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 . 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 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.
DETAILED ACTION
This Final Office Action is in response Applicant communication filled on 04/04/2025 and 06/30/2025.
I. Status of Claims
Claims 33 and 34 were added and Claims 1,7,12,26,28, and 29 were amended by Applicant’s amendment dated 04/04/2025, then restricted by Examiner with notice of non-compliance dated 05/01/2025 and resubmitted by Applicant with the communication dated 06/30/2025 after an interview with Examiner dated 06/02/2025 that provided further clarification and reconsideration. Thus,
Claims 1-26, 28-34 are currently pending with the previously restricted claims now rejoined into examination by Examiner after clarification during the interview dated 06/02/2025, and reinterpretation and reconsideration of said claims.
Claims 1-26, 28-34 are now currently pending and have been rejected as follows.
IDS
The information disclosure statement filed on 08/01/2025 complies with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 and is considered by the Examiner.
Response to Amendments
Applicant’s 04/04/2025,06/30/2025 amendment necessitated the new grounds of rejection in this act.
II Response to Applicant’s 112 rebuttal Arguments /Amendments
112(b) rejection of claims 7-11 in the previous act is withdrawn in view of Applicant amending parent dependent claim 7 as suggested by Examiner in the previous act.
III Response to Applicant’s 101 rebuttal Arguments
Step 2A prong one: Remarks 04/04/2025 p.10 ¶2 argues the following amended limitation of claims 1,29 does not recite an abstract idea: “recommend” / ”recommending one or more actions specified by the selected one or more mapped solutions, wherein the one or more actions include causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device used by the industrial operation, wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity of the industrial operation”.
Examiner fully considered the prone 1 argument but respectfully disagrees that the claims no longer recite, describe or set forth a judicial exception. This is because independent Claims 1,29, still summarize the invention, at their preambles: “improving productivity of an industrial operation based on based on benchmarking of operator variation analysis for a plurality of operators of an industrial operation”. Yet, such “improvement” corresponds to an attempt at improving fundamental best practices in an “industrial operation” as further clarified in the body of independent Claims 1,29 as “different measured gaps for addressing a root cause of the respective different measured gaps” “that represent improvement potential of productivity of the industrial operation when operator variability is removed” for subsequently “recommending one or more actions specified by the selected one or more mapped solutions”, among which, “causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device” merely represents one, single, action included among the “one or more actions”. Yet, the broad expression “recommending one or more actions specified by the selected one or more mapped solutions” does not guarantee, under the broadest reasonable interpretation test1, that said action of “causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device” would be the actual one that will be selected to be recommend[ed]. Rather, given the breadth of independent Claims 1,29, said claims cover an instance of “recommending” [some] “actions” while remaining “actions”, “including causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device” are not necessarily recommend[ed].
Here, “recommending one or more actions specified by the selected one or more mapped solutions” “to reduce or eliminate the biggest contributors of the operator variability” would at most improve an underlining entrepreneurial, abstract concept, to address “impact of operator to operator variations” [which] “may be substantial and influence operation (e.g. productivity and profitability) of the industrial operation” as read in light of Original Specification ¶ [0004], and subsequently cited by Remarks 04/04/2025 p.12 ¶1-¶2. Specifically, the abstract consideration for human productivity is reflected in Claims 1,29, as “one or more actions specified by the selected one or more mapped solutions” which, at their turn, were selected based on, “different measured gaps”, with respect to, “potential of productivity of the industrial operation”. Also here, the abstract financial considerations, akin to profitability, are reflected in dependent Claims 25 as “tangible and intangible costs associated with the identified biggest contributors of operator variability are used to determine the impacts of the identified biggest contributors of operator variability”. Equally important, independent Claims 1,29 merely recommend, but do not necessarily implement said “one or more actions specified by the selected one or more mapped solutions”. Such implement[ing] occurs later at dependent Claim 34.
In any event, the Examiner submits, in the arguendo that, even if positively recited as active, required step, recommend[ation] (independent Claims 1,29) and later implementat[ion] (dependent Claim 34) of any purported solution’ actions including “causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device” (independent Claims 1,29), would still be recited at high level, thus still representative of narrow laws with limited applications in managing best practices in the industrial operation, which as tested per MPEP 2106.04 I ¶3 and its reliance on Mayo, 566 US at 79-80,86-87,101 USPQ2d at 1968-69, 1971, would still not render the claims eligible. Specifically, in Mayo, the Supreme Court found optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising [recommendation for] increas[ing] [thus dynamically modifying] the amount of said drug subsequently administered to said subject wherein the level of 6-thioguanine less than about 230 pmol per 8x108 red blood cells, and decreas[ing] [thus dynamically modifying] the amount of said drug subsequently administered to said subject wherein the level of 6-thioguanine greater than about 400 pmol per 8x108 red blood cells, still recited, described or set forth a judicial exception. Based on legal precedent of dynamic modifying of biochemical operation in Mayo supra, it then follows that here, the analogous “recommending” (independent Claims 1,29) and “implementing” (dependent Claim 34) “one or more actions” including any purported “causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device, wherein dynamically modifying the operation includes causing the at least one controllable device to operate to reduce or eliminate the biggest contributors of the operator variability for improving productivity” (independent Claims 1,29) would similarly recite, describe or set forth the judicial exception.
These findings and rationes are corroborated by MPEP 2106.04(d)(1), which found that a claim is not patent eligible merely because it applies an abstract idea in a narrow way that is, “improvement in the judicial exception itself” “is not an improvement in technology”. Thus here, mitigating “gaps” of “operator variability for “improvement potential of productivity when operator variability is removed” would represent such improvement in the abstract exception itself, without providing the requite technological details as evidence for improvement in actual technology. Such finding is corroborated by MPEP 2106.04 I ¶5 which stresses that the Supreme Court’s decisions made it clear that judicial exceptions need not be old or long-prevalent, and that even newly discovered or novel judicial exceptions are still exceptions. For example, both Myriad and Flook were novel, but nonetheless considered by Supreme Court to be judicial exceptions because they were basic tools of scientific and technological work’ that lie beyond the domain of patent protection. In a similar vein, MPEP 2106.04(a)(2) III C #2 also made it clear that performing a mental process in a computer environment, does not preclude the claims from reciting the abstract exception.
Following such legal tests, the Examiner submits that here, when reading the claims in light of the Original Specification ¶ [0004], ¶ [0091] as subsequently raised by Remarks 04/04/2025 p.12 ¶1-p.13 ¶1, and Figs.2A-2C, 4-6 of Original Disclosure and their associated text, the current claims, far from imposing a technological solution to a technological problem still recite, describe or set forth a fundamental, and thus abstract best practice of “recommending one or more actions specified by the selected one or more mapped solutions” “to reduce or eliminate the biggest contributors of the operator variability for improving productivity”, which as tested per MPEP 2106.04(a)(2) II A ¶1-¶2, represents a fundamental and thus abstract building block of organizing human activities, even when it is not necessarily old or well-known. Thus, such “recommending one or more actions specified by the selected one or more mapped solutions” “to reduce or eliminate the biggest contributors of the operator variability for improving productivity” is far from imposing a technological solution to a technological problem even if amended to deliberately require a recommend[ation] for “causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device” that “includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity”. This is because recitation of a “controllable device” as in “the one or more actions includ[e] causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device, wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity” would merely represent a computer environment or tool, to mitigate, aid, assist, “to reduce or eliminate the biggest contributors of the operator variability for improving productivity” of the “operator” (independent Claims 1,29).
Thus, in addition to the Mayo rationale above, the Examiner also submits that the fact that
“the one or more actions include causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device used by the industrial operation, wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity” would represent an computerized environment or automation tool, to aid, “to reduce or eliminate the biggest contributors of the operator variability [of the operator].
Yet, according to MPEP 2106.04(a)(2) III C #2 Performing a mental process in a computer environment, and #3 Using a computer as a tool to perform a mental process, do not preclude the claims from reciting, describing or setting forth the abstract exception. For example, in “FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 120 USPQ2d 1293 (Fed. Cir. 2016)” as cited by MPEP 2106.04(a)(2) III.C #2. the Federal Circuit found unpersuasive an argument that requiring large number of calculations precludes the physical aid test because the fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter, even in situations of “inability for the human mind to perform each claim step does not alone confer patentability. As we have explained, “the fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter” [bolded emphasis added] citing Bancorp Servs., 687 F.3d at 1278. In a similar vein, MPEP 2106.04(a)(2) II ¶6, 4th-5th sentences stipulate that computer may fall within the certain methods of organizing human activity, and that the number of people (here “operators”) involved in the activity is not dispositive as to whether a claim limitation falls within this grouping.
It would then follow that here, even if recited, in the arguendo, as an active implementation step instead of a caus[ed] intended result2, the “generation of at least one control signal configured to dynamically modify an operation of at least one controllable device used by the industrial operation” “to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity” would similarly not materially alter the patent eligibility of the claimed subject matter, following a similar ineligibility rationale as articulated by the Federal Circuit in FairWarning supra.
For example, in Fairwarning supra as cited by MPEP 2106.04(a)(2) III C #2, the Federal Circuit found that accessing, compiling and combining disparate information sources to make it possible to generate a full picture of user’s activity, identity, frequency of activity, and the like in a computer environment, is representative of merely selecting information, by content or source, for collection, analysis, and announcement which does not differentiate the process from mental processes, whose implicit exclusion from 101 undergirds the information based category of abstract ideas citing Elec. Power, 830 F.3d 1350, [2016 BL 247416], 2016 WL 4073318, at *4.
It then follows that providing recommend[ation] or picture [of] “one or more actions specified by the selected” [or accessed] one or more mapped”, [and thus combined and compiled] “solutions”, would similarly represent an abstract example of selecting information, by content or source, for collection, analysis, and announcement which would also not differentiate from abstract processes.
In a similar vein, MPEP 2106.04(a)(2) II C made it clear that considering historical usage information while inputting data3 and automation by providing information to a person without interfering with the person’s primary activity4 both set forth the abstract idea. In fact, MPEP 2106.04(a)(2) II ¶6, 4th sentence is clear that certain activity between a person and a computer may still fall within the abstract exception.
It would then follow that, general recitation of “a human who interacts with at least one control system associated with the industrial operation” at the preamble of independent Claims 1,29 and
automation at the wherein limitation of “wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity” at independent claims 1,29 does not preclude the claims from reciting, describing or setting forth the abstract idea.
Also, according to BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1287-88, 127 USPQ2d 1688, 1693-94 (Fed. Cir. 2018), as cited by MPEP 2106.05(a) I providing historical usage information to users while inputting data, to improve the quality and organization of information added to a database, would at most represent an improvement to the information stored by a database which is not equivalent to an improvement in the database’s functionality. It then analogously follows that here “recommending” / ”recommend one or more actions specified by the selected one or more mapped solutions” could be argued as an abstract example of improving the quality and organization of information added to a database which, when compared to BSG would not render the claims eligible.
Examiner also reincorporates herein all findings and rationales at prior Non-Final Act 12/04/2024 p.2 last ¶-p.4 ¶1, in support of the legal findings and rationales above.
Next, in an abundance of caution, the Examiner will more granularly test the “generation of at least one control signal configured to dynamically modify an operation of at least one controllable device”, at the subsequent steps. For now, it is clear that, given the preponderance of legal evidence showed above, the “recommending one or more actions specified by the selected one or more mapped solutions” “to reduce or eliminate the biggest contributors of the operator variability for improving productivity” (independent Claims 1,29) is undeniably abstract with general recitation of “implementing the one or more actions” (dependent Claim 34) not precluding the claims to describe or set forth the abstract exception. Thus here, the claims’ character, a whole, remains undeniably abstract in recommend[ation] of selected solutions’ actions to address “gaps” associated with human performance or operator variability.
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Step 2A prong two: Remarks 04/04/2025 p.10 ¶ 3-p.11 ¶1 argues “receiving input data”, “processing the input data”, “identifying biggest contributors of operator variability”, and “automatically selecting one or more mapped solutions” are integrated into “recommending one or more actions specified by the selected one or more mapped solutions, the one or more actions including causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device used by the industrial operation, wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity of the industrial operation”.
Examiner fully considered prone 2 argument but respectfully disagrees finding it unpersuasive, reincorporating herein all findings and rationales at Non-Final Act 12/04/2024 p.4 ¶2-p.6 ¶1.
Examiner further submits that given their high level recitation, the argued “receiving input data”, “processing the input data”, “identifying biggest contributors of operator variability”, and “automatically selecting one or more mapped solutions”, “recommending one or more actions specified by the selected one or more mapped solutions”, can be construed as part of the computer-aided observation, evaluation or judgement which, as tested above, with respect to the guidelines provided by MPEP 2106.04(a)(2) III ¶2 and MPEP 2106.04(a)(2) III C #1,#2, #3 do not preclude the claims from setting forth the abstract exception as indicated above.
Next, Examiner again resubmits that recitation of “causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device” merely represents one, single, action included among the one or more actions. Yet, the broad expression “recommending one or more actions specified by the selected one or more mapped solutions” does not necessarily guarantee, under broadest reasonable interpretation5, that said action of “causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device” would be the actual one that will be recommend[ed]. Rather, given the breadth of independent Claims 1,29, said claims do cover an instance of “recommending” [some] “actions” while remaining “actions” “including causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device” are not necessarily recommended.
Also, in addition to the ineligibility tested on the “Mayo” evidence at the prior step, the Examiner also submits that “causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device”, even when recited as an active step, would still represent under, an example of mere automation of manual processes6 including accelerating a process of analyzing audit log data when the increased speed comes solely from capabilities of the computer7, which according to MPEP 2106.05(a) do not provide technological improvements at Step 2A prong two. Rather, as stated by MPEP 2106.05(f)(2) (iii), a process for monitoring audit log data [akin here to “operator variability” and “measured gaps”] executed on a computer [akin here to a controllable device] where the increased speed in the process comes from capabilities of a computer8, represents mere invocation of computers or machinery as tools, which does not integrate the abstract exception into a practical application at Step 2A prong two. The same principles apply to the capabilities of the additional computer-based elements, as tested per MPEP 2106.05(f)(2) v, to tailor information [akin here to “automatically selecting one or more mapped solutions from a variety of solutions mapped to different measured gaps for addressing a root cause of the respective different measured gaps, the one or more mapped solutions being selected based on the measured gaps” “and” “recommending one or more actions specified by the selected one or more mapped solutions” at independent Claims 1,29] and provide it to a user on a generic computer9.
Moreover, as previously identified at the prior step, the claims do not provide a technological improvement but rather aim to improve an underlining entrepreneurial, abstract concept of best practices in an industrial operation, to address “impact of operator to operator variations” [which] “may be substantial and influence operation (e.g. productivity and profitability) of the industrial operation” as read in light of Original Specification ¶ [0004] cited by Remarks 04/04/2025 p.12 ¶1. Yet, MPEP 2106.04 I is clear that even a “groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the 101 inquiry” citing Myriad,569 U.S at 591, 106 USPQ2d at 1979. The “Myriad” rationale was corroborated by “SAP Am Inc v InvestPic” which is also cited by MPEP 2106.04(a)(2) I.C(i).
Indeed, digging deeper into SAP, Examiner finds that the Court ruled that “even if one assumes that the techniques claimed are groundbreaking, innovative, or even brilliant those features are not enough for eligibility because their innovation is innovation in ineligible subject matter. An advance of that nature is ineligible for patenting”. That is, “no matter how much of an advance in the field the claims” [would] “recite the advance” [would still] “lie entirely in the realm of abstract ideas” with no plausibly alleged innovation in non-abstract application realm. Simply put here, as in SAP Am, Inc v. InvestPic, LLC,890 F.3d 1016,126 USPQ.2d 1638 (Fed. Cir. 2018), no matter how much of an advance in the field of assessing and possibly mitigating operator variability the current claims would recite, said advance would still lie within the abstract realm of the abstract best practices in an industrial operation by recommend[ation] and later implement[ation] of selected solutions’ actions to address gaps associated with human performance or operator variability, with no plausibly of the alleged innovation being in an non-abstract application realm. The Court’s findings in SAP supra were corroborated by Versata Dev Grp Inc v SAP Am, Inc 115 USPQ2d 1681 Fed Cir 2015 again undelaying the difference between improvement to entrepreneurial goal objective and actual improvement to actual technology. see MPEP 2106.04.
Following the legal precedents above as highlighted by MPEP 2106.04, the Examiner reasons that here, the claims would at most improve the operation aspect related to “operator variability” or variation as raised by Applicant in light of Original Specification ¶ [0004], further narrowed to hardware-based field of use or technological environment as amended at last limitation. Yet, as identified above, and confirmed by MPEP 2106.04(d)(1), a claim is not eligible merely because it applies an abstract idea in a narrow way; that is “improvement in the judicial exception itself” “is not an improvement in technology”. Specifically, MPEP 2106.04 I ¶5 states that the Supreme Court’s decisions made it clear that judicial exceptions need not be old or long-prevalent, and that even newly discovered or novel judicial exceptions are still exceptions. For example, both Myriad and Flook were novel, but nonetheless considered by Supreme Court to be judicial exceptions because they were basic tools of scientific and technological work’ that lie beyond the domain of patent protection. Thus, the Examiner reasons that here, far from imposing a technological solution to a technological problem, the claims still recite, describe or set forth the abstract idea, with the argued combination of additional computer-based elements, as detailed in the actual rejection below, not integrating it into a practical application.
Next, taking a more granular look at the argued limitation of “recommending one or more actions specified by the selected one or more mapped solutions, wherein the one or more actions include causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device used by the industrial operation, wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity”, the Examiner tests such limitation in view of Flook supra, as cited by MPEP 2106.05(h).
Specifically, in Flook provided catalytic chemical conversion of hydrocarbons, in petrochemical and oil-refining fields, yet such feature was found insufficient to make the claim eligible, because it was merely an incidental or token addition to the claim that did not alter or affect how the process steps of calculating the alarm limit value were performed. Here too, similar to the Flook rationale, the “recommending one or more actions specified by the selected one or more mapped solutions, wherein the one or more actions include causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device used by the industrial operation, wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity”, (independent Claims 1,29) and even the subsequent “implementing the one or more actions” (dependent Claim 34), would similarly represent a narrowing of an abstract recommendation to an automated or actuated field of endeavor, which per MPEP 2106.05(h), would not integrate the abstract idea into a practical application, nor would it provide the necessary degree of technological details for the technological solution as required by MPEP 2106.05(f)(1). In a similar vein, MPEP 2106.05(f)(3) finds that the generality of the application of the judicial exception, is an example of applying the abstract idea which would also not integrate said abstract idea into a practical application. Here, given the high generality of “recommending one or more actions” that “include” “causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device used by the industrial operation” “causing” [as an intended result10] “the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity”, the Examiner reasons that said limitation could also be construed as a case of general controllable application of the abstract idea [MPEP 2106.05(f)(3)] to a “device”, in a manner analogous to, or comparable with the narrowing of the abstract idea to a field of use or technological environment as indicated by MPEP 2106.05(h) above.
Here, no matter of which MPEP 2106.05(f)(1),(f)(2),(f)(3) and/or (h) test is/are employed, it is clear that the argued “receiving input data”, “processing the input data”, “identifying biggest contributors of operator variability”, and “automatically select one or more mapped solutions” and “recommending one or more actions specified by the selected one or more mapped solutions, the one or more actions including causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device, wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity” would not integrate the abstract idea into a practical application because they would merely represent an invocation of machinery to apply an abstract processes or existing process, [MPEP 2106.05(f)] and/or narrowing the abstract process to a technological environment, [MPEP 2106.05(h)].
Step 2B: Remarks 04/04/2025 p.11 ¶2-¶4 argues that independent claim 1 satisfies both prongs of the sufficient details test such that one of ordinary skill in the art would recognize the claimed invention providing an improvement. Specifically, Remarks 04/04/2025 p.11 ¶5-p.13 ¶1 cites Original Specification ¶ [0004], ¶ [0007], ¶ [0009], ¶ [0091] to argue that the claimed invention solves a technical problem. Remarks 04/04/2025 p.13 ¶2-p.14 ¶3 further argue that the claims reflect the improvement.
Examiner fully considered the Step 2B argument but respectfully disagrees reincorporating herein all the findings and rationales above as well as the prior findings of Non-Final Act 12/04/2024
p.6 ¶2-p.7 ¶1. Examiner further clarifies that here, the Examiner follows MPEP 2106.05 (d) II guidelines by carrying over the findings of MPEP 2106.05 (f) and/or (h) as tested above, to submit that the additional elements also do not provide significantly more. Examiner also carries over the above findings and rationales to resubmit that the Applicant’s asserted improvement is not technological but rather entrepreneurial or abstract “to reduce or eliminate the biggest contributors of the operator variability for improving productivity”. Separate from these findings, the Examiner submits that if the conventionality test would be employed for the additional elements, their disclosure at Original Specification ¶ [0025]-¶ [0027], ¶ [0077], ¶ [0145], ¶ [0146], would clearly demonstrate the high level of generality and thus conventional nature of such additional computer-based elements.
In conclusion, the claims still, recite, describe or set forth the abstract exception (Step 2A prong one), with their additional computer-based elements not integrating the abstract idea into a practical application (Step 2A prong 2) or providing significantly more (Step 2B). The claims are thus ineligible.
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IV. Response to prior art arguments
Remarks 04/04/2025 p16-p17 ¶7 argues Okada does not tech the amended Claims 1,29 in
- “processing the input data to measure operator effectiveness as contributing to effective execution of the industrial operation in terms of measured gaps that represent improvement potential of productivity of the industrial operation when operator variability is removed”
- “automatically selecting one or more mapped solutions from a variety of solutions mapped to different measured gaps for addressing a root cause of the respective different measured gaps, the one or more mapped solutions being selected based on the measured gaps”
- “recommending one or more actions specified by the selected one or more mapped solutions, wherein the one or more actions include causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device used by the industrial operation, wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity of the industrial operation”.
Examiner considered the prior at argument which is moot in view of new grounds of rejection.
Examiner now relies on Mark W. Paradies US 6463441 B1 hereinafter Paradies to teach:
- “processing the input data to measure operator effectiveness as contributing to effective execution of the industrial operation in terms of measured gaps that represent improvement potential of productivity of the industrial operation when operator variability is removed”
(Paradies column 1 lines 8-12,26-30 the invention identifies human action for underlining cause of an incident. column 1 lines 8-12,26-30: invention identifies human action for underlining cause of an incident. For example, at column 16 line 62-column 17 line 4: the invention includes powerful features for determining root causes of incidents and suggesting corrective actions for root causes related to human performance difficulties. For example, at column 8 lines 35-36: Was there excessive fatigue, impairment, personal problems, or inattentiveness? To this end, at column 10 lines 36-48: one of most powerful features provided by the invention is to help determine corrective action to prevent future occurrences of similar incidents. Corrective Action Helper is a database of suggested corrective [or improvement] actions linked to root causes on Root Cause level of the causal information database. Preferably, each root cause contained in causal information database, such as each root cause listed under the Near Root Cause level category blocks 500-530 in Fig.19, is linked to a corresponding corrective action in Corrective Action Helper database. For example, at Fig.47 Corrective action 10: implement new monitoring overtime and supervisory requirements so that the odds on the job are greatly reduced because according to column 12 lines 60-61: scheduling needs improvement. Other example is disclosed at column 12 lines 17-30: to prevent recurrence of Temp Water Treatment Unit Fish Kill incident, the operator may be given additional task of generating reports of measured values of cooling water pressure and temperature of the treatment unit's resin. This corrective [or improved] action is applicable to wide variety of industrial monitoring situations where operator must remain alert. This suggested corrective action is not obvious solution, even to people who routinely do this trouble-shooting. As Fig.24 indicates, the invention provides multiple suggestions for actions implemented in concert. For example, at Annotated Fig. 24: 1(a) Provide an alarm to alert the worker. 1(b) Provide automate monitoring and response system to replace human monitoring and response.
Paradies provides additional details at column 6 lines 12-22: the structure in Fig.2 emphasizes the invention most powerful advantages: the links between causes and corrective actions occur at root cause level that have much higher probability of preventing recurrences of an incident than corrective actions based upon less knowledge, as represented by higher levels in the database structure. Thus, by providing links between root causes and corrective action, the invention provides suggestions [or recommendations] for most effective corrective action. column 9 lines 6-7, Figs.13,51 noting under Team performance: Was coordination required between team members? -> Was lack of agreement about who / what / when / where of task performance? column 16 lines 8-14: processor 20 generates Corrective Actions Status Tracking Report box on display device 40, in Fig. 43 for narrowing the scope of the report by selecting responsible departments, and persons. For example, at column 7 lines 1-10, failure of the hose caused a loss of cooling water to the unit, which should have been immediately secured. Yet, the operator had fallen asleep. Also, the automatic shutdown features had been bypassed by the contractor who owns the equipment. The continued operation of the unit without cooling water caused the unit's resin to overheat and degrade. This allowed high-temperature, low-pH water to enter the plant's outfall, thus causing the death of about 100 fish in the downstream section of the river at the plant boundary. To address this at column 8 lines 35-36: Was there excessive fatigue, impairment, personal problems, or inattentiveness? An affirmative answer indicates that a root cause may lie under a Human Engineering or Immediate Supervision basic cause category. column 9 lines 6-7: Fig.13 represents questions relating to Team Performance. see Fig.13, Fig.51 noting under Team performance: Was coordination required between team members? -> Was lack of agreement about who/what/when/where of task performance? column 16 lines 8-14: With reference to Fig.40, when Corrective Actions Status Tracking Report is selected, processor 20 generates the Corrective Actions Status Tracking Report box on the display device 40, in Fig.43. Using this box, the user has the option of narrowing scope of the report by selecting date ranges, responsible departments, and responsible persons. Finally, column 9 lines 33-38: This screen illustrates Near Root Cause level categories under Procedures category. These categories represented by procedures not-used/not-followed block 470, a procedures wrong block 480, and a procedures followed incorrectly block 490. Below each of the Near Root Cause level category blocks 470-490 is a list of potential root causes. These root causes lie on the Root Cause level of the causal information database. column 12 lines 14-30: in Fig.24, one of the suggested corrective actions (d) is to provide other noncompeting tasks for the operator to perform while operator is monitoring a critical parameter. For example, to prevent recurrence of Temp Water Treatment Unit Fish Kill incident, the operator may be given an additional task of generating reports of measured values of the cooling water pressure and temperature of the treatment unit's resin. This corrective action is applicable to a wide variety of industrial monitoring situations where the operator must remain alert. Further, this suggested corrective action is not an obvious solution, even to people who routinely do this sort of trouble-shooting. As Fig.24 indicates, the invention provides multiple suggestions for actions that may be implemented in concert. For example, at Fig.47, corrective action 12: Create and provide training for all operators, mechanic, and supervisors on actions they are to take if they feel excessively drowsy or in any way unfit to perform the job they have been assigned).
- “automatically selecting one or more mapped solutions from a variety of solutions mapped to different measured gaps for addressing a root cause of the respective different measured gaps, the one or more mapped solutions being selected based on the measured gaps” (Paradies column18 lines 15-17, 36-41: as described the causal information database provides relationship between the multiple causal analysis levels and causal factor categories. Through execution instructions by causal analysis module 1140, processor 20 determines suggested corrective actions by following the links between corrective action helper module 1160 and causal information database module 1130. Specifically column 5 lines 55-63 causal information database links each root cause (RC1,RC2, RC3) on Root Cause level to a suggested corrective action. Some root causes are linked to a single corrective action, some to more than one. Some root causes are linked to a common corrective action. Preferably the corrective actions reside in distinct corrective action database related to the causal information database by way of links that associate the two. column 10 lines 41-48: corrective action helper is database of suggested corrective actions linked [or mapped] to root causes on the Root Cause level of the causal information database. Preferably, each root cause contained in the causal information database, such as each root cause listed under Near Root Cause level category blocks 500-530 in Fig.19, is linked [or mapped] to a corresponding corrective action in the Corrective Action Helper database. column 10 lines 57-60: in Fig.21 Corrective Action Helper database provides [or selects] suggestions and ideas for eliminating the root cause of the incident. similarly, column 12 lines 1-3 the Corrective Action Helper provides [or selects] additional help in the form of suggested actions that the user may take to resolve the problem. column 10 lines 57-60: in Fig.21 Corrective Action Helper database provides [or selects] suggestions and ideas for eliminating the root cause of the incident. similarly, column 12 lines 1-3 the Corrective Action Helper provides [or selects] additional help in the form of suggested actions that the user may take to resolve the problem. Also, column 10 lines 57-65: in Fig.21, the Corrective Action Helper database provides suggestions and ideas for eliminating the root cause of the incident. These suggestions and ideas provide the user with a framework for thinking about solutions to the specific problem. By thinking within the framework provided by Corrective Action Helper database the user stay focused on eliminating the specific root cause of a specific causal factor.
Paradies column 12 lines 15-30: in Fig.24, one of the suggested corrective actions (d) is to provide other noncompeting tasks for the operator to perform while the operator is monitoring a critical parameter. For example, to prevent recurrence of the Temp Water Treatment Unit Fish Kill incident, the operator may be given an additional task of generating reports of measured values of the cooling water pressure and the temperature of the treatment unit's resin. This corrective action is applicable to a wide variety of industrial monitoring situations where the operator must remain alert. Further, this suggested corrective action is not an obvious solution, even to people who routinely do this sort of trouble-shooting. As Fig.24 indicates, the invention typically provides multiple suggestions for actions that may be implemented separately or in concert).
- “recommending one or more actions specified by the selected one or more mapped solutions, wherein the one or more actions include causing generation of at least one control signal configured to dynamically modify an operation of at least one controllable device used by the industrial operation, wherein dynamically modifying the operation includes causing the at least one controllable device to operate so as to reduce or eliminate the biggest contributors of the operator variability for improving productivity of the industrial operation” (Paradies column 1 lines 36-43: Implementation of effective corrective action is preferred means to achieve dramatic, lasting reductions in the numbers of repeat incidents. Thus, to prevent occurrence of a costly incident, the underlying cause of incident should first be identified, then specific corrective action is implemented directed to eliminating the specific underlying cause. column 12 lines 15-30: in Fig.24, one of suggested [or recommended] corrective actions (d) is to provide other noncompeting tasks for operator to perform while the operator is monitoring a critical parameter. For example, to prevent recurrence of Temp Water Treatment Unit Fish Kill incident, the operator may be given an additional task of generating reports of measured values of the cooling water pressure and the temperature of the treatment unit's resin. This corrective action is applicable to a wide variety of industrial monitoring situations where the operator must remain alert, but where perhaps the operator's continuous and full attention is not needed for the task. Further, this suggested corrective action is not an obvious solution, even to people who routinely do this sort of trouble-shooting. As Fig.24 indicates, the invention typically provides multiple suggestions for actions that may be implemented separately or in concert. Indeed, per column 1 lines 36-43: Implementation of effective corrective action is preferred means to achieve dramatic, lasting reductions in the numbers of repeat incidents. Thus, to prevent occurrence of a costly incident, the underlying cause of incident should first be identified, then specific corrective action is implemented directed to eliminating the specific underlying cause. To this end at column 12 lines 11-30: processor 20 accesses Corrective Action Helper database and retrieves corrective action suggestions linked [or mapped] to this root cause. Preferably, processor 20 then generates the screen in Fig.24 to display the linked corrective actions. In Fig.24, one of suggested corrective actions [1(a) through] 1(d)... This corrective action is applicable to a wide variety of industrial monitoring situations where the operator must remain alert… As Fig.24 indicates, the invention provides multiple suggestions for actions that may be implemented separately or in concert [or together]. See for example Annotated Fig. 24: 1(a) Provide an alarm [control signal] to alert the worker, 1(b) Provide automate monitoring [control signal] and response system [controllable device] to replace human monitoring and response).
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Paradies Annotated Fig.24 from original Fig.24 in support of rejection arguments
Accordingly, Mark W. Paradies US 6463441 B1 teaches the Appclaint’s contested features.
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