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 .
DETAILED ACTION
Response to Amendment
The amendment filed on 07/15/2026 has been entered. Claims 1-22 remain pending in the application. No claim have been amended.
Examiner Notes
Examiner cites particular columns and line numbers in the references as applied to the claims below for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested that, in preparing responses, the applicant fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
Priority
As required by e M.P.E.P. 210, 214.03, acknowledgement is made of applicant’s claim for priority based on application of National Stage entry of PCT/EP2022/087126, with international filing date of 12/20/2022, and that claims foreign priority to EP 22305011.3, filed on 01/07/2022 (Europe).
Receipt is acknowledged of papers submitted under 35 U.S.C. 119(a)-(d), which papers have been placed of record in the file.
However, to overcome a prior art rejection, applicant(s) must submit a translation of the foreign priority papers in order to perfect the claimed foreign priority because said papers has not been made of record in accordance with 37 CFR 1.55. See MPEP § 213.04
Drawings
The applicant’s drawings submitted are acceptable for examination purposes.
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.
Claims 1-4, 6-7, 9-11, 19-20 and 22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lesmes (of record, see IDS dated 06/13/2024) US 20190038125 A1.
In regard to independent claim 1, Lesmes teaches (see Figs. 1-28) a method for monitoring an evolution of a visual acuity value of a user of a digital device (i.e. as method(s) for testing and analysis of visual acuity and its changes of a user of a digital processing device, see abstract, paragraphs [03-18, 54-58, 109-114, 142-146, 153-158, 215-218, 338-348], e.g. Figs. 1, 7A-B, 17, 20) configured for:
displaying optotypes at a chosen optotype size, to be guessed by said user (i.e. displaying optotype to subject/patient/user e.g. steps 70-30, paragraphs [218, 318-321], Figs. 2, 11-13, 17), and
measuring a guessing rate corresponding to a percentage of optotypes correctly identified by the user (i.e. obtaining chart-specific psychometric function/acuity function that includes features defined by guessing rate, e.g. paragraphs [142,153,157,174-176, 264, 318-321], Fig. 7A_B, 17), the method comprising:
a) determining a visual acuity reference value, said visual acuity reference value (VAref) being determined based on at least a predefined guessing rate threshold (THS) of the displayed optotypes at an optotype reference size (OSref) (i.e. acuity reference scoring for reference point at starting testing procedure based on acuity threshold/ chart-specific acuity threshold, see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17),
b) testing the evolution of the visual acuity value (i.e. visual acuity changes and related psychometric function changes, e.g. paragraphs [59,124,151, 283-291,319-322], Figs. 7, 14, 17) by:
b1) displaying optotypes at a first optotype size corresponding to the optotype reference size (OSref), measuring the guessing rate of the displayed optotypes, (i.e. displaying starting optotype/reference point, and acuity reference scoring at starting testing procedure, see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17) and, if the measured guessing rate is below the guessing rate threshold (THS) by more than a tolerance value (as acuity reference scoring can be less than acuity threshold/chart-specific acuity threshold, range, i.e. note that threshold range (or slope), of the acuity represents “tolerance value” where user may get some right and some wrong answers, see e.g. paragraphs [274-281, 283-291, 293-302, 318-321,13-14], Figs. 7, 12-13, 17):
b2.1) remeasuring the guessing rate of displayed optotypes at a second optotype size(-OS2.1), said second optotype size (OS2.1) being superior to the first optotype size (i.e. measuring visual acuity with second larger optotype size, see e.g. Figs. 2,11-13, paragraphs [270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17).
Regarding claim 2, Lesmes teaches (see Figs. 1-28) further comprises comprising: if the measured guessing rate is superior to the guessing rate threshold (THS) by more than the tolerance value (as acuity reference scoring can be more than acuity threshold/chart-specific acuity threshold, range , see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17): b2.2) remeasuring the guessing rate of displayed optotypes at a third optotype size(OS2.2), said third optotype size (OS2.2) being inferior to the first optotype size (i.e. measuring visual acuity with smaller optotype size, see e.g. Figs. 2,11-13, paragraphs [270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17).
Regarding claim 3, Lesmes teaches (see Figs. 1-28) further comprising:
if the gap between the measured guessing rate and the guessing rate threshold (THS) is inferior or equal to the tolerance value ( as acuity reference scoring can be close to acuity threshold/chart-specific acuity threshold, range , see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17): b2.3) remeasuring the guessing rate of displayed optotypes at a same optotype size as the first optotype size (i.e. measuring visual acuity same optotype size, see e.g. Figs. 2,11-13, paragraphs [270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17).
Regarding claim 4, Lesmes teaches (see Figs. 1-28) that the guessing rate is remeasured after a predefined time (i.e. obtaining chart-specific psychometric function/acuity function at different times, later time, test 1, test 2, e.g. paragraphs [117-119, 142,157,174-176, 264, 318-321, 334-336], Fig. 7A_B, 17).
Regarding claim 6, Lesmes teaches (see Figs. 1-28) further comprising: if the measured guessing rate is superior to the guessing rate threshold by more than the tolerance value (as acuity reference scoring can be more than acuity threshold/chart-specific acuity threshold, range , see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17):
b2.2) remeasuring the guessing rate of displayed optotypes at a third optotype size, said third optotype size being inferior to the first optotype size (i.e. measuring visual acuity with smaller optotype size, see e.g. Figs. 2,11-13, paragraphs [270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17),
if the gap between the measured guessing rate and the guessing rate threshold is inferior or equal to the tolerance value ( as acuity reference scoring can be close to acuity threshold/chart-specific acuity threshold, range , see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17): b2.3) remeasuring the guessing rate of displayed optotypes at a same optotype size as the first optotype size (i.e. measuring visual acuity same optotype size, see e.g. Figs. 2,11-13, paragraphs [270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17),
c) determining the evolution of the visual acuity value of the user (subject/patient) by comparing the visual acuity reference value with at least another visual acuity value, said another visual acuity value being determined by the digital device (digital processing device) and related to the same optotype size as the first optotype size, the second optotype size (OS2.1), or the third optotype size (OS2.2), depending on the measured guessing rate (i.e. measuring another chart-specific psychometric function, e.g. sensitivity (d’), paragraphs [109-117, 137,154-162], Figs. 4,7).
Regarding claim 7, Lesmes teaches (see Figs. 1-28) further comprising: d) monitoring an evolution of data related to at least one refractive error of the user (subject/patient) based on the evolution of the visual acuity value of the user (i.e. observing visual acuity changes and related psychometric function changes, as related to tracking the progression of an eye disease or treatment effects, e.g. paragraphs [10, 334, 59,124,151, 283-291,225-228], Figs. 7, 14, 17).
Regarding claim 9, Lesmes teaches (see Figs. 1-28) that the tolerance value is comprised between 5 percent and 15 percent (acuity threshold/chart-specific acuity threshold, includes variations in the above range, see e.g. paragraphs [274-281, 283-291, 293-302, 371], Figs. 7, 12-13, 17).
Regarding claim 10, Lesmes teaches (see Figs. 1-28) further comprising: if the measured guessing rate is superior to the guessing rate threshold by more than the tolerance value (as acuity reference scoring can be more than acuity threshold/chart-specific acuity threshold, range , see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17):
b2.2) remeasuring the guessing rate of displayed optotypes at a third optotype size, said third optotype size being inferior to the first optotype size (i.e. measuring visual acuity with smaller optotype size, see e.g. Figs. 2,11-13, paragraphs [270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17),
if the gap between the measured guessing rate and the guessing rate threshold is inferior or equal to the tolerance value ( as acuity reference scoring can be close to acuity threshold/chart-specific acuity threshold, range , see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17): b2.3) remeasuring the guessing rate of displayed optotypes at a same optotype size as the first optotype size (i.e. measuring visual acuity same optotype size, see e.g. Figs. 2,11-13, paragraphs [270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17),
wherein steps b2.1), b2.2) and b2.3) are repeated through a plurality of iterations, said first optotype size being replaced at each new iteration either by the same optotype size as the first optotype size, the second optotype size or the third optotype size, depending on the guessing rate measured at the immediately preceding iteration (i.e. as optotype size used is log-linear progression displayed given measured visual acuity same optotype size, see e.g. Figs. 2,11-13, paragraphs [102-105, 179-182,270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17),
Regarding claim 11, Lesmes teaches (see Figs. 1-28) said repetition ends when at least one or a combination of the following conditions is met: a preset maximum number of iterations is met, and the first optotype size is replaced by the same optotype size for a predefined number of successive iterations (i.e. termination criteria, paragraphs [208, 283-286, 320,331-333]).
Regarding claim 19, Lesmes teaches (see Figs. 1-28) a digital device comprising a communication interface comprising at least a screen, a human/machine interface and a processing circuit configured to implement the method according to claim 1 (i.e. as method(s) for testing and analysis of visual acuity and its changes of a user is performed on digital processing device, e.g. 2401, with communication interface 2420, display GUI 2420, CPU 2405, storage 2410,2415, see paragraphs [109-114, 142-146, 153-158, 215-218, 338-348], e.g. Figs. 24-26, 1, 7A-B, 17, 20).
Regarding claim 20, Lesmes teaches (see Figs. 1-28) that output data of the digital device comprises, for a given user (i.e. digital processing device outputs acuity chart data or test data and test results, e.g. paragraphs [139 : [[-]] a visual acuity reference value (=A-ref),[[-]] chosen optotype sizes of displayed optotypes, and [[-]] guessing rates of the displayed optotypes (i.e. as acuity chart data or test data and test results, e.g. paragraphs [139, 221, 320-323,334-337], e.g. Figs. 17, 22-23), the digital device being connected to a communication network and configured to transmit said output data, through said communication network to a distant server (i.e. as detailed in Figs. 24-26, paragraphs [339,344-348, 352-354]).
Regarding claim 22, Lesmes teaches (see Figs. 1-28) a computer program product comprising program instruction code stored on a computer-readable medium for the execution of the method according to claim 1 1 (i.e. as method(s) for testing and analysis of visual acuity and its changes of a user is performed on digital processing device running a computer program stored on computer readable storage medium , see paragraphs [109-114, 142-146, 153-158, 215-218, 338-351], e.g. Figs. 24-25, 1, 7A-B, 17, 20).
Claim Rejections - 35 USC § 103
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.
Claims 5 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Lesmes (of record, see IDS dated 06/13/2024) US 20190038125 A1.
Regarding claim 5, Lesmes teaches (see Figs. 1-28) the predefined time (i.e. obtaining chart-specific psychometric function/acuity function at different times, later time between test 1, time 2, e.g. paragraphs [117-119, 142,157,174-176, 264, 318-321, 334-336], Fig. 7A_B, 17), but is silent that it is superior or equal to seven days, paragraphs [334-336]). However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize time interval between visual acuity testing into the above range in order to improve the quality of data collected from a specific subject…(see e.g. paragraphs [102,308,333]), and since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art, In re Aller, 105 USPQ 233 (C.C.P.A. 1955).
Regarding claim 8, Lesmes teaches (see Figs. 1-28) that the guessing rate threshold is comprised between 50 percent and 70 percent (i.e. acuity threshold/ chart-specific acuity threshold, e.g. 50%, see e.g. paragraphs [274-281, 283-291, 293-302], Figs. 7, 17). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to assign acuity threshold into the above range, since the claimed ranges and the prior art ranges are infinitesimally close that one skilled in the art would have expected them to have the same properties, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Claims 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over Lesmes (of record, see IDS dated 06/13/2024) US 20190038125 A1 in view of Grondin et al. (hereafter Grondin, of record see IDS dated 06/13/2024) US 20210007599 A1.
Regarding claim 12, Lesmes teaches (see Figs. 1-28) the visual acuity reference value (VA-ref) (i.e. acuity reference scoring for reference point at starting testing procedure based on acuity threshold/ chart-specific acuity threshold, see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17) is determined by:
displaying a plurality of successive optotypes at a plurality of successive corresponding optotype sizes (e.g. successive optotypes. paragraphs [92-95, 254-256, 274-281, 283-291, 293-302], Figs. 7, 12-13, 17), but is not specific about measuring, for each corresponding optotype size of the displayed optotypes among the plurality of displayed optotypes, a corresponding guessing rate, at least one guessing rate (XI .1) being superior to the guessing rate threshold (THS) and at least one other guessing rate (-XI-n) being inferior to the guessing rate threshold (THS), and identifying a displayed optotype for which the corresponding guessing rate (Xl.x) corresponds to the guessing rate threshold (THS), the corresponding optotype size corresponding to the optotype reference size (OS f) and the visual acuity reference value (NA_ref) being related to said corresponding optotype size.
However, Grondin teaches in the same field of invention of a mobile device and a method for testing an individual's vision (see Figs. 1-4, title, abstract, e.g. paragraphs [80-90]) and further teaches measuring, for each corresponding optotype size of the displayed optotypes among the plurality of displayed optotypes, a corresponding guessing rate, at least one guessing rate (good vs. bad answers, Fig. 2a) being superior to the guessing rate threshold (THS-) and at least one other guessing rate (-XI-n) being inferior to the guessing rate threshold (-THS), and identifying a displayed optotype for which the corresponding guessing rate (Xl.x) corresponds to the guessing rate threshold (THS) (see Fig. 2a), the corresponding optotype size corresponding to the optotype reference size (OS f) and the visual acuity reference value (NA-_ref) (see Fig. 2a) being related to said corresponding optotype size (i.e. as visual acuity module and algorithm with screening phase obtaining visual acuity threshold, detailed in Fig. 2a, paragraphs [76,88-89]).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adapt and modify the device and method of Lesmes to include steps of measuring, for each corresponding optotype size of the displayed optotypes among the plurality of displayed optotypes, a corresponding guessing rate with at least one guessing rate being above the guessing rate threshold and at least one other guessing rate being below the guessing rate threshold, and identifying a displayed optotype for which the corresponding guessing rate corresponds to the guessing rate threshold, where the corresponding optotype size corresponds to the optotype reference size that corresponds to visual acuity reference value, according to teachings of Grondin, in order to provide approximation of the visual acuity threshold (see paragraphs [76,88-89]).
Regarding claim 13, the Lesmes-Grondin combination teaches the method and invention as set forth above, and Lesmes teaches (see Figs. 1-28) that the displaying of the plurality of successive optotypes and the measurement of each corresponding guessing rate respect a predetermined periodicity (i.e. as Lesmes as modified with Grondin Fig. 2a, paragraphs [76,88-89]), but the combination is silent that the periodicity being superior or equal to one day. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the periodicity as time interval between visual acuity testing with successive optotypes into the above range in order to improve the quality of data collected from a specific subject, and such that time interval the tests should reasonably be repeated (see e.g. paragraphs [102,308,333], Grondin paragraph [04]), and since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art, In re Aller, 105 USPQ 233 (C.C.P.A. 1955).
Regarding claim 14, the Lesmes-Grondin combination teaches the method and invention as set forth above, and Lesmes teaches (see Figs. 1-28) that any two successive corresponding optotype sizes have different values, a ratio between such values corresponding to a factor determined by a predetermined factor function (i.e. as Lesmes as modified with Grondin, includes successive optotypes with size ratio as predetermined function, see values in Fig. 2a, paragraphs [49-50, 76,88-89]).
Regarding claim 15, the Lesmes-Grondin combination teaches the method and invention as set forth above, and Lesmes teaches (see Figs. 1-28) the visual acuity reference value (VA_ref) is determined by performing an interpolation search on the plurality of successive optotypes displayed at the plurality of successive corresponding optotype sizes and on the corresponding guessing rates (i.e. as so obtained visual acuity threshold, where each successive size of the optotype changes according to predefined algorithm, see Fig. 2a, paragraphs [76,88-89]).
Allowable Subject Matter
Claim 16 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The prior art taken either singly or in combination fails to anticipate or fairly suggest the limitations of the claim 16, in such a manner that a rejection under 35 USC 102 or 103 would be improper. Regarding claim 16, the prior art of Lesmes taken either singly or in combination fails to anticipate or fairly suggest that the method including the specific procedure where the digital device being positioned by the user so that the displayed optotypes are reflected on a mirror facing the user, and that the method comprising, before measuring and/or remeasuring the guessing rate of displayed optotypes: collecting surrounding data related to current conditions of use of the digital device [[(2)]], such surrounding data comprising at least one or a combination of: a distance between a position of the digital device and a virtual image of the digital device created by the reflection of the digital device on the mirror, a level of ambient light, and a timestamp associated with the displayed optotypes, and wherein the displayed optotypes depend on the collected surrounding data (see paragraphs [03-18, 54-58, 109-114, 142-146, 153-158, 215-218, 338-348], e.g. Figs. 1, 7A-B, 17, 20), and in combination with all other claimed limitations of claim 16 and base claim 1.
Claims 17-18 and 21 depend on claim 16 and are therefore also objected to.
Response to Arguments
Applicant's arguments filed in the Remarks dated 07/15/2026 have been fully considered but they are not persuasive.
Specifically, Applicant argues on page 3-7 that the cited prior art of Lesmes does not disclose (1) “a tolerance value” related to remeasurement step “at the second optotype size superior to the first size” that is performed “if the measured guessing rate is below the guessing rate threshold by more than a tolerance value, arguing that the guessing rate are different in Lesmes and instant application, and that other detailed features such as acuity threshold, acuity range/slope and psychometric function(s) are not related to comparing a measured percentage of correctly identified optotypes with a predefined guessing rate threshold minus a tolerance value. The Examiner respectfully disagrees. With regard to the above issue, as noted in the rejection above, the cited prior art of Lesmes teaches all limitations of claim 1, including the limitations raised under issue (1) above, as Lesmes teaches (see Figs. 1-28) a method for monitoring an evolution of a visual acuity value of a user of a digital device (i.e. as method(s) for testing and analysis of visual acuity and its changes of a user of a digital processing device, see abstract, paragraphs [03-18, 54-58, 109-114, 142-146, 153-158, 215-218, 338-348], e.g. Figs. 1, 7A-B, 17, 20) configured for:
displaying optotypes at a chosen optotype size, to be guessed by said user (i.e. displaying optotype to subject/patient/user e.g. steps 70-30, paragraphs [218, 318-321], Figs. 2, 11-13, 17), and
measuring a guessing rate corresponding to a percentage of optotypes correctly identified by the user (i.e. obtaining chart-specific psychometric function/acuity function that includes features defined by guessing rate, e.g. paragraphs [142,153,157,174-176, 264, 318-321], Fig. 7A_B, 17), the method comprising:
a) determining a visual acuity reference value, said visual acuity reference value (VAref) being determined based on at least a predefined guessing rate threshold (THS) of the displayed optotypes at an optotype reference size (OSref) (i.e. acuity reference scoring for reference point at starting testing procedure based on acuity threshold/ chart-specific acuity threshold, see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17),
b) testing the evolution of the visual acuity value (i.e. visual acuity changes and related psychometric function changes, e.g. paragraphs [59,124,151, 283-291,319-322], Figs. 7, 14, 17) by:
b1) displaying optotypes at a first optotype size corresponding to the optotype reference size (OSref), measuring the guessing rate of the displayed optotypes, (i.e. displaying starting optotype/reference point, and acuity reference scoring at starting testing procedure, see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17) and, if the measured guessing rate is below the guessing rate threshold (THS) by more than a tolerance value (as acuity reference scoring can be less than acuity threshold/chart-specific acuity threshold, range, i.e. note that threshold range (or slope), of the acuity represents “tolerance value” where user may get some right and some wrong answers, see e.g. paragraphs [274-281, 283-291, 293-302, 318-321,13-14], Figs. 7, 12-13, 17):
b2.1) remeasuring the guessing rate of displayed optotypes at a second optotype size(-OS2.1), said second optotype size (OS2.1) being superior to the first optotype size (i.e. measuring visual acuity with second larger optotype size, see e.g. Figs. 2,11-13, paragraphs [270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17).
Specifically, Lesmes teaches b1) displaying optotypes at a first optotype size corresponding to the optotype reference size (OSref), measuring the guessing rate of the displayed optotypes, (i.e. displaying starting optotype/reference point, and acuity reference scoring at starting testing procedure, see e.g. paragraphs [274-281, 283-291, 293-302, 318-321], Figs. 7, 12-13, 17) and, if the measured guessing rate is below the guessing rate threshold (THS) by more than a tolerance value, as acuity reference scoring can be less than acuity threshold/chart-specific acuity threshold, range, i.e. note that threshold range (or slope), of the acuity represents “tolerance value” where user may get some right and some wrong answers, see e.g. paragraphs [274-281, 283-291, 293-302, 318-321,13-14,114-115], Figs. 7, 12-13, 17):
b2.1) remeasuring the guessing rate of displayed optotypes at a second optotype size(-OS2.1), said second optotype size (OS2.1) being superior to the first optotype size (i.e. measuring visual acuity with second larger optotype size, see e.g. Figs. 2,11-13, paragraphs [270-273,274-281, 283-291, 293-302, 318-321], Figs. 20, 7, 12-13, 17). Lesmes e.g. discloses (paragraphs [13,14] that a set of acuity parameters has an acuity threshold and an acuity range, which is considered the point where the user typically passes and in psychometric functions,
and the "range" (slope) defines the area of uncertainty where a user might get some right and some wrong. One of ordinary skill in the art would then see the "tolerance value" as effectively a functional application of this acuity range, as it represents the statistical "buffer" derived from the subject's specific psychometric function to ensure that a drop in performance is a true change in vision and not just a random miss within their typical range (see also Figs. 4 and 7). Namely, as noted the acuity range can be the difference between two optotype sizes corresponding to a lower number of correctly reported letters (e.g. −0.3 log MAR for 1 out of 5) and a higher number of correctly reported letters (e.g., 0.9 log MAR for 4 out of 5), which is related to variation around the threshold of psychometric function. Hence as best understood from the Lesmes reference the visual acuity testing is performed with variation in the threshold of guessing rate in psychometric function. Further, the elements must be arranged as required by the claim, but this is not an ipsissimis verbis test, i.e., identity of terminology is not required. In re Bond, 910 F.2d 831, 15 USPQ2d 1566 (Fed. Cir. 1990). MPEP § 2131. Specifically, while it is noted that Lesmes involves additional methods and uses specific terminology, the measurement steps for visual acuity are disclosed, namely, although the cited reference of Lesmes is different from the invention disclosed by Applicant, the language of Applicant's claims is sufficiently broad to reasonably read on the cited reference.
Additionally in response to applicant's argument that the references fail to show certain features of applicant’s invention, it is noted that the features upon which applicant relies (i.e., changing the second optotype size of the displayed optotypes based on a significant gap, or comparing a measured percentage of correctly identified optotypes with a predefined guessing rate threshold minus a tolerance value) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Specifically, it is noted that tolerance or variation in the threshold rate is noted, however, the tolerance is not specifically defined, or denoted to a value. Lastly, as noted "[t]he use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968))." MPEP §2123. Hence, Applicant’s arguments regarding issue (1) are not found persuasive.
No additional substantial arguments were presented after page 7 of the Remarks dated 07/15/2026.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARIN PICHLER whose telephone number is (571)272-4015. The examiner can normally be reached Monday-Friday 8:30am -5:00pm.
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, Thomas K Pham can be reached at (571)272-3689. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MARIN PICHLER/Primary Examiner, Art Unit 2872
Prosecution Insights