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 .
Priority
Applicant’s claim for the benefit of 371 application (PCT/CA2023/050440 filed March 31, 2023) under 35 U.S.C. 110(e) or under 35 U.S.C. 120, 121, or 365(c) is acknowledged.
Information Disclosure Statement
The Information Disclosure Statements filed on September 30, 2024; March 25, 2025; and February 4, 2026 have been considered. Initialed copies of the Form 1449 are enclosed herewith.
Election/Restrictions
Applicant’s election without traverse of Group I: Claims 1, 2, 5, 12, 15, 16, 24, 27, 33, 38 and 66-75 in the reply filed on June 23, 2026 is acknowledged.
Status of Claims
This office action is in response to an election of claims entered on June 23, 2026 for the patent application 18/853,100 originally filed on September 30, 2024. Claims 1, 2, 5, 12, 15, 16, 24, 27, 33, 38 are elected. Claims 3-4, 6-11, 13-14, 17-23, 25-26, 28-32, 34-37, and 39-65 are cancelled. Claims 66-75 are new. Claims 1, 2, 5, 12, 15, 16, 24, 27, 33, 38 and 66-75 are pending.
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, 5, 12, 15, 16, 24, 27, 33, 38 and 66-75 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 1 – “Statutory Category Identification”
Claim 1 is directed to “a method” (i.e. a process), hence the claims are directed to one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter). In other words, Step 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 1 “Abstract Idea Identification”
However, the claims are drawn to the abstract idea of “computing a state absorption measure of a human subject,” in the form of “mental processes” in terms of processes that can be performed in the human mind (including an observation, evaluation, judgement or opinion), or reasonably in the form of “mathematical concepts” in terms of processes that can be performed as mathematical relationships, mathematical formulas or equations, mathematical calculations. Regardless, the claims are reasonably understood as either “mental processes;” and/or “mathematical concepts,” which require the following limitations:
Per claim 1:
“obtaining biometric data from the human subject, the biometric data including one or more of the following:
functional near infrared spectroscopy (fNIRS) data;
electroencephalography (EEG) data;
eye tracking data; and
photoplethysmography (PPG) data; and
processing the biometric data to compute the state absorption measure.”
These limitations simply describe a process of data gathering and manipulation, which is partially analogous to “collecting information, analyzing it, and displaying certain results of the collection analysis” (i.e. Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016)). Hence, these limitations are akin to an abstract idea which has been identified among non-limiting examples to be an abstract idea. In other words, Step 2A, Prong 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 2 – “Practical Application”
Furthermore, the claims do not include additional elements that either alone or in combination are sufficient to claim a practical application, because the claims do not recite any structural hardware. The Applicant’s limitations are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., pre-solution activity of data gathering and post-solution activity of presenting data) and/or do no more than generally link the use of a judicial exception to a particular environment or field of use. In other words, the claimed “computing a state absorption measure of a human subject,” is not providing a practical application, thus Step 2A, Prong 2 of the subject-matter eligibility analysis is “No.”
Step 2B – “Significantly More”
Likewise, the claims do not include additional elements that either alone or in combination are sufficient to amount to significantly more than the judicial exception, because the claims do not recite any structural hardware, because the claims do not recite any structural hardware. The recitation of the limitations amounts to mere instructions to implement the abstract idea. Taking the additional elements individually and in combination, the limitations perform purely generic functions. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. The claim does not amount to significantly more than the abstract idea itself. Thus, Step 2B, of the subject-matter eligibility analysis is “No.”
In addition, dependent claims 2, 5, 12, 15, 16, 24, 27, 33, 38 and 66-75 do not provide a practical application and are insufficient to amount to significantly more than the judicial exception. As such, dependent claims 2, 5, 12, 15, 16, 24, 27, 33, 38 and 66-75 are also rejected under 35 U.S.C. § 101, based on their respective dependencies to claim 1.
Allowable Subject Matter
Claims 1, 2, 5, 12, 15, 16, 24, 27, 33, 38 and 66-75 contain allowable subject matter. The closest prior art of record is U.S. PG Pub. 2024/0285220 to Yadav, et al. (herein referred to as “Yadav”). However, Yadav does not explicitly teach: “obtaining biometric data from the human subject, the biometric data including one or more of the following: functional near infrared spectroscopy (fNIRS) data; eye tracking data; and photoplethysmography (PPG) data,” per claim 1. Therefore, claims 1, 2, 5, 12, 15, 16, 24, 27, 33, 38 and 66-75 are allowable subject matter, if no other statutory rejections remain. In the present case, claims 1, 2, 5, 12, 15, 16, 24, 27, 33, 38 and 66-75 stand rejected under 35 U.S.C. §101.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT P. BULLINGTON whose telephone number is (313) 446-4841. The examiner can normally be reached on Monday through Friday from 8 A.M. to 4 P.M. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Peter Vasat, can be reached on (571) 270-7625. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/Robert P Bullington, Esq./ Primary Examiner, Art Unit 3715
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