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 .
DETAILED ACTION
This is the first action on the merits. Claims 1-3 are currently pending.
Priority
This Application is a Continuation of Application 17/424,329, filed 07/20/2021. Application 17/424,329 is a National Stage entry of PCT/JP2019/001869 with International Filling Date: 01/22/2019.
Information Disclosure Statement
The information disclosure statements (IDSs) submitted on 04/17/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Objections
Claim 1 is objected to for the following informality: “… an image processor configured to store, in the storage unit, the three dimensional data of the space...” should read “… an image processor configured to store, in a storage unit, the three dimensional data of the space...”
Claim 2 is objected to for the following informality: “… and a communication unit configured to transmit the evaluation result to another display device connected to the image processing apparatus…” should read “… and a communication unit configured to transmit an evaluation result to another display device connected to the image processing apparatus…”
Claim 3 is objected to for the following informality: “… transmit, in real-time or as a recorded video, the movement of the user's viewpoint when viewing the problem…” should read “… transmit, in real-time or as a recorded video, a movement of the user's viewpoint when viewing the problem…”
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.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 6, 12, 15, 17, 20, 39 and 40 of U.S. Patent No. 12,288,606. Although the claims at issue are no identical, they are not patentably distinct from each other because:
In regards to claim 1, the subject matter claimed in the instant application is an obvious variation on the ‘606 claims as described in the chart because they provide a broader recitation of the same subject matter, as follows:
Instant Claim
Instant Limitation
Reference Limitation
Reference Claim
1
a recording medium that stores at least one app for presenting the user wearing the image processing apparatus a problem; a wired or wireless switch or a touchscreen; a camera;
a recording medium that stores at least one app for presenting the user wearing the image processing apparatus a problem for the rehabilitation of higher brain dysfunction; a wired or wireless switch or a touchscreen; a camera;
1, 39 and 40
1
and a mixed reality-specific display unit configured to visually present the image of the virtual object generated by the image processor for the user as if the image generated by the image processor exists in a real space, wherein the image processing apparatus further comprises a processor configured to generate the problem as if the image of the virtual object used exists in the real space, the image processing apparatus performs by executing the at least one app using a mixed reality while the image processor performs a drawing process, the drawing process includes:
and a mixed reality-specific display unit configured to visually present the image of the virtual object generated by the image processor for the user as if the image generated by the image processor exists in a real space, wherein the image processing apparatus further comprises a processor configured to generate the problem as if the image of the virtual object used for rehabilitation of higher brain dysfunction exists in the real space, the image processing apparatus performs the rehabilitation of higher brain dysfunction by executing the at least one app using a mixed reality while the image processor performs a drawing process, the drawing process includes:
1, 39 and 40
1
and visually presenting the generated image of the virtual object on the mixed reality- specific display unit, the at least one app sets the problem eliminating or changing the image of the virtual object in accordance with an input from the user, or a problem that prompts the user to move, and the input from the user includes at least one of an input from the wired or wireless switch or the touchscreen, a gesture of the user detected by the camera, or the line of sight of the user at a fixed point for a fixed period of time, which is detected by the second sensor.
and visually presenting the generated image of the virtual object on the mixed reality- specific display unit, the at least one app sets the problem eliminating or changing the image of the virtual object in accordance with an input from the user, and the input from the user includes at least one of an input from the wired or wireless switch or the touchscreen, a gesture of the user detected by the camera, or the line of sight of the user at a fixed point for a fixed period of time, which is detected by the second sensor.
1, 39 and 40
In regards to claims 2 and 3, the subject matter claimed in the instant application is fully disclosed in patent ‘606 and is covered by the patent since the application is claiming similar subject matter, as follows:
Instant Claim
Instant Limitation
Reference Limitation
Reference Claim
2
The image processing apparatus according to claim 1, further comprising: an evaluation unit configured to evaluate the user's input to the problem set by the at least one app,
The image processing apparatus according to claim 1, wherein the processor detects the user's selection of the image of the virtual object, using the detection result by the second sensor, and scores the problem on the basis of the detected selection result.
A rehabilitation system for performing rehabilitation of higher brain dysfunction, the rehabilitation system comprising:
the image processing apparatus according to claim 1, the image processing apparatus being configured to execute an app for presenting the user as a patient the problem for rehab based on the image using mixed reality and store the patient's problem solution record as rehab record information;
2 and 12
2
and a communication unit configured to transmit the evaluation result to another display device connected to the image processing apparatus, wherein the evaluation result is displayed on the another display device.
a server configured to save the rehab record information transmitted from the practitioner-side terminal; and
a doctor-side terminal configured to receive the rehab record information from the server and display the state of rehabilitation performed for the patient on the basis of the rehab record information.
the rehab record information includes the score of an answer to the problem set by the app, and
the doctor-side terminal displays the score of the app for each impairment to provide the display in such a manner as to allow comprehending an impairment improvement state.
12 and 15
3
The image processing apparatus according to claim l, further comprising: a communication unit configured to transmit, in real-time or as a recorded video, the movement of the user's viewpoint when viewing the problem set by the at least one app to another display device connected to the image processing apparatus,
The image processing apparatus according to claim 5, wherein the processor uses an image for prompting the user to move in the real space as the image of the virtual object, and generates the problem in such a manner as to place the image at least in the field of view of the user.
The rehabilitation system according to claim 12, wherein
the rehab record information includes information related to the movement of the patient, and
at least one of the doctor-side terminal and the practitioner-side terminal is capable of providing a display that reproduces the movement of the patient on the basis of the rehab record information.
6 and 17
3
wherein the movement of the user's viewpoint is displayed on the another display device.
The rehabilitation system according to claim 19, wherein the doctor-side terminal is capable of playing the saved moving image.
20
Therefore, claims 1-3 are rejected under nonstatutory double patenting.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are:
The evaluation unit in claim 2.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The examiner has reviewed the specification and found no structure associated with the evaluation unit.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
The Examiner notes that the various units of claim 1 were analyzed under 112(f) in parent application 17/424,329 and it was determined that sufficient structure was disclosed for those units. The units are tied to a structure/computer at Spec. Para. 0108, 0113, 0114, 0123, 0128, 0131, 0133 and 0138. This finding is reiterated here.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 2 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement.
Claim 2 recites functional steps for which the Applicant has not adequately described the steps in sufficient detail for one of the ordinary skill in the art to conclude that the Applicant has possession of the invention at the time of filling.
Specifically, the claim 2 recites “… an evaluation unit configured to evaluate the user's input to the problem set by the at least one app…” The Applicant has provided no disclosure at all of an evaluation unit let alone any structure associated with the evaluation unit.
The specification at para. 0027 states: “The doctor-side terminal displays app score results on a time-series basis.”, at para. 0052 States: “The control unit detects the user's selection of the image of the virtual object, using the detection result by the orientation detection unit, and scores the problem on the basis of the detected selection result.”, at para. 0034 States: “The controller 21 functions as an identifier by execution of the identification step (Step S5).”, at para. 0117 States: “returns the execution results to the doctor-side terminal 2 and the practitioner-side terminal 4.”, at para. 0259 states “The position of the image processing apparatus 5 at the time when the app starts being executed may be set as a start position, or the start position may be determined in accordance with input such as the user's tap.” and at para. 0292 states ” the control unit 51 is simply required to, for example, deduct a point due to the fact that the target has not disappeared and reflect the deduction on the score result, which does not limit the present invention.”
As can be see, there is no clear link to the evaluation unit having any structure evidencing that the Applicant was not in possession of the invention at the time of filing. As such the claimed invention lacks adequate written description.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 2 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claim 2, the limitation “evaluation unit” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The as-filed disclosure is devoid of any structure associated with the evaluation unit. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Subject Matter Free of Prior Art
The cited prior art of record fails to expressly teach or suggest, either alone or in combination, the features found within claims 1-3. In particular, the cited prior art of record fails to expressly teach or suggest the combination of: an image processing apparatus, which is wearable by a user, comprising: a recording medium that stores at least one app for presenting the user wearing the image processing apparatus a problem; a wired or wireless switch or a touchscreen; a camera; a spatial recognition unit configured to process a data obtained by the camera, an infrared sensor or a laser irradiation to recognize a three-dimensional shape of a surrounding space of the image processing apparatus, and convert the three-dimensional shape of the space into three-dimensional data; a first sensor structurally included in a housing of the image processing apparatus or attached to an outside of the housing, and configured to detect a position and an inclination of the image processing apparatus in the space recognized by the spatial recognition unit; a second sensor configured to detect an orientation of the user including a line of sight of the user; an image processor configured to store, in the storage unit, the three-dimensional data of the space, three-dimensional data of a virtual object, three-dimensional data of the position and inclination of the image processing apparatus detected by the first sensor, and three-dimensional data of the orientation of the user detected by the second sensor with the same coordinate axes, place the virtual object in the space recognized by the spatial recognition unit on the same coordinate axes, and generate an image of the virtual object visible to the user on the basis of the position and inclination of the image processing apparatus detected by the first sensor and the orientation of the user detected by the second sensor; and a mixed reality-specific display unit configured to visually present the image of the virtual object generated by the image processor for the user as if the image generated by the image processor exists in a real space, wherein the image processing apparatus further comprises a processor configured to generate the problem as if the image of the virtual object used exists in the real space, the image processing apparatus performs by executing the at least one app using a mixed reality while the image processor performs a drawing process, the drawing process includes: detecting the position and the inclination of the image processing apparatus on the three-dimensional data of the space on the basis of information from the first sensor; detecting the orientation of the user on the three-dimensional data of the space on the basis of information from the second sensor; placing the three-dimensional data of the virtual object on the three-dimensional data of the space in accordance with the current position and inclination of the image processing apparatus and the orientation of the user; and visually presenting the generated image of the virtual object on the mixed reality- specific display unit, the at least one app sets the problem eliminating or changing the image of the virtual object in accordance with an input from the user, or a problem that prompts the user to move, and the input from the user includes at least one of an input from the wired or wireless switch or the touchscreen, a gesture of the user detected by the camera, or the line of sight of the user at a fixed point for a fixed period of time, which is detected by the second sensor; an evaluation unit configured to evaluate the user's input to the problem set by the at least one app, and a communication unit configured to transmit the evaluation result to another display device connected to the image processing apparatus, wherein the evaluation result is displayed on the another display device; a communication unit configured to transmit, in real-time or as a recorded video, the movement of the user's viewpoint when viewing the problem set by the at least one app to another display device connected to the image processing apparatus, wherein the movement of the user's viewpoint is displayed on the another display device.
Eligible Subject Matter
The claimed invention is also subject matter eligible because the ordered combination of additional elements provide a practical application.
Conclusion
The prior art made of record though not relied upon in the present basis of rejection are noted in the attached PTO 892 and include:
Tyler (US 2006/0241718) teaches systems and methods for altering brain and body functions and for treating conditions and disease of the same. Danilov (US 2006/0161218) teaches system and method for treating traumatic brain injury. An (US 2014/0135873) teaches rehabilitation training system and method. Krueger (US 9788714 B2) teaches systems and methods using virtual reality or augmented reality environments for the measurement and/or improvement of human vestibulo-ocular performance. Stark (US 8790258 B2) teaches remote physiological evaluation.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIZA TONY KANAAN whose telephone number is (571)272-4664. The examiner can normally be reached on Mon-Thu 9:00am-6:00pm ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert Morgan can be reached on 571-272-6773. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LIZA TONY KANAAN/Examiner, Art Unit 3683
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