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 .
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.
Information Disclosure Statement
The information disclosure statement (IDS) filed 20 November 2024 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. In particular, there are no copies for non-patent literature cite no. 2 and 7 while the entire book after the Table of Contents is missing for non-patent literature cite no. 6. It is further noted that there is a single page document that is titled “About This Book” in the application file that includes several sentences but there is no indication which document this is supposed to be. It has been placed in the application file, but the information referred to therein has not been considered.
Drawings
Figure 1 should be designated by a legend such as --Prior Art-- because only that which is old is illustrated. In particular, the section Brief Description of the Drawings identifies Fig. 1 is from a non-patent literature document. See MPEP § 608.02(g). Corrected drawings in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. The replacement sheet(s) should be labeled “Replacement Sheet” in the page header (as per 37 CFR 1.84(c)) so as not to obstruct any portion of the drawing figures. If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The amendment filed 20 November 2024 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows: “This application claims the priority benefit under 35 U.S.C. § 371 of International Patent Application No. PCT/EP2023/062539, filed on May 11, 2023, which claims the priority benefit of European Patent Application No. 22175179.5, filed on May 24, 2022, the contents of which are herein incorporated by reference.”
While Applicant may incorporate by reference a prior application for which benefit of priority is claimed under 35 USC 119 or 120, the statement must occur at the time of filing of the later application. An incorporation by reference statement added after an application’s filing date is not effective because no new matter can be added to an application after its filing date. See MPEP 608.01(p). Thus, Applicant is not permitted to incorporate subject matter (i.e., foreign priority document European Patent Application No. 22175179.5) by reference after the filing date. As this is a 35 USC 371 national phase application, the filing date is 22 May 2020 of International Application No. PCT/NL2020/050328. See MPEP 1893.03(b). Applicant is required to cancel the new matter in the reply to this Office Action.
A substitute specification excluding the claims is required pursuant to 37 CFR 1.125(a) because the specification is improperly formatted including at least missing paragraph numbers.
A substitute specification must not contain new matter. The substitute specification must
be submitted with markings showing all the changes relative to the immediate prior version of the specification of record. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived. An accompanying clean version (without markings) and a statement that the substitute specification contains no new matter must also be supplied. Numbering the paragraphs of the specification of record is not considered a change that must be shown.
The disclosure is objected to because of the following informalities:
The specification recites multiple acronyms and abbreviations. The first instance of an acronym or abbreviation should be accompanied by the fully written term. Non-limiting examples of acronyms or abbreviations that are missing the fully written term include at least “FPGA” and “PLD”.
Appropriate correction is required.
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claim 13 is objected to because of the following informalities:
Claim 13 is inconsistently formatted compared to the rest of the claims. In particular, while other claims with multiple limitations follow conventional practice and begin each limitation on a new line, claim 13 lumps them all together. Uniformity is recommended.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“the input unit is configured to provide the processing unit with results of a plurality of trials of a test” in claim 1.
“the processing unit is configured to determine a plurality of performance values for the results of the plurality of trials of the test” in claim 1.
“the processing unit is configured to determine information about the person” in claim 1.
“A computer program element for controlling an apparatus” in claim 15.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claims 1-13 and 15 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.
Claim limitation “the input unit is configured to provide the processing unit with results of a plurality of trials of a test” in claim 1 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. In particular, the disclosure is silent regarding what the input unit, and the apparatus itself, is. While one of ordinary skill in the art may assume that the apparatus is some form of computer, there is no explicit identification of the structure in the disclosure for either. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. Dependent claims 2-13 and 15 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Claim limitation “the processing unit is configured to determine a plurality of performance values for the results of the plurality of trials of the test” in claim 1 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. In particular, the disclosure is silent regarding what the processing unit, and the apparatus itself, is. While one of ordinary skill in the art may assume that the apparatus is some form of computer, there is no explicit identification of the structure in the disclosure for either. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. Dependent claims 2-13 and 15 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Claim limitation “the processing unit is configured to determine information about the person” in claim 1 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. In particular, the disclosure is silent regarding what the processing unit, and the apparatus itself, is. While one of ordinary skill in the art may assume that the apparatus is some form of computer, there is no explicit identification of the structure in the disclosure for either. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. Dependent claims 2-13 and 15 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Claim limitation “A computer program element for controlling an apparatus” in claim 15 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. For instance, the most description is found in para. 44 of the published specification which merely recites that the “computer program element can for example be a software program but can also be a FPGA, a PLD or any other appropriate digital means.” Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claims 1-13 and 15 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 1, the disclosure fails to provide sufficient written description for “the input unit is configured to provide the processing unit with results of a plurality of trials of a test” to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Merely restating a function associated with a means-plus-function limitation is insufficient to provide the corresponding structure for definiteness. See, e.g., Noah, 675 F.3d at 1317, 102 USPQ2d at 1419; Blackboard, 574 F.3d at 1384, 91 USPQ2d at 1491; Aristocrat, 521 F.3d at 1334, 86 USPQ2d at 1239. It follows therefore that such a mere restatement of function in the specification without more description of the means that accomplish the function would also likely fail to provide adequate written description under section 112(a) or pre-AIA section 112, first paragraph. See MPEP 2181(IV). Thus, just as the means-plus-function language is found to be indefinite under 35 USC 112(b), it thus also fails the written description requirement under 35 USC 112(a). Dependent claims 2-13 and 15 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Regarding claim 1, the disclosure fails to provide sufficient written description for “the processing unit is configured to determine a plurality of performance values for the results of the plurality of trials of the test” to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Merely restating a function associated with a means-plus-function limitation is insufficient to provide the corresponding structure for definiteness. See, e.g., Noah, 675 F.3d at 1317, 102 USPQ2d at 1419; Blackboard, 574 F.3d at 1384, 91 USPQ2d at 1491; Aristocrat, 521 F.3d at 1334, 86 USPQ2d at 1239. It follows therefore that such a mere restatement of function in the specification without more description of the means that accomplish the function would also likely fail to provide adequate written description under section 112(a) or pre-AIA section 112, first paragraph. See MPEP 2181(IV). Thus, just as the means-plus-function language is found to be indefinite under 35 USC 112(b), it thus also fails the written description requirement under 35 USC 112(a). In the event that this is a computer-implemented function, claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. It is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See MPEP 2161.01(I). In particular, the specification merely recites similar language as the claims without any meaningful description. See, for example, at least para. 57, 76, 82, and 100 of the published specification. When a claim containing a computer-implemented 35 U.S.C. 112(f) claim limitation is found to be indefinite under 35 U.S.C. 112(b) for failure to disclose sufficient corresponding structure (e.g., the computer and the algorithm) in the specification that performs the entire claimed function, it will also lack written description under 35 U.S.C. 112(a). See MPEP 2181(II)(B). Therefore, the disclosure at best merely recites that these limitations are performed in results-based language without providing the necessary description of the steps, calculations, or algorithms for performing the claimed functionality. Dependent claims 2-13 and 15 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Regarding claim 1, the disclosure fails to provide sufficient written description for “the processing unit is configured to determine information about the person” to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Merely restating a function associated with a means-plus-function limitation is insufficient to provide the corresponding structure for definiteness. See, e.g., Noah, 675 F.3d at 1317, 102 USPQ2d at 1419; Blackboard, 574 F.3d at 1384, 91 USPQ2d at 1491; Aristocrat, 521 F.3d at 1334, 86 USPQ2d at 1239. It follows therefore that such a mere restatement of function in the specification without more description of the means that accomplish the function would also likely fail to provide adequate written description under section 112(a) or pre-AIA section 112, first paragraph. See MPEP 2181(IV). Thus, just as the means-plus-function language is found to be indefinite under 35 USC 112(b), it thus also fails the written description requirement under 35 USC 112(a). Dependent claims 2-13 and 15 inherit the deficiencies of their respective parent claims, and are thus rejected under the same rationale.
Regarding claim 15, the disclosure fails to provide sufficient written description for “A computer program element for controlling an apparatus” to show one of ordinary skill in the art that Applicant had possession of the claimed invention. Merely restating a function associated with a means-plus-function limitation is insufficient to provide the corresponding structure for definiteness. See, e.g., Noah, 675 F.3d at 1317, 102 USPQ2d at 1419; Blackboard, 574 F.3d at 1384, 91 USPQ2d at 1491; Aristocrat, 521 F.3d at 1334, 86 USPQ2d at 1239. It follows therefore that such a mere restatement of function in the specification without more description of the means that accomplish the function would also likely fail to provide adequate written description under section 112(a) or pre-AIA section 112, first paragraph. See MPEP 2181(IV). Thus, just as the means-plus-function language is found to be indefinite under 35 USC 112(b), it thus also fails the written description requirement under 35 USC 112(a).
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 15 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Although claim 15 refers to independent claim 1, claim 15 is written such that infringement of this claim may occur without infringement of independent claim 1. For instance, claim 15 recites “A computer program element for controlling an apparatus according to claim 1.” Not only is claim 1 directed to an apparatus, it does not provide a method for “controlling an apparatus”. Thus, claim 15 does not specify a further limitation of the subject matter claimed in independent claim 1 nor does it include all of the limitations of independent claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claim 15 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter because the claim is directed to software per se, which is non-statutory subject matter. For instance, the claimed subject matter is directed towards a computer program element. As the claim is found to be software per se, the claim is found to be directed towards ineligible subject matter as set forth in MPEP 2106(I) (see computer program per se, Gottschalk v. Benson, 409 US at 72, 175 USPQ at 676-77).
Claims 1-15 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 including additional elements that are sufficient to amount to significantly more than the judicial exception itself.
Step 1
The instant claims are directed to a products and a method which fall under at least one of the four statutory categories (STEP 1: YES).
Step 2A, Prong 1
Independent claim 1 recites:
A cognitive performance determination apparatus, comprising:
an input unit; and
a processing unit;
wherein the input unit is configured to provide the processing unit with results of a plurality of trials of a test, wherein the results of each trial is generated by a person undertaking a plurality of events of each trial;
wherein the processing unit is configured to determine a plurality of performance values for the results of the plurality of trials of the test, wherein a performance value is determined for each trial of the plurality of trials; and
wherein the processing unit is configured to determine information about the person, and wherein the determination of the information about the person comprises a calculation of a curve of a model fit to at least some of the plurality of performance values and/or the determination of the information about the person comprises a calculation of performance variability between at least one consecutive pair of performance values.
Independent claim 14 recites:
A cognitive performance determination method, comprising:
providing a processing unit with results of a plurality of trials of a test, wherein the results of each trial is generated by a person undertaking a plurality of events of each trial;
determining by the processing unit a plurality of performance values for the results of the plurality of trials of the test, wherein a performance value is determined for each trial of the plurality of trials; and
determining by the processing unit information about the person, and wherein the determining the information about the person comprises calculating a curve of a model fit to at least some of the plurality of performance values and/or the determining the information about the person comprises calculating performance variability between at least one consecutive pair of performance values.
All of the foregoing underlined elements identified above, both individually and as a whole, amount to the abstract idea grouping of a certain method of organizing human activity because it is managing personal behavior or interactions between people (including social activities, teaching, and following rules or instructions) by collecting information, analyzing the information, and outputting the results of the collection and analysis. This also amounts to the abstract idea grouping of mental processes as the claims, under their broadest reasonable interpretation, cover performance of the limitations in the mind with the aid of pen and paper (including observation, evaluation, judgment, opinion) but for the recitation of generic computer components. See MPEP 2106.04(a)(2)(III)(C) - A Claim That Requires a Computer May Still Recite a Mental Process. Lastly, the determining and calculating steps amount to the abstract idea grouping of mathematical concepts because they recite mathematical calculations as defined in MPEP 2106.04(a)(2)(I) which recites that a “claim that recites a mathematical calculation, when the claim is given its broadest reasonable interpretation in light of the specification, will be considered as falling within the ‘mathematical concepts’ grouping” because a “mathematical calculation is a mathematical operation (such as multiplication) or an act of calculating using mathematical methods to determine a variable or number, e.g., performing an arithmetic operation such as exponentiation. There is no particular word or set of words that indicates a claim recites a mathematical calculation. That is, a claim does not have to recite the word ‘calculating’ in order to be considered a mathematical calculation. For example, a step of ‘determining’ a variable or number using mathematical methods or ‘performing’ a mathematical operation may also be considered mathematical calculations when the broadest reasonable interpretation of the claim in light of the specification encompasses a mathematical calculation."
The dependent claims, except for claim 15, amount to merely further defining the judicial exception.
Therefore, the claims recite a judicial exception. (STEP 2A, PRONG 1: YES).
Step 2A, Prong 2
This judicial exception is not integrated into a practical application because the independent and dependent claims do not include additional elements that are sufficient to integrate the exception into a practical application under the considerations set forth in MPEP 2106.04(d). The elements of the claims above that are not underlined constitute additional elements.
The following additional elements, both individually and as a whole, merely generally link the judicial exception to a particular technological environment or field of use: a cognitive performance determination apparatus comprising an input unit and a processing unit (claim 1), a processing unit (claim 14), and a computer program element (claim 15). This is evidenced by the absence of structure in the drawings and the nature in which any additional element is described in the claims and the specification. See, for example, Fig. 2 which illustrates the elements as a collection of black boxes and at least para. 44 and 166-172 of the published specification which identify that the disclosed elements are merely schematically illustrated based on their function and do not represent specific hardware or software or combinations thereof. This also evidences that the computer components are merely an attempt to link the abstract idea to a particular technological environment, but do not result in an improvement to the technology or computer functions employed as well as that the claims do not recite any specific rules with specific characteristics that improve the functionality of the computer system. Additionally, the method claim is silent regarding any additional elements actively performing the claimed functions indicating that the entire method is performed by a human, including a human operating the recited additional elements. Therefore, the claims merely define the abstract idea identified above, and are focused on the abstract idea rather than an improvement to the computer functionality or another technology. The claims do not apply or use a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition. In particular, the claims are silent regarding any specific treatment or prophylaxis for any specific disease or medical condition. Accordingly, based on all of the considered factors, these additional elements do not integrate the abstract idea into a practical application. Therefore, the claims are directed to the judicial exception. (STEP 2A, PRONG 2: NO).
Step 2B
The independent and dependent claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception under the considerations set forth in MPEP 2106.05. As identified in Step 2A, Prong 2, above, the claimed system and the process it performs does not require the use of a particular machine, nor does it result in the transformation of an article. The claims do not involve an improvement in a computer or other technology. Although claims recite computer components associated with performing at least some of the recited functions, these elements are recited at a high level of generality in a conventional arrangement for performing their basic computer functions (i.e., collecting, processing, and outputting data). This is at least evidenced by the manner in which this is disclosed that indicates that Applicant believes the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 USC 112(a) as identified in Step 2A, Prong 2, above. This also evidences that the computer components are merely an attempt to link the abstract idea to a particular technological environment, but do not result in an improvement to the technology or computer functions employed. In particular, the claims are wholly focused on mathematically estimating cognitive performance of an individual. Thus, the focus of the claimed invention is on the analysis of the collected data (i.e., determining cognitive performance), which is itself at best merely an improvement within the abstract idea. See pg. 2-3 in SAP America Inc. v. lnvestpic, LLC (890 F.3d 1016, 126 USPQ2d 1638 (Fed. Cir. 2018) which proffered “[w]e may assume that the techniques claimed are groundbreaking, innovative, or even brilliant, but that is not enough for eligibility. Nor is it enough for subject-matter eligibility that claimed techniques be novel and nonobvious in light of prior art, passing muster under 35 U.S.C. §§ 102 and 103. The claims here are ineligible because their innovation is an innovation in ineligible subject matter. Their subject is nothing but a series of mathematical calculations based on selected information and the presentation of the results of those calculations.” Furthermore, the steps are merely recited to be performed by, or using, the elements while the specification makes clear that the computerized system itself is ancillary to the claimed invention as identified above. See, for example, para. 44 and 166-172 which, at best, merely recite in results-based language that they are used. This further evidences that the claims do not recite any specific rules with specific characteristics that improve the functionality of the computer system. Thus, none of the additional elements offer a meaningful limitation beyond generally linking the performance of the steps to a particular technological environment, that is, implementation via computers. Therefore, viewed as a whole, these additional claim elements do not provide any meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea of itself (STEP 2B: NO).
Thus, the claims are rejected under 35 USC 101 as being directed to non-statutory subject matter.
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Gevins et al. (US 2003/0013981, hereinafter referred to as Gevins) in view of Collie et al.1 (hereinafter referred to as Collie).
Regarding claims 1 and 14, Gevins teaches a cognitive performance determination apparatus, comprising: an input unit; and a processing unit (claim 1); and a cognitive performance determination method (claim 14), comprising:
providing a processing unit with results of a plurality of trials of a test, wherein the results of each trial is generated by a person undertaking a plurality of events of each trial (Gevins, at least para. 80-82 describe this.);
determining by the processing unit a plurality of performance values for the results of the plurality of trials of the test, wherein a performance value is determined for each trial of the plurality of trials (Gevins, at least para. 80-82 describe this.); and
determining by the processing unit information about the person, and wherein the determining the information about the person comprises calculating performance variability between at least one consecutive pair of performance values (Gevins, para. 41, “compare measurements of neurophysiological signals and cognitive task performance between successive test sessions to determine whether the subject's neurophysiological signals and cognitive task performance have changed and continue to change under a regime of any non-drug related therapy meant to enhance such performance or delay its deterioration.”).
While Gevins implies wherein the determining the information about the person comprises calculating a curve of a model fit to at least some of the plurality of performance values (Gevins, para. 175, 189, 239, “They then practiced the tasks until performance levels reached asymptote.” Reaching asymptote implies that a curve is fit to the plurality of performance values.), Gevins does not explicitly teach wherein the determining the information about the person comprises calculating a curve of a model fit to at least some of the plurality of performance values.
However, in a related art, Collie teaches wherein the determining the information about the person comprises calculating a curve of a model fit to at least some of the plurality of performance values (Collie, pg. 422, “Power curves were fitted to this trial-by-trial data to gain an estimate of the magnitude of within test practice effects occurring at all four assessments.”).
It would have been obvious to a person having ordinary skill in the art for determining when an asymptote is reached in Gevins to include fitting power curves as taught by Collie because power curves have asymptotes and were used to “gain an estimate of the magnitude of within test practice effects”.
Regarding claim 2, Gevins in view of Collie teaches Apparatus according to claim 1, wherein the determination of the information about the person comprises the calculation of performance variability between at least one consecutive pair of performance values, and wherein the information about the person comprises one or more trials of the plurality of trials selected on the basis of the performance variability between at least one consecutive pair of performance values (Gevins, para. 41, “compare measurements of neurophysiological signals and cognitive task performance between successive test sessions to determine whether the subject's neurophysiological signals and cognitive task performance have changed and continue to change under a regime of any non-drug related therapy meant to enhance such performance or delay its deterioration.”).
Regarding claim 3, Gevins in view of Collie teaches apparatus according to claim 1, wherein the determination of the information about the person comprises the calculation of performance variability between at least one consecutive pair of performance values, and wherein the information about the person comprises one or more trials of the plurality of trials that were undertaken by the person after the performance variability between a consecutive pair of performance values is equal to or is below a threshold value (Gevins, para. 175, 189, 239, “They then practiced the tasks until performance levels reached asymptote.” One of ordinary skill in the art would understand that reaching asymptote is an identification that the performance variability between a consecutive pair of performance values is equal to or below a threshold value.).
Regarding claim 4, Gevins in view of Collie teaches apparatus according to claim 3.
Gevins doesn’t explicitly teach wherein the threshold value is a percentage value and is one of: 1%, 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9%, 10%, 15%, 20%.
However, it would have been obvious matter of design choice to a person having ordinary skill in the art before the effective filing date of the claimed invention for the threshold value to be a percentage value and is one of: 1%, 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9%, 10%, 15%, 20% since applicant has not disclosed that the threshold value being a threshold and is 1%, 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9%, 10%, 15%, 20% solves any stated problem or is for any particular purpose and it appears that the invention would perform equally well with any other metric as a threshold value.
Regarding claim 5, Gevins in view of Collie teaches apparatus according to claim 1, wherein the determination of the information about the person comprises the calculation of performance variability between at least one consecutive pair of performance values, wherein the input unit is configured to provide the processing unit with a performance variability between at least one consecutive pair of performance values for one or more further persons generated from results of a plurality of trials of the test undertaken by the one or more further persons, and wherein the information about the person comprises a comparison of the performance variability between the at least one consecutive pair of performance values for the person with the performance variability between at least one consecutive pair of performance values for the one or more further persons (Gevins, para. 39, “compare measurements of a subject's neurophysiological signals and cognitive task performance from one or more test sessions to similar measurements made from a normative population to determine whether the subject's neurophysiological signals and cognitive task performance are impaired due to an underlying clinical condition, thus allowing detection of the aforementioned condition.”).
Regarding claim 6, Gevins in view of Collie teaches apparatus according to claim 1, wherein the determination of the information about the person comprises the calculation of the curve of the model fit to the at least some of the plurality of performance values, and wherein the information about the person comprises information derived from the curve of the model fit to the at least some of the plurality of performance values (Collie, pg. 422, “Power curves were fitted to this trial-by-trial data to gain an estimate of the magnitude of within test practice effects occurring at all four assessments.”).
Regarding claim 7, Gevins in view of Collie teaches apparatus according to claim 6, wherein the information derived from the curve of the model fit to the at least some of the plurality of performance values comprises one or more trials of the plurality of trials selected on the basis of the curve of the model fit to the at least some of the plurality of performance values (Collie, pg. 422, “Power curves were fitted to this trial-by-trial data to gain an estimate of the magnitude of within test practice effects occurring at all four assessments.”).
Regarding claim 8, Gevins in view of Collie teaches apparatus according to claim 6, wherein the information derived from the curve of the model fit to the at least some of the plurality of performance values comprises a time constant of the model used to fit the curve of the model to the at least some of the plurality of performance values (Collie, pg. 422, “Power curves were fitted to this trial-by-trial data to gain an estimate of the magnitude of within test practice effects occurring at all four assessments.”).
Regarding claim 9, Gevins in view of Collie teaches apparatus according to claim 8, wherein the input unit is configured to provide the processing unit with a time constant of the model used to fit the curve of the model to a plurality of performance values for one or more further persons generated from results of a plurality of trials of the test undertaken by the one or more further persons, and wherein the information about the person comprises a comparison of the time constant of the model used to fit the curve of the model to the at least some of the plurality of performance values for the person with the time constant of the model used to fit the curve of the model to the plurality of performance values for one or more further persons (Gevins, para. 39, “compare measurements of a subject's neurophysiological signals and cognitive task performance from one or more test sessions to similar measurements made from a normative population to determine whether the subject's neurophysiological signals and cognitive task performance are impaired due to an underlying clinical condition, thus allowing detection of the aforementioned condition.”).
Regarding claim 10, Gevins in view of Collie teaches apparatus according to claim 6, wherein the input unit is configured to provide the processing unit with one or more curves of the model each fit to a plurality of performance values for one or more further persons generated from results of a plurality of trials of the test undertaken by the one or more further persons, and wherein the information about the person comprises a comparison of the curve of the model fit to the at least some of the plurality of performance values for the person with the one or more curves of the model each fit to a plurality of performance values for one or more further persons (Gevins, para. 39, “compare measurements of a subject's neurophysiological signals and cognitive task performance from one or more test sessions to similar measurements made from a normative population to determine whether the subject's neurophysiological signals and cognitive task performance are impaired due to an underlying clinical condition, thus allowing detection of the aforementioned condition.”).
Regarding claim 11, Gevins in view of Collie teaches apparatus according to claim 6, wherein the information derived from the curve of the model fit to the at least some of the plurality of performance values comprises an asymptotic performance value of the model used to fit the curve of the model to the at least some of the plurality of performance values, and wherein the information about the person comprises one or more trials of the plurality of trials that were undertaken by the person after a trial that has a performance value within a threshold value of the asymptotic performance value of the model (Gevins, para. 175, 189, 239, “They then practiced the tasks until performance levels reached asymptote.” Determining that the performance levels reached asymptote is construed as within a threshold value of the asymptotic performance value of the model.).
Regarding claim 12, Gevins in view of Collie teaches apparatus according to claim 1, wherein the determination of the information about the person comprises the calculation of the curve of the model fit to the at least some of the plurality of performance values and the calculation of performance variability between at least one consecutive pair of performance values, and wherein the processing unit is configured to determine the at least some of the plurality of performance values as the performance values before a performance value that is one of the consecutive pair performance values that have a performance variability equal to or below a threshold value (Gevins, para. 175, 189, 239, “They then practiced the tasks until performance levels reached asymptote.”).
Regarding claim 13, Gevins in view of Collie teaches apparatus according to claim 1, wherein the input unit is configured to provide the processing unit with results of a plurality of trials of a second test, wherein the results of each trial of the second test is generated by the person undertaking a plurality of events of each trial of the second test (Gevins, at least para. 80-82 describe this.); wherein the processing unit is configured to determine a plurality of performance values for the results of the plurality of trials of the second test, wherein a performance value is determined for each trial of the plurality of trials of the second test (Gevins, at least para. 80-82 describe this.), wherein the processing unit is configured to calculate a curve of the model fit to at least some of the plurality of performance values of the second test (Gevins, para. 175, 189, 239, “They then practiced the tasks until performance levels reached asymptote.”) and/or to calculate performance variability between at least one consecutive pair of performance values of the second test (Gevins, para. 41, “compare measurements of neurophysiological signals and cognitive task performance between successive test sessions to determine whether the subject's neurophysiological signals and cognitive task performance have changed and continue to change under a regime of any non-drug related therapy meant to enhance such performance or delay its deterioration.”), and wherein the information about the person comprises a comparison of the curve of the model fit to at the least some of the plurality of performance values of the test with the curve of the model fit to at the least some of the plurality of performance values of the second test and/or a comparison of the performance variability between at least one consecutive pair of performance values of the test with the performance variability between at least one consecutive pair of performance values of the second test (Gevins, at least para. 96, 98, and 99 teach this).
Regarding claim 15, Gevins in view of Collie teaches a computer program element for controlling an apparatus according to claim 1 (Gevins, para. 10, “computer program”).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Goldberg et al. (Practice effects due to serial cognitive assessment: Implications for preclinical alzheimer’s disease randomized controlled trials) identifies that pre-training is old and well-known with determining plateau and time to reach it as also commonly known.
Beglinger et al. (Neuropsychological practice effects and change detection in people with schizophrenia) discusses the variability in determining learning plateau.
Duffy (US 2017/0150907 and CA 3013267) discloses cognitive testing and curve fitting to an asymptotic function of the subject’s data.
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/DANIEL LANE/Examiner, Art Unit 3715
1 Collie et al. (2003). The effects of practice on the cognitive test performance of neurologically normal individuals assessed at brief test–retest intervals. Journal of the International Neuropsychological Society, 9(3), 419–428. https://doi.org/1017/s1355617703930074