But just when you thought it was safe to go back in the water...along comes this doosey that issued last week. It's the first patent I'm aware of to make 12:01Tuesday that was allowed after March 2009, when the blog went public. (I mention this fact purely as coincidence, and not to imply that the blog has had any effect whatsoever on examiners. But it is interesting that the blog gets more hits from uspto.gov than from any other identifiable domain. About 18% of the total traffic.)
A nod once again to Landon IP's Blaise Mouttet.
U.S. Patent No. 7,565,193 Questions and control paradigms for detecting deception by measuring brain activity Assignee: Cephos Corp. 1. A method for determining whether a subject is truthful or deceptive to a question of interest, wherein it is not known to an examiner beforehand whether the subject is truthful or deceptive to the question of interest, the method comprising the steps of: (a) an examiner asking a subject a question of interest at least twice; (b) the examiner asking the subject at least once to admit to the question of interest during an admission period and at least once to deny to the question of interest during a denial period; (c) measuring brain activity of the subject during each period; (d) comparing brain activity of the subject during the denial period and during the admission period in at least one brain region; (e) optionally repeating steps (a) to (c); and (f) determining when the subject is truthful or deceptive to the question of interest. |
Commentary: Uh oh.. it's got that "paradigm" word in the title. In re Ferguson, anyone?
First, let's dismiss any thought (ha ha) that there is a transformation here, though I'm sure some will try to argue the brain is transformed from an "admission" state to a "denying" state.
Second, where's the machine? It must be buried somewhere in that "measuring" or "comparing" step. Measuring, for example, is claimed in more detail in dependent claim 2, which limits the measuring to "fMRI, BOLD fMRI, PET, SPECT, EEG, MEG, optical tomography and combinations thereof". That's probably sufficient for tying to a machine. But without this limitation, is this a data-gathering step with no specification as to how the data is gathered, i.e., what the CAFC would call a "meaningless limit", or "insignificant extra-solution activity"? (See In re Bilski, slip op. at 27). Probably.
Even with claim 2's limitation, is the "measuring" step really enough to tie the invention to a particular machine? Consider a claim with an element of "measuring the length of an object, using a tape measure." Do we feel that's less "particular" because the tape measure feels like less of a specific "machine or apparatus" than an fMRI machine? (After all, as some of you may recall, parts is parts). Or perhaps it all comes down to being "tied", i.e., the measuring really is just a data gathering step in the overall context of this claim, regardless of whether the data is gathered by hand or by a HAL 9000 with an 1.21 gigawatt-consuming flux capacitor.
As for the "comparing" step, again there is nothing in the claim to suggest any particular machine is being used. And unlike the "measuring" step, there is no dependent claim to give more details on how the comparing is accomplished. That's too bad, because the spec appears to contain such details (e.g., col. 31 discusses that the fMRI data were analyzed with particular software packages that at least imply the use of / need for a fancy-schmancy computer).
Lastly, note the optional repetition. I believe that means that if you don't have the option to repeat while you perform the method, then you don't infringe. Or, it means the claim might just be indefinite.
In any event, it's tough to see how claim 1 passes muster under the new 101, which was never raised by the examiner here. And if you think I'm lying about that, well...
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