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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-6 and 8-15 in the reply filed on 3/5/2026 is acknowledged.
Claims 16, 17, 19, 20, 22 and 24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 3/5/2026.
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 and 8-15 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 step of “determine, based on the electroencephalography signal and the eye-tracking measurements, information associated with the afferent and efferent visual functions”. This step could involve a clinician looking at EEG and eye tracker data and mentally determining there are aberrant readings indicative of visual or dysfunction or issues with eye movement. 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 form 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 form 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.
Claims 9, 10 and 15 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 and 12-15 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 15, 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). Specifically, the information can be analyzed to determine visual field defects (afferent visual function information, see par. [0043]) as well as identify fixation losses (efferent visual function, see par. [0060]), which is a oculomotor dysfunction.
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 9 and 10 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 form 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
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/ALLEN PORTER/Primary Examiner, Art Unit 3796