DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
2. According to the Preliminary Amendment, filed 05 September 2023, the status of the claims is as follows:
Claims 1-8 are currently amended;
Claim 9 is as originally filed; and
Claims 10-16 are new.
Claim Objections
3. Claim 1 is objected to because of the following informalities:
In line 6, “body-temperature state” is a typographical/grammatical error and should be amended to “a body-temperature state”.
Appropriate correction is required.
4. Claim 9 is objected to because of the following informalities:
In line 9, “the body-temperature state” lacks proper antecedent basis and should be amended to “a body-temperature state”.
Appropriate correction is required.
5. Claim 10 is objected to because of the following informalities:
In line 5, “body-temperature state” is a typographical/grammatical error and should be amended to “a body-temperature state”.
Appropriate correction is required.
Claim Interpretation
6. The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
7. The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
8. This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
(i) “a temperature-gauging section for” in claims 7 and 15;
(ii) “an image-generating section for” in claims 7 and 15; and
(iii) “a display section for” in claims 7 and 15.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 101
9. 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.
10. Claims 1-3 and 9-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception, i.e. abstract idea, without significantly more.
Step 1 of the Patent Subject Matter Eligibility Guidance (see MPEP 2106.03):
Claims 1-3 are directed to a “fever-diagnostic mask”, which describes one of the four statutory categories of patentable subject matter, i.e. a machine.
Claim 9 is directed to a “fever-diagnosing method”, which describes one of the four statutory categories of patentable subject matter, i.e. a process.
Claims 10-12 are directed to a “fever-diagnostic label”, which describes one of the four statutory categories of patentable subject matter, i.e. a machine.
Step 2A of the Revised Patent Subject Matter Eligibility Guidance (see MPEP 2106.04):
Claim(s) 1-3 and 9-12, recite the following mental process:
body-temperature state of the wearer is diagnosed by comparing color change in the body-temperature thermochromic strip with color change in the ambient thermochromic strip.
Based on broadest reasonable interpretation, these limitations are directed to receiving data and performing a mathematical operation, which can be done mentally or using pen and paper.
This abstract idea is not integrated into a practical application because the additional limitations of “a body-temperature thermochromic strip that is responsive to body temperature of a wearer” in claims 1 and 10, “an ambient thermochromic strip that is responsive to ambient temperature” in claims 1 and 10, and “a fever-diagnostic label as well as a fever-diagnostic mask provided with a body-temperature thermochromic strip that is responsive to the body temperature of a wearer and an ambient thermochromic strip that is responsive to ambient temperature” and “the body-temperature thermochromic strip and the ambient thermochromic strip are formed by coating on ink or pigment that changes color depending on temperature or else by fitting them on as a sticker, or otherwise are formed by fitting on a thermochromic film employing heat-sensitive liquid crystals” in claim 9, add insignificant pre-solution activity to the abstract idea that merely collects data to be used by the mental process.
Step 2B of the Patent Subject Matter Eligibility Guidance (see MPEP 2106.05):
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception, when considered separately and in combination.
Analyzing the additional claim limitations individually, the additional limitations that are not directed to the mental process are “a body-temperature thermochromic strip that is responsive to body temperature of a wearer” in claims 1 and 10, “an ambient thermochromic strip that is responsive to ambient temperature” in claims 1 and 10, and “a fever-diagnostic label as well as a fever-diagnostic mask provided with a body-temperature thermochromic strip that is responsive to the body temperature of a wearer and an ambient thermochromic strip that is responsive to ambient temperature” and “the body-temperature thermochromic strip and the ambient thermochromic strip are formed by coating on ink or pigment that changes color depending on temperature or else by fitting them on as a sticker, or otherwise are formed by fitting on a thermochromic film employing heat-sensitive liquid crystals” in claim 9. Such features are conventional and routine in the art (for example, see “In one embodiment, temperature-indicating strip 700 is made of plastic-based material that can change colours according to the ambient temperature of skin to which it is attached. In one example, a temperature range of the temperature-indicating strip 700 may be between 36° C. and 40° C.” in para. [0102], and see “For example, in some embodiments the temperature-indicating strip may comprise liquid crystals that change colour with changes in temperature of underlying surfaces. These liquid crystals may be Thermochromic Liquid Crystals (TLCs), Cholesteric Liquid Crystals, or the like. In some embodiments, the liquid crystals may be micro-encapsulated for protection, stabilization and to make the liquid crystals easier to use.” in para. [0103], in Gross, U.S. Patent Application Publication No. 2021/0069390 A1), and add insignificant pre-solution activity to the abstract idea that merely collects data to be used by the abstract idea.
The additional limitations of dependent claims 2, 3, 11, and 12 are merely directed to and further narrow the scope of the mental process or further narrow the scope of the additional limitations that do not integrate the mental process into a practical application or are not significantly more than the mental process.
Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. Their collective functions merely provide computer implementation of the abstract idea using collected data without: improvement to the functioning of a computer or to any other technology or technical field; applying the mental process with, or by use of, a particular machine; effecting a transformation or reduction of a particular article to a different state or thing; applying or using the mental process in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment; or adding a specific limitation other than what is well-understood, routine, conventional activity in the field.
Claim Rejections - 35 USC § 112
11. The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
12. Claims 1-16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 10 recite the limitation “wherein body-temperature state of the wearer is diagnosed by comparing color change in the body-temperature thermochromic strip with color change in the ambient thermochromic strip”. However, it is not clear what structural element is performing the function of diagnosing of the body-temperature state. Is the diagnosing function being performed by the human mind or a computer? Note that the human mind cannot be positively recited as a structural element of the claimed invention.
Claims 2-8 and 11-16 are rejected due to their dependencies, either directly or indirectly, to base claims 1 and 10, respectively.
Claim 9 recites the limitation “in a fever-diagnostic label as well as a fever-diagnostic mask”. The phrase “as well as” renders the claim(s) indefinite because it is not clear whether the proceeding limitation of “a fever-diagnostic mask” is an alternative structural element or an additional structural element to the scope of the claim.
Conclusion
13. Any inquiry concerning this communication or earlier communications from the examiner should be directed to NAVIN NATNITHITHADHA whose telephone number is (571)272-4732. The examiner can normally be reached Monday - Friday 8:00 am - 8:00 am - 4:00 pm.
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/NAVIN NATNITHITHADHA/Primary Examiner, Art Unit 3791 02/05/2026