manual input is entered using a slider element of a UI.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Watson as applied to claim 13 above, and further in view of Bulut et al. (US 2020/0337623 A1).
Regarding claim 15, Watson discloses the processor system of Claim 13. Although, Watson discloses providing an indication of motion sickness it is silent as to derive at least one Fourier Transform of motion over time indicated by the images.
Bulut teaches a system and method of detecting motion sickness through using at least one Fourier Transform of motion over time indicated by the images from the camera directed at the user (see Bulut, 0006, 0048-0053, wherein the physiological signals of the users vital signs may be transformed by using a Fast Fourier Transform wherein the Fourier transform is used to generate vital signs of the user). Specifically, Bulut teaches the indication being presented responsive to the Fourier transform (see Bulut, 0006, 0048-0053, wherein the detection of motion sickness from the acquired sequence of video images alerts the subject so that they can react and avoid or reduce the effects and provide a course of action). One would have been motivated to incorporate the teachings of Bulut to yield the predictable result to detect the onset of motion sickness by the users vital signs. Therefore it would have been obvious to one of ordinary skill in the art at the time of filing the application to derive at least one Fourier Transform of motion over time indicated by the images and the indication being presented responsive to the Fourier transform.
Claims 16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Watson as applied to claim 13 above, and further in view of Smith et al. (US 2020/0124845 A1).
Regarding claim 16, Watson discloses the processor system of Claim 13 but is silent to use at least one machine learning (ML) model to determine whether to present the indication.
Smith teaches a motion sickness processor system that is configured to use at least one machine learning (ML) model to determine whether to present the indication (see Smith, 0068). One of ordinary skill in the art would have been motivated to use known techniques to yield the predictable result to adjust motion sickness detection for user-specific variances (see Smith, 0068). Therefore it would have been obvious to one of ordinary skill in the art at the time of filing the application to use at least one machine learning (ML) model to determine whether to present the indication.
Regarding claim 18, Watson discloses the processor system of Claim 13. Although, Watson discloses the display setting (e.g. adjusting colors, items, and speed of images) it is silent as to the display setting comprises field of view (FOV) and/or refresh rate.
Smith teaches a motion sickness processor system that adjust the display setting comprises a field of view (FOV) and/or refresh rate (see Smith, 0054, wherein to mitigate motion sickness or visual fatigue, the display settings by adjusting the effective field of view and/or the refresh rate). One of ordinary skill in the art would have been motivated to use known techniques to yield the predictable result to mitigate motion sickness or visual fatigue of the user (see Smith, 0054). Therefore it would have been obvious to one of ordinary skill in the art at the time of filing the application wherein the display setting comprises field of view (FOV) and/or refresh rate..
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN HSU whose telephone number is (571)272-7148. The examiner can normally be reached Monday - Friday 10:00-6:00 PM.
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, Dmitry Suhol can be reached at (571) 272-4430. 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.
/RYAN HSU/EXAMINER, Art Unit 3715