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 .
Application Status
Present office action is in response to application filed 03/03/2025. Claims 1-21 are currently pending in the application.
Examiner's Note
In accordance with Applicant’s disclosure as published (¶133), “[A] computer readable storage medium, as used herein, is not to be construed as being transitory signals per se, such as radio waves or other freely propagating electromagnetic waves, electromagnetic waves propagating through a waveguide or other transmission media (e.g., light pulses passing through a fiber-optic cable), or electrical signals transmitted through a wire”.
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.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
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 (analyzer) 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 limitations are: “cognitive stress analyzer” in claims 1 and 5-7. This interpretation is based off of the language “analyzer” as consistent with MPEP §2181(I)(A).
Because these claim limitations are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they are being interpreted to cover the corresponding structure/algorithm described in the specification as performing the claimed function, and equivalents thereof. In particular, the originally filed specification discloses: ¶ 41: Functionalities of a cognitive stress analyzer 110 as described herein can be implemented by suitable hardware, software, and/or firmware. For example, the cognitive stress analyzer 110 can be implemented by one or more processors 112 implementing instructions stored in memory 106.
If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more.
Step 1: Statutory Category?
Independent claim 1 recites “a system” (i.e. a machine), independent claim 8 recites “a method” (i.e. a process) and independent claim 15 recites “a computer program product” (i.e. a manufacture). As such, independent claims 1, 8 and 15 are each directed to a statutory category of invention within § 101, i.e., machine, process, and “manufacture”. (Step 1: YES).
Step 2A – Prong 1: Judicial Exception Recited?
Independent claim 1, analyzed as representative of the claimed subject matter, is reproduced below. The limitations determined to be abstract ideas are shown in italics. The additional element(s) recited at a high level of generality are shown in bold. The limitation(s) determined to be extra-solution activity are underlined.
A system comprising:
[L1] an input interface configured to receive one or more acquired performance metrics that are indicative of a person's performance of a predetermined activity;
[L2] a cognitive stress analyzer configured to: receive one or more acquired physiology metrics that are indicative of a condition of the person;
[L3] analyze the one or more acquired physiology metrics and the one or more acquired performance metrics to generate an indicator of a mind-body fitness of the person;
[L4] a user interface configured to present the indicator of the mind-body fitness of the person;
The originally filed Specification, as published discloses the “presently disclosed subject matter relates generally to cognitive stress assessment … analyzing, presenting, and using indicators of mind-body fitness based on physiology and performance metrics” (¶ 2), that “the gold standard assessment of psychological experience remains self-reports, typically gathered through structured or semi-structured interviews, questionnaires, or state probes. However, there is a continuing need for improved systems and techniques for assessing an individual's ability to perform under cognitive stress” (¶ 7). It is common knowledge that humans have long used pen and paper to collect information of individuals, analyze the information and present results of the analysis to the individuals. Thus, other than reciting the “input interface”, “cognitive stress analyzer”, and “user interface” under the broadest reasonable interpretation, at least the italicized claim limitations may be performed in the human mind, including observations, evaluations, and judgments, may also characterized as mathematical concept, and may further be characterized as a certain method of organizing human activity, i.e., managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). Accordingly, the claim recites an abstract idea under Step 2A: Prong 1. (Step 2A – Prong 1: YES).
Step 2A – Prong 2: Integrated into a Practical Application?
The originally filed Specification as published describes the “input interface”, “cognitive stress analyzer”, and “user interface” at a high level of generality (for example, ¶ 40: Referring to FIG. 1, the system 100 includes a computing device 102 having an input interface 104 … ; ¶ 41: the cognitive stress analyzer 110 can be implemented by one or more processors 112 implementing instructions stored in memory 106 …; ¶ 42: the person 106 can wear a wearable device 116 configured to acquire physiology metrics, such as heart rate. In this example, the person 106 is wearing a smart watch configured to acquire a heart rate of the person 106 and to communicate the acquired heart rate data to the computing device 102. As an alternative, for example, the physiology metrics may be acquired by another such as a chest monitoring device for detecting heart dynamics. The wearable device 116 device can wirelessly communicate the acquired heart rate data to the computing device where the data is received by the communications module 114 and stored in memory 106…; ¶ 44: the cognitive stress analyzer 110 can control a display of the user interface 108 to display the indicator of the mind-body fitness of the person 106; ¶ 45: the method may alternatively be implemented by any other system or by one or more computing devices; ¶ 65: The server (130) also may include a server controller (134). The server controller (134) is software or application specific hardware which, when executed by the computer processor (326), controls and coordinates operation of the software or application specific hardware described herein; ¶ 66: brief study questionnaires (demographic information and questions about video game history) were completed on a desktop computer; ¶ 104 The user interface 108 can display the report on a display; ¶ 122: a computing device may be a mobile computing device such as, for example, but not limited to, a smart phone, a cell phone, a pager, a personal digital assistant (PDA), a mobile computer with a smart phone client, or the like. In another example, a computing device may be any type of wearable computer, such as a computer with a head-mounted display (HMD), or a smart watch or some other wearable smart device. Some of the computer sensing may be part of the fabric of the clothes the user is wearing. A computing device can also include any type of conventional computer, for example, a laptop computer or a tablet computer. A typical mobile computing device is a wireless data access-enabled device (e.g., an iPHONE® smart phone, an iPAD® device, smart watch, or the like) that is capable of sending and receiving data in a wireless manner using protocols like the Internet Protocol, or IP, and the wireless application protocol, or WAP. This allows users to access information via wireless devices, such as smart watches, smart phones, mobile phones, pagers, two-way radios, communicators, and the like … the mobile device is a cellular telephone or smart phone or smart watch that operates over GPRS (General Packet Radio Services), which is a data technology for GSM networks or operates over Near Field Communication e.g. Bluetooth. In addition to a conventional voice communication, a given mobile device can communicate with another such device via many different types of message transfer techniques, including Bluetooth, Near Field Communication, SMS (short message service), enhanced SMS (EMS), multi-media message (MMS), email WAP, paging, or other known or later-developed wireless data formats. Although many of the examples provided herein are implemented on smart phones, the examples may similarly be implemented on any suitable computing device, such as a computer; ¶ 128: the terms “computing device” and “entities” should be broadly construed and should be understood to be interchangeable. They may include any type of computing device, for example, a server, a desktop computer, a laptop computer, a smart phone, a cell phone, a pager, a personal digital assistant (PDA, e.g., with GPRS NIC), a mobile computer with a smartphone client, or the like; ¶ 129: An example of a user interface on a computing device (e.g., a mobile device) includes a graphical user interface (GUI) that allows users to interact with programs in more ways than typing. A GUI typically can offer display objects, and visual indicators, as opposed to text-based interfaces, typed command labels or text navigation to represent information and actions available to a user. For example, an interface can be a display window or display object, which is selectable by a user of a mobile device for interaction … a user interface can be a display window or display object, which is selectable by a user of a computing device for interaction. The display object can be displayed on a display screen of a computing device and can be selected by and interacted with by a user using the user interface. In an example, the display of the computing device can be a touch screen, which can display the display icon. The user can depress the area of the display screen where the display icon is displayed for selecting the display icon. In another example, the user can use any other suitable user interface of a computing device, such as a keypad, to select the display icon or display object; ¶ 130: The display object can be displayed on a display screen of a mobile device and can be selected by and interacted with by a user using the interface. In an example, the display of the mobile device can be a touch screen, which can display the display icon. The user can depress the area of the display screen at which the display icon is displayed for selecting the display icon. In another example, the user can use any other suitable interface of a mobile device, such as a keypad, to select the display icon or display object. The lack of details about the “input interface”, “cognitive stress analyzer”, and “user interface” indicates that the additional elements are generic, or part of generic computer elements performing or being used in performing the generic functions claimed. The additional elements [L1]: “receive one or more acquired performance metrics” (data gathering), [L2]: “receive one or more acquired physiology metrics” (data gathering) and [L4]: “present the indicator of the mind-body fitness of the person” (data presentation) simply add insignificant extra-solution activity to the judicial exception, i.e., mere data gathering, data transmission and data presentation. Each of the data gathering and data presentation is generic and conventional. The claim limitations do not purport to improve the functioning of the ““input interface”, “cognitive stress analyzer”, and “user interface”, do not improve the technology of the technical field, and do not require a “particular machine.” Rather, they are performed using generic components. Further, the claim fails to effect any particular transformation of an article to a different state. The recited steps in the claim fail to provide meaningful limitations to limit the judicial exception. In this case, the claim merely uses the claimed computer elements as a tool to perform the abstract idea.
Considering the elements of the claim both individually and as “an ordered combination” the functions implemented by the “input interface”, “cognitive stress analyzer”, and “user interface” at each step are purely conventional. Each step performed in the claim does no more than require generic computer elements to perform generic computer functions. Thus, the claimed elements have not been shown to integrate the judicial exception into a practical application as set forth in the Revised Guidance which references the Manual of Patent Examining Procedure (“MPEP”) §§ 2106.04(d) and 2106.05(a)–(c) and (e)–(h). Because the abstract idea is not integrated into a practical application, the claim is directed to the judicial exception. (Step 2A, Prong Two: NO).
Step 2B: Claim provides an Inventive Concept?
As discussed with respect to Step 2A Prong Two, the “input interface”, “cognitive stress analyzer”, and “user interface” in the claim amounts to no more than mere instructions to apply the exception using generic components. The same analysis applies here in Step 2B, i.e., mere instructions to apply an exception using generic computer components cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B. Because the originally filed Specification as published describes the “input interface”, “cognitive stress analyzer”, and “user interface” in general terms, without describing the particulars (for example, ¶¶ 40, 41, 42, 44, 45, 65, 66, 104, 122, 128, 130), the claim limitations may be broadly but reasonably construed as reciting conventional components and techniques sufficiently well-known that the specification does not need to describe the particulars of such additional element(s) to satisfy 35 U.S.C. § 112(a). See MPEP 2106.05(d), as modified by the USPTO Berkheimer Memorandum. Furthermore, the Berkheimer Memorandum, Section III (A)(1) explains that a specification that describes additional element(s) “in a manner that indicates that the additional element(s) is/are sufficiently well-known that the specification does not need to describe the particulars of such additional element(s) to satisfy 35 U.S.C. § 112(a)” can show that the elements are well understood, routine, and conventional); Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The claimed mobile interface is so lacking in implementation details that it amounts to merely a generic component (software, hardware, or firmware) that permits the performance of the abstract idea, i.e., to retrieve the user-specific resources.”. The generic description of the “input interface”, “cognitive stress analyzer”, and “user interface” indicates the claim steps are well-known enough that no further description is required for a skilled artisan to understand the process and that the implied component is used in a manner that is well-understood, routine, and conventional in the field. In particular, the recited data gathering ([L1] and [L2]) and data presentation [L4] amount to nothing more than well-understood, routine, and conventional activity because these limitations are not distinguished from generic, conventional data gathering, data transmission and data presentation with a computer. SAP Am., Inc. v. InvestPic, LLC, 890 F.3d 1016, 1021 (Fed. Cir. 2018) (“[M]erely presenting the results of abstract processes of collecting and analyzing information . . . is abstract as an ancillary part of such collection and analysis”); Intellectual Ventures I LLC v. Capital One Financial Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (“[C]ollecting, displaying, and manipulating data” is an abstract idea); Smart Sys. Innovations, 873 F.3d at 1372 (concluding “claims directed to the collection, storage, and recognition of data are directed to an abstract idea.”).
Considered as an ordered combination, the computer components of representative independent claim 1 add nothing that is not already present when the steps are considered separately. The sequence of the steps is equally generic and conventional. See Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis, modification, generation, display, and transmission). Hence, the “input interface”, “cognitive stress analyzer”, and “user interface” are generic, well-known, and conventional computing element(s). The use of the additional element(s) either alone or in combination amounts to no more than mere instructions to apply the judicial exception using generic computer component(s). Mere instructions to apply an exception using generic computer components cannot provide an inventive concept, and thus the claim is patent ineligible. (Step 2B: NO).
In regard to independent Claim 8:
Independent claim 8 recites “a method comprising” steps comparable to those of representative claim 1 and performed by elements comparable to those of representative claim 1. Accordingly, independent claim 8 is rejected for reasons similar to those previously explained when addressing representative claim 1.
In regard to independent Claim 15:
Independent claim 15 recites “a computer program product comprising a computer readable storage medium having program instructions embodied therewith, the program instructions executable by a computing device to cause the computing device to” perform steps comparable to those of representative claim 1 and performed by elements comparable to those of representative claim 1. Accordingly, independent claim 15 is rejected for reasons similar to those previously explained when addressing representative claim 1.
In regard to the dependent claims:
Dependent claims 2-7, 9-14 and 16-21 include all the limitations of corresponding independent claims 1, 8 and 15 from which they depend and, as such, recite the same abstract idea(s) noted above for corresponding independent claims 1, 8 and 15. Each of the recited additional claim elements, for example, “cognitive stress analyzer” (claims 5-7) is recited as a generic computer component used according to its conventional purpose in a conventional manner. The Examiner fails to see any claim activity used in some unconventional manner nor does any produce some unexpected result. An invocation to use known technology in the manner it is intended to be used for its ordinary purpose is both generic and conventional. As per MPEP §§ 2106.05(a)–(c), (e)–(h), none of the limitations of claims 2-13 and 15-19 integrates the judicial exception into a practical application. Additionally, while dependent claims 2-7, 9-14 and 16-21 may have a narrower scope than corresponding independent claims 1, 8 and 15, no claim contains an “inventive concept” that transforms the corresponding claim into a patent-eligible application of the otherwise ineligible abstract idea(s). Therefore, dependent claims 2-7, 9-14 and 16-21 are not drawn to patent eligible subject matter as they are directed to (an) abstract idea(s) without significantly more.
Rejections - 35 USC § 102/103
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1-5, 8-12 and 15-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Bach et al. (US 20220133194 A1) (Bach).
Re claims 1, 8 and 15:
[Claim 1] Bach discloses a system comprising: an input interface configured to receive one or more acquired performance metrics that are indicative of a person's performance of a predetermined activity (at least ¶¶ 20-23: an electroencephalography headset or cap that collects EEG data from a person as they engage in buy order or sell order transactions involving real or simulated securities … ); a cognitive stress analyzer configured to: receive one or more acquired physiology metrics that are indicative of a condition of the person (at least ¶ 56: … a VR device can interface with the input interface 104 shown in FIG. 1 for receiving acquired performance metric data that is indicative of a person's performance of target shooting); and analyze the one or more acquired physiology metrics and the one or more acquired performance metrics to generate an indicator of a mind-body fitness of the person (at least ¶ 173: The statistical engine 150 processes and analyzes the data 101, 102, 103, and 104 collected from a population of subjects to build normative models of brain activity and correlated performance levels for each of a plurality of task conditions (i.e., states); ¶ 178: real-time assessment of the subject's performance and that performance's relationship to a physiological state of the subject, wherein the physiological state is determined by the neurometric data); a user interface configured to present the indicator of the mind-body fitness of the person (at least ¶ 180: The report 161 also provides a summary and detailed review of the subject's performance on tasks or tests … FIG. 22 illustrates a clustered bar chart 800 that appears in a group-level comparative brain training implementation of the report 161 …; ¶ 185: The report 161 also includes one or more images or videos …the video can show side-by-side images of the subject's brain and a normal, expert, or ideal brain performing a task. In yet another alternative, the video can show a map or graph illustrating the state and/or functional connectivity of the subject's brain).
Alternatively, in the event Bach is viewed as disclosing all the claim limitations but the claim limitations are viewed as not being part of a single embodiment, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified Bach as claimed, because a person of ordinary skill has good reason to pursue the known options within his or her grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.
[Claim 8] The claim recites “a method comprising” steps comparable to those of representative claim 1 and performed by elements comparable to those of representative claim 1. Accordingly, independent claim 8 is rejected for reasons similar to those previously explained when addressing representative claim 1.
[Claim 15] The claim recites “a computer program product comprising a computer readable storage medium having program instructions embodied therewith, the program instructions executable by a computing device to cause the computing device to” perform steps comparable to those of representative claim 1 and performed by elements comparable to those of representative claim 1. Accordingly, independent claim 15 is rejected for reasons similar to those previously explained when addressing representative claim 1.
Re claims 2-5 and 8-19:
[Claims 2, 9 and 16] Bach discloses wherein the one or more physiology metrics are acquired within a time period of the one or more performance metrics being acquired (at least ¶ 180: simple reaction time 801 is a measure of pure reaction time and accuracy, and that Go-No-Go 802 is a measure of sustained attention and impulsivity, assessing the speed and accuracy of targets, omissions, and commissions; ¶ 189: simple reaction times for the first and last tasks of a session or day …; ¶ 226: a simple reaction time task 378, a procedural reaction time task 380, a go/no-go task 382, a code substitution task 384, a spatial processing task 386, a match to sample task 388, a memory search task 389, and another simple reaction time task 378 to measure reaction time after the rest of the tasks are completed …; ¶ 228: The simple reaction time task 378, often involving a motor response, measures the ability to react and time to reaction. The procedural reaction time task 380 tests accuracy, speed, and impulse control; ¶ 277: While the subject performs the tasks, performance related-data—which include both the subject's performance (e.g., reaction time, accuracy) and comparative data (e.g., market data, industry standards)—and physiological metrics 663 (e.g., EEG, heart rate)—which can also include comparative data—are collected by a data logger 664).
[Claims 3, 10 and 17] Bach discloses wherein the one or more acquired performance metrics include one of a firearm accuracy activity, cognitive testing, computing device use activity, race car driving, and eSports performance (at least ¶ 45: assessing cognitive reserve; ¶ 121: a subject taking a behavioral test, viewing content or engaging in a work-related task; ¶ 137: Behavioral data refers to observational information collected about conscious actions and activities of a person under the circumstances where that behavior actually occurs. This includes, for example, a person's responses on a keyboard, mouse, game controller, or other input device to a computer task such as a game on a typical work-related task; ¶ 146: visual processing, accuracy; ¶ 149: a task can be playing a position in a game or sport or performing on a multi-tasking job; ¶ 175: application of NEPAS 100 to financial traders … sports efficiency and teamwork; ¶ 201: E-gaming; ¶ 428: a set of assessment tasks to test the person's cognitive efficiency across a plurality of cognitive domains).
[Claims 4, 11 and 18] Bach discloses wherein the one or more acquired physiology metrics include one of heart rate, heart rate variability, blood pressure, oxygen saturation, respiratory rate, body temperature, blood glucose level, oxygen consumption, electrodermal activity, electroencephalography, pupillometry, gaze position and velocity, and muscle activation (at least ¶ 20: an electroencephalography headset or cap that collects EEG data from a person; ¶ 123: eye movements; ¶ 125: Nonlimiting examples of physiological sensors other than neurophysiological sensors include the following: … Electrodermal Activity (EDA) … a pulse oximeter to measure blood oxygen levels and heartrate … sensors that quantify … muscle flexion … wincing, and blinking frequency, pupil dilation, head/body position; ¶ 194: heart rate graph 908 … heart rate variability graph 909; TABLE 3: Eye Tracking, (Sweden) Pupillometry Unity; ¶ 289: a person's eye movements are tracked; ¶ 542: blood oxygen level).
[Claims 5, 12 and 19] Bach discloses wherein the person is a first person, and wherein the cognitive stress analyzer configured to: receive indicators of mind-body fitness of a plurality of other people; analyze the indicator of the mind-body fitness of the first person in comparison to the indicators of mind-body fitness of a plurality of other people; and use the user interface to present the analysis (at least ¶ 46: FIG. 11 illustrates one embodiment of a neurocognitive assessment and closed-loop feedback system that illustrates a subject's brain activity while the subject performs tasks, creates signatures of brain activity associated with different tasks, compares the subject's brain activity with those of a larger population …; ¶ 57: FIG. 22 is a clustered bar chart comparing the cognitive efficiencies of two groups and one individual in performing a set of tasks).
Claims 6, 13 and 20 are rejected under 35 U.S.C. 103 as obvious over Bach, as applied to claims 1, 8 and 15 above, in view of Wilke (US 20120136226 A1).
Re claims 6, 13 and 20:
[Claims 6, 13 and 20] “As reflected in FIGS. 38-41”, Bach discloses that “[A]bove each clustered bar is data (mean and variance) about the PM's heart rate (HR) for each brain state, computed in seconds as the mean time between R-R intervals” (¶ 357). Bach further discloses “[T]he report 161 … provides a summary and detailed review of the subject's performance on tasks or tests, as well as a review of the subject's sleep quality, levels of stress, and emotional resilience” (¶ 180). However, Bach does not appear to explicitly disclose wherein the cognitive stress analyzer is configured to compare a coefficient of variation of the one or more acquired physiology metrics and the one or more acquired performance metrics to generate an indicator of a mind-body fitness of the person. Nonetheless, the concept and advantages of using “a coefficient of variation” for determining or predicting the presence and/or severity of certain clinical parameters was old and well-known to one of ordinary skill in the art, as evident in Wilke (at least ¶ 23: the heart rate variability is expressed as a standard deviation from a beat-to-beat interval time. This value may be expressed as a raw numerical value (e.g., a time value), or may be provided as an index, for example by comparing the calculated variability to a threshold … a heart rate variability value greater than 50 milliseconds (ms) or 75 ms may be considered to be indicative of a stressed individual or an individual who is prone to stress and/or who will have difficulty withstanding stress. Accordingly, depending on the threshold, the indicator may be scaled to a number of standard deviations from the cutoff, where a low index value represents a heart rate variability within one standard deviation of a threshold and a higher index value represents a heart rate variability that is more than one or two standard deviations from a threshold…; ¶ 25: Determining heart rate variability at step 80 may be accomplished by any suitable method. Shown in FIG. 4 is an example of a time domain method 80a for determining heart rate variability. The heart rate variability may be determined at least in part by calculating time domain statistics at step 90 from the data collected from a pulse oximetry sensor, such as mean heart rate, standard deviation of pulse intervals (SDNN), square root of mean squared difference of successive pulse intervals (RMSSD), and the proportion of pulse intervals that differ from the mean (pNN50) …). Hence, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the invention, to have utilized Wilke’s features for determining or predicting the presence and/or severity of certain clinical parameters and to have modified Bach as claimed because this would amount to no more than applying a known technique to a known device (method, or product) ready for improvement to yield predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”).
Claims 7, 14 and 21 are rejected under 35 U.S.C. 103 as obvious over Bach, as applied to claims 1, 8 and 15 above, in view of KRISHNAN (US 20230012960 A1).
Re claims 7, 14 and 21:
[Claims 7, 14 and 21] Bach discloses that “a baseline assessment of a subject's performance and brain activity while the subject performs one or more baseline tasks … training tasks include … stress and recovery training” (¶ 223), “analyze the task performance and brain activity data of the population to identify correlations between task performance and brain activity data across the population … each signature quantifies levels of brain activity across a distribution of task performance levels, wherein the levels indicate … difficulty levels, and/or accuracy levels with which the task is performed” (¶ 248), “stressful conditions can be divided into the following categories: environmental stressors, increased task difficulty, and internal stressors … Increased task difficulty could refer to any controllable parameter (e.g., required attention, speed, precision, and agility) that makes performance of a task more difficult” (¶ 287) and that “the adaptation to the training task is to: … increase or decrease a difficulty level of sequences of the training task where the training subject's attentional and/or neurocognitive performance is sub-par; and/or interrupt or pause the training task when the training subject's attentional and/or neurocognitive state crosses a threshold” (¶ 475). Bach further discloses “[T]he report 161 … provides a summary and detailed review of the subject's performance on tasks or tests, as well as a review of the subject's sleep quality, levels of stress, and emotional resilience” (¶ 180). Nonetheless, Bach does not appear to explicitly disclose but KRISHNAN teaches or at least suggests wherein the cognitive stress analyzer is configured to acquire heart rate and heart rate variability during a resting baseline during different degrees of difficulty tests administered to the person, and wherein the physiology metrics and the performance metrics are acquired during administration of the different degrees of difficulty tests (at least ¶ 2: treating a mental and/or physical condition; ¶ 32: analyze user data obtained using a multimodal sensor(s) that measure one or more aspects of human physiology and biochemistry input including, but not limited to, heart rate, heart rate variability … ; ¶¶ 37, 38: The sensor(s) 120 can measure, but is not limited to … heart rate, heart rate variability (HRV); ¶ 57: Each level of the gameplay can initially have a difficulty assigned to that level, which can be, for example, represented by a preset threshold score. A level of difficulty/threshold score within the level can potentially change based on the adaptive difficulty system, but otherwise it can stay substantially the same for the entirety of that level of difficulty/threshold score. The threshold score can be used to determine the minimum score a user needs to achieve in order to be progressing towards an end state/goal in the level of difficulty. The higher the user score is above the threshold, the faster the user can progress in the level of difficulty and/or towards the end state/goal. If the user falls below the threshold, the user can regress away from the end state/goal and/or the level of difficulty, or can make slower progress towards the end goal; ¶ 77: The sensor(s) 120 can acquire sensor data during the exercise and/or experience and using, for example, a set of electrodes to head of the user that measure physiological activities and/or behavioral activities including, but are not limited to … heart rate, heart rate variability; ¶ 101: A user in a lower/higher competency segment has lower/higher preset thresholds for completing difficulty levels, thus making it easier/more difficult to complete a difficulty level based on the user's level of competency). Hence, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the invention, to have utilized KRISHNAN’s features for treating a mental and/or physical condition and to have modified Bach as claimed because this would amount to no more than applying a known technique to a known device (method, or product) ready for improvement to yield predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”).
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 EDDY SAINT-VIL whose telephone number is (571)272-9845. The examiner can normally be reached Mon-Fri 6:30 AM -6:00 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, PETER VASAT can be reached on (571) 270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/EDDY SAINT-VIL/Primary Examiner, Art Unit 3715
