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 .
Claim Status
No claim amendments have been filed with Applicants response.
Claims 1-20 originally filed 2/4/2022 are pending.
Election/Restriction
Applicant’s election without traverse of Invention I, claims 1-11 in the reply filed on 10/17/2025 is acknowledged.
Upon initial search and review of the claim limitations, it does not appear to be an undue burden to exam all I-III together as they appear to rely on the same chromosome generator of unit genes. Accordingly, the restriction requirement is withdrawn.
Claims 1-20 drawn to a method and system for manufacture an order work command which optimize a dyeing process using unit genes is under examination.
Priority
This application filed 2/4/2022 claims benefit to foreign application KR10-2021-0068367 filed 5/27/2021 in Korea.
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55. See paper entered 3/17/2022. Applicant cannot rely upon the certified copy of the foreign priority application to overcome this rejection because a translation of said application has not been made of record in accordance with 37 CFR 1.55. When an English language translation of a non-English language foreign application is required, the translation must be that of the certified copy (of the foreign application as filed) submitted together with a statement that the translation of the certified copy is accurate. See MPEP §§ 215 and 216.
Information Disclosure Statement
The four information disclosure statements (IDS) submitted between 2/4/2022 and 2/28/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112
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.
Claims 1-20 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. Specifically, each of the claims require for both the method and system which performs a similar method requires setting tasks to a ‘unit gene’ and generating an ‘initial chromosome’ by using a ‘genetic algorithm’ (set forth in the preamble). Based on the art of record and search of the relevant art, these do not appear to be terms of art. Review of the specification provides literal support for the terms, but fails to define or provide any guidance on what these represent or how they are used and applied to dynamic scheduling. While there is literal support, these appear to be undefined terms with no metes and bounds or ability to clearly interpret. Dependent claims set forth using these elements, for example claim 4 provides for assigning a weight and applying a roulette wheel selection to generate the initial chromosome, but what is being generated as related to a chromosome is undefined.
More clearly providing steps and elements known in the art and supported by the specification for how each of the elements of a dyeing process is represented as gene units and how a chromosome is generated and how a genetic algorithm works and some nexus to ‘optimizing’ a process would address the basis of the rejection.
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.
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: 1. ‘a data collector configured to collect order data’, 2. ‘a work time calculator configured to select a work command’, 3. ‘a work command determinator configured to select a work command’, 4. A chromosome generator configured to generate initial chromosomes’ and 5. A’a process controller configured to perform each process’ set forth and encompassed by the systems in claims 12-20.
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.
In this case these are not in the art, and the specification only generically provides for the literal support of these without any indication of structure. In view of the specification as a whole, it appears that each of these encompasses the directions and are units of instructions or code which can be performed using a computer. The specification does not recite the use of a computer, processor or memory, but neither does it provide any basis for what these limitations are beyond what they are configured to do.
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.
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 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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claim analysis
Claim 1 is generally directed to method for optimizing a dying process using a genetic algorithm. More specifically the steps require obtaining work commands to be performed and setting the commands into gene units and into a chromosome for calculating suitability of the chromosome created, possibly with the genetic algorithm. Dependent method claims provide for calculating the length of a created chromosome with respect to the gene units, and other considerations such as ‘due date’ (claim 5) and comparison to other performed dying processes. The system of claims 12 and 18 provides for a data collector, work time calculator command, determiner and a chromosome generator that provides for elements to perform the method of claim 1, with dependent claims providing for the same considerations and limitations to take for dynamic scheduling. In view of the guidance of the specification data collector, work time calculator command, determiner and a chromosome generator do not appear to be physical elements or units, and they do not appear to be readily known in the art. The general guidance of the specification appears to support that these are limitations related to instructions which are consistent with the flow charts present in the figures.
For step 1 of the 101 analysis, the claims are found to be directed to a statutory category of a process and two system products.
For step 2A of the 101 analysis, the judicial exception of the claims are the steps of accessing a dying process by providing necessary steps and representing the step and time for each as a gene unit that is present in a form of a chromosome. The preamble of the claims indicates to use a genetic algorithm, and the review of the specification fails to define this and based on the guidance of the specification appears to support general rules for possible gene alterations that might be present on the chromosome, for example removing a gene, shuffling genes or even adding a gene. There are no steps for optimization, and generally it appears that the specification suggests to shuffle input data into a form that is optimized, but without any specific outcome of what optimized is or any specific way to perform the steps such that the process provides optimization. The judicial exception is a set of instructions for optimizing a dying process, ad appears to fall into the category of mathematical relationships to the extent an algorithm is set forth in the claims, and to the category of a Mental Processes, that is concepts performed in the human mind (including an observation, evaluation, judgment, opinion) to the extent that a chromosome is a linear type element and the gene are simply tasks along it, and one could ‘shuffle’ the genes in various orders to see what is optimum.
The breadth of “selecting”, “allocating”, and “calculating suitability” encompasses non-transformative visual assessment of information about tasks related to a dying process. This breadth does not impose a meaningful limit on the claim scope with respect to gene and chromosomes, such that all others are not precluded from using the natural principle of organizing tasks related to dying. The courts have also identified limitations that did not integrate a judicial exception into a practical application; for example, merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f). All the steps are very generally recited, the combination of each together reasonably interpreted as mere data gathering and ordering of tasks. Computing, constructing datasets and using statistical models was well understood, conventional, and routinely performed in the art at the time the application was filed. See MPEP § 2106.05(g) for a discussion on adding insignificant extra-solution (both pre-solution and post-solution) activity to the judicial exception. See also MPEP § 2106.05(h) for a discussion on generally linking the use of a judicial exception to a particular technological environment or field of use. The claims appear to fall into the category of Mathematical Concepts, as it applies the use of statistics and mathematical relationships in analyzing or providing optimization, and also into the category of mental processes, as concepts performed in the human mind (including an observation, evaluation, judgment, opinion) because there is no apparent complexity to or amount of data that is collected and analyzed as presently claimed.
Recent guidance from the office requires that the judicial exception be evaluated under a second prong to determine whether the judicial exception is practically applied. In the instant case, the claims do not have an additional element to which the analysis is applied, it states simply that the it provides a schedule. This judicial exception requires steps recited at high level of generality and are only stored on a non-transitory, and is not found to be a practical application of the judicial exception as broadly set forth.
For step 2B of the 101 analysis, the method can be practiced using the system of each of the independent claims and can be interpreted as a product and an additional element, but are found to be a generic system for data processing, more specifically for organizing steps of a dying process. As such, the claims do not provide for any additional element to consider under step 2B. With respect to the system being a computer for the analysis, it is note that in explaining the Alice framework, the Court wrote that "[i]n cases involving software innovations, [the step one] inquiry often turns on whether the claims focus on the specific asserted improvement in computer capabilities or, instead, on a process that qualifies as an abstract idea for which computers are invoked merely as a tool." The Court further noted that "[s]ince Alice, we have found software inventions to be patent-eligible where they have made non-abstract improvements to existing technological processes and computer technology." Moreover, these improvements must be specific -- "[a]n improved result, without more stated in the claim, is not enough to confer eligibility to an otherwise abstract idea . . . [t]o be patent-eligible, the claims must recite a specific means or method that solves a problem in an existing technological process." As indicated in the summary of the judicial exception above and in view of the teachings of the specification, the steps are drawn to analysis of data. While the instruction can be stored on a medium and could be implemented on a computer, together the steps do not appear to result in significantly more than a means to compare sequences. The judicial exception of the method as claimed can be performed by hand and in light of the breadth of the claims. In review of the instant specification neither the methods nor the system appear to require a special type of processor and can be performed on a general purpose computer. Dependent claims set forth additional steps which are more specifically define the considerations and steps of calculating, and comparing, and do not add additional elements which result in significantly more to the claimed method for the analysis.
One way to overcome a rejection for non-patent-eligible subject matter is to persuasively argue that the claimed subject matter is not directed to a judicial exception. Another way for the applicants to overcome the rejection is to persuasively argue that the claims contain elements in addition to the judicial exception that either individually or as an ordered combination are not well understood, routine, or conventional. Another way for the applicants to overcome the rejection is to persuasively argue that the claims as a whole result in an improvement to a technology. Persuasive evidence for an improvement to a technology could be a comparison of results of the claimed subject matter with results of the prior art, or arguments based on scientific reasoning that the claimed subject matter inherently results an improvement over the prior art. The applicants should show why the claims require the improvement in all embodiments.
Conclusion
No claim is allowed.
A search of the art evidences many different ways of dyeing and processes that are unique to specific tasks or needs or materials. For example, Sultlovic et al. (Optimization of Dyeing Process of Cotton Fabric with Cochineal Dye, Fibers and Polymers 2020, Vol.21, No.3, 555-563) is provided as an example of the man different steps involved in dyeing and various steps which can be provided or combined for a dyeing process. However, the art fails to provide that such tasks are analyzed by a genetic algorithm and the tasks and process be represented as genes and chromosomes as required of the claims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Joseph T Woitach whose telephone number is (571)272-0739. The examiner can normally be reached Mon-Fri; 8:00-4:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Karlheinz R Skowronek can be reached at 571 272-9047. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Joseph Woitach/ Primary Examiner, Art Unit 1687