DETAILED ACTION
The Preliminary Amendment filed on 01/23/2025 has been entered. Claims 1, 3-5, and 8 were amended. Claim 9 was added. Claims 1-9 are now pending in the present application.
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
The present application is a 371 and claims benefit of PCT/JP2022/029617 filed on 08/02/2022. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 01/23/2025 and 01/22/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 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(s) 1-9 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The limitations, under their broadest reasonable interpretation, cover mental process (concept performed in a human mind, including as observation, evaluation, judgment, opinion, organizing human activity and mathematical concepts and calculations). The claim(s) recite(s) steps of observing and evaluating information representing movement of eyelid(s) to estimate a time during which the eyelid movement exhibits physiological characteristics associated with spontaneous blinking, and/or learning and outputting a model based on these same observations and evaluations. This judicial exception is not integrated into a practical application because the steps do not add meaningful limitations to be considered specifically applied to a particular technological problem to be solved. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the steps of the claimed invention can be done mentally and no additional features in the claims would preclude them from being performed as such except for the generic computer elements at high level of generality (e.g. processor, memory, operating system, etc.).
According to the USPTO guidelines, a claim is directed to non-statutory subject matter if:
STEP 1: the claim does not fall within one of the four statutory categories of invention (process, machine, manufacture or composition of matter), or
STEP 2: the claim recites a judicial exception, e.g. an abstract idea, without reciting additional elements that amount to significantly more than the judicial exception as determined using the following analysis:
STEP 2A (PRONG 1): Does the claim recite an abstract idea, law of nature, or natural phenomenon?
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application?
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
Using the two-step inquiry, it is clear that independent claims 1, and 5-7 are directed to an abstract idea (e.g. mental process) as shown below:
► STEP 1: Do the claims fall within one of the statutory categories?
YES. Independent claims 1 and 5-7 are directed to statutory categories.
Claim 1 is directed to a blink estimation device (i.e. apparatus), Claim 5 is directed to a learning device (i.e. apparatus), Claim 6 is directed to a blink estimation method (i.e. process), and Claim 7 is directed to a learning method (i.e. process).
► STEP 2A (PRONG 1): Is the claim directed to a law of nature, a natural phenomenon or an abstract idea?
Yes, the claims are directed toward a mental process (i.e. abstract idea).
With regard to STEP 2A (PRONG 1), the guidelines provide three groupings of subject
matter that are considered abstract ideas:
Mathematical concepts - mathematical relationships, mathematical formulas or
equations, mathematical calculations;
Certain methods of organizing human activity - fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions); and
Mental processes - concepts that are practicably performed in the human mind (including an observation, evaluation, judgment, opinion).
Independent claim(s) 1 and 5-7 comprise a mental process that can be practicably performed in the human mind (or generic computers or components configured to perform the method) and, therefore, an abstract idea.
Regarding the independent blink estimation claim(s) 1 (device) and 6 (method), the claims recite the idea of a mental process. Specifically, the claims recite using information indicating the movement of an eyelid to estimate a time during which an eyelid performs a movement having a physiological characteristic of a spontaneous blink. This limitation involves evaluating information representing eyelid movement to determine whether and when the movement exhibits characteristics associated with spontaneous blinking, which is an observation, evaluation, and judgement that can practically be performed in the human mind.
Regarding independent learning claim(s) 5 (device) and 7 (method), the claims recite the idea of a mental process. Specifically, the claims recite learning an estimation model for estimating, from information representing eyelid movement, a time during which the eyelid performs movement having a physiological characteristic of spontaneous blinking. The claimed learning broadly involves evaluating eyelid movement information and identifying relationships between such information and characteristics indicative of spontaneous blinking, which constitutes an evaluation or judgement that can practically be performed in the human mind.
These limitations, as drafted, is a simple process that, under their broadest reasonable interpretation, covers performance of the limitations in the mind or by a human. The Examiner notes that under MPEP 2106.04(a)(2)(III), the courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the 'basic tools of scientific and technological work' that are open to all."' 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 ('"[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work'" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584,589, 198 USPQ 193, 197 (1978) (same).
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application?
NO, the claims do not recite additional elements that integrate the judicial exception into a practical application.
With regard to STEP 2A (prong 2), whether the claim recites additional elements that integrate the judicial exception into a practical application, the guidelines provide the following exemplary considerations that are indicative that an additional element (or combination of elements) may have integrated the judicial exception into a practical application:
an additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to affect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
While the guidelines further state that the exemplary considerations are not an exhaustive list and that there may be other examples of integrating the exception into a practical application, the guidelines also list examples in which a judicial exception has not been integrated into a practical application:
an additional element merely recites the words "apply it" (or an equivalent) with the judicial exception, or merely includes instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea;
an additional element adds insignificant extra-solution activity to the judicial exception;
an additional element does no more than generally link the use of a judicial exception to a particular technological environment or field of use.
Independent claim(s) 1 and 5-7 do not recite any of the exemplary considerations that are indicative of an abstract idea having been integrated into a practical application.
Regarding the independent blink estimation claim(s) 1 (device) and 6 (method), the claims do not integrate the judicial exception into a practical application. The additional limitation of outputting information representing the estimated time merely reports the result of the recited evaluation and does not impose a meaningful limit on the abstract idea. Thus, outputting the information representing the estimated time adds insignificant extra-solution activity to the judicial exception. The recitation of a blink estimation device likewise merely implements the abstract evaluation using a generic device without requiring a particular technological implementation for performing the estimation. The recited processing circuitry in claim 1 merely implements the eyelid movement evaluation and blink-time estimation operations on a computer and does not meaningfully limit the judicial exception. Accordingly, the additional elements, individually and in combination, do not integrate the mental process into a practical application.
Although the specification describes improving blink estimation accuracy under various environmental conditions, the claims do not require the particular technological mechanisms disclosed for achieving that improvement, but instead broadly recite the result from information representing eyelid movement and outputting that result.
Regarding independent learning claim(s) 5 (device) and 7 (method), the claims do not integrate the judicial exception into a practical application. The additional limitations merely require learning and outputting an estimation model embodying the result of the recited evaluation. The claims do not require a particular machine-learning architecture, training technique, transformation of the input information, or other technological implementation that improves the functioning of a computer or another technology. Rather, the claims broadly recite learning the model for use in estimating spontaneous blink timing and outputting the resulting model. The recited processing circuitry in claim 5 merely implements the information processing and model-learning operations on a computer and does not meaningfully limit the judicial exception. Accordingly, the additional elements, individually and in combination, do not integrate a meaningful limit on the judicial exception.
Although the specification describes particular machine-learning implementations and states that machine learning can account for various environments and improve estimation accuracy (see at least paragraphs [0045] and [0056] of the instant specification]), the claims do not require those particular technological implementations or recite how the model is learned so as to achieve the improvement.
The limitations throughout claims 1 and 5-7 are recited at a high level of generality (i.e. as a general action or change being taken based on the results of the acquiring step) and/or amount to mere post solution actions, which is a form of insignificant extra-solution activity. Further, the claims are claimed generically and are operating in their ordinary capacity such that they do not use the judicial exception in a manner that imposes a meaningful limit on the judicial exception. Accordingly, even in combination, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea.
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
NO, the claims do not recite additional elements that amount to significantly more than the judicial exception.
With regard to STEP 2B, whether the claims recite additional elements that provide significantly more than the recited judicial exception, the guidelines specify that the pre-guideline procedure is still in effect. Specifically, that examiners should continue to consider whether an additional element or combination of elements:
adds a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present; or
simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present.
Regarding the independent blink estimation claim(s) 1 (device) and 6 (method), the claims do not recite additional elements, individually or as an ordered combination, that amount to significantly more than the judicial exception. The additional elements, such as blink estimation device comprising processing circuitry, merely implement the abstract idea using generic computing components and perform routine data processing and output functions. Accordingly, the claims do not recite an inventive concept sufficient to transform the abstract idea into a patent-eligible application.
Regarding independent learning claim(s) 5 (device) and 7 (method), the claims do not recite additional elements, individually or as an ordered combination, that amount to significantly more than the judicial exception. The additional elements, such as learning device comprising processing circuitry, merely use generic computing components to receive information, learn a model, and output the learned model, without reciting an unconventional technological implementation. Accordingly, the claims do not recite an inventive concept sufficient to transform the abstract idea into a patent-eligible application.
Regarding claims 2-4 and 8-9, the additional limitations do not integrate the mental process into a practical application or add significantly more to the mental process.
Regarding claim 2, the claim adds further limitations narrowing the scope of eyelid movement to opening/closing movement whose time length physiologically corresponds to the spontaneous and utilizing processing circuitry (i.e. generic computer component) to estimate said time, this is further specifying the information being observed for evaluation and judgement using generic computer components, and fails to remedy the abstract idea of claim 1.
Regarding claim 3, the claim adds further limitations for performing the time estimation operations using processing circuitry (i.e. generic computer component) and information from eyelids of both eyes, rather than one eye, this is further observational data gathering techniques for subsequent evaluation and judgement using generic computer components, and fails to remedy the abstract idea of claim 1.
Regarding claim 4, the claim adds further limitations for performing the time estimation operations using processing circuitry (i.e. generic computer components) and information from eyelids of both eyes and further specifies the type of movement being observed for determining the time estimation, this is further observational data gathering techniques for subsequent evaluation and judgement using generic computer components, and fails to remedy the abstract idea of claim 1.
Regarding claims 8 and 9, the claims add a further limitation of a non-transitory computer-readable recording medium storing a program for causing a computer to function as either (for claim 8) the blink estimation device according to claim 1 or (for claim 9) the learning device according to claim 5. Although the recording medium is a statutory manufacture, it merely stores instructions for implementing the abstract mental processes identified above, including the observation, evaluation, and/or judgement of eyelid movement information to estimate spontaneous-blink timing. The additional limitation therefore does not integrate the judicial exception into a practical application. Further, the non-transitory computer-readable recording medium, considered individual and in combination with the other additional elements, does not amount to significantly more than the judicial exception because it merely provides a generic computer implementation of the recited abstract process.
Thus, since claim(s) 1-9 are: (a) directed toward an abstract idea, (b) do not recite additional elements that integrate the judicial exception into a practical application, and (c) do not recite additional elements that amount to significantly more than the judicial exception, it is clear that Claim(s) 1-9 are not eligible subject matter under 35 U.S.C 101.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claims 1-2, 6, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Kazutaka et al. (JP 2010273954 A; reference was found in the IDS provided by applicant; translated copy relied upon by Examiner and cited below was provided by Applicant; hereinafter “Kazutaka”).
Regarding claims 1 (Currently Amended) and 6 (Original),
Kazutaka teaches: [claim 1] A blink estimation device comprising processing circuitry (paragraphs [0019], [0023]-[0024]; Kazutaka discloses a blink measurement device 1 including an eyelid extraction processing unit 6 and eyelid opening/closing measurement unit 7 that are realized “as electric circuits, as well as software within a computer having a central processing unit and a memory”.);
[claim 6] A blink estimation method by a blink estimation device (Kazutaka discloses a blink measurement device 1 (paragraph [0019]) which “detects the edge... of the eyelid in the image data… and generates eyelid position information… [and] calculates the amount of change in eyelid position and its movement speed, etc. as blink features, which are features related to the blinking action, based on the time change in the eyelid position information” (paragraph [0024]) and performs further blink estimation operations discussed below, with respect to subsequent limitations. Accordingly, under the broadest reasonably interpretation of the claim, Kazutaka’s blink measurement device 1 performing blink estimation operations (discussed below) reasonably corresponds to a blink estimation method by a blink estimation device.).
The remaining method limitation of claim 6, found on lines 3-5 of claim 6, equally mirror the operations the blink estimation device of claim 1 is configured to perform. For brevity, the remainder of claim 6’s 103 rejection is shown with respect to claim 1’s blink estimation device language, but the prior art and rejection applies to both claim 1 and claim 6.
Kazutaka further teaches the processing circuitry: configured to estimate a time during which an eyelid performs a movement having a physiological characteristic of a spontaneous blink by using information indicating the movement of the eyelid (Kazutaka teaches using information representing movement of an eyelid to estimate a time during which the eyelid performs movement, wherein changes in eyelid position and movement speed over time are used to determine the start and completion times of eye closing and opening (paragraphs [0035]-[0037]). Kazutaka further teaches that the determined movement has physiological characteristics for distinguishing blink types, including eye closing speed (paragraphs [0047]-[0048]) and eye closing period, with the eye closing period measured as 9.8 ± 3.0 milliseconds for natural blinking action compared to 17.2 ± 4.5 milliseconds for a voluntary blinking action, and determining the blink to be a natural blinking action when the eye closing period satisfies a predetermined threshold (paragraph 60). Kazutaka describes the natural blinking as “an unconscious blinking action performed by people” (paragraph [0043]), which corresponds to the claimed spontaneous blinking, contrary to voluntary blinking which is performed consciously.)
and outputs information (Kazutaka discloses “The imaging unit 5 outputs the generated image data to an output means such as a display device or a video output terminal” (paragraph [0023]), and further discloses outputting “detailed position information of the eyelid at the time of a blink as a measurement value” (paragraph 39), but fails to explicitly disclose outputting information indicating the time).
Kazutaka does not explicitly disclose outputting information representing the estimated time of the spontaneous blink. However, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to configure the blink estimation device taught by Kazutaka to output information indicating the estimated time during which an eyelid performs a movement having a physiological characteristic of a spontaneous blink because Kazutaka already teaches estimating such time and outputting blink-related measurement information (paragraph 39). Outputting the already-determined estimated time would have been a predictable design modification that provides additional blink measurement information for subsequent blink analysis.
Regarding claim 2 (Original),
Kazutaka teaches the blink estimation device according to claim 1.
Kazutaka further teaches: wherein the blink estimation device estimates the time during which the eyelid performs an opening/closing movement whose time length physiologically corresponds to the spontaneous blink (Kazutaka teaches estimating the time during which an eyelid performs an opening/closing movement for a period of time corresponding to a physiologically natural blink, wherein the start completion times of eyelid movement are determined from eyelid movement information (see paragraphs [0035]-[0037], including “opening/ closing measuring unit 7 calculates a blink feature amount based on a time change in eyelid position information.”), and the eye closing period is used to distinguish natural blinking from voluntary blinking, with a natural blinking action having an eye closing period of 9.8 ± 3.0 milliseconds compared to 17.2 ± 4.5 milliseconds for a voluntary blinking action (paragraph [0060]; see also paragraph [0043] describing a natural blink as an “unconscious blinking action performed by people,” which reasonably corresponds to a spontaneous blink).
Regarding claim 8 (Currently Amended),
Kazutaka teaches the blink estimation device according to claim 1.
Kazutaka further teaches: (paragraphs [0019], [0023]-[0024]; Kazutaka discloses a blink measurement device 1, including an eyelid extraction processing unit 6 and eyelid opening/closing measurement unit 7 that are realized “as electric circuits, as well as software within a computer having a central processing unit and a memory”. Kazutaka’s blink estimation functions being performed are described in claim 1’s 103 rejection. For brevity, refer back to claim 1 and Kazutaka’s respective teachings to see Kazutaka’s teachings of functions being performed by the blink estimation device.).
Kazutaka fails to explicitly disclose a non-transitory computer-readable recording medium storing a program for causing a computer to function as the blink estimation device according to claim 1. However, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to store the software of Kazutaka in the computer’s memory as a non-transitory computer-readable recording medium for execution by the central processing unit because such storage would have been a conventional and predictable implementation of Kazutaka’s explicitly disclosed software-based processing.
Claims 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Kazutaka et al. (JP 2010273954 A) in view of Tsai et al. (US 20200069239 A1; reference was found in the IDS provided by applicant; hereinafter “Tsai”).
Regarding claim 3 (Currently Amended),
Kazutaka teaches the blink estimation device according to claim 1.
Kazutaka further teaches: the information indicating the movement of the eyelid is information indicating a movement of [an eyelid of an eye] (See Kazutaka paragraphs [0035]-[0037], [0043], [0047]-[0048], and [0060], as discussed in greater detail with respect to claim 1’s 103 rejection, which shows Kazutaka teaching information indicating movement of an eyelid and estimating time of an opening/closing movement using one eyelid of an eye.).
However, Kazutaka does not explicitly disclose the operations corresponding to the claim using eyelids of both eyes. Thus, Kazutaka fails to explicitly disclose: the information indicating the movement of the eyelid is information indicating a movement of eyelids of both eyes; and the processing circuitry estimates the time during which the eyelids of both the eyes perform an opening/closing movement.
In a related art, Tsai teaches: the information indicating the movement of the eyelid is information indicating a movement of eyelids of both eyes; and the processing circuitry estimates the time during which the eyelids of both the eyes perform an opening/closing movement (Tsau teaches a blink reflex device that measures both eyes bilaterally, including for a spontaneous blink, and measures a blink period from when an eyelid begins closing until the eyelid returns to the open state (paragraph [0040] “Eye selector button 103d may enable selection of the left eye, right eye, or both eyes from which information associated with a blink reflex and/or blink period is to be obtained by blink reflex device”; paragraph [0042] “The blink reflex… generally corresponds to measurements of time, position and rates of eyelid movements.”; paragraph [0043] “may be configured to measure a period of time that it takes for the subject to blink his or her eye (hereinafter, the ‘blink period’). The blink period may be measured on the subject's…. involuntary, unintentional or subconscious blink. The blink period may be measured from when the subject starts to blink (e.g., when the eyelid, in an open state, begins to close) to when the subject stops the blink and the eye of the subject returns to the open state (e.g., when the eyelid, returning from a closed state, stops opening).; paragraph [0045] “Blink reflex device 100 may be configured to measure the blink reflex for…both eyes (bilateral) of the subject based on…a spontaneous blink of the subject (e.g., an unconscious blink to moisten or lubricate the eye)”; In FIG’S 8A and 9, and paragraphs [0100]-[0109], Tsai further discloses determining respective time periods corresponding to the blink of the right eye and the blink of the left eye when both eyelids are analyzed for opening/closing movement).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the blink estimation device taught by Kazutaka to use information representing movement of the eyelids of both eyes and estimate the time during which the eyelids of both eyes perform opening/closing movements, as taught by Tsai, in order to provide bilateral blink measurements. Doing so would allow temporal characteristics of the respective eyes to be determined and compared.
Regarding claim 4 (Currently Amended),
Kazutaka teaches the blink estimation device according to claim 1.
Kazutaka further teaches: the information indicating the movement of the eyelid is information indicating a movement of [an eyelid of an eye] (Claim 4 up to this point mirrors claim 3. See Kazutaka paragraphs [0035]-[0037], [0043], [0047]-[0048], and [0060], as discussed in greater detail with respect to the 103 rejections for claim 1 and 3, which shows Kazutaka teaching information indicating movement of an eyelid and estimating time of an opening/closing movement using one eyelid of an eye.) whose time length physiologically corresponds to the spontaneous blink (Kazutaka further discloses that the opening/closing period corresponds to a physiologically spontaneous blink, wherein the eye closing period is used to distinguish a natural blinking action from a voluntary blinking action (paragraphs [0043] and [0060]).).
Kazutaka does not explicitly does not explicitly disclose the operations corresponding to the claim using eyelids of both eyes. Thus, Kazutaka fails to explicitly disclose: the information indicating the movement of the eyelid is information indicating a movement of eyelids of both eyes; and the processing circuitry estimates the time during which the eyelids of both the eyes perform an opening/closing movement whose time length physiologically corresponds to the spontaneous blink.
In a related art, Tsai teaches: the information indicating the movement of the eyelid is information indicating a movement of eyelids of both eyes; and the processing circuitry estimates the time during which the eyelids of both the eyes perform an opening/closing movement (Claim 4 up to this point mirrors the scope of claim 3. For brevity refer to Tsai’s teachings cited in claim 3’s 103 rejection, including Tsai paragraphs [0040], [0042]-[0043], [0045], [0100]-[0109], and FIG’s 8A and 9.) whose time length physiologically corresponds to the spontaneous blink (As discussed above, in claim 3’s 103 rejection, Tsai further teaches “The blink reflex… generally corresponds to measurements of time… of eyelid movements” ([0042]), wherein the blink reflex device may be “configured to measure a period of time that it takes for the subject to blink his or her eye (hereinafter, the ‘blink period’)” ([0043]), and the reflex device may be further “configured to measure the blink reflex for…both eyes (bilateral) of the subject based on…a spontaneous blink of the subject” ([0045]).).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the blink estimation device taught by Kazutaka to use information representing movement of the eyelids of both eyes and estimate the time during which the eyelids of both eyes perform opening/closing movements whose time length physiologically corresponds to the spontaneous blink, as taught by Tsai, in order to provide bilateral blink measurements. Doing so would allow temporal characteristics of the respective eyes to be determined and compared.
Claims 5, 7, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Kazutaka et al. (JP 2010273954 A) in view of Noguchi (US 20100036290 A1; hereinafter “Noguchi”).
Regarding claim 5 (Currently Amended),
Kazutaka teaches: A (See Kazutaka paragraphs [0035]-[0037], [0043], [0047]-[0048], and [0060], as discussed in greater detail with respect to claim 1’s 103 rejection. For brevity, refer back to claim 1’s 103 rejection which details Kazutaka’s teachings of a blink estimation device comprising processing circuitry that is configured for estimating a time during which an eyelid performs a movement having a physiological characteristic of a spontaneous blink from information indicating the movement of the eyelid).
Kazutaka fails to explicitly disclose a learning device configured to learn and output the claimed estimation model.
In a related art, Noguchi teaches: an arousal state classification model generating device 100, including a blink waveform pattern model generation unit 13 that “learns a statistical model” using blink feature data and blink waveform identification information as learning data and “generates a first pattern model” (Noguchi paragraphs [0117] and [0127]). Noguchi further teaches that a separate warning device uses the blink waveform pattern model “generated by the arousal state classification model generating device 100” (paragraph [0236]), wherein the generated model is stored for subsequent blink identification (paragraph [0238]). Thus, Noguchi teaches learning a model from blink feature data and making the learned model available to another device for subsequent blink identification, corresponding to learning a model and outputting the learned model for subsequent eyelid-movement analysis.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the blink estimation device of Kazutaka to include a learning unit that learns and outputs an estimation model by applying Noguchi’s technique of learning a model from blink feature data and making the learned model available for subsequent blink analysis. Doing so would provide an adaptive estimation model based on learned blink characteristics rather than predetermined information, thereby improving the reliability of estimating the time of eyelid movement having physiological characteristics of spontaneous blinking.
Regarding claim 7 (Original),
Claim 7’s “learning method by a blink estimation device” mirrors the operations the processing circuitry of claim 5’s learning device is configured to perform. Therefore, claim 7 is rejected under 35 U.S.C. as being unpatentable over Kazutaka in view of Noguchi based on the prior art and motivation to combine detailed above, in claim 5’s 103 rejection.
Regarding claim 9 (New),
Kazutaka and Nogushi teach the learning device according to claim 5.
Kazutaka further teaches: (paragraphs [0019], [0023]-[0024]; Kazutaka discloses a blink measurement device 1, including an eyelid extraction processing unit 6 and eyelid opening/closing measurement unit 7 that are realized “as electric circuits, as well as software within a computer having a central processing unit and a memory”.).
Noguchi further teaches: A non-transitory computer-readable recording medium storing a program for causing a computer to function (Noguchi teaches that the arousal state classification model generating device 100 (previously discussed with respect to claim 5’s 103 rejection) includes a processor for performing various controls and ROM 34 storing dedicated computer programs that are loaded into RAM 32 and executed by CPU 30 (Noguchi paragraphs [0136]-[0137]) to perform previously disclosed learning and output functions ([0117], [0127], [0236], [0238]), which a person of ordinary skill in the art would have understood to correspond to a non-transitory computer-readable recording medium storing a program for causing a computer to function according to the disclosed functions).
While Kazutaka and Noguchi fail to explicitly disclose: A non-transitory computer-readable recording medium storing a program for causing a computer to function as the learning device according to claim 5, Kazutaka and Noguchi (1) teach the learning device according to claim 5, (2) both references teach software within a computer having a central processing unit and a memory (Kacutaka [0024]; Noguchi paragraphs [0136]-[0137]), (3) Noguchi also teaches hardware and configurations that reasonably correspond to a non-transitory computer-readable recording medium storing a program. Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to implement the learning device operations taught by Kazutaka, and modified by Noguchi, as a computer program stored on a non-transitory computer-readable recording medium, as taught by Noguchi, because doing so would have provided a known and conventional means for storing and executing instructions for causing a learning device to perform the disclosed learning and outputting of an estimation model (i.e. operations recited in claim 5), with predictable results.
Conclusion
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Stephen R Koziol can be reached at (408)918-7630. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SDB/
Samuel Baynes
Examiner, Art Unit 2665
/Stephen R Koziol/Supervisory Patent Examiner, Art Unit 2665
Prosecution Insights