DETAILED ACTION
Claims 31-51 are pending in the current application
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 .
Response to Arguments
Applicant's arguments filed have been fully considered but they are not persuasive.
Applicant argues that (Argument 1; Remarks pg. 9 lines 19-20) that the claims do not recite a mental process because the claimed steps cannot be practically performed in the human mind, (Argument 2; Remarks pg. 11 lines 3-8) the claims integrate the abstract idea into a practical application by providing a specific technological solution to a technological program
With respect to applicant’s arguments examiner respectfully disagrees. As to argument 1, not every element of a claim has to be directed to an abstract idea mental process element for the claim to be considered as being directed to an abstract idea as long as the other remaining additional elements of ones that do not integrate the abstract idea into a practical application and do not show significantly more than the abstract idea. The claims as seen in full detail in the rejection below do still recite abstract idea mental process elements related to determining that a specific software updating process is required by the processing circuity of the communication device, comparing the acquired data to predefined conditions for initiating the specific software updating process, determining that the acquired data meet with predefined conditions for the processing circuitry to initiate the specific software updating process at the communication device and wherein the predefined conditions have been selected such that the predefined conditions are met if the acquired data has been forced to fall within a specific interval, patten or in a specific way in relation to a threshold value, where the specific interval, patten or threshold relation is predetermined to uniquely correspond to the specific software updating process to be executed, by controlled manipulation of an environment of the at least one sensor while the communication device is maintained in that environment, whereas the required software process is not imitated if the environment has not been manipulated in the controlled way. Examiner agrees that “automatically and repeatedly acquiring, by processing circuitry of the communication device and according to a predefined timing schedule, data captured by at least one sensor” is not a mental process but at the level recited it is viewed adding generic computer, generic computer components and/or generic computer functions as an additional element that does not integrate the abstract idea into a practical application or show significantly more than the abstract idea and insignificant extra solution activity information that is well understood, routine and conventional of sending and receiving data over a network that does not integrate an abstract idea into a practical application or show significantly more than the abstract idea seen fully explained in the rejection below. It is also noted that the claimed “repeatedly” element is not viewed as limited to creating a continuous technology process where the communication device maintains persistent monitoring capabilities as the language does not include elements directed to also the language directed to “wherein the predefined timing schedule defines sensor data acquisition interval based on the specific software update process required” a automated process is a technology element but something being automated at the level recited is viewed adding generic computer, generic computer components and/or generic computer functions and does not integrate the recited abstract idea elements into a practical application. Also the claim language does not read on the specifics of the sensors acquiring the data according to the schedule but the processing circuitry of the communication device acquiring/receiving the data captured by the sensors according to the schedule insignificant extra solution activity information that is well understood, routine and conventional of sending and receiving data over a network that does not integrate an abstract idea into a practical application or show significantly more than the abstract idea. The claims also do not require continuous evaluation of software update characteristics against sensor monitoring requirement, while the claims do require the data repeatedly this can be viewed as acquiring the data twice and is done according to a schedule and the repeated language is limited to the acquiring data the comparing step can be viewed as comparing all the acquired data acquiring according the schedule and in viewed of the associated interval for the repeatedly and comparing it once to the predefined conditions of initiation the specific software updating process. Thus viewed that the claim still recites abstract idea mental process.
As to argument 2, while a technical improvement or a technical solution can be elements that integrate an abstract idea into a practical application not every improvement is viewed as one of a technical improvement/solution and the specification must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as pertaining to an improvement in technology and the claims must reflect the improvement in technology such that it covers a particular solution as opposed to merely claiming the idea of a solution or improvement. It is noted here that the claims are directed to the idea of the solution or improvement instead of the argument technological improvement it is still viewed as data comparison determination abstract idea mental process and the claims do not include anything related to the specifics of a constrained communication device or how/why it is constrained that could tie the claims to one of the argued improvements. It is unclear how this goes beyond data comparison as claimed it is viewed as if conditions match initiate update and if the conditions do not match do not initiate update also the claims do not require the automated updated process operates without human intervention or fully automatically, where controlled manipulation of the environment of a sensor could be viewed as a user/human pressing on a pressure sensor with enough force as an example of controlled manipulation of the environment. Thus viewed that the claims do not recite reflect the argued improvement such that it covers a particular solutions instead of the generic idea of a solution/improvements and thus viewed as still being directed to an abstract idea mental process.
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 31-51 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 31, 38 and 51 recites the limitation "the environment" in lines 6-7, 8 and 7-8. There is insufficient antecedent basis for this limitation in the claims and appropriate correction is required.
Claims 32-27, 39-50 depend from claims 31 and 38 above and do not overcome this issue and thus rejected under the same reasoning.
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 31-51 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea, as it has not been integrated into a practical application and the claims further do not recite significantly more than then abstract idea. Examiner has evaluated the claims under the framework provided in the 2019 Patent Eligibility Guidance published in the Federal Register 01/07/2019 and has provided such analysis below.
Step 1: Claims 31-51 are claims that are directed to a process, machine, manufacture or composition of matter.
In order to evaluate the Step 2A inquiry “Is the claim directed to a law of nature, a natural phenomenon or an abstract idea?” we must determine, at Step 2A Prong 1, whether the claim recites a law of nature, a natural phenomenon or an abstract idea and further whether the claim recites additional elements that integrate the judicial exception into a practical application.
Step 2A Prong 1:
Claims 31, 38 and 51: The limitation of determining that a specific software updating process is required by the processing circuity of the communication device, comparing the acquired data to predefined conditions for initiating the specific software updating process, determining that the acquired data meet with predefined conditions for the processing circuitry to initiate the specific software updating process at the communication device and wherein the predefined conditions have been selected such that the predefined conditions are met if the acquired data has been forced to fall within a specific interval, patten or in a specific way in relation to a threshold value, wherein the specific predefined interval, pattern or threshold relationship is predetermined to uniquely correspond to the specific software updating process to be executed, by controlled manipulation of the environment of the at least one sensor while the communication device is maintained in that environment, whereas the required software process is not imitated if the environment has not been manipulated in the controlled way as drafted, is a process that, but for the recitation of generic computing components to apply the abstract idea to technology environment and insignificant extra solution activity information, under its broadest reasonable interpretation, covers performance of the limitation in the mind. For example, a person can mentally perform based on an observation/evaluation of software to determine that a software update process is required/necessary. Further, a person can mentally comparable acquired data to predetermined data values and make a determination based on that comparison that the data matches the predefined condition/predetermined data values such as do they match or not. Further, a person can mentally determine that an action should be performed based on analysis of acquired data information if the data matches a predefined condition. Further a person can make a mental decision and select specific predefined conditions that are to be meet that would show the data forced to fall/manipulated to fall in a specific way compared to a threshold. Therefore, the claims recite an abstract idea,
The claims have been identified to recite an abstract idea, Step 2A Prong 2 will evaluate whether the claims are directed to the judicial exception.
Step 2A Prong 2:
Claims 31, 38 and 51: The abstract idea is not integrated into a practical application. In particular the claims recite the following additional elements of “automatically and repeatedly… by processing circuitry of the communication device”, “at least one sensor”, “communication device”, “a communication device for executing a software updating process, the communication device comprising sensor interface circuity configured to communicate with one or more sensors and processing circuity operatively coupled to the sensor interface circuity” and “a computer program product, comprising a non-transitory computer readable medium on which a computer program is stored the computer program comprising program instructions configured to case a communication device, upon execution of the program instruction, to:”, which are merely recitations of generic computing components and functions merely applying the abstract idea using the generic computing components and functions, which does not integrate the abstract idea into a practical application. Further the claims recite the additional elements of repeatedly acquiring according to a predefined timing schedule data captured from a sensor where the predefined timing schedule defines sensor data acquisition intervals based on the specific software updating process required limitation is viewed as akin to sending the data information and viewed as insignificant extra solution activity information that does not impose any meaningful limits of practicing the abstract idea and does not integrate the abstract idea into a practical application. Further, the claims recite the additional elements of “initiating…the required specific software updating process at the communication device in response to determining… that the acquired data meet with predefined conditions for the processing circuitry to initiate the specific software updating process at the communication device, wherein the predefined conditions have been selected such that the predefined conditions are met if the acquired data has been forced to fall within a specific predefined interval, pattern or in a specific way in relation to a threshold value, wherein the specific predefined interval, pattern or threshold relationship is predetermined to uniquely correspond to the specific software update process to be executed, by controlled manipulation of the environment of the at least one sensor, while the communication device is maintained in that environment, whereas the required software process is not initiated if the environment has not been manipulated in the controlled way that corresponds to the specific software updating process” and “wherein the software updating process is executed, by the processing circuitry of the communication device, according to the specific predefined interval, pattern or specific way which the acquired data has been forced to fall in relation to a threshold value” does not meaningfully limit the claim because it does not require any particular application of the recited initiation of the software update and executing software update process and is at best the equivalent of merely adding the words “apply it” to the abstract idea thus this additional element does not integrate the abstract idea into a practical application.
Therefore, “Do the claims recite additional elements that integrate the abstract idea into a practical application? No, these additional elements do not integrate the abstract idea into a practical application and they do not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
After having evaluating the inquires set forth in Steps 2A Prong 1 and 2, it has been concluded that claims, 31, 38 and 51 not only recite an abstract idea but that the claims are directed to the abstract idea as the abstract idea has not been integrated into practical application.
Step 2B:
Claims 31, 38 and 51: The claims do not include additional elements, alone or in combination that are sufficient to amount to significantly more than the abstract idea. As discussed above with respect to integration of the abstract idea into a practical application, the additional elements of “automatically and repeatedly… by processing circuitry of the communication device”, “at least one sensor”, “communication device”, “a communication device for executing a software updating process, the communication device comprising sensor interface circuity configured to communicate with one or more sensors and processing circuity operatively coupled to the sensor interface circuity” and “a computer program product, comprising a non-transitory computer readable medium on which a computer program is stored the computer program comprising program instructions configured to case a communication device, upon execution of the program instruction, to:”, amount to no more than generic computing components and elements merely to apply the abstract idea. Additionally, the elements of “initiating…the required specific software updating process at the communication device in response to determining… that the acquired data meet with predefined conditions for the processing circuitry to initiate the specific software updating process at the communication device, wherein the predefined conditions have been selected such that the predefined conditions are met if the acquired data has been forced to fall within a specific predefined interval, pattern or in a specific way in relation to a threshold value, wherein the specific predefined interval, pattern or threshold relationship is predetermined to uniquely correspond to the specific software update process to be executed, by controlled manipulation of the environment of the at least one sensor, while the communication device is maintained in that environment, whereas the required software process is not initiated if the environment has not been manipulated in the controlled way that corresponds to the specific software updating process” and “wherein the software updating process is executed, by the processing circuitry of the communication device, according to the specific predefined interval, pattern or specific way which the acquired data has been forced to fall in relation to a threshold value”, do not meaningfully limit the claim because it does not require any particular application of the recited initiation of the software update and executing the software update and is at best the equivalent of merely adding the words “apply it” to the abstract idea. Further, the limitation of repeatedly acquiring according to a predefined timing schedule data captured from a sensor where the predefined timing schedule defines sensor data acquisition intervals based on the specific software updating process required limitation is directed to insignificant extra solution activity is well understood routine and conventional activity that is akin to sending/receiving data over a network see MPEP 2106.05(d)(II). Where the courts have recognized that the following computer functions as well-understood, routine and conventional functions when they are claimed in merely a generic manner or as insignificant extract solution activity. i. Receiving or transmission data over a network where the acquiring data captured by a sensor is analogous to the transmission of data and thus and thus cannot provide an inventive concept.
Therefore, “Do the claims recite additional elements that amount to significantly more than the abstract idea? No, these additional elements, alone or in combination, do not amount to significantly more than the abstract idea.
Having concluded analysis within the provided framework, claims 31, 38 and 51 do not recite patent eligible subject matter under 35 USC 101.
With regard to claims 32 and 39 they recite additional elements of initiation of the software updating is executed at any of a secure functions or a secure circuit of the communication device limitation which is merely a field of use/technological environment which does not integrate the abstract idea into a practical application. Moreover, claims 32 and 39 do not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claims 32 and 39 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claims 32 and 39 do not recite patent eligible subject matter under 35 USC 101.
With regard to claims 33 and 40 they recite additional abstract idea elements of the predefined condition comprise at least one of: a predefined pattern recognized in the acquired data; or acquired data exceeding or being below a threshold is a process that, but for the recitation of generic computing components to apply the abstract idea to technology environment and insignificant extra solution activity information, under its broadest reasonable interpretation, covers performance of the limitation in the mind. For example, a person can mentally perform based on an observation/evaluation/analysis to determine conditions associated with at least acquired data being above or below a threshold value. Moreover, claims 33 and 40 do not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claims 33 and 40 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claims 33 and 40 do not recite patent eligible subject matter under 35 USC 101.
With regard to claims 34 and 41 they recite additional abstract idea elements of the processing circuitry configured to recognize data that has been captured by the at least one sensor when the environment of the sensor has been manipulated such that the acquired data is being manually or automatically forced to fall within a specific way in relation to a threshold value is a process that, but for the recitation of generic computing components to apply the abstract idea to technology environment and insignificant extra solution activity information, under its broadest reasonable interpretation, covers performance of the limitation in the mind. For example, a person can mentally perform an analysis on the received data and make a determination based on comparison to threshold that the acquired data is manually or automatically forced to fall within a specific interval Moreover, claims 34 and 41 do not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claims 34 and 41 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claims 34 and 41 do not recite patent eligible subject matter under 35 USC 101.
With regard to claims 35 and 42 they recite additional elements of a primary function for capturing data from at least one sensor that provides a representation of the environment and a secondary function for capturing data from at least one sensor that provides a potential trigger for the software updating process which is merely insignificant extra-solution activity information of storing/capturing data to memory which does not integrate the abstract idea into a practical application. Further, the insignificant extra solution data activity is also WURC, see MPEP 2106.05(d)(II), where “the courts have recognized the following computer functions as well-understood, routine and conventional functions when they are claimer in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. storing data information to memory where the capturing different data is akin to capturing/recording that specific data from the sensors to memory. Moreover, claims 35 and 42 do not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claim 35 and 42 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claims 35 and 42 do not recite patent eligible subject matter under 35 USC 101.
With regard to claims 36 and 43 they recite additional elements of initiation of the captured data indicative of at least one of: temperature, pressure, acceleration force, backscattering coefficients, angle, rotation, motion, vibrations length or light which is merely a field of use/technological environment which does not integrate the abstract idea into a practical application. Moreover, claims 36 and 43 do not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claims 36 and 43 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claims 36 and 43 do not recite patent eligible subject matter under 35 USC 101.
With regard to claims 37 and 44 they recite additional elements the captured data is acquired from a combination of sensors, which are generic computing components which does not integrate the abstract idea into a practical application. Further the claims 37 and 44 recite additional element of capturing different categories of data which is merely insignificant extra-solution activity information of storing/capturing data to memory which does not integrate the abstract idea into a practical application. Further, the insignificant extra solution data activity is also WURC, see MPEP 2106.05(d)(II), where “the courts have recognized the following computer functions as well-understood, routine and conventional functions when they are claimer in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. storing data information to memory where the capturing different data is akin to capturing/recording the different categories of data from the sensors to memory. Moreover, claims 37 and 44 do not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claims 37 and 44 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claims 37 and 44 do not recite patent eligible subject matter under 35 USC 101.
With regard to claim 45 is recite additional abstract idea elements of apply predefined conditions which comprise conditions for considering the un-manipulated and the manipulated data together but for the recitation of generic computing components to apply the abstract idea to technology environment and insignificant extra solution activity information, under its broadest reasonable interpretation, covers performance of the limitation in the mind. For example, a person can mentally perform an analysis/consideration of the un-manipulated and the manipulated together. Further claim 45 recites additional elements of capturing non-manipulated data from a first sensor and manipulated data from a second sensor which is merely insignificant extra-solution activity information of storing/capturing data to memory which does not integrate the abstract idea into a practical application. Further, the insignificant extra solution data activity is also WURC, see MPEP 2106.05(d)(II), where “the courts have recognized the following computer functions as well-understood, routine and conventional functions when they are claimer in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. storing data information to memory where the capturing the un-manipulated and manipulated data is akin to capturing/recording that specific data from the sensors to memory. Moreover, claim 45 does not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claim 45 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 45 does not recite patent eligible subject matter under 35 USC 101.
With regard to claim 46 it recite additional elements of captured manipulated data is indicative of at least one of: temperature, pressure, acceleration force, backscattering coefficients, angle, rotation, motion, vibrations length or light and captured non-manipulated data is indicative of any of: geographical coordinates, distance, orientation or visual sensor data which is merely a field of use/technological environment which does not integrate the abstract idea into a practical application. Further claim 46 recites additional elements of capturing manipulated data captured by a sensor which is merely insignificant extra-solution activity information of storing/capturing data to memory which does not integrate the abstract idea into a practical application. Further, the insignificant extra solution data activity is also WURC, see MPEP 2106.05(d)(II), where “the courts have recognized the following computer functions as well-understood, routine and conventional functions when they are claimer in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. storing data information to memory where the capturing the manipulated data is akin to capturing/recording that specific data from the sensors to memory Moreover, claim 46 does not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claim 46 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 46 does not recite patent eligible subject matter under 35 USC 101.
With regard to claim 47 is recite additional abstract idea elements of wherein the at least one part of software is determined by the predefined condition met by the acquired data but for the recitation of generic computing components to apply the abstract idea to technology environment and insignificant extra solution activity information, under its broadest reasonable interpretation, covers performance of the limitation in the mind. For example, a person can mentally perform an analysis/consideration acquired data to determine if they meet/match the predefined conditions for the at least one part of software. Further claim 47 recites additional elements of update at least one part of software which does not meaningfully limit the claim because it does not require any particular application of the recited update of the software and is at best the equivalent of merely adding the words “apply it” to the abstract idea thus this additional element does not integrate the abstract idea into a practical application. Moreover, claim 47 does not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claim 47 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 47 does not recite patent eligible subject matter under 35 USC 101.
With regard to claim 48 it recites additional elements of set at least one write-protectable memory area associated with software to be updated to a writable area which does not meaningfully limit the claim because it does not require any particular application of the recited set/update of the memory area and is at best the equivalent of merely adding the words “apply it” to the abstract idea thus this additional element does not integrate the abstract idea into a practical application. Moreover, claim 48 does not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claim 48 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 48 does not recite patent eligible subject matter under 35 USC 101.
With regard to claim 49 it recites additional elements of set at least one write-protectable memory area associated with software to be updated to an un-writable area which after the updating has been complete does not meaningfully limit the claim because it does not require any particular application of the recited set/update of the memory area and is at best the equivalent of merely adding the words “apply it” to the abstract idea thus this additional element does not integrate the abstract idea into a practical application. Moreover, claim 49 does not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claim 49 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 49 does not recite patent eligible subject matter under 35 USC 101.
With regard to claim 50 it recite additional abstract idea elements of comparing the acquired data to the predefined conditions until any of the following occasions has appeared: a timer timeout occurred, or the communication device has acquired data from at least one specific sensor a redefined number of times data but for the recitation of generic computing components to apply the abstract idea to technology environment and insignificant extra solution activity information, under its broadest reasonable interpretation, covers performance of the limitation in the mind. For example, a person can mentally perform an analysis/consideration/comparisons of the acquired data to the predefined conditions until a mental determination is made that has as least acquired data from a specific sensor a predefined number of times Moreover, claim 50 does not recite any other additional elements and for the same reasons as above with regard to the integration into a practical application and whether the additional elements amount to significantly more, claim 50 also fail both Step 2A prong 2, thus the claims are directed to the abstract idea as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more. Therefore, claim 50 does not recite patent eligible subject matter under 35 USC 101.
Therefore claims 32-37 and 39-50 do not recite patent eligible subject matter under 35 USC 101.
Allowable Subject Matter
Claims 31-51 are object to as being allowable over the prior art however, remain rejected under 35 USC 112 and 101 .
Conclusion
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/BRADFORD F WHEATON/Examiner, Art Unit 2193
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