Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claim 1 is objected to because of the following informalities: “an OPTICS technique” should be -- an Ordering Points to Identify the Clustering Structure (OPTICS) technique-- . Appropriate correction is required.
As to claim 2-20 refer to claim 1 objection
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1, recites a functional outcome:
“determining one or more characteristics of the curve”;
“determining one or more characteristics of the cluster”; and
“identifying a scratch based on at least one of the one or more characteristics of the curve and the one or more characteristics of the cluster”.
But does not define any particular analysis steps of how the “one or more characteristics of the curve” is determined, the “one or more characteristics of the cluster” is determined, and “a scratch” is identified based on “at least one of the one or more characteristics of the curve and the one or more characteristics of the cluster”. Thus, the scope of the claim encompasses every analysis step known now and would be known in the future for implementing the functions of “determining one or more characteristics of the curve”, “determining one or more characteristics of the curve” and “identifying a scratch based on at least one of the one or more characteristics of the curve and the one or more characteristics of the cluster”. Therefore, the metes, bounds and scope of the claim and scope of protection are not defined and the claim is indefinite. Although a claim should be interpreted in light of the specification disclosure, it is generally considered improper to read limitations contained in the specification into the claims. See In re Prater, 415 F.2d 1393, 162 USPQ 541 (CCPA 1969) and In re Winkhaus, 527 F.2d 637, 188 USPQ 129 (CCPA 1975), which discuss the premise that one cannot rely on the specification to impart limitations to the claim that are not recited in the claim and therefore, the claim is indefinite (MPEP 2173.05 (g)).
As to claims 2-20.
Claim 1, recites, “determining one or more characteristics of the curve” on line 5, and “determining one or more characteristics of the cluster” on line 6. It is not clear what characteristics of the curve and what characteristics of the cluster are within the scope of the claim. The metes bounds and scope of the claim are not determined and the claim is indefinite.
As to claims 2-20.
Claim 14, recites, “wherein from the curve to a point of the cluster is one of the one or more characteristics of the cluster”, lines 2-3. It is unclear wherein what? from the curve to a point of the cluster. The metes bounds and scope of the claim are not determined and the claim is indefinite.
Claim 14, recites, “determine a distance from the curve to a point of the cluster”, line 2 and recites, “ wherein from the curve to a point of the cluster” on lines 2-3. It is not clear whether “a point of the cluster” on line 2 is the same as or different from “a point of the cluster” on lines 2-3. If the same the second one should refer to the first one and if different it should be labeled so. The metes bounds and scope of the claim are not determined and the claim is indefinite.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non- statutory subject matter (an abstract idea without significantly more). The claim(s) recite(s) a method, a system and a non-transitory computer-readable medium to detect a scratch.
Step 1:
With regard to step (1), claim 1, is directed to a method, i.e. to one of statutory categories of invention.
Step 2A-1:
With regard to 2A-1, the limitation of “identifying, via an OPTICS technique, a cluster of points on an image”, as drafted, is a process that, under its broadest reasonable interpretation and given the field of endeavor, is directed to a mathematical algorithm (Ordering Points to Identify the Clustering Structure “OPTICS” technique) derived by mathematical calculations from mathematical relationships. Similarly, the limitation of “utilizing a principal curves technique to identify a curve that approximates one or more points of the cluster of points as a smooth curve”, as drafted, is a process that, under its broadest reasonable interpretation, is directed to a mathematical algorithm (principal curves technique) derived by mathematical calculations from mathematical relationships. Similarly, the limitations of “determining one or more characteristics of the curve”, “determining one or more characteristics of the cluster”, and “identifying a scratch based on at least one of the one or more characteristics of the curve and the one or more characteristics of the cluster”, as drafted, each is a process that, under its broadest reasonable interpretation, covers performance of the limitations in the mind. That is, noting in the claim elements preclude the step from reasonably and practically being performed as a mental process in the human mind (MPEP 2106: “MENTAL PROCESS”: the “mental process” abstract idea grouping is defined as concepts performed in the mind. The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation. See, e.g., Benson, 409 U.S. at 67. 65. 175 USPQ at 674-75. 674 (noting that the claimed “conversion of [binary coded-decimal] numerals to pure binary numerals can be done mentally ,” i.e., “as a person would do it by head and hand,”). Nor do the Courts distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer. As the Federal Circuit has explained, “[c]ourts have examined claims that required the use of a computer and found that the underlying, patent-ineligible invention could be performed via pen and paper or in person’s mind.” Versata Dev. Group v. SAP Am., Inc. 793 F.3d 1306, 1336, 116 USPQ2d 1681. 1702 (Fed Cir. 2015). See also Intellectual Ventures | LLC v. Symantec Corp., 838 F 3d 1307, 1318 120.).
If a claim limitation, under its broadest reasonably interpretation is directed to mathematical relationships and calculations or covers performance of the limitation in the mind (Mental Processes) then it falls within the grouping of the abstract idea. Accordingly, the claim recites an abstract idea.
Step 2A-2:
The 2019 PEG defines the phrase "integration into a practical application" to require an additional element or a combination of additional elements in the claim to apply, rely on, or use the judicial exception in a manner that impose a meaningful limit on the judicial exception. In the instant case, the additional elements in the claim do not apply, rely on, or use the judicial exception.
This judicial exception is not integrated into a practical application because the claim does not recite any additional elements. The claim generally linking the use of the judicial exception to a particular technological environment (detecting a scratch) “MPEP 2106.05(h)”. Accordingly, there is no additional elements to apply, rely on, or use the judicial exception in a manner that impose a meaningful limit on the judicial exception, such that the claim as whole is more than a drafting effort designated to monopolize the exception “MPEP 2106.05(e) and Vanda Memo”. The claim recites an abstract idea.
Step 2B
Because the claim fails under (2A), the claim is further evaluated under (2B). The claim herein does not include additional elements that are sufficient to amount to significantly more than the judicial exception because as discussed above with respect to integration of the abstract idea into practical application, the claim generally linking the use of the judicial exception to a particular technological environment (detecting a scratch) “MPEP 2106.05(h)”. The claim is not patent eligible.
Claim 12 is a system analogous to method claim 1, grounds of rejection analogous to those applied to claim 1 are applicable to claim 12. Furthermore, in the instant case, the additional elements “a storage medium” and “one or more processors” to perform the steps are recited at high-level of generality (i.e., as a system using generic computing elements and performing generic computer functions), such that it amounts to no more than mere instructions to apply the exception using generic computer components as a tool to perform the abstract idea “MPEP 2106.05(f)”. Therefore, the additional elements do not integrate the judicial exception in a practical application because the exception does not show, an improvement to the functioning of the storage medium or the one or more processors. It amounts to no meaningful limitation beyond generally linking the use of an abstract idea to a particular technological environment (detecting a scratch). Accordingly, these additional elements do not integrate the abstract idea into a practical application. According to step 2A-2 the claim recites an abstract idea.
Because the claim fails under (2A), the claim is further evaluated under (2B). The claim herein does not include additional elements that are sufficient to amount to significantly more than the judicial exception because as discussed above with respect to integration of the abstract idea into practical application, the additional element of “a storage medium” and “one or more processors” to perform the steps amount to no more than mere instructions to apply the exception using a generic computer components. Mere instructions to apply an exception using generic computing elements cannot provide an inventive concept. The claim is not patent eligible.
Claim 19 is a non-transitory computer-readable medium analogous to method claim 1, grounds of rejection analogous to those applied to claim 1 are applicable to claim 19. Furthermore, in the instant case, the additional elements “a non-transitory computer-readable medium comprising instructions, which when executed by a processor, causes the processor to perform operations comprising” to perform the steps are recited at high-level of generality (i.e., as a computer-readable medium used by a generic computing processor to perform generic computer functions), such that it amounts to no more than mere instructions to apply the exception using generic computer as a tool to perform the abstract idea “MPEP 2106.05(f)”. Therefore, the additional elements do not integrate the judicial exception in a practical application because the exception does not show, an improvement to the functioning of the computer-readable medium or the computing processor itself. It amounts to no meaningful limitation beyond generally linking the use of an abstract idea to a particular technological environment (detect a scratch). Accordingly, these additional elements do not integrate the abstract idea into a practical application. According to step 2A-2 the claim recites an abstract idea.
Because the claim fails under (2A), the claim is further evaluated under (2B). The claim herein does not include additional elements that are sufficient to amount to significantly more than the judicial exception because as discussed above with respect to integration of the abstract idea into practical application, the additional elements of “a non-transitory computer-readable medium comprising instructions, which when executed by a processor, causes the processor to perform operations comprising” to perform the steps amount to no more than mere instructions to apply the exception using a generic computer. Mere instructions to apply an exception using generic computing elements cannot provide an inventive concept. The claim is not patent eligible.
Further, with regard to claims 2-11, 13-18, and 20 viewed individually, these additional elements are under its broadest reasonable interpretation, either covers performance of the limitation in the mind, or mathematical calculations and relationships performing a mathematical algorithm and do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. And, when the claims are viewed as a whole, they do not provide any limitations beyond generally linking the use of the abstract idea to a broad technological environment (i.e., detecting a scratch). Hence, the claimed invention does not constitute significantly more than the abstract idea, so the claims are rejected under 35 USC § 101 as being directed to non-statutory subject matter.
Examiner’s Note
Applicant is advised to amend claims 1, 12, and 19 by adding the specific steps of determining the characteristics of the curve, the specific steps of determining the characteristics of the curve, identifies the characteristics of the curve and the clusters as recited for example in the different dependent claims and identifying one or more of the length, the width, and the curvature of the scratch based on one or more of the length, the curvature, the position of the curve relative to the cluster, and the position of the curve relative to other curves and clusters and one or more the width, the root mean square width, the length of the cluster, the ratio between the length of the cluster and the width of the cluster, the ratio between the length of the curve and the width of the cluster, the distances from the curve to one or more points of the cluster, and the distance between the cluster and other clusters and curves of the image which would overcome the above rejections of the claims as indefinite (MPEP 2173.05 (g)) and recites the necessary mathematical calculations and relationships for a novel method to detect a scratch that amount to significantly more than a mathematical abstract idea because it shows an improvement to another technology/technical field and exhibits an improvement to balance the load of each computing device, improve the overall computing speed of scratch detection, and to reduce the burden on each individual computing device (Research Corporation Technologies Inc. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010) (RCT)).
Allowable Subject Matter
Claims 1, 12 and 19 would be allowable if amended to overcome the above rejections as indicated by the Examiner’s Note.
The following is a statement of reasons for the indication of allowable subject matter: McIntyre et al. (US 5913105 A) cited in the IDS is one of several closest prior art discloses a method for scratch pattern recognition analysis of a semiconductor wafer. In step 302, the wafer is sectioned into pixels. As used herein, a "pixel" designates the smallest resolvable point on a scan. In step 304, pixels with defects are identified. FIG. 5A illustrates a raw data wafer map 500 wherein each defective pixel is identified with a black dot. It will be recognized that the wafer represented by the wafer map 500 contains several "random" defects, such as the defects 502, as well as "clusters" of defects 504. As used herein, a "cluster" is any group of pixels comprising a predetermined number of pixels within an area of predetermined size. In step 306, clusters of defects are identified, thereby enabling the generation of a random defects wafer map 506, as shown in FIG. 5B, showing only those defects identified as being random, and a cluster defects wafer map 508, as shown in FIG. 5C, showing only those defects identified as being clusters (Fig. 3, Col. 6, lines 7-22). In step 402, a line is fitted to the clustered pixels identify a curve that approximates the cluster points). Specifically, as illustrated in FIG. 6A, this is accomplished by selecting ten percent of the top and bottom pixels by sorting their (x, y) coordinates then averaging the top and bottom pixels into two averaged top and bottom pixels. Finally, a line is drawn through the two averaged top and bottom pixels (Fig. 4, Col. 6, lines 37-43). Referring again to FIG. 4, in step 406, the line attributes (curve characteristics) of the best fit line selected in step 404 are calculated. Specifically, the length (L), width (W), line factor (LF) curve factor (CF) and scratch factor (SF) are calculated. L is defined as the distance between the two end points ((x1, y1), (x2, y2)) of the line (Col. 6, line 66-Col. 7, line 4). in step 408, a determination is made whether the SF calculated in step 406 is within acceptable limits, i.e., is a scratch. In the preferred embodiment, if SF is less than or equal to 1, the cluster is considered a scratch; otherwise, i.e., if SF is greater than 1, the cluster is not a scratch (Col. 7, lines 37-42).
Neither McIntyre nor any other prior art of record discloses or fairly suggests “identifying, via an OPTICS technique, a cluster of points on an image; utilizing a principal curves technique to identify a curve that approximates one or more points of the cluster of points as a smooth curve” recited in claims 1, 12, and 19 in combination with other features of the claim.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SAMIR ANWAR AHMED whose telephone number is (571)272-7413. The examiner can normally be reached flex.
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/SAMIR A AHMED/Primary Examiner, Art Unit 2665