DETAILED ACTION
The present application is being examined under the pre-AIA first to invent provisions.
This office action is in response to claims filed on 11/5/2025 in relation to application 18/755,519.
The instant application claims is in Continuation to PCT/US11/60260 with a priority date of 11/10/2011.
The instant application claims is also in turn continuation to provisional application #61/412,589738 with a priority date of 11/11/2010.
The Pre-Grant publication to a parent application #13/879,589 is US 20140370479 issued on 12/18/2014.
Claims 1-57 being cancelled.
Claims 58-72 are pending.
Double Patenting
The non-statutory 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 non-statutory 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
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Claim 58-72 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-29 of U.S. Patent No. #9,940,844 (application # 13/879,589) Although the claim scope are not identical , the conflicting claims are not patentably distinct from each other. The claims under examination (Genus e.g. Computer based first and second task and input responses) are anticipated by the reference Patent (species e.g. computer based first and second task and responses descriptions for input device configurations and data with response types) claims under the broadest reasonable interpretation. See e.g. In re Berg and In re Goodman.
Although the conflicting claims are not identical, they are not patent ably distinct from each other for the following reasons:
The parent patent #9,940,844 (application # 13/879,589) presents a The parent patent #9,440,844 (application # 13/879,589) is a computer device configured to use the input device of motion or position sensor exercise equipment to measure data indicative of physical actions of the individual to obtain the first response and/or the second response. The one or more memory storage devices further comprise computer executable instructions to alter few computer device parameter combinations e.g. between input and response configuration for the cognitive skill measurement program based on the received data.
The instant child application #18/755,519 (2/11/2025) under examination indicates the receiving of response to the first interference with the first task, the first task requiring a second response from the individual to the first task in the presence of an interference via the input device wherein the first interference diverts the individual's attention from the first task and is selected from the group consisting of a distraction and interrupters, computer device input data indicative of the first response and the second response; and analyzing in said computer device the difference in the individual's performance from performing the task with interference ignored and with distractors at least in part by determining a difference between the first response and the second response to determine an indication of the individual's cognitive ability and adjustment of the tasks.
Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter claimed in the instant application is anticipated by the claims of the conflicting parent patents and covered by the patents since the patents and the application are claiming common subject matter. The first and second task in presence and absence of interference and interrupters in the presence of various inputs response manipulated and managed in both the cases. The depended cases are only further defining the application modules and enhancing of cognitive skills as determined by combination of different possible features combinations.
Response to Arguments/Remarks
Applicant's arguments/amendments filed on November 5, 2025 have been considered.
Upon further consideration, a new ground(s) of rejection is made as necessitated by amendments and arguments changing the scope of the claims.
In view of terminal disclaimer not received, the above obviousness-type double patenting rejection is maintained.
35USC101
Applicant on pages 6-9 asserted that , the claimed methods are based on the inventor's finding that specifically adjusting the difficulty level of the task based upon the interference cost (difference in performance with and without interference) experienced by the individual is a particularly potent approach for enhancing cognition. Such approach appears to be an improvement in the relevant technology of enhancing cognition in the presence of stimulus.
The Enfish case states that "Much of the advancement made in computer technology consists of improvements to software that, by their very nature, may not be defined by particular physical features but rather by logical structures and processes." Enfish, 822 F.3d at 1339, emphasis added. Since "Software can make non-abstract improvements to computer technology, just as hardware improvements can," a claim directed to an improvement to computer functionality based on an improvements in software technology can turn an abstract idea into patent eligible subject matter. Id. at 1335.
Each of claims 58 and 72 presented herein is directed to a computer-readable memory medium that stores program instructions, which, when executed by a processor, allows a computer to provide training sessions that, compared to the conventional training methods, allow improved outcomes for enhancing cognition of an individual.
Applicant has submitted herewith a document entitled "EndeavorRx - Instructions for Use" (hereinafter, "EndeavorRx"). US FDA approval of EndeavorRx for clinical use ("FDA Approval") as mentioned on page 2 of the FDA approval, "science behind EndeavorRx was developed at the University of California, San Francisco by Adam Gazzaley, M.D., Ph.D., Founding Director of the University of California San Francisco's Neuroscape and Akili's Chief Science Advisor”. Dr. Gazzaley as an inventor of the instant application and the technology utilized in EndeavorRx is described and claimed in the instant application.
EndeavorRx demonstrates that a software that incorporates the presently claimed computer- readable memory medium is a digital therapeutic improving attention function as measured by computer-based testing in children ages 8-12 with primarily inattentive or combined-type ADHD, demonstrating attention issue. (For example, page 6 of EndeavorRx.) Moreover, page 8 of EndeavorRx states that the software "implements specific closed-loop algorithms that adapt real-time and between treatment sessions to automatically adjust the difficulty level for a personalized treatment experience." Further, page 12 explains that "the game continuously challenges the child by adjusting the gameplay to maintain a consistent level of difficult relative to how well they are playing the game."
Furthermore, EndeavorRx has received regulatory authorization by the US FDA as a prescription- only therapeutic, where the therapeutic effects of the present invention has been evidenced in clinical studies. This is provided, for example, in the product description on page 9 of EndeavorRx as well as in the summary of clinical research in pages 20-26.
Thus, it is claimed that computer readable medium improves the functionality of the computer itself. This could and renders claims 58 and 72 and their dependent claims patent eligible.
35USC101 rejection is thus withdrawn.
35USC102
Applicant on pages 9-10 asserted that the independent claim 58 is directed to a computer-readable memory medium that stores program instructions executable by a processor to perform a method comprising, among other elements, enhancing cognition of an individual by training the individual to process interference in conjunction with a task. The method performed by a processor by executing the instructions of the claimed computer- readable memory medium further comprises obtaining in the computer device the individual's first and second responses and analyzing the difference in the individual's performance when performing the first task without interference and with interference by calculating a difference between the first and second responses. The method also adjusts the difficulty level of the first task based upon the difference between the first and second responses that have been calculated in prior analyzing step to enhance cognition of an individual.
To the contrary the prior art Gibson teaches or suggests a method for aiding in the development of cognitive skills by increasing loading, distraction and pace while the trainee carries out a repetitive mental task. The method begins by presenting the trainee with a repetitive primary task. The trainee's performance in performing the task is monitored, and the mental burden on the trainee is increased based on the ability to carry out the primary task unburdened with other mental activity. The art appears to be concerned with increasing the mental burden on the trainee in response to their performance, and the introduction of distractors and secondary tasks is only introduced in response to the trainee's previous performance. It is not disclosing trainee's performance compared in a burdened and unburdened state, or using this to adjust the difficulty of any tasks.
Therefore, anticipation rejection over Gibson under 35 U.S.C. § 102withdrawn.
35USC103
Applicant on pages 9-10 asserted as to claim 62, the secondary prior art Simon describes methods for providing intelligence-adjusted cognitive performance measures. There, results from intelligence tests are used to adjust an individual's performance in cognitive test. This is done to correct for differences in intelligent quotient (IQ). (Abstract and Figure 1.) Thus, art Simon does not appear to concern enhancing a person's cognitive performance but concerns more accurately evaluating and quantifying a person's cognitive ability. Moreover, Simon is solely cited as disclosing certain elements of dependent claim 62. Therefore, Simon fails to remedy the defects in the teachings of Gibson.
As to claim 68, in another art from non-patent literature on record Clapp et al., "interrupting stimulus (IS)" is not presented with a first task. Rather, stimuli are presented sequentially with the interrupting stimulus (IS) being presented subsequent to a "cue" stimulus and prior to a "probe" stimulus, as illustrated in Figure 1A.
35USC103 rejection is withdrawn.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/S.Z/Examiner, Art Unit 3715 February 21, 2026
/XUAN M THAI/Supervisory Patent Examiner, Art Unit 3715
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