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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of US 12224055 B2 (“12224055”). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following comparison where claim 1 of the instant application is represented in bold characters and where claim 1 of the reference patent 12224055 is represented in underlined characters:
A method for configuring a user interface within a computerized cognitive training regimen, comprising: (A method for configuring a user interface within a computerized cognitive training regimen, comprising:)
presenting, with a processor communicably engaged with a computing device, one or more instances of the computerized cognitive training regimen to a user, (presenting, with a processor communicably engaged with a computing device, one or more instances of the computerized cognitive training regimen to a user,)
the computerized cognitive training regimen comprising two or more computerized cognitive training tasks presented via a display of the computing device, (the computerized cognitive training regimen comprising two or more computerized cognitive training tasks presented via a display of the computing device,)
wherein a first task in the two or more computerized cognitive training tasks is configured to target a first cognitive ability of the user and a second task in the two or more computerized cognitive training tasks is configured to target a second cognitive ability of the user, (wherein a first task in the two or more computerized cognitive training tasks is configured to target a first cognitive ability of the user and a second task in the two or more computerized cognitive training tasks is configured to target a second cognitive ability of the user,)
wherein the computerized cognitive training regimen comprises an interactive video game in which the two or more computerized cognitive training tasks are gameplay tasks associated with a gameplay progression of the interactive video game, (wherein the computerized cognitive training regimen comprises an interactive video game in which the two or more computerized cognitive training tasks are gameplay tasks associated with a gameplay progression of the interactive video game)
wherein each task in the two or more computerized cognitive training tasks comprises a set of computerized stimuli or interactions comprising dynamically rendered graphical elements rendered at a first graphical user interface screen of the interactive video game according to at least one response-deadline procedure; (wherein each task in the two or more computerized cognitive training tasks comprises a set of computerized stimuli or interactions comprising dynamically rendered graphical elements rendered at a first graphical user interface screen of the interactive video game according to at least one response-deadline procedure;)
receiving, with the processor via the computing device, a plurality of user input data in response to the two or more computerized cognitive training tasks, (receiving, with the processor via the computing device, a plurality of user input data in response to the two or more computerized cognitive training tasks,)
wherein the plurality of user input data comprises a plurality of sensor data derived from an interaction of the user with a sensor device in response to the set of computerized stimuli or interactions; (wherein the plurality of user input data comprises a plurality of sensor data derived from an interaction of the user with a sensor device in response to the set of computerized stimuli or interactions;)
processing, with the processor, the plurality of user input data according to a cognitive assessment model to determine a quantified measure of the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen; (processing, with the processor, the plurality of user input data according to a cognitive assessment model to determine a quantified measure of the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen;)
analyzing, with the processor, the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen to determine at least one gameplay progression criterion for the interactive video game; (analyzing, with the processor, the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen to determine at least one gameplay progression criterion for the interactive video game;)
processing, with the processor, the plurality of user input data according to the cognitive assessment model to determine a predicted measure of efficacy for each task in the two or more computerized cognitive training tasks; (processing, with the processor, the plurality of user input data according to the cognitive assessment model to determine a predicted measure of efficacy for each task in the two or more computerized cognitive training tasks;)
configuring, with the processor, a subsequent graphical user interface screen of the interactive video game according to the quantified measure of the first cognitive ability of the user and the second cognitive ability of the user and the at least one gameplay progression criterion, (configuring, with the processor, a subsequent graphical user interface screen of the interactive video game according to the quantified measure of the first cognitive ability of the user and the second cognitive ability of the user and the at least one gameplay progression criterion,)
subsequent graphical user interface screen of the interactive video game comprises configuring or modifying a first set of computerized stimuli or interactions associated with a first task in the two or more computerized cognitive training tasks according to the predicted measure of efficacy, (wherein configuring the subsequent graphical user interface screen of the interactive video game comprises configuring or modifying a first set of computerized stimuli or interactions associated with a first task in the two or more computerized cognitive training tasks according to the predicted measure of efficacy, where configuring the subsequent graphical user interface screen of the interactive video came is interpreted as being similar to “subsequent graphical user interface screen of the interactive video game”)
wherein configuring or modifying the first set of computerized stimuli or interactions comprises dynamically modifying at least one graphical element in the first set of computerized stimuli or interactions, (wherein configuring or modifying the first set of computerized stimuli or interactions comprises dynamically modifying at least one graphical element in the first set of computerized stimuli or interactions,)
wherein the at least one graphical element comprises a therapeutically active element configured to target the first cognitive ability of the user, (wherein the at least one graphical element comprises a therapeutically active element configured to target the first cognitive ability of the user,)
wherein the predicted measure of efficacy comprises a predicted incremental measure of improvement in the first cognitive ability of the user and/or the second cognitive ability of the user; and (wherein the predicted measure of efficacy comprises a predicted incremental measure of improvement in the first cognitive ability of the user and/or the second cognitive ability of the user; and)
presenting, with the processor via the display of the computing device, the subsequent graphical user interface screen of the interactive video game to the user. (presenting, with the processor via the display of the computing device, the subsequent graphical user interface screen of the interactive video game to the user.)
Claims 2, 3, 4, 5, 6, 7, 8, 9 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2, 3, 4, 5, 6, 7, 8, 9 of US 12224055 B2 (“12224055”) respectively. Although the claims at issue are not identical, they are not patentably distinct from each other because the dependent claims of 12224055 are dependent on claim 1, and where claim 1 is not patentably distinct from claim 1 of the instant application.
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claim 10 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 10 of prior U.S. Patent No. 12224055. This is a statutory double patenting rejection, where claim 10 of the instant application is represented in bold characters and where claim 10 of the reference patent 12224055 is represented in underlined characters:
A system for configuring a user interface within a computerized cognitive training regimen, comprising: (A system for configuring a user interface within a computerized cognitive training regimen, comprising:)
a user interface device comprising a display and an input device comprising at least one sensor; a processor communicably engaged with the user interface device; and a non-transitory computer readable storage medium communicably engaged with the processor and encoded with processor-executable instructions that, when executed, cause the processor to perform one or more operations comprising: (a user interface device comprising a display and an input device comprising at least one sensor; a processor communicably engaged with the user interface device; and a non-transitory computer readable storage medium communicably engaged with the processor and encoded with processor-executable instructions that, when executed, cause the processor to perform one or more operations comprising:)
presenting one or more instances of the computerized cognitive training regimen to a user, (presenting one or more instances of the computerized cognitive training regimen to a user,)
wherein each instance in the one or more instances comprises a graphical user interface configured to present two or more computerized cognitive training tasks via the display of the user interface device, (wherein each instance in the one or more instances comprises a graphical user interface configured to present two or more computerized cognitive training tasks via the display of the user interface device,)
wherein a first task in the two or more computerized cognitive training tasks is configured to target a first cognitive ability of the user and a second task in the two or more computerized cognitive training tasks is configured to target a second cognitive ability of the user, (wherein a first task in the two or more computerized cognitive training tasks is configured to target a first cognitive ability of the user and a second task in the two or more computerized cognitive training tasks is configured to target a second cognitive ability of the user,)
wherein the computerized cognitive training regimen comprises an interactive video game in which the two or more computerized cognitive training tasks are gameplay tasks associated with a gameplay progression of the interactive video game, (wherein the computerized cognitive training regimen comprises an interactive video game in which the two or more computerized cognitive training tasks are gameplay tasks associated with a gameplay progression of the interactive video game,)
wherein each task in the two or more computerized cognitive training tasks comprises a set of computerized stimuli or interactions comprising dynamically rendered graphical elements rendered at a first graphical user interface screen of the interactive video game according to at least one response-deadline procedure; (wherein each task in the two or more computerized cognitive training tasks comprises a set of computerized stimuli or interactions comprising dynamically rendered graphical elements rendered at a first graphical user interface screen of the interactive video game according to at least one response-deadline procedure;)
receiving a plurality of user input data in response to the two or more computerized cognitive training tasks, (receiving a plurality of user input data in response to the two or more computerized cognitive training tasks,)
wherein the plurality of user input data comprises a plurality of sensor data derived from an interaction of the user with a sensor device in response to the set of computerized stimuli or interactions; (wherein the plurality of user input data comprises a plurality of sensor data derived from an interaction of the user with a sensor device in response to the set of computerized stimuli or interactions;)
processing the plurality of user input data according to a cognitive assessment model to determine a quantified measure of the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen; (processing the plurality of user input data according to a cognitive assessment model to determine a quantified measure of the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen;)
analyzing the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen to determine at least one gameplay progression criterion for the interactive video game; (analyzing the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen to determine at least one gameplay progression criterion for the interactive video game;)
processing the plurality of user input data according to the cognitive assessment model to determine a predicted measure of efficacy for each task in the two or more computerized cognitive training tasks; (processing the plurality of user input data according to the cognitive assessment model to determine a predicted measure of efficacy for each task in the two or more computerized cognitive training tasks;)
configuring, with the processor, a subsequent graphical user interface screen of the interactive video game according to the quantified measure of the first cognitive ability of the user and the second cognitive ability of the user and the at least one gameplay progression criterion, (configuring, with the processor, a subsequent graphical user interface screen of the interactive video game according to the quantified measure of the first cognitive ability of the user and the second cognitive ability of the user and the at least one gameplay progression criterion,)
wherein configuring the subsequent graphical user interface screen of the interactive video game comprises configuring or modifying a first set of computerized stimuli or interactions associated with a first task in the two or more computerized cognitive training tasks according to the predicted measure of efficacy, (wherein configuring the subsequent graphical user interface screen of the interactive video game comprises configuring or modifying a first set of computerized stimuli or interactions associated with a first task in the two or more computerized cognitive training tasks according to the predicted measure of efficacy,)
wherein configuring or modifying the first set of computerized stimuli or interactions comprises dynamically modifying at least one graphical element in the first set of computerized stimuli or interactions, (wherein configuring or modifying the first set of computerized stimuli or interactions comprises dynamically modifying at least one graphical element in the first set of computerized stimuli or interactions,)
wherein the at least one graphical element comprises a therapeutically active element configured to target the first cognitive ability of the user, (wherein the at least one graphical element comprises a therapeutically active element configured to target the first cognitive ability of the user,)
wherein the predicted measure of efficacy comprises a predicted incremental measure of improvement in the first cognitive ability of the user and/or the second cognitive ability of the user; and (wherein the predicted measure of efficacy comprises a predicted incremental measure of improvement in the first cognitive ability of the user and/or the second cognitive ability of the user; and)
presenting, via the display of the user interface device, the subsequent graphical user interface screen of the interactive video game to the user. (presenting, via the display of the user interface device, the subsequent graphical user interface screen of the interactive video game to the user.)
Claims 11-19 are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 11-19 of prior U.S. Patent No. 12224055 respectively. This is a statutory double patenting rejection.
Claim 20 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 20 of prior U.S. Patent No. 12224055. This is a statutory double patenting rejection, where claim 20 of the instant application is represented in bold characters and where claim 20 of the reference patent 12224055 is represented in underlined characters:
A non-transitory computer-readable medium encoded with instructions for commanding one or more processors to execute operations for configuring a user interface within a computerized cognitive training regimen, the operations comprising: (A non-transitory computer-readable medium encoded with instructions for commanding one or more processors to execute operations for configuring a user interface within a computerized cognitive training regimen, the operations comprising:)
presenting one or more instances of the computerized cognitive training regimen to a user via a display of a computing device, wherein the computerized cognitive training regimen comprises an interactive video game comprising two or more computerized cognitive training tasks, wherein the two or more computerized cognitive training tasks are gameplay tasks associated with a gameplay progression of the interactive video game, (presenting one or more instances of the computerized cognitive training regimen to a user via a display of a computing device, wherein the computerized cognitive training regimen comprises an interactive video game comprising two or more computerized cognitive training tasks, wherein the two or more computerized cognitive training tasks are gameplay tasks associated with a gameplay progression of the interactive video game,)
wherein a first task in the two or more computerized cognitive training tasks is configured to target a first cognitive ability of the user and a second task in the two or more computerized cognitive training tasks is configured to target a second cognitive ability of the user, (wherein a first task in the two or more computerized cognitive training tasks is configured to target a first cognitive ability of the user and a second task in the two or more computerized cognitive training tasks is configured to target a second cognitive ability of the user,)
wherein each task in the two or more computerized cognitive training tasks comprises a set of computerized stimuli or interactions comprising dynamically rendered graphical elements rendered at a first graphical user interface screen of the interactive video game according to at least one response-deadline procedure; (wherein each task in the two or more computerized cognitive training tasks comprises a set of computerized stimuli or interactions comprising dynamically rendered graphical elements rendered at a first graphical user interface screen of the interactive video game according to at least one response-deadline procedure;)
receiving a plurality of user input data in response to the two or more computerized cognitive training tasks, (receiving a plurality of user input data in response to the two or more computerized cognitive training tasks,)
wherein the plurality of user input data comprises a plurality of sensor data derived from an interaction of the user with a sensor device in response to the set of computerized stimuli or interactions; (wherein the plurality of user input data comprises a plurality of sensor data derived from an interaction of the user with a sensor device in response to the set of computerized stimuli or interactions;)
processing the plurality of user input data according to a cognitive assessment model to determine a quantified measure of the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen; (processing the plurality of user input data according to a cognitive assessment model to determine a quantified measure of the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen;)
analyzing the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen to determine at least one gameplay progression criterion for the interactive video game; (analyzing the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen to determine at least one gameplay progression criterion for the interactive video game;)
processing the plurality of user input data according to the cognitive assessment model to determine a predicted measure of efficacy for each task in the two or more computerized cognitive training tasks; (processing the plurality of user input data according to the cognitive assessment model to determine a predicted measure of efficacy for each task in the two or more computerized cognitive training tasks;)
configuring a subsequent graphical user interface screen of the interactive video game according to the quantified measure of the first cognitive ability of the user and the second cognitive ability of the user and the at least one gameplay progression criterion, (configuring a subsequent graphical user interface screen of the interactive video game according to the quantified measure of the first cognitive ability of the user and the second cognitive ability of the user and the at least one gameplay progression criterion,)
wherein configuring the subsequent graphical user interface screen of the interactive video game comprises configuring or modifying a first set of computerized stimuli or interactions associated with a first task in the two or more computerized cognitive training tasks according to the predicted measure of efficacy, (wherein configuring the subsequent graphical user interface screen of the interactive video game comprises configuring or modifying a first set of computerized stimuli or interactions associated with a first task in the two or more computerized cognitive training tasks according to the predicted measure of efficacy)
wherein configuring or modifying the first set of computerized stimuli or interactions comprises dynamically modifying at least one graphical element in the first set of computerized stimuli or interactions, (wherein configuring or modifying the first set of computerized stimuli or interactions comprises dynamically modifying at least one graphical element in the first set of computerized stimuli or interactions)
wherein the at least one graphical element comprises a therapeutically active element configured to target the first cognitive ability of the user, (wherein the at least one graphical element comprises a therapeutically active element configured to target the first cognitive ability of the user,)
wherein the predicted measure of efficacy comprises a predicted incremental measure of improvement in the first cognitive ability of the user and/or the second cognitive ability of the user; and (wherein the predicted measure of efficacy comprises a predicted incremental measure of improvement in the first cognitive ability of the user and/or the second cognitive ability of the user; and)
presenting the subsequent graphical user interface screen of the interactive video game to the user via the display of the computing device. (presenting the subsequent graphical user interface screen of the interactive video game to the user via the display of the computing device.)
With regards to 35 USC 101, claims 1-20 are patent eligible when considered in view of the Patent Subject Matter Eligibility Test, see MPEP 2106(III.). The present invention is partially directed towards an abstract idea of generating cognitive training tasks. However, with the recitation of a specifically configured interface of video games with system components such as “the computerized cognitive training regimen comprises an interactive video game in which the two or more computerized cognitive training tasks are gameplay tasks associated with a gameplay progression of the interactive video game” and “configuring, with the processor, a subsequent graphical user interface screen of the interactive video game according to the quantified measure of the first cognitive ability of the user and the second cognitive ability of the user and the at least one gameplay progression criterion,” the interface system is dynamically modified to implement the cognitive training tasks, the invention provides a meaningful limit on the judicial exception under Step 2A Prong Two of the Subject Matter Eligibility Test and significantly more than the judicial exception under Step 2B of the Test. For the aforementioned reasons, claims 1-20 are patent eligible under 35 USC 101.
The following references have been considered, however have not been used in the above rejections:
US 2020/0008725 A1 to Bach et al. teaches of cognitive training tasks that involve the collection of biometric data from patients related to EEG and user tasks to determine cognitive defects. WO 2016145372 A1 to Bower et al. teaches of a cognitive assessment tool based on response to tasks an where the assessment is displayed to the user. NPL “brain-computer interface for clinical purposes: cognitive assessment and rehabilitation” to Carelli et al. teaches of using a brain computer interface to gather data and to provide programs to assess the cognitive ability of a user and provide a treatment regimen. These references however do not teach aspects of the invention including but not limited to “wherein a first task in the two or more computerized cognitive training tasks is configured to target a first cognitive ability of the user and a second task in the two or more computerized cognitive training tasks is configured to target a second cognitive ability of the user, wherein the computerized cognitive training regimen comprises an interactive video game in which the two or more computerized cognitive training tasks are gameplay tasks associated with a gameplay progression of the interactive video game, wherein each task in the two or more computerized cognitive training tasks comprises a set of computerized stimuli or interactions comprising dynamically rendered graphical elements rendered a first graphical user interface screen of the interactive video game”, “ analyzing, with the processor, the first cognitive ability of the user and the second cognitive ability of the user for each instance in the one or more instances of the computerized cognitive training regimen to determine at least one gameplay progression criterion for the interactive video game” and “configuring, with the processor, a subsequent graphical user interface screen of the interactive video game according to the quantified measure of the first cognitive ability of the user and the second cognitive ability of the user and the at least one gameplay progression criterion.”
Conclusion
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/CONSTANTINE SIOZOPOULOS/
Examiner
Art Unit 3686