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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08/28/2025 has been entered.
Response to Arguments
Applicant’s arguments, see pages 11-19, filed 11/21/2025, with respect to rejection of Claims 12-13 and 17-20 under 35 U.S.C. § 103 have been fully considered and are persuasive. The rejection of Claims 12-13 and 17-20 under 35 U.S.C. § 103 has been withdrawn.
Applicant's arguments filed 11/21/2025 have been fully considered but they are not persuasive.
Regarding the rejection of Claim 12 under 35 U.S.C. § 101, the applicant has argued that that step (a), "continually detecting, by the camera, a magnitude of an eyelid opening of at least one eye of the driver," is not a mental process, because it cannot be performed simply through human observation and evaluation of a driver, but needs camera having a processor to detect the magnitude of the eyelid opening (pages 7-20). The current Examiner agrees with the current examiner that under broadest reasonable interpretation, this claim limitation as currently phrased is not limited to a particular resolution or degree of accuracy and could be performed in the human mind. However, rather than being considered under step 2A, Prong One as a mental process, this limitation is now being considered under step 2A, Prong Two as an additional element that does not integrate the recited judicial exception into a practical application. See the updated rejection of the claims under 35 U.S.C. § 101 below.
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 12-13 and 17-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
Regarding Claims 12 and 19, the claim recites a method for determining an attentiveness of a driver of a vehicle. Thus, the claim is directed to a process, which is one of the statutory categories of invention (Step 1).
Regarding Claim 20, the claim recites a device for determining an attentiveness of a driver of a vehicle. Thus, the claim is directed to an apparatus, which is one of the statutory categories of invention (Step 1).
The claim is then analyzed to determine whether it is directed to any judicial exception (Step 2A, Prong One). The following limitations set forth a judicial exception:
depending on the inclination of the head, determining whether the head is directed downward
when a determination is made that the head is directed downward...(b) determining a moving average of the magnitude of the eyelid opening (Claim 12)
determining a percentage eyelid opening by the continually determined magnitude of the eyelid opening being divided by the moving average of the magnitude of the eyelid opening (Claim 12)
depending on the percentage eyelid opening, determining whether the driver has taken a reference look at a roadway (Claim 12)
depending on the determination of whether the driver has taken the reference look at the roadway, determining whether the driver is attentive (Claim 12)
determining whether the driver has taken a reference look at a roadway is performed upon determining that an initial magnitude of the percentage eyelid opening lies below a first predetermined threshold value and that a difference between two successive values of the percentage eyelid opening is less than a second predetermined threshold value (Claim 12)
a determination is made that the driver has taken the reference look at the roadway upon determining that an increase in the percentage eyelid opening within a predetermined time-interval is greater than a third predetermined threshold value (Claim 12)
depending on the magnitude of the eyelid opening, determining whether the driver is looking downward (Claim 19)
when a determination is made that the driver is looking downward, depending on the percentage eyelid opening, determining whether the driver has taken a reference look at a roadway (Claim 19)
These limitations describe a mathematical calculation and/or a mental process as the skilled artisan is capable of performing the recited limitations and making a mental assessment thereafter. Examiner also notes that nothing from the claims suggest that the limitations cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time. Examiner also notes that nothing from the claims suggests an undue level of complexity that the mathematical calculations and/or the mental process steps cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps.
For example:
A human is capable of manually/mentally determining whether the head is directed downward depending on the inclination of the head, e.g. by thought and by vision.
“Determining a moving average of the magnitude of the eyelid opening when a determination is made that the head is directed downward” is a mathematical calculation that can be performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time.
“Determining a percentage eyelid opening by the continually determined magnitude of the eyelid opening being divided by the moving average of the magnitude of the eyelid opening” is a mathematical calculation that can be performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time.
“Determining whether the driver has taken a reference look at a roadway depending on the percentage eyelid opening” is a mental process that can be performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time.
“Determining whether the driver is attentive depending on the determination of whether the driver has taken the reference look at the roadway” is a mental process that can be performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time.
“Determining whether the driver has taken a reference look at a roadway upon determining that an initial magnitude of the percentage eyelid opening lies below a first predetermined threshold value and that a difference between two successive values of the percentage eyelid opening is less than a second predetermined threshold value” is a mathematical calculation that can be performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time.
Making a “determination that the driver has taken the reference look at the roadway upon determining that an increase in the percentage eyelid opening within a predetermined time-interval is greater than a third predetermined threshold value” is a mental process that can be performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time.
“depending on the magnitude of the eyelid opening, determining whether the driver is looking downward” is a mental process that can be performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time.
“when a determination is made that the driver is looking downward, depending on the percentage eyelid opening, determining whether the driver has taken a reference look at a roadway” is a mental process that can be performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, integrates the identified judicial exception into a practical application (Step 2A, Prong Two).
The following limitations amount to insignificant extra-solution activity to the judicial exception, e.g. mere data gathering. The term "extra-solution activity" can be understood as activities incidental to the primary process or product that are merely a nominal or tangential addition to the claim. Extra-solution activity includes both pre-solution and post-solution activity. An example of pre-solution activity is a step of gathering data for use in a claimed process. An example of post-solution activity is an element that is not integrated into the claim as a whole, e.g., an output device that is used to output the final determination of a mental process. See MPEP 2106.05(g).
detecting, by a camera, an inclination of a head of the driver (Claims 12 and 19).
(a) continually detecting, by the camera, a magnitude of an eyelid opening of at least one eye of the driver (Claims 12 and 19).
a camera configured to detect an inclination of a head of the driver (Claim 20).
(a) the camera is further configured to continually detect a magnitude of an eyelid opening of at least one eye of the driver (Claim 20).
Therefore, these additional limitations do not integrate the judicial exception into a practical application.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, amounts to significantly more than the identified judicial exception (Step 2B):
The following limitations do not amount to significantly more than the abstract idea for substantially similar reasons applied in Step 2A, Prong Two.
detecting, by a camera, an inclination of a head of the driver
(a) continually detecting, by the camera, a magnitude of an eyelid opening of at least one eye of the driver
The following limitations amount to a recitation of the words "apply it" (or an equivalent)and/or nothing more than mere instructions to implement the abstract idea on a generic computer. See MPEP 2106.05(f).
a processor configured to...(Claim 20)
the processor is further configured to...(Claim 20)
The following limitations is/are considered to be well-understood, routine, and conventional (WURC).
The camera is considered to be well-understood, routine, and conventional based on statement from the applicant's specification filed 11/09/2020 (“These two variables can be detected with a simple camera system and do not require a very high-resolution and expensive camera”, [0007]; simple camera systems under broadest reasonable interpretation are well-known commercially available products).
The processor is considered to be well-understood, routine, and conventional based on statement from the applicant's specification filed 11/09/2020 ([0031]-[0032]; a processor is, under broadest reasonable interpretation, a well-known commercially available product).
Dependent Claims 13, 17-18 also fail to add subject matter qualifying as significantly more to the abstract independent claims as they merely further limit the abstract idea.
Therefore, Claims 12-13 and 17-20 are not patent eligible under 35 U.S.C. § 101.
Examiner’s Note
The Examiner notes that Claims 12-13 and 17-20 are not currently rejected under prior art.
Regarding Claim 12, the closest prior art, Fung et al (US 20120212353 A1, hereinafter Fung) discloses a method for determining an attentiveness of a driver of a vehicle (Figs. 4, 11-14), the method comprising:
detecting, by a camera (“Referring to FIG. 13, ECU 150 may receive information from optical sensing device 162. In some cases, optical sensing device 162 may be a video camera that is mounted in the dashboard of motor vehicle 100,” [0169]), an inclination of a head of the driver (step 402, Fig. 4; “First image 710 shows driver 702 in a fully awake state, with head 720 in an upright position. However, second image 712 shows driver 702 in a drowsy state, with head 720 leaning forward. Finally, third image 714 shows driver 702 in a drowsier state with head 720 fully tilted forward”, [0169]);
depending on the inclination of the head, determining whether the head is directed downward (“response system 199 can determine if a driver is leaning forward,” [0173]; “response system may assign a body state index depending on the level of tilt,” [0174]);
when a determination is made that the head is directed downward,
(a) continually detecting, by the camera, a magnitude of an eyelid opening of at least one eye of the driver (“drowsiness in a driver may be detected by sensing…degree of eyelid movement,” [0153]; “response system 199 may analyze the movement of eyes 520 to determine if a driver is in a normal state or a drowsy state,” [0161]).
However, Fung fails to teach (b) determining a moving average of the magnitude of the eyelid opening,
(c) determining a percentage eyelid opening by the continually determined magnitude of the eyelid opening being divided by the moving average of the magnitude of the eyelid opening,
(d) depending on the percentage eyelid opening, determining whether the driver has taken a reference look at a roadway, and
(e) depending on the determination of whether the driver has taken the reference look at the roadway, determining whether the driver is attentive, wherein:
determining whether the driver has taken a reference look at a roadway is performed upon determining that an initial magnitude of the percentage eyelid opening lies below a first predetermined threshold value and that a difference between two successive values of the percentage eyelid opening is less than a second predetermined threshold value, and
a determination is made that the driver has taken the reference look at the roadway upon determining that an increase in the percentage eyelid opening within a predetermined time-interval is greater than a third predetermined threshold value.
Another prior art reference, Tsujikawa (US 20200390379 A1) teaches (b) determining a moving average of the magnitude of the eyelid opening (“the percentile calculation circuit 144 may calculate, as the above-mentioned predetermined value, an average value of the (P−1)P-th percentile and greater values of the time-series signal X(t) of the eye-openness width in the filtering calculation window width TN [sec]”, [0092]). However, Tsujikawa does not teach limitations (c)-(e).
Another prior art reference, Matsuki et al (JP 4974360 B2), teaches (c) determining a percentage eyelid opening by the continually determined magnitude of the eyelid opening being divided by the moving average of the magnitude of the eyelid opening (“The eye opening rate EOR is calculated by a ratio between the moving average eye opening degree calculated in step S13 and the eye opening degree in the awake state”, page 7, paragraph 4 of the attached machine translation). However, Matsuki fails to teach limitation (e).
Finally, the closest reference to limitations c) and e) in Claim 12, Yoshii (DE 102018119223 A1), does not qualify as prior art.
Therefore, there is no prior art reference or combination of references that would make obvious, in combination with the rest of the claimed limitations, (e) depending on the determination of whether the driver has taken the reference look at the roadway, determining whether the driver is attentive, wherein:
determining whether the driver has taken a reference look at a roadway is performed upon determining that an initial magnitude of the percentage eyelid opening lies below a first predetermined threshold value and that a difference between two successive values of the percentage eyelid opening is less than a second predetermined threshold value, and
a determination is made that the driver has taken the reference look at the roadway upon determining that an increase in the percentage eyelid opening within a predetermined time-interval is greater than a third predetermined threshold value.
Claims 13 and 17-18 are not rejected under prior by virtue of dependence on Claim 12.
Claims 19-20 are not rejected under prior art for substantially similar reasons as Claim 12.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
See Bogner et al (US 20160104050 A1).
See Wulf (US 20160367127 A1).
See Heaton et al (WO 2014110575 A1).
See Hatakeyama (JP 2016202419 A).
See Yoshii (JP 2019042048 A).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN EPHRAIM COOPER whose telephone number is (571)272-2860. The examiner can normally be reached Monday-Friday 7:30AM-5:30PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jacqueline Cheng can be reached at (571) 272-5596. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHAN E. COOPER/ Examiner, Art Unit 3791
/JACQUELINE CHENG/ Supervisory Patent Examiner, Art Unit 3791
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