DETAILED ACTION
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 Amendment
The amendment filed on 09/15/2025 has been entered. Claim(s) 1, 2, 4-12 is/are now pending in the application. Applicant's amendments have addressed all informalities as previously set forth in the non-final action mailed on 06/13/2025.
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.
Claim(s) 1, 2, 4-12 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more (See 2019 Update: Eligibility Guidance).
Independent Claim(s) 1, 10, 11 recites
store a reference shoulder width and a reference determination threshold;
detect, from a driver image obtained by capturing an image of a driver, a position of a right shoulder of the driver, a position of a left shoulder of a driver, and positions of at least two body parts of the driver,
the at least two body parts being other than the right shoulder of the driver and the left shoulder of the drive;
calculate a shoulder width of the driver based on detecting the right shoulder of the driver and the left shoulder of the driver;
determine at least one of a difference and a ratio between the shoulder width and the reference shoulder width;
set at least one determination threshold based on increasing or decreasing the reference determination threshold depending on the at least one of the difference and the ratio; and
determine a driving state of the driver based on detecting the at least two body parts of the driver and the at least one determination threshold set as the increase or the decrease to the reference determination threshold depending on the at least one of the difference and the ratio
[Mathematical Concepts – mathematical relationships; mathematical formulas or equations or mathematical calculation] and/or [Mental Processes - concepts performed in the human mind (including an observation, evaluation, judgement, opinion)].
In combination with Independent Claim(s) 1, 10, 11, Claim(s) 2, 4-9, 12 recite(s)
estimate, based on the driver image, a skeletal structure of the driver:
wherein
detecting the position of the right shoulder and the position of the left shoulder is based on the skeletal structure estimated based on the driver image.
determine, as a driving state of the driver, whether the driver is not concentrating their attention on driving.
wherein
the at least one determination threshold represents a distance between specific body parts of a human being.
wherein
the at least two body parts include a head of the driver and a hand of the driver,
set a threshold for a distance between the head of the driver and the hand of the driver; and
determine that the driver is driving the vehicle while performing an action other than the driving based on determining that the distance between the head of the driver and the hand of the driver is equal to or smaller than the at least one determination threshold.
wherein
the at least two body parts include a right eye of the driver, a left eye of the driver, and a left ear of the driver,
set a first determination threshold for a first distance that is between the right eye of the driver and left eye of the driver;
set a second determination threshold or a second distance that is between the left eye of the driver and the left ear of the driver;
compare the first determination threshold with the first distance between the right eve of the driver and left eye of the driver;
compare the second determination threshold with the second distance between the left eye of the driver and the left ear of the drive, and
determine whether or not the driver is driving the vehicle while looking aside based on both a first result, of comparing the first distance with the first determination threshold, and a second result of comparing the second distance with the second determination threshold.
wherein
the at least two body parts include a right eye of the driver, a left eye of the driver, and a right ear of the driver,
set a third determination threshold for a third distance that is between the right eye of the driver and left eye of the driver;
set a fourth determination threshold for a fourth distance that is between the left eye of the driver and the right ear of the driver;
compare the third determination threshold with the third distance between the right eye of the driver and left eye of the driver;
compare the fourth determination threshold with the fourth distance between the left eye of the driver and the right ear of the driver; and
determine whether or not the driver is driving the vehicle while looking aside based on both a third result, of comparing the third distance with the third determination threshold, and a fourth result of comparing the fourth distance with the fourth determination threshold.
wherein
the driver image obtained by imaging towards a driver's seat and from a position that is, in a width direction of the vehicle, shifted from a center of the driver's seat to a passenger's seat side, and is located in front of a face of the driver.
detect a positions of a head of the driver, a position of a right hand of the driver, and a position of a left hand of the driver;
determine a first distance between the head of the driver and the right hand of the driver;
determine a second distance between the head of the driver and the left hand of the driver, and either the first distance is shorter than the second distance or the second distance is shorter than the first distance; and
set a distance-between-a-head-and-a-hand value of the driver as a shorter one of the first distance and the second distance.
[Mathematical Concepts – mathematical relationships; mathematical formulas or equations or mathematical calculation] and/or [Mental Processes - concepts performed in the human mind (including an observation, evaluation, judgement, opinion)].
This judicial exception is not integrated into a practical application. Limitations that are not indicative of integration into a practical application:
Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea (see MPEP § 2106.05(f)) (i.e. a memory storing instructions; and a processor configured to execute the instructions to:; A non-transitory computer readable medium storing a program for causing a processor to perform processes including:);
Adding insignificant extra-solution activity to the judicial exception (see MPEP § 2106.05(g)) (i.e. storing data); or
Generally linking the use of the judicial exception to a particular technological environment or field of use (MPEP § 2106.05(h)) (i.e. driving).
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because looking at the additional elements as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. The additional elements simply append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry, as discussed in Alice Corp., 134 S. Ct. at 2359-60, 110 USPQ2d at 1984 (see MPEP § 2106.05(d)) (i.e. See Alice Corp. and cited references for evidence of additional elements (i.e., generic computer structure)).
Allowable Subject Matter (over Prior Art)
The following is a statement of reasons for the indication of allowable subject matter over prior art:
None of the cited prior art alone or in combination provides motivation to explicitly teach:
a memory storing instructions; and
a processor configured to execute the instructions to:
store a reference shoulder width and a reference determination threshold;
detect, from a driver image obtained by capturing an image of a driver, a position of a right shoulder of the driver, a position of a left shoulder of a driver, and positions of at least two body parts of the driver,
the at least two body parts being other than the right shoulder of the driver and the left shoulder of the drive;
calculate a shoulder width of the driver based on detecting the right shoulder of the driver and the left shoulder of the driver;
determine at least one of a difference and a ratio between the shoulder width and the reference shoulder width;
set at least one determination threshold based on increasing or decreasing the reference determination threshold depending on the at least one of the difference and the ratio; and
determine a driving state of the driver based on detecting the at least two body parts of the driver and the at least one determination threshold set as the increase or the decrease to the reference determination threshold depending on the at least one of the difference and the ratio
of claim(s) 1, 10, 11.
Response to Arguments
Applicant’s amendments, filed on 09/15/2025, have been entered and fully considered. In light of the applicant’s amendments changing the scope of the claimed invention, the rejection(s) have been withdrawn or updated. However, upon further consideration, a new or updated ground(s) of rejection(s) have been made, and applicant's argument(s)/remark(s) pertaining to the amended language have been rendered moot.
Applicant's argument(s)/remark(s), see page(s) 10-12, filed 09/15/2025, with respect to the 101 rejection(s) has/have been fully considered.
-Applicant states
“Claim Rejection - 35 USC 101
Claims 1-11 are rejected under 35 USC 101 as including features directed to an abstract idea without significantly more. Applicant respectfully traverses the rejection.
Even if the claims include some features that could be considered directed to an abstract idea, the claims, at least as amended, represent a patent eligible improvement according to MPEP 2106.04(d)(1) Evaluating Improvements in the Functioning of a Computer, or an Improvement to Any Other Technology or Technical Field in Step 2A Prong Two which indicates (emphasis added):
A claim reciting a judicial exception is not directed to the judicial exception if it also recites additional elements demonstrating that the claim as a whole integrates the exception into a practical application. One way to demonstrate such integration is when the claimed invention improves the functioning of a computer or improves another technology or technical field. The application or use of the judicial exception in this manner meaningfully limits the claim by going beyond generally linking the use of the judicial exception to a particular technological environment, and thus transforms a claim into patent-eligible subject matter. Such claims are eligible at Step 2A because they are not "directed to" the recited judicial exception.
The courts have not provided an explicit test for this consideration, but have instead illustrated how it is evaluated in numerous decisions. These decisions, and a detailed explanation of how examiners should evaluate this consideration are provided in MPEP §2106.05(a). In short, first the specification should be evaluated to determine if the disclosure provides sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. The specification need not explicitly set forth the improvement, but it must describe the invention such that the improvement would be apparent to one of ordinary skill in the art. Conversely, if the specification explicitly sets forth an improvement but in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine the claim improves technology. Second, if the specification sets forth an improvement in technology, the claim must be evaluated to ensure that the claim itself reflects the disclosed improvement. That is, the claim includes the components or steps of the invention that provide the improvement described in the specification. The claim itself does not need to explicitly recite the improvement described in the specification (e.g., "thereby increasing the bandwidth of the channel").
And here, the background of the specification describes technology that was supposed to monitor a driver of a vehicle and check if the driver is distracted/paying attention to driving and that the technology was deficient because it relied on fixed values for comparing its obtained images to a driver, even though installation position or angles of the actual device(s) involved would not necessarily be consistent and even though driver's body shapes and characteristics would be varied.
As such, the specification here provides an improvement to that technology by adjusting those fixed values, such as "at least one determination threshold" in the pending claims, depending on an actually observed body shape characteristic, like a distance between the driver's shoulders as in the independent claims and also various other distances like between eyes, ears, head, and hand like in the dependent claims.
And so, it is believed that the MPEP 2106.04(d)(1) criteria above are satisfied here because the specification describes a problem with technology, inappropriately using fixed values in this context, and the claims reflect a solution to that problem by adjusting such fixed value, like with the "at least one determination threshold" features of the independent claims.
Accordingly, it is requested that the rejections be withdrawn.
But if further amendments are determined to be needed, then the Examiner's suggestion is requested since MPEP 2016.07(a)(II) indicates for Step 2A Prong 2 and Step 2B that:
In the event a rejection is made, it is a best practice for the examiner to consult the specification to determine if there are elements that could be added to the claim to make it eligible. If so, the examiner should identify those elements in the Office action and suggest them as a way to overcome the rejection.”.
Examiner respectfully disagrees with the underlined argument(s)/remark(s).
Examiner would like to first remind the applicant that this is a claim rejection, not a rejection of the specification. Examiner’s BRI is in light of the specification, but not limited to the specification.
Examiner’s BRI of the claimed inventions is generic computer structure being used as a tool to generical acquire an image of a driver and perform mental processes and mathematical concepts to perform feature extraction and determine a driving state of the driver.
When examining step 2A Prong 1, Examiner determines if there is an abstract idea present. One skilled in the art can at least perform the identified abstract idea utilizing Mental Processes - concepts performed in the human mind (including an observation, evaluation, judgement, opinion). Further, one skilled in the art can at least perform the identified abstract idea utilizing Mathematical Concepts – mathematical relationships; mathematical formulas or equations or mathematical calculation. The arguments, in light of the specification, fail to convince the Examiner that utilizing Mathematical Concepts and/or Mental Processes does not fit within the scope of the identified abstract limitations.
When examining step 2A Prong 2, Examiner examines the additional elements to determine if the identified abstract idea has been practically applied in a particular way in a particular technology. Limitations that are not indicative of integration into a practical application: Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea (see MPEP § 2106.05(f)); Adding insignificant extra-solution activity to the judicial exception (see MPEP § 2106.05(g)); or Generally linking the use of the judicial exception to a particular technological environment or field of use (MPEP § 2106.05(h)). The additional elements, when viewed individually and in combination with the identified abstract idea, do not add anything beyond mere instructions to implement an abstract idea on a computer and generically linking the identified abstract idea to a technological environment or field of use.
When examining step 2B, Examiner examines the additional elements to determine if they amount to significantly more than the abstract idea. The only additional element(s) is/are the generic computer structure being used as a tool to perform the abstract idea. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because looking at the additional elements as an ordered combination adds nothing that is not already present when looking at the elements taken individually.
It is important to note, the judicial exception alone cannot provide the improvement. An improved abstract idea is still an abstract idea.
Applicant's argument(s)/remark(s), see page(s) 12-13, filed 09/15/2025, with respect to the art rejection(s) has/have been fully considered.
-Applicant states
“Claim Rejections - 35 USC 102
Claims 1-11 are rejected under 35 USC 102 as being anticipated by Julian et al. (US 2021/0394775). Applicant respectfully traverses the rejections.
MPEP 2131 indicates that "[a] claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference." Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987).
But the Julian references does not anticipate at least the following of claim 1:
...set at least one determination threshold based on increasing or decreasing the reference determination threshold depending on the at least one of the difference and the ratio; and
determine a driving state of the driver based on detecting the at least two body parts of the driver and the at least one determination threshold set as the increase or the decrease to the reference determination threshold depending on the at least one of the difference and the ratio.
Previous claim 3 recited similar features, and the rejection of claim 3 cited to Julian paragraphs [0009]-[0113] and [0122]. However, viewing the cited portions of Julian and overall, Julian does not set forth "increasing or decreasing the reference determination threshold" at all much less "depending on the at least one of the difference and the ratio" along with the other claim features.
Although Julian [0122] mentions "increasing", the context of Julian [0122] is detecting an increasing of a lean of the driver, like if the driver is increasingly leaning forward or backward, which is not indicative of the claimed "increasing or decreasing the reference determination threshold" features. Viewing Julian overall does not remedy that deficiency.
Accordingly, it is requested that the rejection of claim 1 be withdrawn.
It is also requested that the rejection of dependent claims 2 and 4-9 be withdrawn at least by those claims' dependencies.
It is also requested that the rejection of independent claims 10 and 11 be withdrawn for reasons similar to those noted above for claim 1.”.
Examiner agrees with the underlined argument(s)/remark(s).
Said rejection(s) has/have been withdrawn.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAYMOND NIMOX whose telephone number is (469)295-9226. The examiner can normally be reached Mon-Thu 10am-8pm CT.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ANDREW SCHECHTER can be reached at (571) 272-2302. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
RAYMOND NIMOX
Primary Examiner
Art Unit 2857
/RAYMOND L NIMOX/Primary Examiner, Art Unit