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
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 .
Status of Claims
This action is in reply to the RCE filed on 06/08/26.
Claims 1, 4, 6, 8, 9, 10 are amended and are hereby entered.
Claims 1-10 are currently pending and have been examined.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06/08/2026 has been entered.
Foreign Priority
Acknowledgment is made of Applicant's claim for foreign priority based on an application filed in Taiwan on 11/09/2023. A certified copy of the TW112143313 application as required by 37 CFR 1.55 was received on 09/18/24. Accordingly, a priority date of 11/09/23 has been given to this application.
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 1-10 are rejected under 35 U.S.C.101 because the claimed invention is directed to a judicial exception (an abstract idea) without significantly more.
Step 1
Claims 1-10 are drawn to a method, which is within the four statutory categories. Claims 1-10 are further directed to an abstract idea on the grounds set out in detail below.
Step 2A Prong 1
Claim 1 recites implementing the steps of:
converting biological data into a corresponding automatically generated training parameter recommendation, including converting the biological data into a standardized score, forming an order list based on the standardized score and generating training parameters for the corresponding training parameter recommendation based on the order list, the standardized score being a distance between a raw value of the biological data and a normative mean represented in units of standard deviation, wherein converting the biological data into the corresponding training parameter recommendation further comprises generating a priority order of execution training protocols by comparing deviations of surface brainwave parameters and brain area network activity parameters against stored respective normative values.
These steps amount to managing personal behavior or relationships or interactions between people and therefore recite certain methods of organizing human activity. Using biological data to determine a training parameter recommendation for a subject by converting the biological data into a standardized score, creating an ordered list based on the score, and generating training parameter recommendations based on the list, in which the priority order is determined by comparing deviations of the subject’s brainwave data to normative values, is a personal behavior that may be performed by a healthcare provider.
The above claims are therefore directed to an abstract idea.
Step 2A Prong 2
This judicial exception is not integrated into a practical application because the additional
elements within the claims only amount to:
A. Instructions to Implement the Judicial Exception. MPEP 2106.05(f)
The independent claims additionally recite:
a cognitive training system as a means of implementing a cognitive training program for a subject
a brainwave database as implementing the step of converting the biological data into a corresponding training parameter recommendation by the brainwave database and maintaining stored normative values
a remote cloud system as implementing the steps of converting biological data into a training parameter recommendation, including converting the biological data into a standardized score, forming an order list based on the standardized score, and generating training parameters for the corresponding training parameter recommendation based on the order list
The broad recitation of general purpose computing elements at a high level of generality only amounts to mere instructions to implement the abstract idea using computing components as tools.
Regarding the cognitive training system, the specification does not appear to disclose this exact term, but it does disclose “cognitive training module” which is interpreted as being synonymous; the cognitive training module “includes a desktop computer, a notebook computer and/or smart mobile device” (para. [0013]). If the system is meant to be interpreted as shown in Fig. 5, the components shown in Fig. 5 are all understood to be general purpose computing elements functioning in their ordinary capacities per para. [0027]. This element is therefore given its broadest reasonable interpretation as a general purpose computing device or collection of general purpose computing devices in communication, functioning in their ordinary capacity.
Regarding the “brainwave database”, no structural details are provided. Per para. [0027], this is understood to be a general purpose database functioning in its ordinary capacity, e.g., an electronic means of storing data, which only amounts to mere instructions to apply the abstract idea.
Regarding the remote cloud system, no particulars of this element are disclosed; the specification only reiterates the language “remote cloud system” (e.g., [0007], [0012], [0027]). Therefore, this element is given its broadest reasonable interpretation as a general purpose computing element functioning in its ordinary capacity.
B. Insignificant Extra-Solution Activity. MPEP 2106.05(g)
Claim 1 additionally recites
receiving biological data of a subject collected by a brainwave collection device
transmitting the biological data to a brainwave database of a remote cloud system through a network;
remotely transmitting the corresponding training parameters using the remote cloud system to a neurofeedback cognitive training module in the cognitive training system in real time to execute cognitive training
The step of receiving biological data of a subject collected by a brainwave collection device only amounts to insignificant extra-solution activity in the form of mere data gathering, e.g., pre-solution activity.
The step of transmitting the biological data to a brainwave database of a remote cloud system through a network only amounts to insignificant extra-solution activity. As stated in MPEP 2106.05(g), "[t]he term "extra-solution activity" can be understood as activities incidental to the primary process or product that are merely a nominal or tangential addition to the claim." In the present claim, the function of transmitting the biological data to a brainwave database of a remote cloud system through a network is only nominally or tangentially related to the process of using biological data to determine a training parameter recommendation for a subject and subsequently providing the recommendation to the subject to perform cognitive training, and accordingly constitutes insignificant extra-solution activity. Similarly, the step of remotely transmitting the corresponding training parameters using the remote cloud system to a neurofeedback cognitive training module in the cognitive training system in real time to execute cognitive training only amounts to insignificant extra-solution activity in the form of post-solution activity, e.g., transmitting the generated result (training parameters) following performance of the abstract idea.
These types of activities have been recognized by the courts as well-understood, routine and conventional activity when claimed as insignificant extra-solution activity. See MPEP 2106.05(d).
These elements in Sections A and B above are therefore not sufficient to integrate the abstract idea into a practical application. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually.
The above claims, as a whole, are therefore directed to an abstract idea.
Step 2B
The present claims do not include additional elements that are sufficient to amount to
more than the abstract idea because the additional elements or combination of elements amount to no more than a recitation of:
A. Instructions to Implement the Judicial Exception. MPEP 2106.05(f)
As explained above, claim 1 only recites the aforementioned computing elements as tools for performing the steps of the abstract idea, and mere instructions to perform the abstract idea using a computer is not sufficient to amount to significantly more than the abstract idea. MPEP 2106.05(f).
B. Insignificant Extra-Solution Activity. MPEP 2106.05(g)
Likewise, as explained above, the step of receiving biological data of a subject collected by a brainwave collection device, wherein the brainwave includes a brainwave collection device, only amounts insignificant extra-solution activity in the form of mere data gathering, and the steps of transmitting the biological data to a brainwave database of a remote cloud system through a network and remotely transmitting the corresponding training parameters using the remote cloud system to a neurofeedback cognitive training module in the cognitive training system in real time to execute cognitive training only amount to insignificant extra-solution activity.
C. Well-Understood, Routine and Conventional Activities. MPEP 2106.0S(d)
In addition to amounting to insignificant extra-solution activity the elements in Section B above constitute well-understood, routine and conventional activity.
The steps of transmitting the biological data to a brainwave database of a remote cloud system through a network and remotely transmitting the corresponding training parameters using the remote cloud system to a neurofeedback cognitive training module in the cognitive training system in real time to execute cognitive training only amounts to receiving or transmitting data over a network, which has been previously held to be well-understood, routine and conventional when claimed at a high level of generality or as insignificant extra-solution activity. See MPEP 2106.05(d)(II).
As discussed above with respect to integration of the abstract idea into a practical application, the additional element of receiving biological data of a subject collected by a brainwave collection device was considered extra-solution activity in the form of mere data gathering. Examiner notes that the claim does not positively recite collecting data via the brainwave collection device, but only recites receiving biological data collected by a brainwave collection device, e.g., the actual data collection has been done outside of the claim, and the broadest reasonable interpretation of this limitation is understood to be receiving the collected biological data over a network, which as described above, receiving/transmitting data over a network has been held to be well-understood, routine and conventional when claimed at a high level of generality or as insignificant extra-solution activity. See MPEP 2106.05(d)(II). Nonetheless, for the sake of completeness, this additional element has been re-evaluated under the “significantly more” analysis and determined to be well-understood, routine, conventional activity in the field. As evidenced by the prior art of record, receiving biological data of a subject collected by a brainwave collection device is well-understood, routine, and conventional activity in the field of computerized healthcare (see Sela reference at paras. [0027], [0044], [0048]; see Matthews reference at paras. [0002], [0024]; see McDonough reference at paras. [0020], [0099]). Well-understood, routine, conventional activity cannot provide an inventive concept (“significantly more”). As such the claim is not patent eligible.
Thus, taken alone, the additional elements do not amount to significantly more than the
above-identified judicial exception. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. Their
collective functions merely provide conventional computer implementation.
Depending Claims
Dependent claims recite additional subject matter which further narrows or defines the abstract idea embodied in the claims. For example, Claims 2, 3, 4, 5, 7, 8, 9 recite limitations which further narrow the scope of the independent claim. Claims 4, 6, 10 further recites limitations that are certain methods of organizing human activity as set out below:
Claim 4 also recites limitations pertaining to the biological data are converted into a standardized score through at least one channel of the scalp electroencephalography (EEG) signals, and then presented in the order list according to a deviation mean, which is also certain methods of organizing human activity including managing personal behavior, as a healthcare provider could perform data analysis to convert data from scalp EEG signal from a channel into a standard score and present the results in an order list. The above limitations are therefore not sufficient to integrate the abstract idea into a practical application or to amount to significantly more than the abstract idea.
Claim 6 recites limitations pertaining to wherein after the step of transmitting the corresponding training parameter recommendation for cognitive training, the method further comprises providing an effect suggestion based on a result of the cognitive training, which is also certain methods of organizing human activity including managing personal behaviors, as a healthcare provider could provide an effect suggestion based on a cognitive training result after the subject has performed the cognitive training. Claim 6 also recites additional elements consistent with those addressed above with respect to independent claim 1, and recitation of these elements in claim 6 only amounts to mere instructions to apply the abstract idea. Claim 6 also recites limitations pertaining to transmitting the result of the cognitive training through the network back to the remote cloud system, which only amounts to insignificant extra-solution activity. In addition to amounting to insignificant extra-solution activity, the above limitations also constitute well-understood, routine and conventional activity in the form of transmitting data over a network, which has been recognized by the courts as well-understood, routine and conventional activity when claimed as insignificant extra-solution activity. See MPEP 2106.05(d). The above limitations are therefore not sufficient to integrate the abstract idea into a practical application or to amount to significantly more than the abstract idea.
Claim 10 recites limitations pertaining to wherein a corresponding training parameter recommendation further comprises recommending to refer to a priority order of execution of training after comparing surface brainwaves and brain area network according to a norm through a training protocol recommendation; and remotely transmitting based on the corresponding training parameter recommendation for a cognitive training step of neurophysiological feedback, and then comparing an outcome of the cognitive training step to the norm to evaluate whether brainwaves or brain areas are approaching balance to evaluate effectiveness of the corresponding training parameter recommendation, which are also certain methods of organizing human activity including managing personal behavior, as a healthcare provider could provide a recommendation for a priority order of training after performing a comparison analysis, provide feedback based on the training parameter recommendation, and performing an evaluation of training effectiveness. Claim 10 also recites additional elements consistent with those addressed above with respect to independent claim 1, and recitation of these elements in claim 6 only amounts to mere instructions to apply the abstract idea. The above limitations are therefore not sufficient to integrate the abstract idea into a practical application or to amount to significantly more than the abstract idea.
Dependent claims 2-10 recite additional subject matter which, as discussed above with respect to integration of the abstract idea into a practical application, amount to invoking computers as a tool to perform the abstract idea. Dependent claims recite additional subject matter which amount to limitations consistent with the additional elements in the independent claims. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation.
The dependent claims have been given the full two-part analysis including analyzing the additional limitations both individually and in combination. The dependent claims, when analyzed individually, and in combination, are also held to be patent ineligible under 35 U.S.C. 101 as they include all of the limitations of claim 1. The additional recited limitations of the dependent claims fail to establish that the claims do not recite an abstract idea because the additional recited limitations of the dependent claims merely further narrow the abstract idea. Beyond the limitations which recite the abstract idea, the claims recite additional elements consistent with those identified above with respect to the independent claims which encompass adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f). Accordingly, these additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea.
Dependent claims 2-10 recite additional subject matter which amounts to additional elements consistent with those identified in the analysis of Claim 1 above. As discussed above with respect to Claim 1 and integration of the abstract idea into a practical application, recitation of these additional elements only amounts to invoking computers as a tool to perform the abstract idea. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation.
Dependent claims 2-10, when analyzed as a whole, are held to be patent ineligible under 35 U.S.C. 101 because the additional recited limitation(s) fail(s) to establish that the claim(s) is/are not directed to an abstract idea without significantly more. These claims fail to remedy the deficiencies of their parent claims above, and are therefore rejected for at least the same rationale as applied to their parent claims above, and incorporated herein.
For the reasons stated, Claims 1-10 fail the Subject Matter Eligibility Test and are consequently rejected under 35 U.S.C. 101.
Response to Applicant’s Remarks/Arguments
Please note: When referencing page numbers of Applicant’s response, references are to page numbers as printed.
35 USC 101 Rejections
Applicant’s remarks have been fully considered but are not persuasive. The 101 analysis section above has been updated to reflect amended claim language. Applicant argues:
The Focus of the Claims Is an Improvement to Neurofeedback Technology, Not a Method of Organizing Human Activity
Regarding (A), the Examiner respectfully disagrees with Applicant’s position. MPEP 2106. 04(a)(2)(II) states that a claimed invention is directed to certain methods of organizing human activity if the identified claim elements contain limitations that encompass fundamental economic principles or practices, commercial or legal interactions, or managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). The Examiner submits that the identified claim elements represent a series of personal behaviors that a person or persons, with or without the aid of a computer, would follow to convert biological data into a standardized score, create an ordered list based on the score, and generate training parameter recommendations based on the list, in which a priority order is determined by comparing deviations of the subject’s brainwave data to normative values. Because the claim elements fall under a series of rules or instructions that a person or persons would follow to [summarize the invention], the claimed invention is directed to an abstract idea. Examiner is uncertain as to what Applicant means by “The Examiner has itself acknowledged that Claim 1 contains an explicit mathematical/statistical definition - the distance to the normative mean expressed in units of standard deviation - and a specific technical pipeline from score to list to parameter generation” as no such statement appears to have been made, other than including the portions of the claim pertaining to distance to normative mean within the scope of the abstract idea. Nonetheless, Examiner submits that defined computational steps can indeed be directed to certain methods of organizing human activity including managing personal behaviors.
Regarding remarks at bottom of page 7 that “The focus of Claim 1, as amended, is not on recommending training to a person, but on a specific technical system”, Examiner submits that the broadest reasonable interpretation of the claims amounts to analyzing data to determine a recommended training parameter for a user. Regarding “receives raw multi-channel brainwave signals”, Examiner notes that initially, Claim 1 only recites “biological data”. Further, as explained above in 101 section, the step of actually collecting the biological data is performed outside of the claim. Claim 1 only recites “receiving biological data collected by a brainwave device”; the broadest reasonable interpretation is receiving data that has previously been collected. Further still, receiving biological data including brainwave signals, only amounts to insignificant extra-solution activity in the form of mere data gathering, e.g., a pre-solution activity to obtain the data on which to perform the abstract idea. Furthermore, a Berkheimer analysis has shown this element to be well understood, routine and conventional. Regarding steps 2-5, Examiner submits that these fall within the scope of the abstract idea, as a person could perform calculations to determine standardized deviation scores, form a deviation-ranked order list, generate a priority list of training protocols based on a comparison, and generate training parameters to be executed. Step 6 of transmitting the parameters only amounts to insignificant extra-solution activity in the form of post-solution activity, e.g., outputting the result after performance of the abstract idea. While the claim may recite hardware components, Examiner submits that they only amount to mere instructions to apply the abstract idea.
Regarding remarks to MPEP 2106.04(a)(2)(II) and Applicant’s remark that “The entirety of Claim I operates upon neurophysiological signals and hardware control loops. It does not involve economic principles, commercial interactions, or interpersonal relationships. Accordingly, the CMHA category is inapplicable”, the Examiner respectfully disagrees with Applicant’s position. The breakdown of the limitations falling within the scope of the abstract idea is shown in the main 101 analysis section above. Examiner submits that the broadest reasonable interpretation is understood to include managing personal behaviors, e.g., a series of steps a person could follow to determine training parameters for a subject. Neurophysical signals merely labels the type of data being analyzed. The hardware is recited at a high level of generality and only amounts to mere instructions to apply the abstract idea.
Regarding remarks at bottom of page 8 and “reducing” Claim 1 to its “functional outcome”, the Examiner submits that the features cited by Applicant (standardize score calculation, deviation-ranked order list, cross-dimensional priority ordering) fall within the scope of the abstract idea. Performing a real-time closed loop feedback also falls within the scope of an abstract idea, e.g., using outcome data to modify/select parameters. Examiner respectfully submits that per 101 analysis section above, the claim has been considered as a whole.
These arguments are not persuasive.
The Claims are not directed to a Mental Process.
Regarding (B), Examiner initially submits that the claims have been categorized as falling into the Certain Methods of Organizing Human Activity grouping of abstract ideas, and not Mental Processes. Therefore, these arguments are not persuasive, as determining whether or not a human brain is capable of performing the steps mentally is not a consideration within the Certain Methods of Organizing Human Activity grouping. Nonetheless, with respect to McRO, the Examiner respectfully submits that the instant claims are not analogous to McRO. In McRO, the claimed invention recited a very specific set of rules that allowed a computer to perform animation in a manner that was previously only performable by human animators. The very fact that the animation could not be previously performed by computers and that the rules applied by the claimed invention solved this problem was the reason the claimed invention in McRO was found to be not directed to an abstract idea. Here, there is no evidence on record that establishes that the claimed invention was only previously performable by humans in the manner of McRO. Further, Examiner submits that certain methods of organizing activity may include a human interacting with a computer (MPEP 2106.04(a)(2)(II)). Examiner submits that a person, with or without a computer, could convert biological data into a corresponding training parameter recommendation, and as such, this limitation has been included in the scope of the abstract idea.
Regarding remarks to Rapid Litigation Management Ltd v. CellzDirect, Applicant has not elaborated on, nor can Examiner find, evidence of how the instant case is analogous as the referenced case law pertains to freezing and thawing hepatocytes, as the instant case only pertains to receiving, transmitting data and performing a data analysis. Therefore, this argument is not persuasive.
These arguments are not persuasive.
The Terms "Recommendation" and "Training" Must Be Interpreted in Technical Context
Regarding (C), the Examiner respectfully disagrees. A “technical” output of a “specific system” after executing “defined computational operations” only amounts to mere instructions to apply the abstract idea. Calculating a z-score, performing a deviation-based ranking, and generating a cross-dimensional priority list are all steps that can be performed by a person. The computing components only serve as a tool to implement those steps. Regarding remarks to “training” at bottom of page 10, Examiner is uncertain as to how “training” in the instant application is analogous to “machine learning” or “train a model” as argued by Applicant, as the claims and specification do not contain any disclosure of these concepts. If “training” refers to execution of feedback by a neurofeedback cognitive training module (“a hardware operation”), Examiner submits that this only amounts to mere instructions to apply the abstract idea.
These arguments are not persuasive.
The Additional Elements, Taken as an Ordered Combination, Provide a Specific Technical Improvement
Regarding (D), the Examiner respectfully disagrees that an ordered combination of additional elements in Claim 1 provide a specific technical improvement. Regarding remarks directed to BASCOM, Examiner respectfully disagrees with Applicant’s position. The claims in BASCOM were found to be eligible because they presented a technology-based improvement to methods in which web filtering was performed which overcame disadvantages with prior art systems disclosed in the specification by using a non-conventional arrangement of web filters (e.g., additional elements). Unlike BASCOM, Applicant has not provided evidence in the specification as originally filed, nor can Examiner find evidence, to demonstrate how the claimed invention provides a non-conventional arrangement of additional elements.
Regarding remarks in last paragraph at page 11 regarding 2B analysis, the 2B analysis pertains to evaluation of additional elements (MPEP 2106.05). The steps cited by Applicant at bottom of page 1 (converting to standardized score, forming order list, generating training parameters) fall within the scope of the abstract idea. 2B analysis is not required for steps that are identified as falling within the scope of the abstraction. A “specific processing pipeline” comprised of abstract steps is not sufficient to amount to significantly more than the abstract idea.
Regarding table presented at page 12: Initially, regarding “why each exceeds the cognitive capacity of a human operator”, please see above remarks to argument (B). The claims were not identified as falling within the Mental Processes grouping, but rather Certain Methods of Organizing Human Activity. As such, human cognitive capacity is irrelevant and this is not persuasive. Nonetheless, Examiner prospectively provides the following remarks: Regarding the cloud system, Examiner submits that a cloud system being used in its ordinary capacity does not amount to significantly more. Applicant has not invented a new or improved cloud system. Merely implementing the claimed system on a cloud computing system only amounts to mere instructions to apply the abstract idea. MPEP 2106.05(f). Regarding “order list generated by ranking standardized deviation scores”, this element falls within the scope of the abstract idea and as such, it is not an additional element and is therefore is not a consideration at Step 2B. Similarly, real-time remote feedback of generated training parameters only amounts to insignificant extra-solution activity, e.g., outputting (transmitting) the result after performance of the abstract idea (generating a training parameter recommendation). Therefore, Claim 1 does not include an ordered combination of additional elements that amounts to significantly more than the abstract idea. Regarding remarks at page 13 pertaining to “eliminating the subjective, manually-introduced protocol selection latency… and enabling objective, automated cross-dimensional personalization of NFB protocols”, Examiner submits that merely automating a manual process using a computer does not automatically confer subject matter eligibility. (See MPEP 2106.05(a)(I), example (iii) under “Examples that the courts have indicated may not be sufficient to show an improvement in computer-functionality”).
These arguments are not persuasive.
(E)The Brainwave Database Is a Specialized Technical Component, Not a General Purpose Database
Regarding (E), the Examiner respectfully disagrees with Applicant’s position. The database itself is understood to be a general purpose database. Merely clarifying that it stores specific data, e.g., population level mean and standard device, only further narrows the scope of the claim. No particulars of the database structure itself appear to be disclosed; merely calling it a “normative database” does not render the claim subject-matter eligible. Applicant has not cited to evidence, nor can Examiner find evidence, of how the “computational reference structure” itself enables a unique Z-score based deviation calculation (page 13). Merely specifying the types of data and calculations performed only narrows the scope of the claim.
Regarding remarks to the “Transmission step” (bottom of page 13 continuing to page 14), Examiner submits that this only amounts to well-understood, routine and conventional activity in the form of transmitting data over a network. As previously discussed, the “computational architecture” in the instant claims only amounts to mere instructions to apply the abstract idea.
These arguments are not persuasive.
(F) The Claim Output Is Hardware Control, Not Data Display - Distinguishing
Electric Power Group
Regarding (F), the Examiner respectfully disagrees. Regarding remarks in first paragraph which Applicant argues “hardware-executable training parameters transmitted in real time…to directly control a neurophysiological feedback training session”, Examiner submits that the claim only recites transmitting the parameters, which as discussed above only amounts to insignificant extra-solution activity. The claim does not positively recite controlling a training session.
Regarding DDR, MPEP 2106.05(d) states, “DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 113 USPQ2d 1097 (Fed. Cir. 2014), provides an example of additional elements that favored eligibility because they were more than well-understood, routine conventional activities in the field. The claims in DDR Holdings were directed to systems and methods of generating a composite webpage that combines certain visual elements of a host website with the content of a third-party merchant. 773 F.3d at 1248, 113 USPQ2d at 1099. The court found that the claim had additional elements that amounted to significantly more than the abstract idea, because they modified conventional Internet hyperlink protocol to dynamically produce a dual-source hybrid webpage, which differed from the conventional operation of Internet hyperlink protocol that transported the user away from the host’s webpage to the third party’s webpage when the hyperlink was activated. 773 F.3d at 1258-59, 113 USPQ2d at 1106-07. Thus, the claims in DDR Holdings were eligible” (Emphasis Examiner). Applicant has not identified, nor can Examiner find, evidence of an analogous improvement to a conventional functioning of a computer or internet-based technology in the Applicant’s specification.
Examiner submits that the problem of “automatically generating individually personalized, cross-dimensionally prioritized training parameters in real time” as described by Applicant, is not a problem caused by the technological environment of the claim. Examiner submits that merely automating a process using a computer (e.g., automatically generating individually personalized, cross-dimensionally prioritized training parameters, as stated by Applicant at page 14) does not automatically confer subject matter eligibility. (See MPEP 2106.05(a)(I), example (iii) under “Examples that the courts have indicated may not be sufficient to show an improvement in computer-functionality”).
These arguments are not persuasive.
(G) The Examiner Has Not Provided Adequate Evidence That the Specific Ordered Combination Is Well-Understood, Routine, and Conventional
Regarding (G), the Examiner respectfully disagrees with Applicant’s position. Berkheimer evidence is only required when something is determined to be Well-Understood, Routine, and Conventional (WURC). Regarding the claim elements cited by Applicant at page 15, Examiner never considered steps a-c to be WURC. Further, steps a-c fall within the scope of the abstract idea. Berkheimer only applies to additional elements identified as WURC, and not to the abstract idea itself. Regarding step d (“transmission”), this has been identified as being an additional element that is well-understood, routine and conventional activity, in the form of transmitting data over a network (MPEP 2106.05(d)(II)). Transmitting data over a network has been previously held to be well-understood, routine and conventional when claimed at a high level of generality or as insignificant extra-solution activity. See MPEP 2106.05(d)(II). Therefore Berkheimer evidence is not required for any of these elements.
These arguments are not persuasive.
(H) The Configured Remote Cloud System Provides Significantly More
Regarding (H), the Examiner respectfully disagrees. Please reference remarks directed to DDR in argument (F) above. Applicant has not provided evidence that any of the additional elements amount to anything more than a general purpose computer (e.g., a cloud system) functioning in its ordinary capacity to implement the claimed functions (Data normalization, deviation ranking, priority ordering). Transmission only amounts to insignificant extra-solution activity that as discussed above, amounts to WURC under Step 2B.
These arguments are not persuasive.
For all of the above reasons, Applicant’s remarks are not persuasive. The rejections of Claims 1-10 under 35 USC 101 are maintained.
35 USC 103 Rejections
Applicant’s remarks have been fully considered and are persuasive in combination with the amended limitations wherein converting the biological data into the corresponding training parameter recommendation further comprises generating a priority order of execution training protocols by comparing deviations of surface brainwave parameters and brain area network activity parameters against respective normative values in the brainwave database recited by Claim 1. The closest prior art is understood to be the art of record but does not teach on all of the limitations as amended. A search of publicly available prior art fails to yield a reference or combination of references that would make the claimed combination obvious when considered as a whole. The rejections of Claims 1-10 under 35 USC 103 are withdrawn.
Conclusion
In the interest of expediting prosecution, Examiner respectfully requests that Applicant provides citations to relevant paragraphs of specification for support for amendments in future correspondence.
The following relevant prior art not cited is made of record:
US Publication 20130303934A1, teaching on a combination of hardware, software and data communications devices used to implement and integrate a full featured electroencephalogram (EEG) based neurofeedback training system
US Publication 20110054342A1, teaching on a system and method for analyzing EEG data with pair ranking, combined score comparisons, and pooled data analysis to determine a ranked list of defective brain sites
US Publication 20100094156A1, teaching on a system for EEG neurofeedback training
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANNE-MARIE K ALDERSON whose telephone number is (571)272-3370. The examiner can normally be reached on Mon-Fri 9:00am-5:00pm EST and generally schedules interviews in the timeframe of 2:00-5:00pm EST.
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/ANNE-MARIE K ALDERSON/Primary Examiner, Art Unit 3682
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