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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 4/02/2026 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1-2 and 18-19 recite “open view smart eyewear”. The phrase does not clearly define the metes and bounds of the claimed invention in light of the Specifications and further limitations in the claims. In the Specifications ([0011]) and Claims 2 and 19, Applicant includes “Virtual Reality headsets” in the list of embodiments falling within the scope of the term “open-view smart eyewear”. In [0018] of the Specifications, Applicant describes “open view” as a specie of “form factor” of eyewear and in [0057] Applicant describes “open view” as a function of the design provided to the user via the form factor and “such eyewear is at times called open view smart eyewear 3210 or a pair of smart glasses 3210 meaning eyewear of an open field design”. In Fig. 18A and [0066], Applicant provides a specific embodiment of “open view smart eyewear”. Lastly, in [0092] Applicant appears to provide a special definition of “open view” as “meaning that the patient can see through the device to a distant target to relax any accommodation of the eye”. The metes and bounds of “open view smart eyewear” cannot be determined in light of the Specifications as there appears to be a contradiction in embodiments in which a wearer can see through the device to a distant target and the device may be a Virtual Reality headset in which distant targets in the environment are replaced by a virtual environment. While a person having ordinary skill in the art would understand that a mixed reality headset could simultaneously provide a virtual image and an “open view” for a wearer to focus on a distance object in the real-world environment, such simultaneity would not be clear for a Virtual Reality headset. The form factor or other structural and/or functional limitations on the eyewear are unclear. For the purpose of examination, the phrase “open view smart eyewear” will be understood to be commensurate in scope with “smart eyewear”. Dependent claims 2-17 and 19-20 do not remedy the deficiencies of the independent claim.
In the Remarks filed 7/14/2026, Applicant points to US Pat. No. 10,852,553 to Pedder et al. as providing a display that may be configured to “become opaque selectively” and “transparent for measuring refraction with an open view”. There is no dispute that prior art systems provide embodiments in which displays have at least partial transparence. The indefiniteness stems from the scope of embodiments captured in the claim being indeterminable when the apparatus limiting the claim is referred to as “an open view smart eyewear”. This issue becomes critically important to defining the metes and bounds of the invention in the limitation “measuring refraction of a user viewing through an open view smart eyewear” as the configuration to view through is substantively different wherein mutually exclusive interpretations are reasonable. In an opaque virtual reality display that simulates an open view with virtual objects, measuring through the eyewear could not include a visible light measurement system external to the eyewear. In an at least partially transparent augmented/mixed reality display that combined virtual objects with an overlay of actual environment, measuring could be performed by a visible light measurement system external to the eyewear. The metes and bounds of the species captured by the term “open view smart eyewear” breathes life into “measuring refraction viewing through” and thus the metes and bounds of the method steps. It appears from Applicant’s 7/14/26 Remarks (page 7) that there is explicit intent to capture opaque, wholly virtual eyewear embodiments, thus broadening “viewing through” to beyond that which would conventionally be understood by a person having ordinary skill in the art.
While not stated explicitly in the Remarks, it appears that there may be a difference in understanding the grammatical construction of “objectively measuring refraction of a user viewing through an open view smart eyewear”. Under a first interpretation, “viewing through an open view smart eyewear” is an adverbial clause limiting the step of measuring refraction. Under a second interpretation, “viewing through an open view smart eyewear” is an adjective clause modifying the user.
Claim 14 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 14 recites “the initial setting is representative of an objective measurement of refractive error of an eye of the user as generated by the wavefront aberrometer module” and intervening claim 12 recites “the tunable optics have an initial setting and the wavefront aberrometer module iteratively adjusts the tunable optics in response to detected optical needs of the user”. It cannot be determined whether the scope of Claim 14 requires a single initial objective measurement of refractive error of a user eye or requires multiple measurements of refractive error via the wavefront aberrometer module. In the 7/14/26 Remarks, Applicant points to disclosure of feedback loops that allow for single and repeated uses of the wavefront aberrometer module. With acknowledgment of this, Examiner maintains that the claim is indefinite as the language prevents one from determining whether the claim is generic to or a specie of these disclosed feedback loops. In claim 12, the wavefront aberrometer module “iteratively adjusts the tunable optics in response to detected optical needs of the user”. An iterative adjustment would be understood as being minimally limited to a single adjustment. In claim 12, tunable optics have initial setting which may or may not be related to an aberrometer measurement. In claim 14, the initial setting of the tunable optics is limited as representative of a measurement. It is unclear if the claim is limiting a first-ever tunable optic setting or a first adjusted tunable optic setting. The indefiniteness pre-empts examination on the merits.
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 1-7, 10-13, and 17-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Pat. 10,890,767 to Fernandez (herein Fernandez).
Regarding claim 1, Fernandez discloses a method of improving visual experience from open view smart eyewear (“AR head-mounted display“, Figs. 1-3), comprising: objectively measuring refraction of a user viewing through an open view smart eyewear (“step 408, the wavefront aberrometer analyzes the aberration map to automatically determine refractive condition data for one or both eyes of the user”, Fig. 2-4; col. 7, ln. 62-col. 9, ln. 19 & col. 10, ln. 17-col. 11, ln. 3), said objective measuring resulting in refraction measurements of the user; and using the resulting refraction measurements, either (i) updating tunable optics in accordance with detected optical needs of the user, the tunable optics being operatively associated with the open view smart eyewear, or (ii) updating content displayed to the user by the open view smart eyewear (“step 410, the imaging system of the AR or VR head-mounted display automatically calibrates images viewed by the user to correct for the refractive aberration indicated by the refractive condition data”; Fig. 2-4; col. 7, ln. 62-col. 9, ln. 19 & col. 10, ln. 17-col. 11, ln. 3).
Regarding claims 2 and 19, Fernandez discloses the smart eyewear is any of: an augmented reality headset, a virtual reality headset, a mixed reality headset, or portable head mounted open view apparatus (Abstract).
Regarding claim 3, Fernandez discloses objectively measuring refraction includes applying a wavefront aberrometer module to visual performance of the user's eyes while the user is wearing and viewing through the smart eyewear (Fig. 2-4; col. 7, ln. 62-col. 9, ln. 19 & col. 10, ln. 17-col. 11, ln. 3).
Regarding claim 4, Fernandez discloses the wavefront aberrometer module is removably coupled to the smart eyewear (“the head-mounted display permanently or temporarily incorporates an autorefractor subassembly that collects refractive error measurements for the user”).
Regarding claim 5, Fernandez discloses the wavefront aberrometer module is a built-in component of the smart eyewear (“the head-mounted display permanently or temporarily incorporates an autorefractor subassembly that collects refractive error measurements for the user”).
Regarding claim 6, Fernandez discloses updating tunable optics updates tunable optical elements of the wavefront aberrometer module (“step 410 includes modifying images viewed by the user by adjusting adaptive optics of the AR or VR head-mounted display” for Fig. 3 embodiment in which aberrometer is integrated; col. 10, ln. 17-col. 11, ln. 3).
Regarding claim 7, Fernandez discloses updating tunable optics updates tunable optical elements of the smart eyewear (“step 410 includes modifying images viewed by the user by adjusting adaptive optics of the AR or VR head-mounted display”; col. 10, ln. 17-col. 11, ln. 3).
Regarding claim 10, Fernandez discloses the wavefront aberrometer module further includes dynamic wavefront sensing (col. 7, ll. 33-53 & col. 10, ln. 17-col. 11, ln. 3).
Regarding claim 11, Fernandez discloses the wavefront aberrometer module includes a wavefront sensor, the tunable optics being configured to work in combination with or to receive input from the wavefront sensor such that the tunable optics provide any wavefront error cancellation in a feedback loop responsive to iterative wavefront measurements (col. 7, ll. 33-col. 9, ln. 19 & col. 10, ln. 17-col. 11, ln. 3).
Regarding claim 12, Fernandez discloses the tunable optics have an initial setting and the wavefront aberrometer module iteratively adjusts the tunable optics in response to detected optical needs of the user (Figs. 2-4; col. 10, ln. 17-col. 11, ln. 3).
Regarding claim 13, Fernandez discloses the initial setting is representative of a subjectively determined measurement of refractive error based on user input (“a pre-programmed reference wavefront”; col. 7, ll. 33-col. 9, ln. 19 & col. 10, ln. 17-col. 11, ln. 3). Note: This is a product by process limitation as it does not positively recite a method step but rather limits a tunable optics setting.
Regarding claim 17, Fernandez discloses the updating content displayed is in accordance with detected optical needs of the user (“step 410, the imaging system of the AR or VR head-mounted display automatically calibrates images viewed by the user to correct for the refractive aberration indicated by the refractive condition data”; Fig. 2-4; col. 7, ln. 62-col. 9, ln. 19 & col. 10, ln. 17-col. 11, ln. 3).
Regarding claim 18, Fernandez discloses a smart eyewear calibration device (Figs. 1-3) comprising: a wavefront aberrometer module (refractive aberration measurements and process, Figs. 2-4) configured to be operatively coupled to open view smart eyewear (Figs. 1-3), the smart eyewear including a processing component (Fig. 4; col. 10, ln. 17-col. 11, ln. 3 & col. 16, ln. 41-col. 17, ln. 3), the wavefront aberrometer module supporting calibration of a tunable optical element in accordance with detected optical needs of a user viewing through the smart eyewear (Fig. 4; col. 7, ln. 62-col. 9, ln. 19 & col. 10, ln. 17-col. 11, ln. 3), by the wavefront aberrometer module being configured to: (a) objectively measure eye refraction of the user while wearing and viewing through the smart eyewear (Fig. 4; col. 7, ln. 62-col. 9, ln. 19 & col. 10, ln. 17-col. 11, ln. 3), and (b) use objective refraction measurements to update the tunable optical element or to update contents displayed to the user by the smart eyewear in a manner that improves visual experience of the user (“step 410, the imaging system of the AR or VR head-mounted display automatically calibrates images viewed by the user to correct for the refractive aberration indicated by the refractive condition data”; Fig. 2-4; col. 7, ln. 62-col. 9, ln. 19 & col. 10, ln. 17-col. 11, ln. 3).
Regarding claim 20, Fernandez discloses the processing component is communicatively coupled to computer memory storing calibration parameters and eye refraction measurements from the wavefront aberrometer module, such that subsequent to calibration, the processing component automatically further adjusts the tunable optical element or further updates contents displayed to the user as a function of changed viewing conditions throughout use of the smart eyewear by the user (Fig. 4; col. 10, ln. 17-col. 11, ln. 3 & col. 16, ln. 41-col. 17, ln. 3).
Claim Rejections - 35 USC § 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 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.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Fernandez, as applied to Claim 1 above, and further in view of US Pat. 10,345,593 to Samec, et al. (hereinafter Samec).
Fernandez discloses the claimed invention as cited above though does not explicitly disclose: the wavefront aberrometer module further determines refraction of each eye of the user at multiple view depths, and calibrates the tunable optics to response of the user's eye to different lighting conditions, depths of view, or target contrast
Samec discloses the wavefront aberrometer module further determines refraction of each eye of the user at multiple view depths (“the ophthalmic device may use the FSD to provide one or more images at varying depths, and scanning, through an eye-scanning module, to capture images of the retina while the eye is focused at the images of varying depths”; col. 216, ln. 18-col. 221, ln. 7), and calibrates the tunable optics to response of the user's eye to different lighting conditions, depths of view, or target contrast (“Any of the autorefractor or other diagnostic methods described herein can be used for real-time adjustments while the user is watching content to ensure the content is focused”; col. 216, ln. 18-col. 221, ln. 7).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to determine refraction at depths as taught by Samec with the system as disclosed by Fernandez. The motivation would have been to ensure the content is focused (col. 216, ln. 18-col. 221, ln. 7).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Fernandez in view of Samec, as applied to Claim 8 above, and further in view of US Pat. 7,195,353 to Blum et al. (hereinafter Blum).
Regarding claim 9, Fernandez discloses the claimed invention as cited above though does not explicitly disclose: a pupil camera capturing change in size of pupil of the user's eye, and therefrom providing a measure of pupil response to different light intensities and a measure of impact of pupil size on high order aberrations to calibrate the tunable optics.
Blum discloses a pupil camera (“sensor 295 measures pupil size to provide higher order aberration correction dynamically”, Fig. 2) capturing change in size of pupil of the user's eye, and therefrom providing a measure of pupil response to different light intensities (“an aberration that may have a substantial impact on vision when a pupil is dilated, such as in low light conditions, may have a different or lesser impact in bright light when the pupil is typically much smaller in size and limits the amount of light entering the eye” and “measurements are taken under at least bright and dim ambient light conditions, although a range of ambient light conditions may be used to determine how the higher order aberration changes from light to dark or vice versa”; col. 3, ll. 19-31 & col. 3, ll. 43-50 & col. 4, ll. 18-32) and a measure of impact of pupil size on high order aberrations to calibrate the tunable optics (col. 3, ll. 19-31 & col. 3, ll. 43-50 & col. 4, ll. 18-32 & col. 4, ln. 60-col. 5, ln. 11).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to measure pupil diameter as taught by Blum with the system as disclosed by Fernandez. The motivation would have been to correct higher order aberrations through the optical system (col. 3, ll. 19-31 & col. 3, ll. 43-50 & col. 4, ll. 18-32 & col. 4, ln. 60-col. 5, ln. 11).
Claims 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Fernandez, as applied to Claim 1 above, and further in view of US Pat. 7,036,934 to Youssefi (hereinafter Youssefi).
Regarding claim 15, Fernandez discloses the claimed invention as cited above though does not explicitly disclose capturing iris biometric data from the user as biometric identification of the user.
Youssefi discloses capturing iris biometric data from the user as biometric identification of the user (col. 4, ll. 9-49). Note this claim limits the object captured via imaging (i.e. iris) and does not positively recite a biometric identification step of comparing and/or authenticating.
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to capture iris images as taught by Youssefi with the system as disclosed by Fernandez. The motivation would have been to correct higher order aberrations through the optical system (col. 3, ll. 19-31 & col. 3, ll. 43-50 & col. 4, ll. 18-32 & col. 4, ln. 60-col. 5, ln. 11).
Regarding claim 16, Fernandez discloses based on measurements of accommodation, enables calibration of the tunable optics to be customized to the user's vision performance (“collimated flat wavefront represents optical infinity, while increased beam divergence and wavefront curvature represents closer viewing distance relative to pupils 270”; Fig. 4; col. 13, ll. 11-14 & col. 10, ln. 17-col. 11, ln. 3 & col. 16, ln. 41-col. 17, ln. 3).
Fernandez discloses the claimed invention as cited above though does not explicitly disclose capturing iris biometric data includes employing a sensor or camera, operation of the sensor or camera further: (i) senses the user changing eye fixation from something far to something near; (ii) responsively measures accommodation amplitude or lag of the user's eye; and (iii) based on measurements of accommodation, enables calibration of the tunable optics to be customized to the user's vision performance.
Youssefi discloses capturing iris biometric data includes employing a sensor or camera, operation of the sensor or camera further: (i) senses the user changing eye fixation from something far to something near (“wavefront sensor 300 to force the eye to accommodate, and to monitor the centroids while it does so”; col. 14, ln. 39-col. 15, ln. 8); (ii) responsively measures accommodation amplitude or lag of the user's eye (“wavefront W is determined by the lenslet camera 312, and this wavefront W is dependent both on a wavefront Wcornea and a wavefront Wlens, both as illustrated in FIG. 11. It will be appreciated that the cornea wavefront Wcornea stays essentially constant, whereas the lens wavefront Wlens changes depending on the amount of accommodation in the lens 562”; col. 14, ln. 39-col. 15, ln. 8).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to sense accommodation with fixation targets as taught by Youssefi with the system as disclosed by Fernandez. The motivation would have been to accurately determine the shape of the eye lens through accommodation (col. 3, ll. 22-38).
Response to Arguments
Applicant's arguments filed 7/8/2026 have been fully considered but they are not persuasive.
On pages 6-8, Applicant argues against the previously presented 35 U.S.C. 112(b) rejections. These arguments are addressed in the rejections above.
On page 8 of the Remarks, Applicant states that the occluded lenses of Fernandez are materially distinct from the claimed “open view smart eyewear”. This argument is partly addressed in the above-presented 35 U.S.C. 112(b) rejections, and otherwise Examiner respectfully disagrees. The occluded lenses in Fernandez Fig. 1 are not relied upon in total as Applicant has not addressed the breadth of teachings relied upon from Fernandez (i.e. Figs. 2-4). On page 9, Applicant argues that Fernandez does not address the disclosed unaccommodated state of the patient’s eye. While disclosed, this feature of the invention is not recited in Claim 1.
Pertinent Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Pat 10866418, 11561405, and 10852551 disclose adjusting optics in response to wavefront sensing in transparent displays.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER J STANFORD whose telephone number is (571)270-3337. The examiner can normally be reached 8AM-4PM PST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ricky Mack can be reached at (571)272-2333. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER STANFORD/Primary Examiner, Art Unit 2872
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