DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The drawings are objected to because the unlabeled rectangular boxes shown in the diagrams (Figures 1, 2, 8, and 10) should be provided with descriptive text labels. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 19 and 27 are objected to because of the following informalities: With regard to claim 19, it appears that the phrase “is configured” (line 2) should read “is configured to” for added clarity. With regard to claim 27, the preamble should set forth “instructions that when executed… perform” for added clarity (amended text indicated with underline for emphasis). 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 – 4, 6 – 17, 19, and 20 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. With regard to claim 1, per the preamble the claim is directed to a “system” but the body of the claim only set forth a single positively claimed element (“one… processor”); however, by definition a “system” necessarily requires multiple elements/components. As such, the claim does not properly provide a “system”.
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.
Claim 27 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claims are directed to “a computer readable medium” but are not particularly recited as on “a non-transitory computer-readable storage medium”. Although the originally filed specification sets forth structures that would be considered to be aligned with a non-transitory/tangible embodiment, the originally filed specification as discussed on page 14, for example, recognizes both transitory and non-transitory embodiments as being within the claimed phrase. As such, the claimed scope encompasses transitory signal-type embodiments, which are non-statutory subject matter. See MPEP 2106.03, with particular attention to the discussion of non-statutory forms of signal transmission, consistent with In re Nuijten 500 F.3d 1346, 1354, 84 USPQ2d 1495, 1500 (Fed. Cir. 2007).
Claims 1 – 4, 6 – 17, 19, 20, 26, and 27 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
According to Step 1 of the eligibility analysis, the claim(s) are directed to a “system” (Claim 1) and a “method” (Claim 26) which are each within a statutory category of invention. Additionally, Examiner notes that claim 27, as currently set forth encompasses both statutory and non-statutory subject matter and is rejected under 35 USC 101 for being directed to non-statutory subject matter, as discussed above. As noted in that rejection, the claim could be amended to be limited to a statutory embodiment and the analysis of such a resulting statutory embodiment includes judicial exceptions, as discussed in this section, and therefore claim 27, is also included in this subject matter eligibility rejection.
According to Revised Step 2A, Prong One of the eligibility analysis, the claims recite(s) details of mathematical processing: “determine a mathematical model…” (which refers to specific mathematical relationships as part of the model) and “estimate…” aspects consistent with the model, and a mental step that relies upon the mathematical processing information: “determine…”, and thus recite abstract ideas. According to Revised Step 2A, Prong Two of the eligibility analysis, these judicial exceptions (abstract ideas: mathematical concepts, mental process) are not integrated into a practical application because the claims only provide details drawn to generic processing aspects beyond the judicial exception, as the claims merely require the processor to “obtain” the necessary data to act upon. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, as indicated, additional elements are not recited or required for the processor to be able to “obtain” data. Examiner particularly notes that in the claims data is acted upon, but no positively set forth details related to measuring are set forth; a nominally recited “plurality of electrophysiological sensors” to acquire the brain wave signals is indicated, but does not serve to meaningfully limit the manner in which a processor acts to “obtain” data. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, as indicated, any additional elements in the claims are merely recited in a generalized/high level manner or do not positively limit the claim scope.
Further, no details in any dependent claim are sufficient to show integration of the judicial exception, nor do any of those claims recite details that are considered to amount to significantly more under the eligibility analysis Step 2B, since they merely recite aspects of the judicial exception and/or mere generalized details.
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.
Claim(s) 27 is/are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Malchano et al. (USPGPub 2018/0133507 – cited by Applicant). Malchano et al. discloses a computer readable medium “for storing instructions” thereon (“storage memory 728”; Figure 7A; paragraph [0313]). One of ordinary skill in the art would recognize the structure of Malchano et al. to be suitable “for storing” a variety of information thereon, including the intended instructions referred to in the claim. The details of the intended instructions do not affect the structure of the claimed computer readable medium itself, as currently set forth in the claim.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Applicant cites several references related to measurement and analysis of EEG data. Of particular relevance, Elberling et al. and Desain et al. teach collection and analysis of EEG signals responsive to applied stimuli teaches. Further, Principe et al. (USPGPub 2016/0242690) discloses analysis of EEG data including use of models for resolving the collected brain wave signals. However, the models relied on in Principe et al. are generally concerned with signal analysis aspects distinct from those of the instant application. In particular, the claimed arrangement implements the analysis with a mathematical model in which "one or more brain wave signals are equal to an expression which comprises a sum of each of a plurality of spatial patterns multiplied with a factor representing activity of a corresponding underlying neural source, the factor comprising a convolution of the stimulus data and isolated stimulus responses for each of the neural sources, the isolated stimulus responses being weighted with a stimulus response amplitude weight per level of the plurality of levels, each of the spatial patterns being indicative of a spatial location of the corresponding underlying neural source".
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC FRANK WINAKUR whose telephone number is (571)272-4736. The examiner can normally be reached Mon-Fri 9 am - 6 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chuck Marmor, II can be reached at 571-272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIC F WINAKUR/Primary Examiner, Art Unit 3791