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 .
Application Status
Present office action is in response to application filed 06/12/2024. Claims 1-3 are currently pending in the application.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1 and 2 are rejected on the ground of nonstatutory obviousness-type double patenting as being obvious over claims 1 and 15 of U.S. Patent 12/277,864.
US Patent 12/277,864
Application 18/740,576
Claim 1. A computerized method for treating a human subject with an impaired function due to neurological damage through the development of physical, mental and emotional skills,
the method comprising: fitting the subject with a sensor device having sensors for continuously sensing subject-internal signals during a treatment session; receiving, by a processor, the sensed subject-internal signals including physiologic signals from the sensor device; continuously calculating on a real-time basis during the treatment session by the processor, a current subject mind state measure based on neural activity signals of the received subject-internal signals, a current subject body state measure based on muscle activity signals of the received subject-internal signals, and a current subject emotional state measure based on heart rate variability signals of the received subject-internal signals;
administering, by the processor, during the treatment session a set of functional development activity sequence or training exercises for the subject to perform depending on the continuously calculated current subject mind state measure, current subject body state measure and current subject emotional state measure, wherein administering comprises displaying on the user interface the set of functional development activity sequence targeted to rehabilitate the impaired function of the subject when the continuously calculated current subject body state measure is at the target body state measure, the continuously calculated current subject mind state measure is at the target mind state, and the continuously calculated current subject emotional state is at the target emotional state, displaying on the user interface mind state training exercises when the continuously calculated current subject mind state is not at the target mind state to direct the continuously calculated current subject mind state to the target mind state, displaying on the user interface body state training exercises when the continuously calculated current subject body state is not at the target body state to direct the continuously calculated current subject body state measure to the target body state, displaying on the user interface emotional state training exercises when the continuously calculated subject emotional state is not at the target emotional state to direct the continuously calculated current subject emotional state to the target emotional state, and wherein performing the set of functional development activity sequence when the continuously calculated current subject mind state, continuously calculated current subject body state and continuously calculated current subject emotional state are at the target mind state, target body state and target emotional state optimizes the subject's performance to improve recovery of the impaired function.
Claim 1. A computerized method for treating a human subject with an impaired function,
the method comprising: fitting the subject with a sensor device having sensors for continuously sensing subject-internal signals during a treatment session; receiving, by a processor, the sensed subject-internal signals including physiologic signals from the sensor device; continuously calculating on a real-time basis during the treatment session by the processor a current subject mind and body state based on the received subject-internal signals;
and administering, by the processor, during the treatment session a set of functional development activity sequence or training exercises for the subject to perform depending on the continuously calculated current subject mind and body state measure,
wherein administering comprises displaying on the user interface the set of functional development activity sequence targeted to rehabilitate the impaired function of the subject to a target body and mind state measure wherein performing the set of functional development activity sequence optimizes the subject's performance to improve recovery of the impaired function.
Claim 15. A computerized method for treating a human subject with an impaired function due to neurological damage through the development of physical, mental and emotional skills,
the method comprising: continuously calculating on a real-time basis during the treatment session by the processor, from sensed subject-internal signals from sensors fitted on the subject, a current subject mind state measure based on neural activity signals of the received subject-internal signals, a current subject body state measure based on muscle activity signals of the received subject-internal signals, and a current subject emotional state measure based on heart rate variability signals of the received subject-internal signals;
and administering by the processor during the treatment session a set of functional development activity sequence or training exercises for the subject to perform depending on the continuously calculated current subject mind state measure, current subject body state measure and current subject emotional state measure,
wherein administering comprises displaying on the user interface the set of functional development activity sequence targeted to rehabilitate the impaired function of the subject when the continuously calculated current subject body state measure is at the target body state measure, the continuously calculated current subject mind state measure is at the target mind state, and the continuously calculated current subject emotional state is at the target emotional state, displaying on the user interface mind state training exercises when the continuously calculated current subject mind state is not at the target mind state to direct the continuously calculated current subject mind state to the target mind state, displaying on the user interface body state training exercises when the continuously calculated current subject body state is not at the target body state to direct the continuously calculated current subject body state measure to the target body state, displaying on the user interface emotional state training exercises when the continuously calculated current subject emotional state is not at the target emotional state to direct the continuously calculated current subject emotional state to the target emotional state, and wherein performing the set of functional development activity sequence when the continuously calculated current subject mind state, continuously calculated current subject body state and continuously calculated current subject emotional state are at the target mind state, target body state and target emotional state optimizes the subject's performance to improve recovery of the impaired function.
Claim 2. A computerized method for treating a human subject with an impaired function,
the method comprising: continuously calculating on a real-time basis during the treatment session by the processor a current subject mind and body state based on the received subject-internal signals, from sensed subject-internal signals from sensors fitted on the subject,
administering by the processor during the treatment session a set of functional development activity sequence or training exercises for the subject to perform depending on the continuously calculated current subject mind and body state measure,
wherein administering comprises displaying on the user interface the set of functional development activity sequence targeted to rehabilitate the impaired function of the subject to a target body and mind state measure
wherein performing the set of functional development activity sequence optimizes the subject's performance to improve recovery of the impaired function.
The claims are not patentably distinct from each other because the claims in the
pending application define an invention that is merely an obvious variation of the
invention claimed in US Patent 12/277,864 and common knowledge in the art. See
the prior art cited in the IDS dated 01/14/2025 and in the attached PTO Form 892.
Claim 3 is rejected on the ground of nonstatutory obviousness-type double patenting as being obvious over claim 1 of copending US Application No. 18/741,732 dated 05/30/2025.
US Application No. 18/741,732
Application 18/740,576
Claim 1: A method for assessing and treating a subject with functional impairment or disorder comprising: providing a movement-based learning model having multiple stages and transitions between stages; fitting the subject with sensors for measuring brain state signals and muscle state signals; performing a relaxation process prior to a treatment session, wherein the relaxation process generates a baseline brain state and a baseline muscle state which indicates that the subject is in a relaxed focus state; and displaying a video of a functional exercise on a user interface (UI) for recovering a function of the functional impairment for the subject to perform, wherein displaying the exercise includes various modes including speeding up the video so the subject performs the functional exercise faster, slowing down the video so the subject performs the functional exercise slower, pausing the video to allow the subject to rest, wherein the various modes depend on a current brain state and a current muscle state to ensure the subject maintains an upward spiral in the transition between the stages of the learning model to accelerate recovery of the movement function.
Claim 1: A method for assessing and treating a subject with functional impairment or disorder comprising: providing a movement-based learning model having multiple stages and transitions between stages; fitting the subject with sensors for measuring brain state signals, muscle state signals and emotional state signals; performing a relaxation process prior to a treatment session, wherein the relaxation process generates a baseline brain state and a baseline muscle state which indicates that the subject is in a relaxed focus state; and displaying a video of a functional exercise on a user interface (UI) for recovering a function of the functional impairment for the subject to perform, wherein displaying the exercise includes various modes including speeding up the video so the subject performs the functional exercise faster, slowing down the video so the subject performs the function exercise slower, pausing the video to allow the subject to rest, wherein the various modes depend on a current brain state and a current muscle state to ensure the subject maintains an upward spiral in the transition between the stages of the learning model to accelerate recovery of the movement function.
The claims are not patentably distinct from each other because the claims in the
pending application define an invention that is merely an obvious variation of the
invention claimed in US Application No. 18/741,732 and common knowledge in the art. See the prior art cited in the IDS dated 01/14/2025 and in the attached PTO Form 892.
This is a provisional obviousness-type double patenting rejection because the
conflicting claims have not been patented as of the date of this response.
Claim Objections
Claims 1 and 2 are objected to because of the following informalities: Claim 1 (line 13) and claim 2 (line 9) each recites “the user interface”. For purpose of examination, and to avoid lack of antecedent basis issues, each of the claims will be interpreted to recite “a user interface”.
Appropriate correction is required.
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 1-2 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more.
Step 1: Statutory Category?
Independent claims 1 and 2 both recite “a computerized method …”. Independent claims 1 and 2 both falls within the “process” category of 35 U.S.C. § 101.
Step 2A – Prong 1: Judicial Exception Recited?
Independent claim 1, analyzed as representative of the claimed subject matter, is reproduced below.
A computerized method for treating a human subject with an impaired function, the method comprising:
[L1] fitting the subject with a sensor device having sensors for continuously sensing subject-internal signals during a treatment session;
[L2] receiving, by a processor, the sensed subject-internal signals including physiologic signals from the sensor device;
[L3] continuously calculating on a real-time basis during the treatment session by the processor a current subject mind and body state based on the received subject-internal signals; and
[L4] administering, by the processor, during the treatment session a set of functional development activity sequence or training exercises for the subject to perform depending on the continuously calculated current subject mind and body state measure, wherein administering comprises
[L4] displaying on the user interface the set of functional development activity sequence targeted to rehabilitate the impaired function of the subject to a target body and mind state measure wherein performing the set of functional development activity sequence optimizes the subject's performance to improve recovery of the impaired function.
It is well established that humans, namely therapist, have long assessed, assisted and treated other humans to improve on their conditions. The published Specification discloses “present disclosure generally relates to treating patients with psychological, mental, cognitive or physical disorders or disabilities, such as after a stroke or a brain injury” (¶ 2) and that “a therapist may assist physically in the transition through instructions, nudges or physical assistance such as passive mobilization. Assisting in this manner but only focusing on one transition at a time is recommended. Failures at each of these stages on the part of the patient are expected at the initial stages of the relearning movement” (¶ 34). It is apparent that other than reciting the “sensor device having sensors”, “processor”, and “user interface”, under the broadest reasonable interpretation, at least the italicized claim limitations may be performed using pen and paper, in the human mind, including observations, evaluations, and judgments and may also be characterized as a certain method of organizing human activity, i.e., managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). Accordingly, the claim recites an abstract idea under Step 2A: Prong 1. (Step 2A – Prong 1: YES).
Step 2A – Prong 2: Integrated into a Practical Application?
The body of the claim, as noted above, recites the additional limitations of the “sensor device having sensors”, “processor”, and “user interface”. The published Specification provides supporting exemplary descriptions of generic computer components: at least ¶ 55: … processing unit, for example, may be a general computer having a processor 612 and a memory 614. The processor is configured to run a rehabilitation program or developmental program 620 stored in the memory…; ¶ 56: he sensor unit, in one embodiment, includes EEG sensors and EMG sensors for receiving EEG and EMG signals from the patient. For example, during a treatment session, the patient is fitted with sensors to transmit EEG and EMG signals to the processing unit …; ¶ 57: … The exercise selected is displayed on a user interface of the program on the display unit for the patient to perform …; ¶ 68: … an external device, such as an electrical stimulation device, a robot device or an exoskeleton device. For example, external devices may be used where the level of impairment of the patient makes it impossible to generate any movement without assistance…. The lack of details about “sensor device having sensors”, “processor”, and “user interface” indicates that the above-mentioned additional elements are generic computer components, performing generic functions. See Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The claimed mobile interface is so lacking in implementation details that it amounts to merely a generic component (software, hardware, or firmware) that permits the performance of the abstract idea, i.e., to retrieve the user-specific resources.”). The claim does not change the way in which the recited “sensor device having sensors”, “processor”, and “user interface” perform their tasks, it simply uses those components for their ordinary purposes to carry out the abstract idea of treating a human subject with an impaired function. The claim does not recite (i) an improvement to the functionality of a computer or other technology or technical field (see MPEP § 2106.05(a)); (ii) a “particular machine” to apply or use the judicial exception (see MPEP § 2106.05(b)); (iii) a particular transformation of an article to a different thing or state (see MPEP § 2106.05(c)); or (iv) any other meaningful limitation (see MPEP § 2106.05(e)). See 84 Fed. Reg. at 55. The claimed invention merely implements the abstract idea using instructions executed on generic computer components, as shown in bold above, and as supported in the above noted pertinent portions of the Specification. The instant claim merely uses a programmed computer as a tool to perform an abstract idea. See MPEP § 2106.05(f). The additional limitations [L1] (“fitting the subject with a sensor device having sensors”, i.e., data gathering), [L2] (“receiving the sensed subject-internal signals”, i.e., data gathering), and [L4] (“displaying … the set of functional development activity sequence”, i.e., data presentation), as shown above, reflect the type of extra-solution activity (i.e., in addition to the judicial exception) the courts have determined insufficient to transform judicially excepted subject matter into a patent-eligible application when they are claimed in a merely generic manner. See MPEP § 2106.05(g); see In re Bilski, 545 F.3d at 963 (characterizing data gathering steps as insignificant extra-solution activity); Elec. Power Grp., 830 F.3d at 1353 (holding that collecting information is an abstract idea); CyberSource, 654 F.3d at 1372 (holding that obtaining information is a mental process). The instant claim as a whole merely uses computer instructions to implement the abstract idea on a computer or, alternatively, merely uses a computer as a tool to perform the abstract idea. The claim limitations amount to merely indicating a field of use or technological environment (a computer) in which to apply a judicial exception and, as such, cannot integrate the judicial exception into a practical application. See MPEP § 2106.05(h). Hence, as per MPEP §§ 2106.05(a)–(c), (e)–(h), the additional elements in claim 11, namely the “sensor device having sensors”, “processor”, and “user interface” does not, either individually or in combination, integrate the abstract idea into a practical application. Because the abstract idea is not integrated into a practical application, the claim is directed to the judicial exception. (Step 2A, Prong 2: NO).
Step 2B: Claim provides an Inventive Concept?
As discussed with respect to Step 2A Prong Two, the additional elements in the claim amount to no more than mere instructions to apply the exception using generic computer components. The same analysis applies here in Step 2B, i.e., mere instructions to apply an exception using generic computer components cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B. The fact that the Specification does not further describe the “sensor device having sensors”, “processor”, and “user interface” indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional element to satisfy 35 U.S.C. § 112(a). See MPEP 2106.05(d), as modified by the USPTO Berkheimer Memorandum. Hence, the additional elements are generic, well-understood, routine, and conventional computing elements. The use of the additional elements either alone or in combination amounts to no more than mere instructions to apply the judicial exception using generic computer components. Mere instructions to apply an exception using generic computer components cannot provide an inventive concept, and thus the claim is patent ineligible. (Step 2B: NO).
In regard to independent Claim 2:
Independent claim 2 recites a computerized method for treating a human subject with an impaired function, comprising steps substantially similar in scope to those of representative claim 1 and performed using elements substantially similar to those of representative claim 1. As a result, claim 2 is rejected similarly to claim 1.
Rejections - 35 USC § 102/103
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 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.
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) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1 and 2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over DeCharms (US 20160066838 A1).
Re claims 1 and 2:
[Claim 1] DeCharms discloses a computerized method for treating a human subject with an impaired function (at least ¶ 10: methods relating to the use of behaviors performed by a subject and/or perceptions made by a subject that alter the activity of one or more brain regions of interest), the method comprising: fitting the subject with a sensor device having sensors for continuously sensing subject-internal signals during a treatment session (at least FIG. 1 and associated text; ¶ 14: a brain activity measurement apparatus, such as a magnetic resonance imaging scanner); receiving, by a processor, the sensed subject-internal signals including physiologic signals from the sensor device (at least ¶ 14: a brain activity measurement apparatus, such as a magnetic resonance imaging scanner); continuously calculating on a real-time basis during the treatment session by the processor a current subject mind and body state based on the received subject-internal signals (at least ¶ 12: activity measurements are made continuously so that what, when, and/or how information is communicated to a subject in view of the activity measurements can be continuously determined; ¶ 28: measured brain activity; ¶ 76: information selected from the group consisting of instructions, stimuli, physiological measurement related information, and subject performance related information is communicated to the subject as the behavior is performed or the perceptions are being made, the information communicated to the subject is selected based, at least in part, on the measured activity …; ¶ 201: training and exercise, knowledge of the activation pattern in discrete brain regions can be used to enhance certain aspects of a subject's behavioral performance, such as the subject's abilities at perception, learning and memory, and motoric skills; ¶ 260: A subject may also be trained regarding how to determine what mental, perceptual or physical activities produce the greatest response in the brain region(s) of interest by observing the information that he or she will receive regarding their activity metrics, and how to generate mental, perceptual or physical activities that are likely to produce the desired modulation; ¶ 282: Physiological activity measurement may take one or more of several forms, including fMRI BOLD signals, fMRI EPI signals, PET or SPECT signals, or event-related signals conditioned on sensory events/motor behaviors, or other physiological measurements; ¶ 320: presented to a subject or device operator in substantially real time include measures of physiological activity such as activation maps of the subject's brain activity, activity metrics from localized brain regions); and administering, by the processor, during the treatment session a set of functional development activity sequence or training exercises for the subject to perform depending on the continuously calculated current subject mind and body state measure, wherein administering comprises displaying on the user interface the set of functional development activity sequence targeted to rehabilitate the impaired function of the subject to a target body and mind state measure wherein performing the set of functional development activity sequence optimizes the subject's performance to improve recovery of the impaired function (at least ¶ 15: evaluating the set of behaviors comprises calculating and comparing activation metrics computed for each behavior based on measured activities for the different behavior; ¶ 103: the behavior is optionally a cognitive task the subject is to perform based on an image displayed to the subject; ¶ 157: ; ¶ 164: Exercise … refers to repeated training, such as training designed to activate a brain region; ¶ 165: Information … refers to anything communicated to the subject, whether by sight, sound, smell, contact with the subject, etc., relating to the performance of the various methods … pecific examples of information include, but are not limited to images of the subject's brain activity pattern, charts of the timecourse of physiological activity in a region of interest, or an activity metric from a region of interest, instructions to perform a task or how to perform a task, movies, or stereoscopic virtual reality stimuli viewed through stereo viewers and designed to simulate certain circumstances or experiences. Further examples include games played by the subject, such as computer games; ¶ 530: Moving visual images or a sequence of sounds or verbal instructions or other means of communication can instruct the subject to perform ongoing sequenced behaviors, with each successive element in the sequence controllable based upon measured physiological activity …; ¶ 651: allow one to measure activity of one or more regions of interest associated with a particular condition; employ computer executable logic that takes the measured brain activity and determines one or more members of the group consisting of: a) what next stimulus to communicate to the subject, b) what next behavior to instruct the subject to perform, c) when a subject is to be exposed to a next stimulus, d) when the subject is to perform a next behavior, e) one or more activity metrics computed from the measured activity, f) a spatial pattern computed from the measured activity, g) a location of a region of interest computed from the measured activity, h) performance targets that a subject is to achieve computed from the measured activity, i) a performance measure of a subject's success computed from the measured activity, j) a subject's position relative to an activity measurement instrument; and then communicate information based on the determinations to the subject in substantially real time relative to when the activity is measured; ¶ 690: achieving a target state of activation comprising: selecting a target state of activation in one or more brain regions, measuring a current state of activation in those regions, comparing the current state of activation to the target state, providing information about the measured comparison, and providing for training with knowledge of the comparison as a guide to reducing the difference between the current state of activation and the target state).
Alternatively, in the event DeCharms is viewed as disclosing all the claim limitations but the claim limitations are viewed as not being part of a single embodiment, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified DeCharms as claimed, because a person of ordinary skill has good reason to pursue the known options within his or her grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.
[Claim 1] DeCharms discloses a computerized method for treating a human subject with an impaired function (at least ¶ 10: methods relating to the use of behaviors performed by a subject and/or perceptions made by a subject that alter the activity of one or more brain regions of interest), the method comprising: continuously calculating on a real-time basis during the treatment session by the processor a current subject mind and body state based on the received subject-internal signals, from sensed subject-internal signals from sensors fitted on the subject (at least ¶ 12: activity measurements are made continuously so that what, when, and/or how information is communicated to a subject in view of the activity measurements can be continuously determined; ¶ 28: measured brain activity; ¶ 76: information selected from the group consisting of instructions, stimuli, physiological measurement related information, and subject performance related information is communicated to the subject as the behavior is performed or the perceptions are being made, the information communicated to the subject is selected based, at least in part, on the measured activity …; ¶ 201: training and exercise, knowledge of the activation pattern in discrete brain regions can be used to enhance certain aspects of a subject's behavioral performance, such as the subject's abilities at perception, learning and memory, and motoric skills; ¶ 260: A subject may also be trained regarding how to determine what mental, perceptual or physical activities produce the greatest response in the brain region(s) of interest by observing the information that he or she will receive regarding their activity metrics, and how to generate mental, perceptual or physical activities that are likely to produce the desired modulation; ¶ 282: Physiological activity measurement may take one or more of several forms, including fMRI BOLD signals, fMRI EPI signals, PET or SPECT signals, or event-related signals conditioned on sensory events/motor behaviors, or other physiological measurements; ¶ 320: presented to a subject or device operator in substantially real time include measures of physiological activity such as activation maps of the subject's brain activity, activity metrics from localized brain regions), administering by the processor during the treatment session a set of functional development activity sequence or training exercises for the subject to perform depending on the continuously calculated current subject mind and body state measure, wherein administering comprises displaying on the user interface the set of functional development activity sequence targeted to rehabilitate the impaired function of the subject to a target body and mind state measure wherein performing the set of functional development activity sequence optimizes the subject's performance to improve recovery of the impaired function (at least ¶ 15: evaluating the set of behaviors comprises calculating and comparing activation metrics computed for each behavior based on measured activities for the different behavior; ¶ 103: the behavior is optionally a cognitive task the subject is to perform based on an image displayed to the subject; ¶ 157: ; ¶ 164: Exercise … refers to repeated training, such as training designed to activate a brain region; ¶ 165: Information … refers to anything communicated to the subject, whether by sight, sound, smell, contact with the subject, etc., relating to the performance of the various methods … pecific examples of information include, but are not limited to images of the subject's brain activity pattern, charts of the timecourse of physiological activity in a region of interest, or an activity metric from a region of interest, instructions to perform a task or how to perform a task, movies, or stereoscopic virtual reality stimuli viewed through stereo viewers and designed to simulate certain circumstances or experiences. Further examples include games played by the subject, such as computer games; ¶ 530: Moving visual images or a sequence of sounds or verbal instructions or other means of communication can instruct the subject to perform ongoing sequenced behaviors, with each successive element in the sequence controllable based upon measured physiological activity …; ¶ 651: allow one to measure activity of one or more regions of interest associated with a particular condition; employ computer executable logic that takes the measured brain activity and determines one or more members of the group consisting of: a) what next stimulus to communicate to the subject, b) what next behavior to instruct the subject to perform, c) when a subject is to be exposed to a next stimulus, d) when the subject is to perform a next behavior, e) one or more activity metrics computed from the measured activity, f) a spatial pattern computed from the measured activity, g) a location of a region of interest computed from the measured activity, h) performance targets that a subject is to achieve computed from the measured activity, i) a performance measure of a subject's success computed from the measured activity, j) a subject's position relative to an activity measurement instrument; and then communicate information based on the determinations to the subject in substantially real time relative to when the activity is measured; ¶ 690: achieving a target state of activation comprising: selecting a target state of activation in one or more brain regions, measuring a current state of activation in those regions, comparing the current state of activation to the target state, providing information about the measured comparison, and providing for training with knowledge of the comparison as a guide to reducing the difference between the current state of activation and the target state).
Alternatively, in the event DeCharms is viewed as disclosing all the claim limitations but the claim limitations are viewed as not being part of a single embodiment, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified DeCharms as claimed, because a person of ordinary skill has good reason to pursue the known options within his or her grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter. While methods for assessing and treating a subject with functional impairment or disorder are known, the cited prior art does not explicitly disclose, teach, or
suggest in claim 3: displaying a video of a functional exercise on a user interface (UI) for recovering a function of the functional impairment for the subject to perform, wherein displaying the exercise includes various modes including speeding up the video so the subject performs the functional exercise faster, slowing down the video so the subject performs the function exercise slower, pausing the video to allow the subject to rest, wherein the various modes depend on a current brain state and a current muscle state to ensure the subject maintains an upward spiral in the transition between the stages of the learning model to accelerate recovery of the movement function.
Claim 3 would be allowed if the Double Patenting rejection were overcome
with a properly filed terminal disclaimer.
Conclusion
The prior art made of record and not relied upon is listed in the attached PTO Form 892 and is considered pertinent to applicant's disclosure.
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/EDDY SAINT-VIL/Primary Examiner, Art Unit 3715