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 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 – 4, 6 – 15, 17, 19, 20, and 26 – 30 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” (Claims 1, 28), a “non-transitory computer readable medium” (Claim 27), and a “method” (Claim 26) which are each within a statutory category of invention.
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.
Response to Arguments
Applicant's arguments filed April 30, 2026 have been fully considered but they are not persuasive. Examiner appreciates that Applicant has presented their argument to refer to and rely on the SME Guidance, as this provides a framework for understanding their assertion/analysis.
Applicant particularly alleges that the claims of the instant application may be seen as parallel to claim 3 of Example 48 (for Speech Separation). While there are some similarities, they are not sufficient to establish that the claims of the application are directed to patent eligible subject matter. As noted in the discussion of Claim 3/Example 48 - the claim was found to be patent eligible because it recited an "ordered combination of steps" that corresponded with the technical improvement of the invention.
In attempting to align the details of the instant application with the example, Applicant refers to para [0011] of the specification which refers to an improvement, but a review of the discussion indicates that the details of the specification ascribe the improvement to the choice of mathematical model (not an ordered combination of steps). It is noted that Applicant appears to admit that a mathematical model may be considered as encompassing a judicial exception (due to their not contesting the assertions re: Prong One when providing arguments regarding the rejection under 35 USC 101). To reiterate, in the instant application, there is not an "ordered combination" of steps which when enacted provides for the improvement (as was the finding in Example 48), but instead it is the mathematical model/JE in and of itself, as disclosed in the specification. Any analysis such an arrangement, such as found in the claims of the application, must recognize this as remaining in the realm of "apply it", which as discussed in MPEP 2106.04(d) and other portions, is directed to ineligible subject matter.
Even with consideration of the added details of reporting the results in various useful formats, one must conclude this is not the same as capturing improvement through 'ordered combination of steps' nor is merely creating an output in a particular format imposing a requirement to control a device/process responsive to the information.
Further, while the details of the mathematical model as set forth in the claims somewhat implies that the collected 'one or more brain wave signals' were measured while the person was subject to the entirety of the "plurality of sensory stimuli presented over time with a plurality of levels", such that the brain waves necessarily are in response to multiple, different stimuli, this requirement is not explicitly set forth. Thus, the claims merely require any general/nominal manner to "obtain" the brain wave data set, since there is no indication or claim requirement to obtain/measure brain waves while a series of stimuli are applied (where such a series of stimuli would have the properties found in the corresponding claim limitations).
Additionally, receiving data related to stimulus data that may (or may not) have been applied, is distinct from the system encompassing elements to create/provide a stimulus to a test subject and thus only represents mere data collection in a computer environment , which is not indicative of "integrating" an exception into a practical application.
The newly added requirement to determine one of three potential outputs (two of which are to be presented in a "format" - Applicant is reminded that mere formatting of data is generally considered to be a "Printed Matter" recitation) from the information produced by "applying" the math/judicial exception is itself either an additional JE/mental step or is a nominal post-processing data output that cannot serve to integrate the exception or otherwise overcome the rejection.
As such, neither Applicant’s amendments nor the arguments provide sufficient reasons to withdraw the rejection. In summary, the claims remain drawn to subject matter that is not patent eligible, consistent with the reasons discussed above, and the rejection is hereby maintained.
Examiner notes that the newly presented claims include parallel limitations and therefore encompass the same issues with regard to determination of patent eligible subject matter.
Applicant’s arguments, see Remarks, filed April 30, 2026, with respect to Drawing and Claim Objections and the rejections under 35 USC 112(b) and 102 have been fully considered and are persuasive. The objections and rejections of the corresponding claims have been withdrawn.
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.
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
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