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 .
Priority
This application filed 11/22/2021 claims priority from Provisional Application 63116766, filed 11/20/2020. The claims are therefore examined as filed on 11/20/2020, the effective filing date. In future actions, the effective filing date of one or more claims may change, due to amendments to the claims, or further review of the priority application(s).
Claim Status
Claims 1-21 are pending.
Claim 2 and 4 are objected to.
Claims 1-21 are examined.
Claims 1-21 are rejected.
Claim Objections
Claims 2 and 4 are objected to because of the following minor informalities:
Claim 2 recites “wherein the inhalation dose include accumulated inhalation dose” and should instead read “wherein the inhalation dose includes accumulated inhalation dose”
Claim 4 recites “a value of a first one the multiple mechanistic factors…” and should instead read “a value representing one of the multiple mechanistic factors…” or similar phrase
Appropriate correction is required.
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 an abstract idea of mental processes and mathematical concepts, without significantly more.
The MPEP at MPEP 2106 sets forth steps for identifying eligible subject matter:
(1) Are the claims directed to a process, machine, manufacture or composition of matter?
(2A)(1) Do the claims recite a judicially recognized exception, i.e. a law of nature, a natural phenomenon, or an abstract idea?
(2A)(2) Do the claims recite additional elements that integrate the judicial exception into a practical application?
(2B) If the claims recite a judicial exception and do not integrate the judicial exception, do the claims recite additional elements that provide an inventive concept and amount to significantly more than the judicial exception?
With regard to step (1) (Are the claims directed to a process, machine, manufacture or composition of matter?): Yes. The claims are directed to one of the statutory classes. Claims 1-12 are directed to a machine product (an apparatus comprising a processor and memory device), claims 13-17 are directed to a process (computer-implemented method), and claims 18-21 are also directed to a product (a computer-readable non-transitory storage medium).
With regard to step (2A)(1) (Do the claims recite a judicially recognized exception?): Yes. Claims 1-21 recite the abstract ideas of processing data using mental steps and mathematical concepts. Claims that recite nothing more than abstract ideas, natural phenomena, or laws of nature are not eligible for patent protection (see MPEP 2106.04).
Abstract ideas include mathematical concepts, (mathematical formulas or equations, mathematical relationships and mathematical calculations), certain methods of organizing human activity, and mental processes (including procedures for collecting, observing, evaluating, and organizing information (See MPEP 2106.04(a)(2)). In particular, these abstract ideas include but are not limited to:
Determining an inhalation dose for a group of persons using an exposure model for an airborne pathogen model (mental process/mathematical concept; the human mind is capable of applying a model to data to make a determination, applying a mathematical model to data is equivalent to performing a calculation, and the specification starting at [0072] explains this model as a mathematical function; claims 1, 13, 18)
Determining a score comprising a ratio of the inhalation dose and a baseline inhalation dose quantifying risk of exposure (mental process/mathematical concept; the human mind is capable of determining a score from a ratio, and doing so is equivalent to performing a calculation of simple division; claims 1, 13, 18)
Generating a value for a factor using a portion of data (mental process/mathematical concept; the human mind is capable of determining a value representing data, and determining a numerical value from data is a mathematical process; claim 4)
Determining an average concentration of the airborne pathogen within the activity space, and determining a product of the average concentration, an average inhalation rate, a duration of exposure to the pathogen and a number of individuals exposed (mental process/mathematical concept; the human mind is capable of computing/adding/subtracting/counting/etc. to determine an average, product, duration and total number, and doing so is equivalent to performing a calculation; claims 5, 14, 19)
Multiplying the product by a mask effectiveness parameter (mental process/mathematical concept; the human mind is capable of multiplying numbers, and doing so is equivalent to performing a calculation; claims 6, 15, 20)
Determining a near-field and far field concentration of the airborne pathogen using eddy diffusivity (mental process/mathematical concept; the human mind is capable of applying an eddy diffusivity calculation, and doing so is performing a calculation; claims 7, 16, 21)
Dependent claims 2, 8-12, and 17 further limit the abstract ideas recited in the independent claims, and do not change their characterization as abstract ideas.
Therefore, the claims recite elements that constitute one or more judicial exceptions.
With regard to step (2A)(2) (Do the claims recite additional elements that integrate the judicial exception into a practical application?): No. all of the claims and their dependents recite the additional element of accessing data from one or more device, and a display device to present indicia. Claim 3 further recites that the devices are remotely located and comprise one of a camera, sensor, server or user device. Claim 1 and its dependents recite the additional element of an apparatus comprising at least one processor and at least one memory for performing the claimed steps, claim 13 and its dependents recite that the method step are “computer-implemented,” and claim 18 and its dependents recite a computer-readable storage medium, storing instructions that cause an apparatus to perform the claimed steps.
While the claims recite the additional element of acquiring and outputting data to and from a device, a data gathering/outputting step without any technical details of how the data is obtained/output is an insignificant extrasolution activity that does not add a meaningful limitation to the claims (see MPEP 2106.05(g)). Similarly, the additional element of a device for gathering/displaying data, without further technical detail on the structure and function of the device, merely indicates a field of use or technological environment in which to apply a judicial exception (see MPEP 2106.05(h)). As a result, the judicial exception is not integrated into a practical application. In addition, while the claims recite additional elements related to the use of computers, they do not provide any specific details by which the apparatus/computer, computer-readable storage medium or processors performs or carries out the judicial exception listed in step (2A)(1), nor do they provide any details of how specific structures of the computer are used to implement these functions. The judicial exception is therefore not integrated into a practical application because the generically recited computer elements do not add a meaningful limitation to the abstract idea, as they amount to simply implementing the abstract idea on a computer (see MPEP 2106.05(f)). Because the claims do not recite any additional elements that integrate the judicial exception into a practical application, the claims as a whole are directed to an abstract idea.
With regard to step (2B) (Do the claims recite additional elements that provide an inventive concept and amount to significantly more than the judicial exception?): No. The claims recite an abstract idea with additional elements; however, these additional elements are general computer elements added to abstract ideas, and non-particular instructions to apply the abstract idea by linking it to a field of use or extrasolution activity (see MPEP 2106.05(f-h)). General computer elements used to perform an abstract idea do not provide an inventive concept, and similarly, non-particular instructions to gather or produce/display data do not provide an inventive concept. Non-particular instructions to gather or output data remotely are also considered well-understood, routine and conventional activities (see MPEP 2106.05(d), which indicates that limitations such as “Receiving or transmitting data over a network” from Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362, “Storing and retrieving information in memory” from Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93 are recognized as conventional activities). The claims therefore do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As a result, the claims as a whole do not provide an inventive concept.
Claim Rejections - 35 USC § 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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim Rejection
Claims 1-7, 9-16, and 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over LELIEVELD 2020 “Model Calculations of Aerosol Transmission and Infection Risk of COVID-19 in Indoor Environments” in view of MITTAL 2020 “A mathematical framework for estimating risk of airborne transmission of COVID-19 with application to face mask use and social distancing” and the National Research Council (US) Committee on Improving Risk Analysis Approaches Used by the U.S. EPA. Science and Decisions: Advancing Risk Assessment, 2009; Ch 5.
Claim Interpretation and Scope and Contents of Prior Art
Claims 1, 13, and 18 recite an apparatus, computer-implemented method, and computer readable medium with instructions for accessing data representative of an activity space from one or more devices, the data identifying multiple mechanistic factors, multiple stochastic factors, and multiple epidemiological factors that define an exposure scenario for an airborne pathogen. With respect to these limitations, LELIEVELD teaches a model for estimating COVID-19 infection risk from airborne transmission available as a publicly available online calculation tool (pg 2 last par, Table 1) where the computer, through user data entry, accesses data that identifies multiple factors, including room dimensions, ventilation rate, number of people and viral load (Table 1).
Claims 1, 13, and 18 also recite the limitation of determining an inhalation dose for a group of persons within the activity space using an exposure model for the airborne pathogen model; and determining a score comprising a ratio of the inhalation dose and a baseline inhalation dose, the score quantifying risk of exposure of the group of persons to airborne pathogen within the activity space. With respect to this limitation, LELIEVELD also teaches using a model to estimate inhalation dose for people in a space based on the provided parameters (pg 6 par 1-2) and using this to quantify the risk of infection for individuals and for a group (pg 7, Table 4). LELIEVELD also teaches comparing inhalation dose and exposure risk in a “standard” setting to superspreading conditions (Fig 1, Table 1), and for other environments (Tables 4-5) to determine risk. LELIEVELD does not specifically teach using a score comprising a ratio of the inhalation dose and a baseline inhalation dose to quantify the risk of exposure, however MITTAL teaches computing a risk ratio for two situations as part of a mathematical model for estimating infection risk due to inhalation dose (pg 3 col 1, Fig 2), and the NATIONAL RESEARCH COUNCIL teaches that comparing a ratio of a dose to a baseline reference is a commonly used method of assessing risk (pg 128, par 1) and can be used in determining the exposure risk in LELIEVELD.
Claims 1, 13, and 18 also recite the limitation of causing a display device to present indicia indicative of the score. With respect to this limitation LELIEVELD teaches that its risk calculator is online and available to use, such that after inputting the parameters, the indicia and risk is displayed on the user’s device (pg 2 last par, Table 1).
Claim 2 recites the limitation wherein the inhalation dose include accumulated inhalation dose based on position over time of at least one person in the group. With respect to this limitation LELIEVELD teaches that the parameters used in calculating dose/risk include inhalation volume (pg 2 par 3) and exposure duration for individuals in the group (Table 1 and 2).
Claim 3 recites the limitation of the one or more devices being remotely located relative to the apparatus and comprising one of a camera device, a sensor device, a server device, or a user device. With respect to this limitation, LELIEVELD teaches that its risk calculator is online (website located on external server), such that any online user device can send the input parameter data and receive an output (pg 2 last par).
Claim 4 recites the limitation wherein the apparatus generates, using a portion of the data, a value of a first one the multiple mechanistic factors, the multiple stochastic factors, or the multiple epidemiological factors. With respect to this limitation, LELIEVELD teaches that the online calculator uses the input data to determine values for multiple factors, such as ventilation rate based on the type of ventilation in the room and the efficiency of masks in use (Table 3, pg 3) and also teaches filling in default data to the calculator based on previous studies (pg 4-7, section on Parameter Constraints).
Claims 5, 14, and 19 recite the limitation wherein determining the inhalation dose comprises, determining an average concentration of the airborne pathogen within the activity space; and determining a product of the average concentration, an average inhalation rate, a duration of exposure to the airborne pathogen, and a number of individuals exposed to the airborne pathogen. With respect to this limitation, LELIEVELD teaches determining concentration of the airborne pathogen from breathing and speaking in the room, respiratory rate, duration of exposure, and number of subjects in the room (Tables 1-2). LELIEVELD does not specify computing averages, however, MITTAL teaches determining mean concentration of respiratory aerosolized virus in an inhaled volume (pg 5, Fig 3) and total rate of inhalation (Fig 2); and one of ordinary skill in the art would be motivated and able to compute averages from measurements for input into an algorithm.
Claims 6, 15 and 20 recite the limitation wherein the determining the inhalation dose further comprises multiplying the product by a mask effectiveness parameter. With respect to this limitation, LELIEVELD teaches using the mask effectiveness parameter to determine infection risk (Table 3, pg 3), but does not specifically teach multiplying the product by this parameter. However, MITTAL teaches multiplying by a factor that represents the fraction of inhaled aerosols filtered by a face covered, the effectiveness (pg 2 last par, Fig 2), and one of ordinary skill in the art would be motivated to multiply the product of measurements used to compute infection risk/inhalation dose by a mask effectiveness parameter to account for the fact that varying levels of mask efficiency would reduce infection.
Claims 7, 16, and 21 recite the limitation wherein determining the average concentration comprises determining a near-field concentration of the airborne pathogen using eddy diffusivity, and further determining a far-field concentration of the airborne pathogen using eddy diffusivity. With respect to this limitation, LELIEVELD does not teach determining the average concentration by determining a near-field and a far field concentration of the airborne pathogen using eddy diffusivity. However, MITTAL 2020 teaches a mathematical model for estimating covid risk involving determining concentration of respiratory aerosol of the virus from near field and far field concentrations (Fig 3, Fig 5) determined using eddy diffusivity (Abstract, pg 8 Fig 6).
Claim 9 recites the limitation wherein the mechanistic factors comprise at least one of a number of individuals in a group within the activity space, distance between the individuals, mask effectiveness, an emission rate of infectious aerosols released through respiration, an inhalation rate, a duration of exposure, a type of activity, one or more ventilation rates, an aerosol settling rate, a pathogen degradation rate, a recirculating room filtration rate and removal efficiency, or a volume of the activity space. With respect to this limitation, LELIEVELD teaches that the factors include mask efficiency, ventilation rate, respiratory rate, the presence of HEPA filters, and duration of exposure (Tables 1, 2 and 3).
Claim 10 recites the limitation wherein the stochastic factors comprise at least one of likelihood of infectious persons present in the activity space or mask compliance within the activity space. With respect to this limitation, LELIEVELD teaches that the factors include number of infectious participants (pg 2 last paragraph) and mask efficiency, and MITTAL specifically teaches using mask compliance as a factor in determining inhalation dose/risk (pg 6).
Claim 11 recites the limitation wherein the epidemiological factors comprise at least one of prevalence of the airborne pathogen in a community containing the activity space, difference in variants transmission rates relative to wild type pathogen, collective immunity parameter, or impact of surveillance testing for the group. With respect to this limitation, LELIEVELD teaches that the factors include infective dose (pg 7) and a parameter that indicates vaccination status or immunity due to prior infection (in the online tool provided in Table 1).
Claim 12 recites the limitation wherein the airborne pathogen is one of a virus, a bacterium, a fungus, or a phage that causes a disease contracted through inhalation. With respect to this limitation, LELIEVELD teaches that the airborne pathogen is a virus, specifically COVID-19 (Abstract).
Resolving Ordinary Skill in the Art and Obviousness Rationale
A teaching, suggestion, or motivation in the prior art would have led one of ordinary skill in the art to modify or combine the prior art to arrive at the claimed invention. Specifically, a person of ordinary skill in disease risk modeling would have been motivated to combine the teachings of LELIEVELD with the teachings of MITTAL and the National Research Council, in order to achieve the claimed invention, because comparing a ratio of a dose to a baseline reference is a commonly used method of assessing risk (National research Council; pg 128, par 1) and because using eddy diffusivity in analysis of viral dispersion better accounts for the real-life nature of breathing dynamics (MITTAL pg 8). A person of ordinary skill would reasonably expect success from combining these teachings, as LELIEVELD, MITTAL and the National Research Council all teach methods for disease risk assessment using dose, using parameters and measurements that can all be combined to account for several factors. Therefore, the claims at issue would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention as there is both a reason to modify or combine the prior art, and a reasonable expectation of success (see MPEP 2143.02 (I)).
Claim Rejection
Claims 8 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over LELIEVELD in view of MITTAL and the National Research Council as applied to claims 1-7, 9-16, and 18-21 above, and further in view of the Centers for Disease Control and Prevention (June 12, 2020) Coronavirus Disease 2019: Considerations for Events and Gatherings.
Claim Interpretation and Scope and Contents of Prior Art
LELIEVELD in view of MITTAL and the National Research Council teaches the limitation of claims 1-7, 9-16, and 18-21 above.
Claims 8 and 17 recite the limitation wherein the baseline inhalation dose corresponds to a high-risk environment according to one of Occupational Safety and Health Administration (OSHA) or Centers for Disease Control and Prevention (CDC), or an expert entity. With respect to this limitation, LELIEVELD teaches comparing inhalation dose/risk in standard events and superspreading events for various activities (Fig 1) but does not indicate that these baselines were chosen based on designations from any particular expert entity. However, the CDC provides examples of risk levels for in person gatherings (pg 1) that can correspond to the events described in LELIEVELD.
Resolving Ordinary Skill in the Art and Obviousness Rationale
A teaching, suggestion, or motivation in the prior art would have led one of ordinary skill in the art to modify or combine the prior art to arrive at the claimed invention. Specifically, a person of ordinary skill in disease risk modeling would have been motivated to combine the teachings of LELIEVELD in view of MITTAL and the National Research Council with the teachings of the CDC, in order to achieve the claimed invention, because comparing calculated dose/risk to a known baseline provided by experts helps in providing guidance in reducing risk or avoiding risky scenarios (CDC pg 1). A person of ordinary skill would reasonably expect success from combining these teachings, as LELIEVELD in view of MITTAL and the National Research Council teach methods for assessing disease risk and reducing it. Therefore, the claims at issue would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention as there is both a reason to modify or combine the prior art, and a reasonable expectation of success (see MPEP 2143.02 (I)).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARY C LEVERETT whose telephone number is (571)272-5494. The examiner can normally be reached 8:00am - 5:00pm M-Th.
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/M.C.L./Examiner, Art Unit 1687
/Karlheinz R. Skowronek/Supervisory Patent Examiner, Art Unit 1687