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
Regarding the arguments against the rejection of claims under 35 USC 101, the Examiner respectfully disagrees. Applicant argues that the claims were not analyzed as a whole, and that problem solving aspects of the claimed invention re performed by a particularly identified processing circuitry which is configured to interface with a camera and a display to provide the visual representation as claimed. Examiner asserts that as demonstrated in the Step 2A Prong 2 analysis of the rejection presented below, there is no indication of the combination of the additional elements being particular. The Examiner submits that these limitations amount to nothing more than an instruction to apply the abstract idea using a generic computer and generic computing components. Applicant further argues that the claims are directed towards particular apparatuses and methods which necessarily require computer hardware to function and employ complex data analysis and image manipulation techniques which are beyond the scope of the human mind. Examiner asserts that there is no indication in the claims of complex data analysis and manipulation techniques as noted in the Step 2A Prong 1 analysis presented below. Applicant further argues that the claims were incorrectly interpreted as being abstract, and that the generation of the images are representations of future characteristics of a face of the user derived from a reference image and incorporating data of the control solutions. Examiner asserts that the determination and generation of images of the future characteristics are abstract under broadest reasonable interpretation, as there are no specifics or particularity of the generation of the determinations and images. Further, the system providing more accurate and actional information to a user by implementing a visual aid is not a technical field improvement, but merely an improvement to the abstract idea, See MPEP 2106.05(a)II, particularly “Trading Technologies Int’l v. IBG, 921 F.3d 1084, 1093-94, 2019 USPQ2d 138290 (Fed. Cir. 2019), the court determined that the claimed user interface 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.” Applicant further argues that the claims recite significantly more than the alleged judicial exception. Examiner asserts that the non-particular nature of the use of the camera recites merely data gathering for the abstract idea, and the retrieval of this information for the abstract idea recites extra solution activity that is well understood, routine, and conventional as noted in the rejection below in Step 2B. The use of the model, data collection, display and processing recite generic additional elements that do not add significantly more than the judicial exception.
Regarding the arguments against the rejection of claims under 35 USC 102, Examiner agrees and therefore this rejection is withdrawn.
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 1-15 are rejected under 35 USC 101 because the claimed invention is directed to an abstract idea without significantly more.
It is appropriate for the Examiner to determine whether a claim satisfies the criteria for subject matter eligibility by evaluating the claim in accordance to the Subject Matter Eligibility Test as recited in the following Steps: 1, 2A, and 2B, see MPEP 2106(III.).
Patent Subject Matter Eligibility Test: Step 1:
First, the Examiner is to establish whether the claim falls within any statutory category including a process, a machine, manufacture, or composition of matter, see MPEP 2106.03(II.) and MPEP 2106.03(I).
Claims 13-14 are related to a system, and claims 1-12 are also related to a method (i.e., a process). Claim 15 is related to a “non-transitory” processor readable media storing instructions. Accordingly, these claims are all within at least one of the four statutory categories.
Patent Subject Matter Eligibility Test: Step 2A- Prong One:
Step 2A of the Subject Matter Eligibility Test demonstrates whether a clam is directed to a judicial exception, see MPEP 2106.04(I.). Step 2A is a two-prong inquiry, where Prong One establishes the judicial exception. Regarding Prong One of Step 2A, the claim limitations are to be analyzed to determine whether, under their broadest reasonable interpretation, they “recite” a judicial exception or in other words whether a judicial exception is “set forth” or “described” in the claims. An “abstract idea” judicial exception is subject matter that falls within at least one of the following groupings: a) mathematical concepts, b) certain methods of organizing human activity, and/or c) mental processes, see MPEP 2106.04(II.)(A.)(1.) and 2106.04(a)(2).
Representative independent claim 13 includes limitations that recite at least one abstract idea as underlined in the following limitations. Specifically, independent claim 13 recites:
An apparatus for providing a user with a representation of an effect of a sightedness impairment control solution on the user, the apparatus comprising:
a camera configured to capture a reference image of a face of the user;
a display;
a memory; and
at least one processor coupled to the memory and configured to:
obtain data representative of at least one characteristic of the sightedness impairment control solution, at least one current characteristic of the user and behaviour of the user,
determine, based on a model and the data, at least one first future characteristic of the user if the user uses the sightedness impairment control solution and at least one second future characteristic of the user if the user does not use the sightedness impairment control solution,
generate a first image based on the reference image and the at least one first future characteristic and a second image based on the reference image and the at least one second future characteristic, the first image and the second image being images of the face of the user, and
display, on the display, the first image and the second image.
The Examiner submits that the foregoing underlined limitations constitute “certain methods of organizing human activity”, more specifically managing interactions between people as the following abstract limitations are for providing a user with a representation of an effect of a sightedness impairment control solution on the user:
“determine” at least one first future characteristic of the user if the user uses the sightedness impairment control solution and at least one second future characteristic of the user if the user does not use the sightedness impairment control solution, which are abstract limitations of analysis of the use/non-use of the solution for the determination of the future characteristics,
“generate” a first image based on the reference image and the at least one first future characteristic and a second image based on the reference image and the at least one second future characteristic, the first image and the second image being images of the face of the user, where under broadest reasonable interpretation the images are a representation and demonstration of the previously determination that does not necessarily need to be generated on a computer.
The claim limitations as a whole recite steps for providing a user with a representation of an effect of a sightedness impairment control solution on the user, and therefore recite managing interactions between people. This interaction can more specifically be defined as an activity of teaching as the generation of the images for the user recites demonstrating what would happen to the user if they were to use the solution or not use the solution for their sightedness impairment.
The abstract idea recited in claims 1 and 15 is similar to that of claim 13.
Any limitations not identified above as part of the abstract idea are deemed “additional elements” (i.e., processor) and will be discussed in further detail below.
Accordingly, the claim as a whole recites at least one abstract idea.
Furthermore, dependent claims further define the at least one abstract idea, and thus fails to make the abstract idea any less abstract as noted below:
Claim 2 recites further detail of the abstract limitation of “determining” the first and second future characteristics by including the steps of “selecting” a first case of a patient not using the solution where the case is closest to the characteristic of the user, “selecting” a case of a patient using the solution, “determining” the future first characteristic based on the sight impairment of the first case patient and “determining” the future second characteristic based on the impairment of the second case patient, further describing the abstract idea. Claim 7 recites further detail of the determined sightedness impairment control solution comprising at least one ophthalmic lens and at least one characteristic of the solution is an optical characteristic, further describing the abstract idea. Claim 8 recites further detail of the determined optical characteristics of the solution as comprising an optical power in at least one location of the ophthalmic lens, further describing the abstract idea. Claim 9 recites further detail of the determined one location comprising at least one of a near vision point or a far vision point of the ophthalmic lens, further describing the abstract idea. Claim 10 recites further detail of the determined solution as being a myopia control solution and where the determined solution includes a device for implementing actions for the solution, further describing the abstract idea. Claim 11 recites further abstract limitations of “determining” a first optical article based on the future characteristic of the user, “determining” a second optical article based on the second future characteristic, and where the abstract, generated first and second images are of the face of the user wearing and not wearing the optical articles respectively, further describing the abstract idea. Claim 12 recites further abstract limitations of “determining” a first optical article based on the future characteristic of the user, “determining” a second optical article based on the second future characteristic, and where the first and second articles comprises first and second lenses respectively and where the first and second images are of the shape of the first and second lenses respectively, further describing the abstract idea.
Patent Subject Matter Eligibility Test: Step 2A- Prong Two:
Regarding Prong Two of Step 2A, it must be determined whether the claim as a whole integrates the abstract idea into a practical application. It must be determined whether any additional elements in the claim beyond the abstract idea integrates the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception. The courts have indicated that additional elements merely using a computer to implement an abstract idea, adding insignificant extra solution activity, or generally linking use of a judicial exception to a particular technological environment or field of use do not integrate a judicial exceptions into a “practical application,” see MPEP 2106.04(II.)(A.)(2.) and 2106.04(d)(I.).
In the present case, the additional limitations beyond the above-noted at least one abstract idea are as follows (where the bolded portions are the “additional limitations” while the underlined portions continue to represent the at least one “abstract idea”):
Regarding claim 13,
An apparatus for providing a user with a representation of an effect of a sightedness impairment control solution on the user, the apparatus comprising:
a camera configured to capture a reference image of a face of the user (merely data gathering steps as noted below, see MPEP 2106.05(g) and Versata Dev. Group, Inc. v. SAP Am., Inc.);
a display;
a memory; and
at least one processor coupled to the memory and configured to (amounts to nothing more than an instruction to apply the abstract idea using a generic computer as noted below, see MPEP 2106.05(f)):
obtain data representative of at least one characteristic of the sightedness impairment control solution, at least one current characteristic of the user and behaviour of the user (merely data gathering steps as noted below, see MPEP 2106.05(g) and Versata Dev. Group, Inc. v. SAP Am., Inc.),
determine, based on a model and the data (amounts to nothing more than an instruction to apply the abstract idea using a generic computer as noted below, see MPEP 2106.05(f)), at least one first future characteristic of the user if the user uses the sightedness impairment control solution and at least one second future characteristic of the user if the user does not use the sightedness impairment control solution,
generate a first image based on the reference image and the at least one first future characteristic and a second image based on the reference image and the at least one second future characteristic, the first image and the second image being images of the face of the user, and
display, on the display, the first image and the second image (merely post solution activity as noted below, see MPEP 2106.05(g) and Symantec).
For the following reasons, the Examiner submits that the above identified additional limitations do not integrate the above-noted at least one abstract idea into a practical application.
Regarding the additional limitation of the apparatus comprising a memory and at least one processor coupled to the memory, and the use of a model, the Examiner submits that these limitations amount to nothing more than an instruction to apply the abstract idea using a generic computer and generic computing components (see MPEP § 2106.05(f)). [0026-0029] of the Applicant’s Specification recites the generic computing components that make up the apparatus. [0056] recites the use of a generic neural network as the model. Additionally, claim 1 recites generically that the method is computer-implemented, and claim 15 recites generic non-transitory medium that merely further describes insignificant computer implementation. The additional elements recite the use of generic computing components with a non-specific implementation to carry out steps of the abstract idea without showing an improvement to technology, computers or other technical fields, and thus recites mere instructions to implement the abstract idea on a computer.
Regarding the additional limitation of use of a camera configured to capture a reference image of a face of the user, and obtain data representative of at least one characteristic of the sightedness impairment control solution, at least one current characteristic of the user and behaviour of the user, these are merely pre-solution activities. The Examiner submits that these additional limitations merely add insignificant extra-solution activity of collecting data to the at least one abstract idea in a manner that does not meaningfully limit the at least one abstract idea (see MPEP § 2106.05(g)). [0009, 0036] of the Applicant’s Specification recites the use of a camera for data gathering of the reference image of the face of the user. [0031, 0079] recites the action of obtaining the information of the user and how information such as the solutions are a part of a database. Claims 1 and 15 recite similar additional elements. The obtaining of data is used to perform actions for the system including data gathering for the abstract idea, and thus recites insignificant pre-solution activities.
Regarding the additional limitation of display, on the display, the first image and the second image, this is merely a post-solution activity. The Examiner submits that this additional limitation merely adds insignificant extra-solution activity of insignificant application to the at least one abstract idea in a manner that does not meaningfully limit the at least on abstract idea (see MPEP § 2106.05(g)). [0009, 0046] of Applicant’s specification recites part of the abstract idea as merely a part of the output to a display element, and therefore recites impractical application.
Taken alone, the additional elements do not integrate the at least one abstract idea into a practical application.
Looking at the additional limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. For instance, there is no indication that the additional elements, when considered as a whole, reflect an improvement in the functioning of a computer or an improvement to another technology or technical field, apply or use the above-noted judicial exception to provide a user with a representation of an effect of a sightedness impairment control solution on the user, implement/use the above-noted judicial exception with a particular machine or manufacture that is integral to the claim, effect a transformation or reduction of a particular article to a different state or thing, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is not more than a drafting effort designed to monopolize the exception, see MPEP 2106.04(d), 2106.05(a), 2106.05(b).
The remaining dependent claim limitations not addressed above fail to integrate the abstract idea into a practical application as set below:
Claim 2 recites further additional elements describing the model comprising of data including cases, indication of usage of the solution, behavior and evolution of impairment of the solution, which is used for the abstract idea, however these limitations amount to nothing more than an instruction to apply the abstract idea using a generic computer and generic computing components. Claim 3 recites further additional elements describing the model as a generic neural network which is generically trained using data, however these limitations amount to nothing more than an instruction to apply the abstract idea using a generic computer and generic computing components. Claim 4 recites further description of the characteristic of the user that was obtained as comprising a spherical equivalent of an eye, however this gathering of data recites insignificant pre-solution activity for the abstract idea. Claim 5 recites further description of the characteristic of the user that is gathered for the abstract idea, however this merely recites insignificant pre-solution activity for the abstract idea. Claim 6 recites further detail of the obtained behavior data comprising proportions of time spent in near and far vision, however this merely recites insignificant pre-solution activity for the abstract idea. Claim 14 recites additional elements of the system comprising a sightedness impairment control solution, however this limitation amounts to generally linking the use of a judicial exception to a particular technological environment and does not recite a practical application.
Thus, taken alone and in ordered combination, the additional elements do not integrate the at least one abstract idea into a practical application.
Patent Subject Matter Eligibility Test: Step 2B:
Regarding Step 2B of the Subject Matter Eligibility Test, the independent claims do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for the same reasons to those discussed above with respect to determining that the claim does not integrate the abstract idea into a practical application, see MPEP 2106.05(II.). Further, it may need to be established, when determining whether a claim recites significantly more than a judicial exception, that the additional elements recite well understood, routine, and conventional activities, see MPEP 2106.05(d).
Regarding the additional limitation of the apparatus comprising a memory and at least one processor coupled to the memory, and the use of a model, the Examiner submits that these limitations amount to nothing more than an instruction to apply the abstract idea using a generic computer and generic computing components (see MPEP § 2106.05(f) and MPEP § 2106.05(d)(II), specifically “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”). [0026-0029] of the Applicant’s Specification recites the generic computing components that make up the apparatus. [0056] recites the use of a generic neural network as the model. Additionally, claim 1 recites generically that the method is computer-implemented, and claim 15 recites generic non-transitory medium that merely further describes insignificant computer implementation. The additional elements recite the use of generic computing components with a non-specific implementation to carry out steps of the abstract idea without showing an improvement to technology, computers or other technical fields, and thus recites mere instructions to implement the abstract idea on a computer and does not recite significantly more than the judicial exception. Retrieving of information from memory to perform steps of the system recites well understood, routine, and conventional activities.
Regarding the additional limitation of use of a camera configured to capture a reference image of a face of the user, and obtain data representative of at least one characteristic of the sightedness impairment control solution, at least one current characteristic of the user and behaviour of the user, these are merely pre-solution activities. The Examiner submits that these additional limitations merely add insignificant extra-solution activity of collecting data to the at least one abstract idea in a manner that does not meaningfully limit the at least one abstract idea (see MPEP § 2106.05(g) and MPEP § 2106.05(d)(II), specifically “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”). [0009, 0036] of the Applicant’s Specification recites the use of a camera for data gathering of the reference image of the face of the user. [0031, 0079] recites the action of obtaining the information of the user and how information such as the solutions are a part of a database. Claims 1 and 15 recite similar additional elements. The obtaining of data is used to perform actions for the system including data gathering for the abstract idea, and thus recites insignificant pre-solution activities and does not recite significantly more than the judicial exception. The obtaining of information and generically gathering of reference images from a camera, under broadest reasonable interpretation, recites the retrieval of information from storage for the extra solution activity, thus recites well understood, routine, and conventional activities.
Regarding the additional limitation of display, on the display, the first image and the second image, this is merely a post-solution activity. The Examiner submits that this additional limitation merely adds insignificant extra-solution activity of insignificant application to the at least one abstract idea in a manner that does not meaningfully limit the at least on abstract idea (see MPEP § 2106.05(g) and MPEP § 2106.05(d)(II), specifically “Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information)”). [0009, 0046] of Applicant’s specification recites part of the abstract idea as merely a part of the output to a display element, and therefore recites impractical application and does not recite significantly more than the judicial exception. The forwarding of the previously generated images to a display device for the extra solution activity recites well understood, routine, and conventional activity.
The dependent claims do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exceptions for the same reasons to those discussed above with respect to determining that the dependent claims do not integrate the at least one abstract idea into a practical application.
For the reasons stated, the claims fail the Subject Matter Eligibility Test and therefore claims 1-15 are rejected under 35 USC 101 as being directed to non-statutory subject matter.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/CONSTANTINE SIOZOPOULOS/
Examiner
Art Unit 3686