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 .
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 following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
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.
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 1-13 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.
Claims 1-13 are directed to an abstract idea without significantly more. The claims recite a mental process that can be performed by a human being and/or a method of organizing human activity.
In regard to Claims 1 and 10, the following limitations can be performed as a mental process by a human being in terms of claiming collecting data, analyzing that data, and providing outputs based on that analysis which has been held by the CAFC to be an abstract idea in decisions such as, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential); claim the teaching/training/evaluation of a human subject’s which has been as identified by MPEP 2106.04(a)(2)(II) as a method of organizing human activity; claim mathematical concepts as outlined at MPEP 2106.04(a)(2)(I); claim the rules of a game which has been identified by the CAFC as being an abstract ides in decisions such as, e.g., Savvy Dog Systems v. Pennsylvania Coin (non-precedential; 2023-1073; 3/21/24), in terms of the Applicant claiming:
[a] method for [analyzing] the responses of a human or animal subject to sensory stimuli, the method comprising:
a step of emitting the stimuli toward a subject, the step of emitting the stimuli including
subjecting the subject to instructions for responding to the stimuli, of increasing or decreasing complexity according to at least three difficulty levels,
a step of measuring a response time of the subject to the stimuli, comprising:
a step for measuring a reaction time to simple stimuli corresponding to a first difficulty level,
a step for measuring a reaction time to stimuli linked to a choice on a categorization
corresponding to a second difficulty level, in response to an instruction previously taught to the subject,
a step for measuring a reaction time linked to a third difficulty level comprising a task in
which the subject must carry out two simultaneous categorizations on the same stimulus,
[an analyzing] step for [analyzing] the response times thus measured, wherein the
[analyzing] step comprises:
a step for generating normalized response times, by subtraction of the response time to simple stimuli from the response time to stimuli linked to a choice and to stimuli linked to two simultaneous categorizations, and
a step for analyzing the normalized response times according to two independent
factors (S, Δ), which are representative, respectively, (i) of average executive
reaction times and (ii) of the reaction of the subject to the difficulty of the stimuli,
wherein the set of emitted stimuli is intended for distinguishing at least two choices,
each choice referring to two categories, which are mutually exclusive,
wherein the [analyzing] of the reaction times corresponding to the first, second and third
difficulty levels comprises:
identifying errors caused by incorrect choices and/or early reactions and/or by no choice
being made,
identifying errors caused by incorrect choices and/or early reactions and/or by reactions
that are too slow,
access to the [analyzing] time of the difficulty associated with the categorization
instructions of the subject, having removed, for each one, their simple reaction
time corresponding to the visual detection and to the motive response, so as to
deliver average executive reaction times,
mapping of the measurement results corresponding to the subject, on a plurality of axes
comprising a first axis (S), which represents average executive reaction times,
and a second axis (Δ), which represents the reaction of the subject to the difficulty of the stimuli, and
placing the performance times of tasks of different difficulty levels into a same scale, in
order to be able to compare them.
In regard to the dependent claims, they also claim an abstract idea to the extent that they merely claim further limitations that likewise could be performed as a mental process by a human being and/or a method of organizing human activity.
Furthermore, this judicial exception is not integrated into a practical application because to the extent that additional elements are claimed either alone or in combination such as, e.g., embodying Applicant’s abstract idea as computer code that is executed on a computer processor, a database, a screen, audio headset, or sound emission device, a computer mouse, joystick, touchscreen, and/or or a device for sensing gaze direction, these are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., data gathering), to embody the abstract idea on a general purpose computer, and/or do no more than generally link the use of a judicial exception to a particular technological environment or field of use. In this regard, see MPEP 2106.04(d)(I) in regard to “courts have also identified limitations that did not integrate a judicial exception into a practical application…”
Furthermore, the claims do not include additional elements that taken individually, and also taken as an ordered combination, are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g., embodying Applicant’s abstract idea as computer code that is executed on a computer processor, a database, a screen, audio headset, or sound emission device, a computer mouse, joystick, touchscreen, and/or or a device for sensing gaze direction, these are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., data gathering),these are well-understood, routine, and conventional elements and are claimed for the well-understood, routine, and conventional functions of collecting and processing data and/or providing an analysis/outputs based on that processing. To the extent that an apparatus is claimed as an additional element said apparatus fails to qualify as a “particular machine” to the extent that it is claimed generally, merely implements the steps of Applicant’s claimed method, and is claimed merely for purposes of extra-solution activity or field of use. See MPEP 2106.05(b). As evidence that these additional elements are well-understood, routine, and conventional, Applicant’s specification discloses the support for these elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See, e.g., paragraphs 20-26 and 52-56 in Applicant’s PGPUB.
Conclusion
The prior art made of record and not relied upon is listed in the attached PTO-Form 892 and is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Mike Grant whose telephone number is 571-270-1545. The Examiner can normally be reached on Monday through Friday between 8:00 a.m. and 5:00 p.m., except on the first Friday of each bi-week.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's Supervisory Primary Examiner, Peter Vasat can be reached at 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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/MICHAEL C GRANT/Primary Examiner, Art Unit 3715
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