DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Amendment
The amendment to the claims filed 24 October 2025 has been entered. Claim(s) 14 and 25 is/are currently amended. Claim(s) 1-13 has/have been canceled. Claim(s) 14-33 is/are pending.
Rejections Withdrawn
Rejections under 35 U.S.C. 112(a) (or pre-AIA 35 U.S.C. 112, first paragraph) and/or rejections under 35 U.S.C. 112(b) (or pre-AIA 35 U.S.C. 112, second paragraph) not reproduced below has/have been withdrawn in view of Applicant's amendments to the claims and/or submitted remarks.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of pre-AIA 35 U.S.C. 112, first paragraph:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim(s) 14-33 is/are rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as failing to comply with the written description requirement. The claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 14, claim 25 and claims dependent thereon, Applicant discloses a system comprising an alcohol sensor (alcohol sensor means 12) configured to detect a current alcohol concentration in blood of the user; and a portable apparatus (14) in wireless communication with the alcohol sensor (via wireless communication means 1612 and 1614), wherein the portable apparatus further comprises a controller (control means 18), a clock (clock means 20), a memory (memory means 22), and a calculation device (calculation means 24). The controller stores the current alcohol concentration received from the alcohol sensor and an associated current time stamp from the clock in the memory. A known alcohol burn rate of a user may also be stored in the memory. Alternatively, the calculation device may calculate an alcohol burn rate for the user based on characteristics of the user that have an influence on the alcohol burn rate (e.g., sex, age, weight, etc.) The calculation device calculates a future point of time at which the alcohol concentration of the user will be less than a threshold value based on the known alcohol burn rate or the calculated alcohol burn rate (¶ [0038] of the specification as published). Applicant further discloses the portable apparatus can be connected to an ignition unit of a motor vehicle, and said vehicle can be prevented from being started if the current alcohol concentration is higher than a predetermined threshold (¶ [0016], ¶ [0028], ¶ [0042], ¶ [0048], etc.).
Applicant fails to disclose the controller is configured to store the calculated future point of time in the memory, and to compare the current time, as determined by the clock, to the stored future point in time, or the portable apparatus is configured to prevent the motor vehicle from being started until a current time is equal to or later than the stored future point in time as required by amended claim 14 and/or the comparable method steps of amended claim 25. Further, specifically with respect to the limitations of claim 19, Applicant fails to disclose multiple conditions may be used to prevent starting a vehicle. Is the vehicle prevented from starting if either the future time has not been reached, or the current alcohol concentration is above a threshold? Do both of these conditions have to be met to prevent starting the vehicle?
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 pre-AIA 35 U.S.C. 112, 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.
Claim(s) 14 and claims dependent thereon is/are rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, 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 pre-AIA the applicant regards as the invention.
Regarding claim 14 and claims dependent thereon, the relationship between the previously-recited "memory" (line 12) and the later-recited "memory means" (line 18), and the relationship between the previously-recited "calculation device" (line 16) and later-recited "calculation means" (line 19) are each unclear. Specifically, it is unclear how many memory units/modules and devices for calculation are required by the claimed system. For the purpose of this Office action, clam 14 will be further discussed with the understanding the above limitations refer to and/or at least encompass the previously-recited memory and calculation device, respectively.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 14-17, 19, 21, 23-26, 30-31 and 33 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over US 6,075,444 A (previously cited, Sohege) in view of US 2003/0176803 A1 (previously cited, Gollar), JP 2004-239898 A (previously cited, Tono), WO 02/12883 A1 (previously cited, Payne) and US 2007/0115100 A1 (Mandle); or alternatively, over Sohege in view of Gollar, Tono, Payne, Mandle and GB 2418488 A (previously cited, Thomas).
Regarding claims 14-15, 19 and 23-24, Sohege teaches/suggests a system operable to block or allow a user to conduct an activity including operating a motor vehicle (throughout document, e.g., motor vehicle), the system comprising:
an alcohol sensor operable to detect a current alcohol concentration in blood of the user (col. 1, lines 46-48, measuring apparatus for determining blood alcohol content of an operator; measuring device 1; breath alcohol measuring device 19; etc.); and
a portable apparatus (col. 1, lines 53-56, evaluation unit; evaluation unit 9; etc.),
wherein the alcohol sensor and the portable apparatus each comprise a wireless communication device (col. 1, lines 56-60, interface between the measuring apparatus and the evaluation unit for passing a signal representing measurement data indicative of the blood alcohol content from the measuring apparatus to the evaluation unit; Fig. 1, transmitter/receiver units 5, 10), wherein a first wireless communication device in the alcohol sensor is operable to wirelessly transmit the current alcohol concentration to a second wireless communication device in the portable apparatus (col. 2, lines 54-58, blood alcohol concentration values determined by the measuring device 1 are transmitted from the first transmitter/receiver unit 5 and the first magnetic contact loop 6 along a transmission path 7 to an evaluation unit 9),
wherein the portable apparatus further comprises a controller (arithmetic unit 12 including microprocessor 13), a clock (clock 18) and a memory (memory 14), wherein the controller is connected to the second wireless communication device, the clock, and the memory (Fig. 1), and the controller is operable to store the current alcohol concentration and a time stamp from the clock in the memory (col. 3, lines 33-38, microprocessor 13 reads and stores in the second memory 14 of the arithmetic unit 12 the alcohol concentration measured values measured by the electrochemical gas sensor 3 and the time point of the start of the measurements; etc.),
wherein the controller is connected to a calculation device (microprocessor 13, or combination of microprocessor 13 and means for configuring the microprocessor to analyze the blood alcohol concentration, as described in, e.g., col. 3, lines 45-47), and
wherein the portable apparatus can be connected to an ignition unit of the motor vehicle, whereby the vehicle is prevented from getting started if the current alcohol concentration is higher than a predetermined threshold value (col. 2, lines 62-65, evaluation unit 9 is connected to an electric ignition unit of vehicle 8 in such a manner that the vehicle 8 can be started only after the output of an enabling signal; col. 3, lines 4753, an enabling signal is only transmitted when measured alcohol concentration is below the limit value).
Sohege further discloses an alcohol sensor operatively connected to the portable apparatus may comprise a device configured to receive exhalation air from the user (breath alcohol measuring device 19), but does not expressly disclose said alcohol sensor comprises a fuel cell.
Gollar teaches/suggests a system comprises an alcohol sensor (Fig. 1, tester 200) operable to detect a current alcohol concentration in blood of the user, wherein the alcohol sensor comprises a device operable to receive exhalation air from the user (Fig. 1, breath passage 1) and a fuel cell (Fig. 1, alcohol sensor 3 comprising a fuel cell); and a portable apparatus (Fig. 2, ignition interlock system 65), wherein the alcohol sensor means and the portable apparatus each comprises a wireless communication means (Figs. 1-2, wireless transmitter and receiver 9 and 19) facilitating wirelessly transmitting the current alcohol concentration from the alcohol sensor to the portable apparatus (¶ [0046]).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the apparatus of Sohege with an alcohol sensor comprising a device operable for receiving exhalation air from the user, a fuel cell and a wireless communication device as taught/suggested by Gollar in order to provide an accurate, specific alcohol measurement that utilizes little electrical power (Gollar, ¶¶ [0002]-[0003]) and facilitate communicating said measurement to the portable apparatus (Gollar, ¶ [0046]; Sohege, col. 2, lines 8-15; etc.) and/or as a simple substitution of one known alcohol sensor capable of measuring current blood alcohol level and communicating said level to the portable apparatus for another to yield no more than predictable results. See MPEP 2143(I)(B).
Sohege as modified does not teach the system is operable to determine a future point of time when the user can conduct the activity, at which the alcohol concentration in blood of a user is less than a threshold value, or the calculation device is operable to calculate the future point of time in dependence of the current alcohol concentration detected by the alcohol sensor and of a known alcohol burn rate of the user stored in the memory means, or an alcohol burn rate calculated by the calculation device in dependence of characteristics of the user which have an influence on the alcohol burn rate.
Tono discloses predicting/calculating future blood alcohol concentration based on a current alcohol concentration detected by an alcohol sensor, and a predetermined/stored alcohol burn rate stored in a memory means, or an alcohol burn rate calculated by the calculation means in dependence of characteristics of the user which have an influence on the alcohol burn rate (pg. 10, where prediction can be made by either calculating a prediction graph based on measured value data and a predetermined mathematical formula based on known alcohol burn rate, or a relationship acquired by experiment and mapped that takes into account information input by a user and accumulated in EEPROM 17, such as sex and weight; pg. 15, calculating an effective period, or the time during which the alcohol concentration measured from the breath decreases to a certain alcohol concentration).
Similarly, Payne teaches/suggests a portable apparatus (device 12, 14,16, 18) operable to determine a future point of time when a user can conduct an activity, such as legally operating a vehicle, the apparatus comprising an input connected to a controller/processor (pg. 6, lines 11-12, processing means including a first processor located in the device), by which a user is able to input at least one characteristic of the user, such as weight (pg. 4, lines 16-22, the device is arranged to receive weight information from the user); and a calculation device/processor operable to calculate the future point of time in dependence of the current alcohol concentration detected by an alcohol sensor and an alcohol burn rate calculated by the calculation means based on the characteristic(s) of the user (pg. 4, lines 16-22, the device is arranged to determine, in response to input weight information, an approximate time for the detected alcohol amount to reduce to a magnitude below the maximum legal alcohol amount).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the system of Sohege with an input connected to the controller by which the user is able to input his/her characteristics which have an influence on alcohol burn rate, such as sex and weight, and the calculation device being operable to calculate a future point of time when the user can conduct the activity in dependence of an alcohol burn rate calculated by the calculation device based on the characteristics of the user as taught/suggested by Tono and Payne in order to facilitate at least indicating to a user how long he/she will have to wait before his/her alcohol level drops below the legal limit for the activity (e.g., driving) (Payne, pg. 16-22) with increased accuracy (Tono, pg. 10).
Sohege as modified does not disclose the controller is further configured to store the calculated future point of time in the memory and compare the current time, as determined by the clock, to the stored future point in time, or the vehicle is prevented from getting started if a current time is equal to later than the stored future point in time. However, as noted above, Tono discloses driving of an automobile is/should be prohibited until the future point in time (i.e., the end of the calculated effective period) (e.g., pg. 15). Mandle discloses a controller configured to store a future point in time in a memory (¶ [0016] lock window definition 32 (reference number 42 is used in Fig. 2), which is stored in memory, ¶ [0008]) compare the current time, as determined by the clock, to stored future point in time (¶ [0016] real time clock 30 is compared with the lock window definition 32/42), and prevent a motor vehicle from being started until the current time is equal to or later than the stored future point in time (Fig. 2, steps 46-52). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the system of Sohege with the controller being configured to store the calculated future point of time in the memory and compare the current time, as determined by the clock, to the stored future point in time, whereby the vehicle is prevented from getting started if the current time is equal to or later than the stored future time as taught/suggested by Tono and Mandle in order to prevent the user from driving when his/her breath alcohol concentration is or should be above a predetermined limit (Tono, pg. 15).
Alternatively/Additionally, Thomas discloses a system wherein a vehicle is prevented from getting started when a current alcohol concentration is higher than a predetermined threshold value and for a length of time calculated as a function of the breath alcohol reading, wherein a higher reading results in the vehicle disabled for a longer time period (pg. 3, line 30 - pg. 4, line 8, excess breath alcohol content disables a function of the vehicle, and, optionally, the vehicle is disabled for a length of time related to the breath alcohol reading, wherein a higher reading results in the vehicle disabled for a longer time period). As discussed above, Mandle discloses a controller configured to store a future point in time in a memory, compare the current time, as determined by the clock, to stored future point in time, and prevent a motor vehicle from being started until the current time is equal to or later than the stored future point in time. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the system of Sohege with the controller being configured to store the calculated future point of time in the memory and compare the current time, as determined by the clock, to the stored future point in time, whereby the vehicle is prevented from getting started if the current time is equal to or later than the stored future time as taught/suggested by Thomas and Mandle in order to prevent the user from driving until his/her breath alcohol content is below a designated level (Thomas, pgs. 3-4). With respect to rejections in view of Thomas, the examiner notes Applicant cannot rely upon the certified copy of the foreign priority application to overcome said rejection(s) 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.
Regarding claims 16-17, Sohege as modified teaches/suggests the limitations of claim 14, as discussed above, and further discloses the first and second wireless communication devices independently comprise a transmitting and receiving device (transmitter/receiver units 5, 10), but does not expressly teach the transmitting and receiving devices are radio transmitting and receiving devices, or the first wireless communication device comprises a Bluetooth® device, the second wireless communication device comprises a Bluetooth® device, or the first and second wireless communication device independently comprises a Bluetooth® device. Payne teaches/suggests radio transmitting and receiving devices using low power (e.g., Bluetooth®) are a suitable means for transferring signals between devices (pg. 8, lines 17-24), such that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the system of Sohege with the first and/or second wireless communication device comprising a Bluetooth® device, as taught and/or suggested by Payne as a simple substitution of one known wireless device(s) capable of wirelessly transferring and receiving signals between devices for another to yield no more than predictable results. See MPEP 2143(I)(B).
Regarding claim 21, Sohege as modified teaches/suggests the limitations of claim 14, as discussed above, but does not expressly disclose the calculation device is configured to calculate the future point of time in dependence of a known alcohol burn rate of the user stored in the memory. However, as noted above, Tono discloses using a predetermined burn rate stored in memory and a burn rate calculated/calibrated based on user characteristics as suitable alternatives for projecting future blood alcohol concentration(s) (e.g., pg. 10). Additionally, Tono discloses information specific to a user may be stored and later recalled (e.g., pg. 17, steps S206). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the system of Sohege with the calculation device being configured to calculate the future point of time in dependence of a known alcohol burn rate of the user stored in the memory as taught and/or suggested by Tono in order to increase user convenience during said subsequent use(s) of the system/portable apparatus by a given user (e.g., by only requiring a given user to input his/her characteristics during an initial and/or periodic calculation/calibration of his/her specific burn rate and storing said burn rate in the memory for subsequent use) and/or as a simple substitution of one known method of utilizing a burn rate suitable for a given user to predict future blood alcohol concentration for another to yield no more than predictable results. See MPEP 2143(I)(B).
Regarding claims 25, 30 and 33, Sohege teaches/suggests a method for blocking/allowing a user to conduct an activity including operating a motor vehicle (throughout document, motor vehicle), the method comprising:
connecting a portable apparatus to the vehicle (col. 2, lines 62-65, evaluation unit 9 is connected to an electric ignition unit of vehicle 8 in such a manner that the vehicle 8 can be started only after the output of an enabling signal);
detecting a current alcohol concentration in blood of the user with an alcohol sensor (col. 1, lines 46-48; col. 2, lines 47-50; etc., determining blood alcohol content of the operator via a measuring apparatus/measuring device 1; breath alcohol measuring device 19; etc.);
wirelessly transmitting the current alcohol concentration to the portable apparatus (col. 2, lines 54-58, blood alcohol concentration values determined by measuring device 1 are transmitted from the first transmitter/receiver unit 5 and the first magnetic contact loop 6 along a transmission path 7 to an evaluation unit 9), the portable apparatus comprising a calculation device for analyzing the current blood alcohol concentration (microprocessor 13, or combination of microprocessor 13 and means for configuring the microprocessor to analyze the blood alcohol concentration, as described in, e.g., col. 3, lines 45-47); and
preventing the vehicle from getting started if the current alcohol concentration is higher than a predetermined threshold value (col. 3, lines 4753, an enabling signal is only transmitted when measured alcohol concentration is below the limit value).
Sohege further discloses the method may comprise having a user exhale exhalation air into an alcohol sensor (breath alcohol measuring device 19; col. 4, lines 4-7), but does not expressly disclose said alcohol sensor comprises a fuel cell.
Gollar teaches/suggests a system comprises an alcohol sensor (Fig. 1, tester 200) operable to detect a current alcohol concentration in blood of the user, wherein the alcohol sensor comprises a device operable to receive exhalation air from the user (Fig. 1, breath passage 1) and a fuel cell (Fig. 1, alcohol sensor 3 comprising a fuel cell); and a portable apparatus (Fig. 2, ignition interlock system 65), wherein the alcohol sensor means and the portable apparatus each comprises a wireless communication means (Figs. 1-2, wireless transmitter and receiver 9 and 19) facilitating wirelessly transmitting the current alcohol concentration from the alcohol sensor to the portable apparatus (¶ [0046]).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of Sohege with having a user exhale air into an alcohol sensor comprising a fuel cell and a wireless communication device as taught/suggested by Gollar in order to provide an accurate, specific alcohol measurement that utilizes little electrical power (Gollar, ¶¶ [0002]-[0003]) and to facilitate communicating said measurement to the portable apparatus for further analysis (Gollar, ¶ [0046]; Sohege, col. 2, lines 8-15; etc.) and/or as a simple substitution of one known means/method of measuring a current blood alcohol level and communicating said level to the portable apparatus for another to yield no more than predictable results. See MPEP 2143(I)(B).
Sohege as modified does not teach the method is for determining a future point of time when a user can conduct the activity, at which the alcohol concentration in blood of a user is less than a threshold value, or the method further comprises inputting characteristics of the user that have an influence on alcohol burn rate selected from the group consisting of sex and weight, using the portable apparatus; and using: (1) the wirelessly-transmitted current alcohol concentration, and (2) a software that makes use of either: (i) a known alcohol burn rate of the user, or (ii) an alcohol burn rate calculated through use of said software based on the input characteristics of the user to calculate the future point of time.
Tono discloses predicting/calculating future blood alcohol concentration based on a current alcohol concentration detected by an alcohol sensor, and a predetermined/stored alcohol burn rate stored in a memory means, or an alcohol burn rate calculated by the calculation means in dependence of characteristics of the user which have an influence on the alcohol burn rate (pg. 10, where prediction can be made by either calculating a prediction graph based on measured value data and a predetermined mathematical formula based on known alcohol burn rate, or a relationship acquired by experiment and mapped that takes into account information input by a user and accumulated in EEPROM 17, such as sex and weight; pg. 15, calculating an effective period, or the time during which the alcohol concentration measured from the breath decreases to a certain alcohol concentration).
Similarly, Payne teaches/suggests a method comprising determining a future point of time when a user can conduct an activity, such as legally operating a vehicle, the method comprising inputting characteristics of the user that have an influence on the alcohol burn rate, such as weight, using a portable apparatus (pg. 4, lines 16-22, the device is arranged to receive weight information from the user); and using a current alcohol concentration and a software that makes use of an alcohol burn rate calculated through use of said software based on the characteristic(s) of the user (pg. 4, lines 16-22, the device is arranged to determine, in response to input weight information, an approximate time for the detected alcohol amount to reduce to a magnitude below the maximum legal alcohol amount).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of Sohege to further comprise inputting characteristics of the user that have an influence on alcohol burn rate, including sex and weight, using the portable apparatus; and using: (1) the wirelessly-transmitted current alcohol concentration, and (2) a software that makes use of an alcohol burn rate calculated through use of said software based on the input characteristics of the user to calculate a future point of time when a user can conduct the activity (e.g., operate the vehicle) as taught/suggested by Tono and Payne in order to facilitate at least indicating to the user how long he/she will have to wait before his/her alcohol level drops below the legal limit (Payne, pg. 16-22) with increased accuracy (Tono, pg. 10).
Sohege as modified does not disclose the method comprises storing the calculated future point of time in a memory of the portable apparatus, determining a current time using a clock of the portable apparatus, comparing the current time to the stored future point of time, or preventing the vehicle from getting started until the current time is equal to or later than the stored future point in time. However, as noted above, Tono discloses driving of an automobile is/should be prohibited until the future point in time (i.e., the end of the calculated effective period) (e.g., pg. 15). Mandle discloses a controller configured to store a future point in time in a memory (¶ [0016] lock window definition 32 (reference number 42 is used in Fig. 2), which is stored in memory, ¶ [0008]) compare the current time, as determined by a clock, to stored future point in time (¶ [0016] real time clock 30 is compared with the lock window definition 32/42), and prevent a motor vehicle from being started until the current time is equal to or later than the stored future point in time (Fig. 2, steps 46-52). Accordingly, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of Sohege with storing the calculated future point of time in a memory of the portable apparatus, determining a current time using a clock of the portable apparatus, comparing the current time to the stored future point of time, and preventing the vehicle from getting started until the current time is equal to or later than the stored future point in time as taught/suggested by Tono and Mandle in order to prevent the user from driving when his/her breath alcohol concentration is or should be above a predetermined limit (Tono, pg. 15).
Alternatively/Additionally, Thomas discloses a system wherein a vehicle is prevented from getting started when a current alcohol concentration is higher than a predetermined threshold value and for a length of time calculated as a function of the breath alcohol reading, wherein a higher reading results in the vehicle disabled for a longer time period (pg. 3, line 30 - pg. 4, line 8, excess breath alcohol content disables a function of the vehicle, and, optionally, the vehicle is disabled for a length of time related to the breath alcohol reading, wherein a higher reading results in the vehicle disabled for a longer time period). As discussed above, Mandle discloses a controller configured to store a future point in time in a memory, compare the current time, as determined by the clock, to stored future point in time, and prevent a motor vehicle from being started until the current time is equal to or later than the stored future point in time. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of Sohege with storing the calculated future point of time in a memory of the portable apparatus, determining a current time using a clock of the portable apparatus, comparing the current time to the stored future point of time, and preventing the vehicle from getting started until the current time is equal to or later than the stored future point in time as taught/suggested by Thomas and Mandle in order to prevent the user from driving until his/her breath alcohol content is below a designated level (Thomas, pgs. 3-4).
Regarding claim 26, Sohege as modified teaches/suggests the limitations of claim 25, as discussed above, but does not expressly disclose the wireless transmission step is performed with a radio transmitting and receiving step. Payne teaches/suggests radio transmitting and receiving devices using low power (e.g., Bluetooth®) are a suitable means for transferring signals between devices (pg. 8, lines 17-24), such that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of Sohege with the wireless transmission step being performed with a radio transmitting and receiving step as taught and/or suggested by Payne as a simple substitution of one known method of wirelessly transferring and receiving signals between devices for another to yield no more than predictable results. See MPEP 2143(I)(B).
Regarding claim 31, Sohege as modified teaches/suggests the limitations of claim 25, as discussed above, but does not expressly disclose the future point of time is calculated in dependence of known alcohol burn rate of a user stored in a memory. However, as noted above, Tono discloses using a predetermined burn rate stored in memory and a burn rate calculated or calibrated based on user characteristics as suitable alternatives for projecting future blood alcohol concentration(s) (pg. 10). Additionally, Tono discloses information specific to a user may be stored and subsequently recalled (e.g., pg. 17, steps S206). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of Sohege with the future point of time being calculated in dependence of known alcohol burn rate of a user stored in a memory as taught/suggested by Tono in order to increase user convenience during said subsequent use(s) of the portable apparatus by a given user (e.g., by only requiring a given user to input his/her characteristics during an initial and/or periodic calculation/calibration of his/her specific burn rate and storing said burn rate in the memory for subsequent use) and/or as a simple substitution of one known method of utilizing a burn rate suitable for a given user to predict future blood alcohol concentration for another to yield no more than predictable results. See MPEP 2143(I)(B).
Claim(s) 18, 20, 22, 27-29 and 32 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sohege in view of Gollar, Tono, Payne and Mandle (or Sohege in view of Gollar, Tono, Payne, Mandle and Thomas) as applied to claim(s) 14 and 25 above; or alternatively, over Sohege in view of Gollar, Tono, Payne and Mandle (or Sohege in view of Gollar, Tono, Payne, Mandle and Thomas) as applied to claim(s) 14 and 25 above, and further in view of US 2002/0084130 A1 (previously cited, Der Ghazarian).
Regarding claims 18, 20 and 27-29, Sohege as modified teaches/suggests the limitations of claims 14 and 25, as discussed above, and further discloses the activity is that of operating a motor vehicle (Sohege, throughout document; see discussion of independent claims above; etc.), and the portable apparatus is in the form of a portable computer (e.g., evaluation unit operatively connected to the motor vehicle, and therefore capable of carried/transported by said vehicle).
Alternatively/Additionally, Der Ghazarian teaches and/or suggests a system comprising a portable apparatus comprising a mobile telephone, i.e., a portable apparatus configured to be carried/transported by a user and having its own power source so as to be operated independent of an external power source, configured to be operatively connected to a motor vehicle for similarly blocking/allowing operation of a motor vehicle (e.g., ¶ [0005] mobile phone capable of analyzing sensor data to determine whether or not a threshold is exceeded and signaling said an ignition interlock CPU accordingly; Abstract, the mobile device is powered by a battery; etc.).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the apparatus/method of Sohege with the portable apparatus being configured to be carried or transported by the user and having its own power source so as to be operated independent of an external power source, such as a mobile telephone, as taught/suggested by Der Ghazarian in order to enable the portable apparatus to be readily used with/connected to multiple vehicles (e.g., any properly-equipped vehicle, as described in, e.g., ¶ [0028], of Der Ghazarian,) and/or as a simple substitution of one known type of portable apparatus capable of operatively connecting to a vehicle for control thereof for another to yield no more than predictable results. See MPEP 2143(I)(B).
Regarding claims 22 and 32, Sohege as modified teaches/suggests the limitations of claims 14 and 25, teaching/suggesting the alcohol sensor communicates with the portable apparatus, as discussed above, but does not teach the portable apparatus is configured to automatically re-transmit the blood alcohol concentration to interested parties or external devices with no interference by the user. Der Ghazarian teaches/suggests a portable apparatus (mobile device or phone) configured to block operation of a vehicle and transmit the blood alcohol concentration to interested parties or external devices with no interference by the user (¶ [0005] mobile phone may send breath analysis data to a monitoring station). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the system/method of Sohege with the portable apparatus being configured to automatically (i.e., with no interference by the user) re-transmit the blood alcohol concentration to interested parties or external devices as taught and/or suggested by Der Ghazarian in order to facilitate locating a vehicle, remotely immobilizing a vehicle, providing law enforcement direct access to measured data, etc. (Der Ghazarian, ¶ [0026]).
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
With respect to rejections/support under 35 U.S.C. 112(a), Applicant contends, "The specification describes, in multiple locations, that the system calculates a future point in time at which the user's blood alcohol concentration will fall below a threshold, stores this calculated future time, and uses a clock to determine the current time. See, e.g., Specification, at [0010], [0038], [0043], [0050], [0053]. The specification further describes that the system or method can prevent vehicle operation until the current time is equal to or later than the calculated future point in time. Id [0048], [0054]" (Remarks, pg. 8).
The examiner respectfully disagrees. The examiner agrees that the specification discloses the system calculates a future point in time at which the user's blood alcohol concentration will fall below a threshold, and comprises a clock useable to determine the current time. However, there is no disclosure that the system stores the calculated future time, or prevents vehicle operation until the current time is equal to or later than the calculated future point in time in either the paragraphs cited by Applicant or the remainder of the specification. Rather, the only information other than a computer program/programming disclosed as being stored in a memory is a time stamp representing the "current time" associated with a detected alcohol concentration, and a known alcohol burn rate of the user (¶ [0010], ¶ [0038], etc.). There is no disclosure that the clock, or a current time determined therefrom, is compared to any time stored in memory, or the result of such a comparison is used to determine if a vehicle should be prevented from being started. Rather, the only condition disclosed for preventing a vehicle from being started is when a current alcohol concentration is above a threshold level (¶ [0016], ¶ [0030], ¶ [0042], ¶ [0048]). In view of the above, independent claim 14, independent claim 25 and claims dependent thereon lack sufficient support in the application as filed and therefore are directed to and/or encompass new matter.
With respect to the prior art rejections of record, Applicant discusses each of the references used in the rejection individually, contending that each reference does not disclose at least one feature of the claimed system/method. However, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant concludes, " The prior art solutions are fundamentally user-driven-requiring the user to interpret a waiting period or graph and self-regulate vehicle use. In contrast, the claimed invention provides an automated process by dynamically calculating, storing, and enforcing a user-specific future point in time, and actively comparing it to the real-time clock to control vehicle operation. This approach can help eliminate reliance on user compliance, reduce the risk of human error, and provide a more precise and individualized safety mechanism. There is no teaching, suggestion, or motivation in the cited references to automate the lockout logic in this manner, nor is there any indication that such a system would have been obvious to implement, especially given the technical differences and the shift from user-advisory to automated enforcement" (Remarks, pgs. 10-11).
The examiner respectfully disagrees. Firstly, the application as filed does not support the features that Applicant contends distinguishes the present invention from the prior art of record. Specifically, as discussed above, Applicant fails to disclose "an automated process by dynamically calculating, storing, and enforcing a user-specific future point in time, and actively comparing it to the real-time clock to control vehicle operation."
Secondly, Sohege as modified above (by Gollar, Tono and Payne) discloses a system comprising an input connected to the controller by which the user is able to input his/her characteristics which have an influence on alcohol burn rate, such as sex and weight, and the calculation device being operable to calculate a future point of time when the user can conduct the activity in dependence of an alcohol burn rate calculated by the calculation device based on the characteristics of the user in order to facilitate at least indicating to a user how long he/she will have to wait before his/her alcohol level drops below the legal limit for the activity (e.g., driving) with increased accuracy. Further, each of Tono and Thomas discloses/suggests the user should not operate a vehicle until said calculated future point in time, thereby suggesting the vehicle should further be prevented from being started for said user during this time period (i.e., until the current time is the calculated point in time). Mandle more expressly discloses how, using a stored time value and a clock, such prevention may be achieved. Accordingly, while the examiner acknowledges no single reference discloses each feature of the pending independent claims, the system/method of said claims would have been obvious in view of the combination of prior art (i.e., Sohege as modified by the cited references) for at least the reasons discussed in the rejections of record.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure: see attached PTO-892.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Meredith Weare whose telephone number is 571-270-3957. The examiner can normally be reached Monday - Friday, 9 AM - 5 PM.
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/Meredith Weare/Primary Examiner, Art Unit 3791