DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08 June 2026 has been entered.
Status of Claims
Claim(s) 14 and 25 is/are currently amended. Claim(s) 1-13 was/were previously 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Rejections Withdrawn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rejections under 35 U.S.C. 112(b) (or pre-AIA 35 U.S.C. 112, second paragraph) not reproduced below has/have been withdrawn in view of Applicant's amendments to the claims and/or submitted remarks.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 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) 14-33 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, claim 25 and claims dependent thereon, the limitations "wherein the controller is connected to a calculation device 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, 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…wherein the calculation device is operable to be self-calibrated during use through software comprising formulas that are parameterized to the user" of claim 14 and the limitations "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 characteristics of the user from step (d), which have an influence on the alcohol burn rate, to calculate the future point of time…(h) self-calibrating the calculation device during use through software comprising formulas that are parameterized to the user" of claim 25 are indefinite.
Applicant discloses, "The method then continues, at block 56, to ask the question: Is there a known alcohol burn rate for the user? If the answer to this question is affirmative, the method continues, at block 60, with the step: to calculate the future point of time in dependence of the known alcohol burn rate of the user. On the other, …if the answer to the question is negative, the method continues, at block 58, with the step: to calculate an alcohol burn rate for the user in dependence of characteristics of the user which have an influence on the alcohol burn rate" (¶ [0036])" and, "It is pointed out that the calculation means 24 (see fig. 1) make use of formulas about the burn rate of alcohol in the human body. The formulas are parameterized to allow for individual forecasting of when the person/user can start driving cars, start to breast-feed etc. The system 10 can also be calibrated to enhance the reading accuracy. The calibration can be done over many different occasions or during the same occasion. Due to the use of the characteristics of the user, the system 10 can be what is called a self-calibrating system 10" (¶¶ [0043]-[0045]). The latter is the only mention of calibrating/self-calibrating throughout the disclosure. Using input user characteristics to calculate a user-specific burn rate appears to be the only use of the characteristics disclosed with any/sufficient detail through the application as filed. As noted above, the disclosure states, due to the "use of the characteristics," the system can be called "self-calibrating." However, ¶¶ [0043]-[0044] states the calculation means/device can make use of parameterized formulas about the burn rate of alcohol in the human body for individual forecasting and the system "can also be calibrated" (emphasis added).
In view of the above, the relationship between "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" and the apparatus being "self-calibrated during use through software comprising formulas that are parameterized to the user" is indefinite. Specifically, it is unclear if an alcohol burn rate calculated by the calculation means in dependence of characteristics of the user using a parameterized formula(s) is the manner by which the system is self-calibrated, or if a further step(s) is required, in addition to calculating a burn rate for a user based on his/her characteristics using a parameterized formula(s), to "self-calibrate" the apparatus in the manner claimed. If the latter, it is unclear what step(s) are required for self-calibration, and how, if at all, the characteristics are used in said step(s).
Additionally, calculating the future point in time based on an alcohol burn rate calculated through use of said software based on characteristics of the user is recited as an alterative to calculating the future point in time based on a known alcohol burn rate. In view of the above-noted paragraphs of the specification, it is further unclear what "self-calibrating the calculation device during use through software comprising formulas that are parameterized to the user" requires and/or encompasses for embodiments wherein the software makes use of the known alcohol burn rate.
Regarding claim 19 and claims dependent thereon, the limitation "whereby the vehicle is also prevented from getting started if the current alcohol concentration is higher than a predetermined threshold value" is indefinite, particularly the use of "also," as claim 14, on which claim 19 depends, has been amended by Applicant to recite "the motor vehicle is prevented from getting started if the current alcohol concentration is higher than a predetermined threshold value."
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, the relationship between the step of calculating an alcohol burn rate in dependence of characteristics of the user which have an influence on the alcohol burn rate and the step of self-calibrating the device during use through software comprising formulas that are parameterized to the user is unclear, as discussed above with respect to rejection(s) under 35 U.S.C. 112(b). As noted above, the only mention of calibrating and/or self-calibrating in the application as filed states, "It is pointed out that the calculation means 24 (see fig. 1) make use of formulas about the burn rate of alcohol in the human body. The formulas are parameterized to allow for individual forecasting of when the person/user can start driving cars, start to breast-feed etc. The system 10 can also be calibrated to enhance the reading accuracy. The calibration can be done over many different occasions or during the same occasion. Due to the use of the characteristics of the user, the system 10 can be what is called a self-calibrating system 10" (¶¶ [0043]-[0045]).
A claim may lack written description support when (1) the claim defines the invention in functional language specifying a desired result but the disclosure fails to sufficiently identify how the function is performed or the result is achieved or (2) a broad genus claim is presented but the disclosure only describes a narrow species with no evidence that the genus is contemplated. See MPEP 2163.03(V). Additionally, for computer-implemented limitations, if the specification does not provide a disclosure of the computer and algorithm in sufficient detail to demonstrate to one of ordinary skill in the art that the inventor possessed the invention including how to program the disclosed computer to perform the claimed function, a rejection under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, for lack of written description must be made. See MPEP 2161.01(I).
If it is Applicant's intention that the claimed self-calibration requires something more than calculating an alcohol burn rate in dependence of characteristics of the user which have an influence on the alcohol burn rate, i.e., using a parameterized formula(s), the application as filed fails to provide adequate support commensurate in scope with this interpretation, as there is no disclosure of what additional steps are required for "self-calibration" beyond a generic statement that characteristics of the user are used. Accordingly, for the above-noted interpretation, Applicant fails to disclose an algorithm in sufficient detail for self-calibrating (or calibrating) the system.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim(s) 19 and 30 is/are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, fourth paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
As discussed above with respect to rejections under 35 U.S.C. 112(b), it is unclear what, if any, further limit is placed on the system of claim 14 by the limitations recited in claim 19. Additionally, the limitation of claim 30 ("preventing the vehicle from getting started if the current alcohol concentration is higher than a predetermined threshold value") is similarly already recited in amended claim 25, on which claim 30 depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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) and WO 02/12883 A1 (previously cited, Payne).
Regarding claims 14-15, 19 and 23-24, Sohege discloses and/or suggests a system operable to prevent 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 independently 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 motor 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, or an alcohol burn rate calculated by calculation means in dependence of characteristics of the user which have an influence on the alcohol burn rate (i.e., is "self-calibrated" during use through software comprising formulas that are parameterized to the user consistent with the disclosure of the present application) (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 (i.e., is "self-calibrated" through software comprising formulas that are parameterized to the user consistent with the disclosure of the present application) (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, i.e., "self-calibrating the calculation device during use through software comprising formulas that are parameterized to the user" in the manner consistent with Applicant's disclosure, 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).
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 discloses/suggests a method for preventing or 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 (i.e., is "self-calibrated" during use through software comprising formulas that are parameterized to the user consistent with the disclosure of the present application) (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 (i.e., is "self-calibrated" through software comprising formulas that are parameterized to the user consistent with the disclosure of the present application) (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), i.e., "self-calibrating the calculation device during use through software comprising formulas that are parameterized to the user" in the manner consistent with Applicant's disclosure 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).
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 and Payne as applied to claim(s) 14 and 25 above; or alternatively, over Sohege in view of Gollar, Tono and Payne 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 discloses/suggests the limitations of claims 14 and 25, disclosing/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 the prior art rejections, Applicant contends, "The self-calibration feature recited in amended claims 14 and 25 represent a non-obvious technical improvement wherein the calculation device adapts its formulas to the specific user during use, thereby enhancing the accuracy of the alcohol burn rate calculation and the resulting future point of time determination. As described in Applicant's specification, "[t]he system 10 can also be calibrated to enhance the reading accuracy" and "[t]he calibration can be done over many different occasions or during the same occasion." Specification, at [0051]-[0052]. This is distinct from merely inputting user characteristics into a static formula, as taught by Tono and Payne. None of the cited references teach or suggest a calculation device that is operable to be self-calibrated during use through software comprising formulas that are parameterized to the user, and there is no teaching, suggestion, or motivation in the cited references to arrive at this feature" (Remarks, pg. 9). Applicant similarly contends, "Tono's approach involves inputting user data into a predetermined formula or using experimentally-mapped data. This approach is fundamentally different from a calculation device that self-calibrates during use through software comprising formulas parameterized to the user" (Remarks, pg. 10).
The examiner respectfully disagrees. As noted in the rejections under 35 U.S.C. 112(b) and 35 U.S.C. 112(a) above, the alleged "distinction" and/or "fundamental difference" is unclear and/or insufficiently disclosed by Applicant. The only mention of calibrating in the specification as filed states, in its entirety, "It is pointed out that the calculation means 24 (see fig. 1) make use of formulas about the burn rate of alcohol in the human body. The formulas are parameterized to allow for individual forecasting of when the person/user can start driving cars, start to breast-feed etc. The system 10 can also be calibrated to enhance the reading accuracy. The calibration can be done over many different occasions or during the same occasion. Due to the use of the characteristics of the user, the system 10 can be what is called a self-calibrating system 10" (¶¶ [0043]-[0045]). There is not even any clear indication that the "calibrations to enhance reading accuracy" that "can be done over many different occasions or during the same occasion" of paragraph [0044] is referring to the same "calibration" of paragraph [0045]. Paragraph [0044] contains the only mention of a "reading." This language on its face seems more consistent with the manner in which calibration of sensor data is typically described in the art (e.g., sensors provide readings, calibrating said sensors enhances accuracy of its readings, etc.). The only clear disclosure with respect to the "self-calibrating" aspect states the system can be called self-calibrating due to the use of the characteristics. The only use of the characteristics disclosed with any/sufficient detail throughout the application as filed is inputting said characteristics to calculate a user-specific burn rate via parameterized formulas (i.e., functions/formulas that use received user characteristics as a parameter on which the burn rate is calculated). This is comparable to what is disclosed by Tono and/or Payne.
Tono discloses, "In general, the blood concentration reaches a peak at about 2 hours after drinking, and thereafter, if there is a large individual difference but the person has a weight of 60 kg, it is decomposed at a rate of about 12 mg/h. Prediction can be made by calculating with a predetermined mathematical formula based on these findings. Since the relationship is not completely linear, as shown in FIG. 5, if the relationship between the elapsed time and the alcohol concentration in the expired air is acquired by experiment and mapped, the accuracy becomes higher. Further, if data such as sex and weight are input prior to display, the prediction accuracy can be further increased" (pg. 10). Accordingly, Tono discloses inputting user characteristics to calculate a user-specific burn rate, and therefore a user-specific time-series prediction of alcohol concentration (e.g., Fig. 5) with increased accuracy. Consistent with Applicant's disclosure, it is due to this use of characteristics that the system may be called "self-calibrating." The disclosure of Payne is comparable, wherein at least one user characteristic (weight) may be input to a system in order to determine the amount of time until alcohol concentration is under a maximum legal alcohol amount that is specific to the user and/or his/her characteristics (pg. 4, lines 17-22). Accordingly, whatever "distinction" and/or "fundamental difference" Applicant is asserting exists between the present invention and the disclosure/suggestion of Tono and/or Payne is not described by Applicant in any or at least sufficient detail in either the application as filed or the submitted remarks, and is not clearly distinguished by the language of the pending claims. For at least these reasons, Applicant's arguments are not persuasive.
Conclusion
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
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