DETAILED ACTION
Notice to Applicant
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This communication is in response to the amendment filed on 8/31/26. Claims 16-29, 31-32 and 34 are pending.
The IDS filed on 8/31/26 has been considered by the examiner.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 8/31/26 has been entered.
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 16-29, 31-32 and 34 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.
Claims 16 and 32 recite: “determining a value of at least one parameter associated with vision condition of said subject, said at least one parameter comprising: a sensitivity parameter of said subject...” and then further explains what the sensitivity parameter is. The claims have been amended to further recite a first, second, third, fourth and fifth parameter.
It is unclear from the current language how the additional “first” through “fifth” parameters relate to the “sensitivity parameter.” In particular, it is unclear whether each of the “first” through “fifth” parameters further define the “sensitivity parameter” or whether they are separate parameters which are all calculated/determined.
For the purpose of examination and applying art, the examiner will interpret the newly added claim language as the process illustrated in Figure 3. However, the examiner suggests correcting the claim language to better define the relationship of the parameters to one another, and to clarify each step of the process. (See Fig. 3 for language suggestions)
Claims 17-29, 31, and 34 incorporate the deficiencies of claims 16 and 32 through dependency, and are therefore also rejected.
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 16-29, 31-32 and 34 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e, a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
35 USC 101 enumerates four categories of subject matter that Congress deemed to be appropriate subject matter for a patent: processes, machines, manufactures and compositions of matter. As explained by the courts, these “four categories together describe the exclusive reach of patentable subject matter. If a claim covers material not found in any of the four statutory categories, that claim falls outside the plainly expressed scope of Section 101 even if the subject matter is otherwise new and useful.” In re Nuijten, 500 F.3d 1346, 1354, 84 USPQ2d 1495, 1500 (Fed. Cir. 2007). Step 1 of the eligibility analysis asks: Is the claim to a process, machine, manufacture or composition of matter? Applicant’s claims fall within at least one of the four categories of patent eligible subject matter because claims 16-31, are drawn to a method; claims 32-33 are drawn to a system; claim 34 is drawn to a product/article of manufacture.
Determining that a claim falls within one of the four enumerated categories of patentable subject matter recited in 35 USC 101 (i.e., process, machine, manufacture, or composition of matter) in Step 1 does not complete the eligibility analysis. Claims drawn only to an abstract idea, a natural phenomenon, and laws of nature are not eligible for patent protection. As described in MPEP 2106, subsection III, Step 2A of the Office’s eligibility analysis is the first part of the Alice/Mayo test, i.e., the Supreme Court’s “framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int'l,134 S. Ct. 2347, 2355, 110 USPQ2d 1976, 1981 (2014) (citing Mayo, 566 U.S. at 77-78, 101 USPQ2d at 1967-68).
In 2019, the United States Patent and Trademark Office (USPTO) prepared revised guidance (2019 Revised Patent Subject Matter Eligibility Guidance) for use by USPTO personnel in evaluating subject matter eligibility. The framework for this revised guidance, which sets forth the procedures for determining whether a patent claim or patent application claim is directed to a judicial exception (laws of nature, natural phenomena, and abstract ideas), is described in MPEP sections 2106.03 and 2106.04.
As explained in MPEP 2106.04(a)(2), the 2019 Revised Patent Subject Matter Eligibility Guidance explains that abstract ideas can be grouped as, e.g., mathematical concepts, certain methods of organizing human activity, and mental processes. Moreover, this guidance explains that a patent claim or patent application claim that recites a judicial exception is not ‘‘directed to’’ the judicial exception if the judicial exception is integrated into a practical application of the judicial exception. A claim that recites a judicial exception, but is not integrated into a practical application, is directed to the judicial exception under Step 2A and must then be evaluated under Step 2B (inventive concept) to determine the subject matter eligibility of the claim.
Step 2A asks: Does the claim recite a law of nature, a natural phenomenon (product of nature) or an abstract idea? (Prong One) If so, is the judicial exception integrated into a practical application of the judicial exception? (Prong Two) A claim recites a judicial exception when a law of nature, a natural phenomenon, or an abstract idea is set forth or described in the claim. While the terms “set forth” and “describe” are thus both equated with “recite”, their different language is intended to indicate that there are different ways in which an exception can be recited in a claim. For instance, the claims in Diehr set forth a mathematical equation in the repetitively calculating step, while the claims in Mayo set forth laws of nature in the wherein clause, meaning that the claims in those cases contained discrete claim language that was identifiable as a judicial exception. The claims in Alice Corp., however, described the concept of intermediated settlement without ever explicitly using the words “intermediated” or “settlement.” A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.
Claims 16-32 and 34 recite(s) a method, system, and product (with instructions for performing a method) as explained. In the instant case, the language of claims 16 and 32 encompasses performance of the limitations(s) in the mind. Additionally, the language of claim 34 encompasses performance of the limitations(s) in the mind but for the recitation of generic computer components.
In particular, the limitation of determining a value of at least one parameter associated with vision condition of a subject, as drafted, is a process that, under its broadest reasonable interpretation, covers performance of the limitation in the mind (but for the recitation of generic computer components in claim 34). That is, other than reciting “computer executable instructions…when executed by a computer, cause the computer to perform,” in claim 34, nothing in the claim element precludes the step from practically being performed in the mind. “Determining” in the context of this claim encompasses a practitioner/user assessing how an individual is performing on a vision test.
Similarly, the limitation of “determining the subject's risk of the onset or progression of myopia over the timeframe, based on the determined value of the at least one parameter,” as drafted, is a process that, under its broadest reasonable interpretation, covers performance of the limitation in the mind (but for the recitation of generic computer components in claim 34) The “determining” step in the context of this claim encompasses the user making a decision regarding the subject’s risk based upon the assessment. Additionally, claims 16 and 32 have been amended to further recite “said sensitivity parameter…being determined based on a certitude probability function of the subject representing a certainty of choices made by the subject relative to said variation.” The amended claim language includes a “determination” and encompasses a user making a judgement or evaluation regarding the subject’s certainty.
It is noted that claims 16 (34) and 32 have been further amended to include additional parameters, and to further recite: wherein determining the value of the fifth parameter comprises: determining the far comfort range and the near comfort range based on the determined values of the first to fourth parameters, and determining the overlap degree of the far comfort range and the near comfort range, and assigning a value to the fifth parameter based on the determined overlap degree of the far and near comfort ranges. However, these additional “determining” and “assigning” steps in the context of the claims encompasses a practitioner/user rendering a judgment based on the received parameter data or performing the calculations manually.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas.
As explained in MPEP 2106.04(a)(2)(III), the courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). (emphasis added) As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978).
Accordingly, the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgments, and opinions.
The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation. See, e.g., Benson, 409 U.S. at 67, 65, 175 USPQ at 674-75, 674 (noting that the claimed "conversion of [binary-coded decimal] numerals to pure binary numerals can be done mentally," i.e., "as a person would do it by head and hand."); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1139, 120 USPQ2d 1473, 1474 (Fed. Cir. 2016) (holding that claims to a mental process of "translating a functional description of a logic circuit into a hardware component description of the logic circuit" are directed to an abstract idea, because the claims "read on an individual performing the claimed steps mentally or with pencil and paper").
Moreover, courts do not distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer. As the Federal Circuit has explained, "[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind." Versata Dev. Group v. SAP Am., Inc., 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015). See also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318, 120 USPQ2d 1353, 1360 (Fed. Cir. 2016) (‘‘[W]ith the exception of generic computer-implemented steps, there is nothing in the claims themselves that foreclose them from being performed by a human, mentally or with pen and paper.’’); Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324, 117 USPQ2d 1693, 1699 (Fed. Cir. 2016) (holding that computer-implemented method for "anonymous loan shopping" was an abstract idea because it could be "performed by humans without a computer").
Also, regarding the amendments to Claims 16 and 32 to further recite: “being determined based on a certitude probability function of the subject representing a certainty of choices made by the subject relative to said variation…”. The additional limitation is not sufficient to render the claim patent eligible, as the new limitation recites a mathematical relationship (i.e. determining a certitude probability function of the subject. )
This judicial exception is not integrated into a practical application because the claim language does not recite any improvements to the functioning of a computer, or to any other technology or technical field (See MPEP 2106.04(d)(1); see also MPEP 2106.05(a)(I-II)). Moreover, the claims do not integrate the judicial exception into a practical application because the claimed invention does not: apply the judicial exception with, or by use of, a particular machine (see MPEP 2106.05(b)); effect a transformation or reduction of a particular article to a different state or thing (see MPEP 2106.05(c)); or apply or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment see MPEP 2106.05(e). (Considerations for integration into a practical application in Step 2A, prong two and for recitation of significantly more than the judicial exception in Step 2B)
While abstract ideas, natural phenomena, and laws of nature are not eligible for patenting by themselves, claims that integrate these exceptions into an inventive concept are thereby transformed into patent-eligible inventions. Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347, 2354, 110 USPQ2d 1976, 1981 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71-72, 101 USPQ2d 1961, 1966 (2012)). Thus, the second part of the Alice/Mayo test is often referred to as a search for an inventive concept. Id. An “inventive concept” is furnished by an element or combination of elements that is recited in the claim in addition to (beyond) the judicial exception, and is sufficient to ensure that the claim as a whole amounts to significantly more than the judicial exception itself. Alice Corp., 134 S. Ct. at 2355, 110 USPQ2d at 1981 (citing Mayo, 566 U.S. at 72-73, 101 USPQ2d at 1966). Although the courts often evaluate considerations such as the conventionality of an additional element in the eligibility analysis, the search for an inventive concept should not be confused with a novelty or non-obviousness determination. See Mayo, 566 U.S. at 91, 101 USPQ2d at 1973 (rejecting “the Government’s invitation to substitute Sections 102, 103, and 112 inquiries for the better established inquiry under Section 101”). As made clear by the courts, the “‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the Section 101 categories of possibly patentable subject matter.” Intellectual Ventures I v. Symantec Corp.,838 F.3d 1307, 1315, 120 USPQ2d 1353, 1358 (Fed. Cir. 2016) (quoting Diamond v. Diehr, 450 U.S. at 188–89, 209 USPQ at 9).
As described in MPEP 2106.05, Step 2B of the Office’s eligibility analysis is the second part of the Alice/Mayo test, i.e., the Supreme Court’s “framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. _, 134 S. Ct. 2347, 2355, 110 USPQ2d 1976, 1981 (2014) (citing Mayo, 566 U.S. 66, 101 USPQ2d 1961 (2012)). Step 2B asks: Does the claim recite additional elements that amount to significantly more than the judicial exception? The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claims 16, 32 and 34 have been amended to further recite: ”mitigating the determined risk, wherein the mitigating the determined risk comprises providing a mitigation option among at least one of: lens or lenses configured to control myopia progression; atropine eye drops; orthokeratology; multifocal soft contact lenses; spectacle lenses designed to slow the progression of myopia; a change in the subject's lifestyle, activity or behavior; and a recommendation to perform further tests on the subject.”
The additional steps amount to insignificant extra-solution activity to the judicial exception (see MPEP 2106.05(g)). In particular, the recited “risk mitigation” step merely comprises “providing options and recommendations” regarding the determined risk. Therefore, in the instant case the additional steps amount to necessary data gathering and outputting, (i.e., all uses of the recited judicial exception require such data gathering or data output). See Mayo, 566 U.S. at 79, 101 USPQ2d at 1968; OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1092-93 (Fed. Cir. 2015) (presenting offers and gathering statistics amounted to mere data gathering)
Claim 34 recites additional limitation(s), including “non-transitory computer-readable storage medium including computer executable instructions” and “a computer.” The additional claim language recites a computer components/ structure that are and were routine and conventional at the time of Applicant’s invention was filed and that amount to no more than implementing the abstract idea with a computerized system.
The generic nature of the computer system used to carryout steps of the recited method is underscored by the system description in the instant application, which discloses: “ A digital circuit may be understood as any kind of a logic implementing entity, which may be special purpose circuitry or a processor executing software stored in a memory, firmware, or any combination thereof. Thus, in various embodiments, a “circuit” may be a digital circuit, e.g. a hard-wired logic circuit or a programmable logic circuit such as a programmable processor, e.g. a microprocessor (e.g. a Complex Instruction Set Computer (CISC) processor or a Reduced Instruction Set Computer (RISC) processor). A “circuit” may also include a processor executing software, e.g. any kind of computer program, e.g. a computer program using a virtual machine code such as e.g. Java" (par. 104 of PG-Pub US 20240428946 A1) The disclosure also states: “System 700 includes means for determining a value of at least one parameter associated with vision condition of the subject 710, which may include at least one circuit, e.g. microprocessor(s). For example, the means for determining a value of at least one parameter associated with vision condition of the subject 710 may include any ophthalmic testing device, such as a computer-controlled machine used during an eye examination to provide an objective measurement of the subject's refractive error, e.g. phoropter, refractor, autorefractor and/or a retinoscope.” (par. 101) The language describing the system components underscores that the applicant's perceived invention/ novelty focuses on the computerized implementation of the abstract idea, not the underlying structure of generic system components.
Furthermore, the courts have recognized certain computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity (See MPEP 2106.05 (d) (II)). Among these are the following features, which are recited in claims 16-34:
- Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (emphasis added));
- Performing repetitive calculations, Flook, 437 U.S. at 594, 198 USPQ2d at 199 (recomputing or readjusting alarm limit values); Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) ("The computer required by some of Bancorp’s claims is employed only for its most basic function, the performance of repetitive calculations, and as such does not impose meaningful limits on the scope of those claims.");
- Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93;
Claims 17-31 are dependent from Claim 16 and include(s) all the limitations of claim(s) 16. However, the additional limitations of the claims 17-31 fail to recite significantly more than the abstract idea. More specifically, the additional limitations further define the abstract idea with additional steps or details regarding data types; or additional steps which amount to insignificant extra solution activities. Therefore, claim(s) 17-31 are also rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Because Applicant’s claimed invention recites a judicial exception that is not integrated into a practical application and does not include additional elements that are sufficient to amount to significantly more than the judicial exception itself, the claimed invention is not patent eligible.
Response to Arguments
Applicant's arguments filed 8/31/26 have been fully considered but they are not persuasive.
(A) Applicant argues that the claim rejections under 35 USC 101. Applicant argues that the claim cannot be performed practically inside the mind, especially in light of the claim amendments.
In response, the examiner respectfully disagrees, and the Examiner has updated the 101 rejection to reflect the current claim language.
Claims 16 and 32 were previously amended to further recite “said sensitivity parameter…being determined based on a certitude probability function of the subject representing a certainty of choices made by the subject relative to said variation.” The amended claim language includes a “determination” and encompasses a user making a judgement or evaluation regarding the subject’s certainty. Moreover, the additional limitation is not sufficient to render the claim patent eligible, as it recites a mathematical relationship (i.e. determining a certitude probability function of the subject. )
Also, claims 16(34) and 32 have been amended to incorporate language from claims 30 and 31, including additional “determining” steps (i.e. wherein determining the value of the fifth parameter comprises: determining the far comfort range and the near comfort range based on the determined values of the first to fourth parameters, and determining the overlap degree of the far comfort range and the near comfort range, and assigning a value to the fifth parameter based on the determined overlap degree of the far and near comfort ranges) However, these additional “determining” and “assigning” steps in the context of the claims encompasses a practitioner/user rendering a judgment based on the received parameter data or performing the calculations manually.
Applicant is reminded that the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgments, and opinions. The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation. See, e.g., Benson, 409 U.S. at 67, 65, 175 USPQ at 674-75, 674 (noting that the claimed "conversion of [binary-coded decimal] numerals to pure binary numerals can be done mentally," i.e., "as a person would do it by head and hand."); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1139, 120 USPQ2d 1473, 1474 (Fed. Cir. 2016) (holding that claims to a mental process of "translating a functional description of a logic circuit into a hardware component description of the logic circuit" are directed to an abstract idea, because the claims "read on an individual performing the claimed steps mentally or with pencil and paper").
For all the reasons explained, the rejection of the claims under 35 USC 101 has been maintained.
(B) Applicant argues the independent claims have been amended to recite a “physical output of the claimed method.”
In response, as previously stated, the newly added claim limitation has been addressed in the updated claim rejection under 35 USC 101. Claims 16, 32 and 34 have been amended to further recite: ”mitigating the determined risk, wherein the mitigating the determined risk comprises providing a mitigation option among at least one of: lens or lenses configured to control myopia progression; atropine eye drops; orthokeratology; multifocal soft contact lenses; spectacle lenses designed to slow the progression of myopia; a change in the subject's lifestyle, activity or behavior; and a recommendation to perform further tests on the subject.”
The additional steps amount to insignificant extra-solution activity to the judicial exception (see MPEP 2106.05(g)). In particular, the recited “risk mitigation” step merely comprises “providing options and recommendations” regarding the determined risk. Therefore, in the instant case the additional steps amount to necessary data gathering and outputting, (i.e., all uses of the recited judicial exception require such data gathering or data output). See Mayo, 566 U.S. at 79, 101 USPQ2d at 1968; OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1092-93 (Fed. Cir. 2015) (presenting offers and gathering statistics amounted to mere data gathering)
(C) The Applicant argues that the claimed invention reflects an improvement to the accuracy of risk prediction.
In response, consideration of improvements is relevant to the integration analysis regardless of the technology of the claimed invention. That is, the consideration applies equally whether it is a computer-implemented invention, an invention in the life sciences, or any other technology. See, e.g., Rapid Litigation Management Ltd. v. CellzDirect, Inc., in which the court noted that a claimed process for preserving hepatocytes could be eligible as an improvement to technology because the claim achieved a new and improved way for preserving hepatocyte cells for later use, even though the claim is based on the discovery of something natural.(See 827 F.3d 1042, 1048 (Fed. Cir. 2016)) Notably, the court did not distinguish between the types of technology when determining that the invention improved technology.
However, it is important to keep in mind that an improvement in the judicial exception itself (e.g., a recited fundamental economic concept) is not an improvement in technology. For example, in Trading Technologies Int’l v. IBG LLC, the court determined that the claim simply provided a trader with more information to facilitate market trades, which improved the business process of market trading but did not improve computers or technology. (921 F.3d 1084, 1093-94 (Fed. Cir. 2019).
It is respectfully submitted that applicant’s argued improvement reflects an improvement to the abstract idea (i.e. improvement to mental process of rendering more better judgements or evaluations.)
(D) Applicant argues that the prior art does not disclose the amended features.
In response, the prior art claim rejections have been withdrawn in light of the amended claim language. Therefore, applicants arguments are moot.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Drobe et al (US 20220084687 A1)- discloses a method and device for predicting evolution over time of at least one vision-related parameter of at least one person.
Sankaridurg et al (US 20200183185 A1) discloses an ophthalmic lens system for reducing the risk of progression of a myopic eye by selectively maintaining, inducing or creating asymmetry of the peripheral retinal profile for the eye.
Ho et al (US 20100296058 A1) teaches a lens system for treatments customized to the needs of the patient and which allow for extended treatment periods involving repeated refinement of lenses and treatments to control the progression of myopia and match changing need.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Rachel L Porter whose telephone number is (571)272-6775. The examiner can normally be reached M-F, 10-6:30.
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, Shahid Merchant can be reached at 571-270-1360. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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RACHEL L. PORTER
Primary Examiner
Art Unit 3684
/Rachel L. Porter/Primary Examiner, Art Unit 3684
