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 .
Response to Arguments
Applicant's amendment and arguments filed 6/30/2026 have been fully considered but they are not persuasive.
Regarding the 35 USC 101 rejection of the claims, Applicant argues on page 9 of the response that concurrently assessing afferent and efferent visual functions based on EEG signals and eye-tracking measurements are limitations that the human mind is not equipped to perform. The Examiner respectfully disagrees. A trained clinician can visually inspect EEG data and eye-tracking data at the same time to determine correlations between the two sets of information. Claim 1 does not include any particular details regarding the assessment that would not be performable in the human mind.
Applicant further argues on p. 10 of the response that the feature of correlating between the information associated with afferent signal conduction to the occipital cortex and the information associated with efferent oculomotor function and the associated concurrent assessment of the EEG and eye-tracking measurements are specific technological features that are not mere data gathering. The Examiner respectfully disagrees. The data-gathering additional elements are the gathering of EEG data and eye-tracking data. This data is merely collected to perform the mental process abstract idea of assessing the data for correlations. Again, a skilled clinician is capable of visually inspecting EEG and eye-tracking data at the same time to correlate features between the two data sets. Applicant has not claimed any particular means of correlation or any particular steps involved in the correlation. The BRI therefore could rest in simple visual inspection of data sets or pen-and-paper notations of data sets.
Applicant further argues on page 11 of the response that the resultant correlation provides a solution to the problem of conventional approaches for assessing visual functions. This is not found persuasive in that the purported improvement is the abstract idea itself and not an additional element that provides integration into a practical application or significantly more than the abstract idea itself. The abstract idea itself cannot provide the improvement. Likewise, the purported lack of conventionality on p. 12 of the response is not persuasive in that Applicant is arguing the lack of conventionality of the abstract idea itself and not any additional elements outside of the abstract idea. The rejection is maintained.
Regarding the 35 USC 102 rejection with respect to Jung, Applicant argues on p. 13 of the response that Jung fails to disclose information associated with afferent signal conduction to an occipital cortex; information associated with efferent oculomotor function, and a correlation between the two. The Examiner respectfully disagrees. As noted in the Non-Final Rejection dated 4/1/2026, Jung discloses an EEG sensor 111 configured to be placed on the head of the user to measure electrical activity of the user’s brain in response to the visual stimuli (Abstract; par. [0003, 0005]; Fig. 4). The mfSSVEP data is representative of afferent signal condition (sensory functions obtained by the brain). Furthermore, Jung discloses an eye-tracker, such as an EOG sensor, configured to track eye movements (par. [0007, 0061, 0062]). The eye movement data is information representative of efferent visual function (muscle activity of oculomotor muscles). Jung then discloses correlating the EEG data with the EOG data in order to identify unreliable EEG readings that can be excluded. The act of identifying unreliable EEG data using EOG is a form of correlation of the data (see par. [0060-0062]).
The rest of the arguments stem from the assertion that Jung does not teach the correlation as claimed. The Examiner maintains this broad correlation is disclosed by Jung and therefore the rejection is maintained.
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 1-6, 8, 10-15 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.
Claim 1 recites the limitation "the afferent and efferent visual functions" in the last two lines of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claims 2-6, 8, 10-15 and 25 are rejected based on their dependence on indefinite claim 1.
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 1-6, 8, 10-15 and 25 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more.
Step 1
The claims are drawn to a product (wearable system for assessing afferent and efferent visual functions)
Step 2A, Prong 1
Clam 1 recites the steps of “determine, based on the electroencephalography signal and the eye-tracking measurements, information associated with the afferent signal conduction to an occipital cortex, information associated with efferent oculomotor function, and a correlation between the information associated with afferent signal conduction to the occipital cortex and the information associated with efferent oculomotor function”; and “concurrently assess the afferent and efferent visual functions based on the electroencephalography signal and the eye-tracking measurements”. These steps could involve a clinician looking at EEG and eye tracker data and mentally determining information from the data and correlating afferent and efferent functions using mental or pen-and-paper comparisons of the data. Therefore, the claims recite an abstract idea (i.e. a mental process).
Step 2A, Prong 2
Claim 1 does not include any additional elements that amount to integration of the abstract idea into a practical application. Specifically, Claim 1 includes the additional element of a display, EEG sensors; an eye-tracker; a processor; delivering a visual stimuli; and obtaining measurements with the EEG sensor and eye-tracker. The display and processor are so genetically claimed that they amount to generic computer structure. The EEG sensor; eye-tracker and the data obtained from them amount to the insignificant, extra-solution activity of data gathering. The delivery of the visual stimuli amounts to insignificant, extra-solution activity since it is only applied to gather the data for the analysis steps. See example c) in MPEP §2106.04(d)(2) which states “While step (a) administers vaccines to the cats, this administration is performed in order to gather data for the mental analysis step, and is a necessary precursor for all uses of the recited exception. It is thus extra-solution activity, and does not integrate the judicial exception into a practical application”. Generic computer implementation and insignificant extra-solution activity do not amount to integration of the abstract idea into a practical application.
Step 2B
The claims do not include any additional elements that amount, alone or in combination, to significantly more than the abstract idea itself. Specifically, Claim 1 includes the additional element of a display, EEG sensors; an eye-tracker; a processor; delivering a visual stimuli; and obtaining measurements with the EEG sensor and eye-tracker. The display and processor are so genetically claimed that they amount to generic computer structure. The EEG sensor; eye-tracker and the data obtained from them amount to the insignificant, extra-solution activity of data gathering. The delivery of the visual stimuli amounts to insignificant, extra-solution activity since it is only applied to gather the data for the analysis steps. See example c) in MPEP §2106.04(d)(2) which states “While step (a) administers vaccines to the cats, this administration is performed in order to gather data for the mental analysis step, and is a necessary precursor for all uses of the recited exception. It is thus extra-solution activity, and does not integrate the judicial exception into a practical application”. Generic computer implementation and insignificant extra-solution activity do not amount, alone or in combination, to significantly more than the abstract idea itself.
Claims 2-6, 8 and 11 only further define the data gathering steps.
Claim 10, 15 and 25 only further define the abstract idea.
Claim 12 only further defines the generic computer structure.
Claims 13 and 14 only further define the insignificant extra-solution activity of the initial stimuli.
Claim Rejections - 35 USC § 102
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.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 6, 8, 12-14 and 25 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Jung et al. (2017/0035317).
Regarding Claims 1, 2, 12 and 25, Jung discloses a wearable system having a display 112 configured to be placed in front of a face of a user and provide visual stimuli to the user (Fig. 1A, Fig. 4); an EEG sensor 111 configured to be placed on the head of the user to measure electrical activity of the user’s brain in response to the visual stimuli (Abstract; par. [0003, 0005]; Fig. 4);an eye-tracker, such as an EOG sensor, configured to track eye movements (par. [0007, 0061, 0062]); and a processor 120 coupled to the display 112, the EEG sensor 111 and the eye-tracker (Fig. 1A;par. [0007, 0061, 0062]), wherein the processor 120 is configured to determine information associated with afferent visual functions (sensory functions) and efferent visual functions (eye movement). The mfSSVEP data from the EEG is representative of afferent signal condition (sensory functions obtained by the brain). The eye movement data is information from the EOG is representative of efferent visual function (muscle activity of oculomotor muscles). Jung then discloses correlating the EEG data with the EOG data in order to identify unreliable EEG readings that can be excluded. The act of identifying unreliable EEG data using EOG is a form of correlation of the data (see par. [0060-0062]).
In regard to Claim 3, Jung discloses the EOG sensor can have one or more electrodes and provides an example in which four electrodes are used, each electrode corresponding to an individual channel or pathway of information, such as at least one channel for each eye (par. [0007, 0061, 0062
With regard to Claim 6, Jung discloses determining gaze direction with the EO signals (coordinates of eye fixations, see par. [0062]).
Regarding Claim 8, Jung discloses obtaining mfSSVEP measurements from the EEG signals (Fig. 1B; step 186).
In regard to Claims 13 and 14, Jung discloses a multi-focal stimulus (flickers) spaced around a user’s field of view (par. [0044]).
Claim Rejections - 35 USC § 103
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Jung et al. (2017/0035317) in view of Lisy et al. (US Patent 9,579,060). Jung discloses the EOG electrodes are dry and soft electrodes (par. [0061]) but fails to disclose that the electrodes comprise foam. However, Lisy, in the same field of endeavor of head-mounted physiological signal monitoring systems, discloses utilizing foam in the construction of the dry electrodes for EOG for the purpose of fitting the electrodes snugly and comfortably on the user’s head (col. 4, lines 48-60; col. 5, lines 59-67). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device in the Jung reference to include foam electrodes, as taught and suggested by Lisy, for the purpose of fitting the electrodes snugly and comfortably on the user’s head.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Jung et al. (2017/0035317) in view of NextMind SAS (WO/2021/099640). Jung discloses utilizing EOG to determine gaze direction but fails to disclose the use of an IR video camera. NETMIND shows that an IR video camera for gaze tracking is an equivalent structure known in the art (par. [0046]). Therefore, because EOG and IR video tracking were art-recognized equivalents at the time the invention was made, one of ordinary skill in the art would have found it obvious to substitute the IR camera for EOG sensor.
Claims 10 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Jung et al. (2017/0035317) in view of Grill et al. (2018/0221644). Jung discloses obtaining EEG measurements in response to visual stimuli in order to obtain visual evoked potentials but fails to disclose that these evoke potentials contain conduction times (conduction delays). However, visual evoked potentials contain information about the timing of the response to the initial stimuli and thus the condition time/delay of the response circuit, as evidenced by Grill which discloses “For example, visual evoked potentials recorded over the occipital cortex reveal important characteristics of the visual neural circuits, and somatosensory evoked potentials assess spinal cord function, conduction times, or stimulus sensitivity.” (par. [0003]). Therefore one of ordinary skill in the art before the effective filing date of the claimed invention would have recognized the SSVEP signals obtained from the EEG of Jung would have information regarding signal conduction time/delay to the occipital cortex, as evidenced by Grill.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Jung et al. (2017/0035317) in view of Picht et al. (8,326,396). Jung discloses all of the claimed invention except for the material construction of the EEG electrodes. However, Picht discloses that conductive polymers are well-known materials suitable for EEG measurements (col. 2, lines 10-13). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device in the Jung reference to include a conductive polymer for the EEG electrodes, as taught and suggested by Picht, for the purpose of reliably obtaining EEG measurements. Additionally, the Examiner notes “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)”, see MPEP §2144.07.
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 ALLEN PORTER whose telephone number is (571)270-5419. The examiner can normally be reached Mon - Fri 9:00-6:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Unsu Jung can be reached at 571-272-8506. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALLEN PORTER/Primary Examiner, Art Unit 3796
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