DETAILED ACTION
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 Status
Claims 1-16 are pending and under examination herein.
Claims 1 and 4 are objected to.
Claims 1-16 are rejected.
Priority
The instant application is a National Stage entry of PCT/JP2020/038385 , International Filing Date: 10/09/2020. As such, the effective filing date assigned to each of claims 1-16 is 10/09/2020.
Information Disclosure Statement
The Information Disclosure Statement filed 04/27/2023 is in compliance with the provisions of 37 CFR 1.97 and has therefore been considered. A signed copy of the IDS is included with this Office Action.
Drawings
The drawings filed 04/07/2023 are accepted by the examiner.
Claim Objections
Claims 1 and 4 are objected to because of the following informalities:
In claim 1:
“measured at of procedure places” should be “measured at procedure places.
“body surfaces temperatures of a user”, should be “plurality of body surfaces temperatures of a user” for consistency.
In claim 4:
“when there are a predetermined number of values is equal to” should be “when there are a predetermined number of values that are .
Appropriate correction is required.
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 2, 5, 7-9, and 14 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 2 recites the limitation "the registered face image of the user" in line 3 and “the user’s face image acquired at the location of procedure” in line 7. There is insufficient antecedent basis for this limitation in the claim, as neither the instant claim nor claim 1, on which it depends, recites aa registered face image of the user or a user’s face image acquired at the location of procedure.
Furthermore, claim 2 also recites “a procedure place” and “the location of procedure”, and it is unclear if these are the same locations. For the purposed of examination, the procedure place and location of procedure are interpreted to be the same location.
Claim 5 and claim 14 recites the limitation "the body surface temperature of the user" in line 2 and 3, respectively. There is insufficient antecedent basis for this limitation in the claim, as the claims on which claims 5 and 14 are dependent from recite a plurality of body surface temperature, and do not recite a singular body surface temperature of the user.
Claim 7 recites the limitation "the basal body temperature" in line 2. There is insufficient antecedent basis for this limitation in the claim, as the claims on which claim 7 is dependent from do not recite a basal body temperature.
Claim 8, and all claims dependent thereon, recites the limitation "the user's attribute information" in 2. There is insufficient antecedent basis for this limitation in the claim, as the claims on which claim 8 is dependent from do not recite a user’s attribute information.
Furthermore, claims 7 and 8 recites “each user”, but claims 1 and 3, on which claims 7 and 8 are dependent from, only recite a user.
Claim Rejections - 35 USC § 101
Claims 1-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea/law of nature/natural phenomenon without significantly more. In accordance with MPEP § 2106, claims found to recite statutory subject matter (Step 1: YES) are then analyzed to determine if the claims recite any concepts that equate to an abstract idea, law of nature or natural phenomenon (Step 2A, Prong 1). In the instant application, the claims recite the following limitations that equate to an abstract idea:
Claim 1 and 15-16 recite acquire body surface temperatures of a user of an airplane measured at of procedure places of a plurality of procedures imposed on the user at a departure airport; determine whether the user is allowed to board the airplane based on the plurality of body surface temperatures acquired from the user.
These recitations equate to steps of collecting information, analyzing data and making observations, evaluations and judgements that can be carried out in the human mind. Specifically, acquiring data on body surface temperature (such as by analysis of an infrared image to determine body surface temperature as described in dependent claim 14) and determining whether the user is allowed to board the airplane based on the temperatures can be practically performing the human mind as claimed, and are similar to the concepts of collecting and comparing known information in Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057, 1067, 100 USPQ2d 1492, 1500 (Fed. Cir. 2011) and collecting information, analyzing it, and reporting certain results of the collection and analysis in Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016) that the courts have identified as concepts that can be practically performed in the human mind. Therefore, each of the above recited limitations fall under the “Mental Processes” grouping of abstract ideas. Claims 2-14 further recite or qualify the judicial exceptions. As such, claims 1-16 recite an abstract idea (Step 2A, Prong 1: YES).
Claims found to recite a judicial exception under Step 2A, Prong 1 are then further analyzed to determine if the claims as a whole integrate the recited judicial exception into a practical application or not (Step 2A, Prong 2). This judicial exception is not integrated into a practical application because the claims do not recite an additional element that reflects an improvement to technology, applies or uses the recited judicial exception to affect a particular treatment for a condition, implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, effects a transformation or reduction of a particular article to a different state or thing or applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Rather, the instant claims recite additional elements that amount to mere data gathering and mere instructions to implement the abstract idea in a generic computing environment. Specifically, the claims recite the following additional elements:
Claims 1 recites at least one memory storing instructions; and at least one processor.
Claim 14 recites cause an infrared capturing device installed at each of the plurality of procedure places to capture an infrared image.
Claim 16 recites a non-transitory storage medium.
Claim 14 recites further limitations of how data is obtained. These limitations equate to mere data gathering activity to obtain the data necessary for the mental evaluations and judgements (see MPEP 2106.05(g)). Claims 1 and 16 merely recites using a generic computing systems and computer program products to carry out instructions to implement an abstract idea on a computer. The computer system and computer program product as claimed fails to recite details of how a solution to a problem is accomplished and only recites the idea of a solution or outcome. There are no limitations that indicate that the claimed steps require anything other than generic computing systems. As such, these limitations equate to mere instructions to implement the abstract idea on a generic computer that the courts have stated does not render an abstract idea eligible in Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983. See also 573 U.S. at 224, 110 USPQ2d at 1984. Furthermore, the use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). There is no indication that any of these additional elements provide a practical application of the recited judicial exception outside of the judicial exception itself. As such, claims 1-16 are directed to an abstract idea (Step 2A, Prong 2: NO).
Claims found to be directed to a judicial exception are then further evaluated to determine if the claims recite an inventive concept that provides significantly more than the judicial exception itself (Step 2B). Further analyzing the additional elements under step 2B, the additional elements as described above do not rise to the level of significantly more than the judicial exception. As set forth in the MPEP, determinations of whether or not additional elements (or a combination of additional elements) may provide significantly more and/or an inventive concept rests in whether or not the additional elements (or combination of elements) represents well-understood, routine, conventional activity. Said assessment is made by a factual determination stemming from a conclusion that an element (or combination of elements) is widely prevalent or in common use in the relevant industry, which is determined by either a citation to an express statement in the specification or to a statement made by an applicant during prosecution that demonstrates a well-understood, routine or conventional nature of the additional element(s); a citation to one or more of the court decisions as discussed in MPEP 2106(d)(II) as noting the well-understood, routine, conventional nature of the additional element(s); a citation to a publication that demonstrates the well-understood, routine, conventional nature of the additional element(s); and/or a statement that the examiner is taking official notice with respect to the well-understood, routine, conventional nature of the additional element(s).
With respect to the instant claims under the 2B analysis, the prior art to Lahiri et al. (Infrared Phys Technol. 2012 Apr 13;55(4):221–235) reviews medical applications of infrared thermography and discloses performing fever screenings using infrared thermography, including in airports, is well-understood, routine, and conventional in the art (title; abstract; section 6.4). Furthermore, the use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Therefore, the additional elements do not comprise an inventive concept when considered individually or as an ordered combination that transforms the claimed judicial exception into a patent-eligible application of the judicial exception, and the claims do not amount to significantly more than the judicial exception itself (Step 2B: NO). As such, claims 1-16 are not patent eligible under 35 U.S.C. 101.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention 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 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, and 3-16 are rejected under 35 U.S.C. 103 as being unpatentable over Sun et al. (In: Ng, E., Etehadtavakol, M. (eds) Application of Infrared to Biomedical Sciences. Series in BioEngineering. (2017) Springer, Singapore; hereafter referred to as Sunn), as evidenced by Chandler (Pan American Journal of Medical Thermology 2, no. 2 (2015): 58-62), further in view of U.S. DEP'T OF TRANSP., “ENFORCEMENT NOTICE REGARDING DENYING BOARDING BY AIRLINES OF INDIVIDUALS SUSPUSPECTED OF HAVING CORONAVIRUS” (March 2020; hereafter referred to as the Enforcement Notice).
With respect to claim 1 and 14-16, Sun introduced the applications of infrared thermography (IRT) for mass screening of international travelers at airport quarantine stations and discloses performing fever screenings and acquiring multiple body surface temperatures at Nagoya Airport and Naha Internation Airport (section 2.1-3.1; section 5).
Sun further discloses the methods are computer implements (section 4.3).
However, Sun does not appear to disclose screening users prior to boarding and making boarding decisions based on the temperature readings.
However, with respect to claims 1, 15 and 16, the Enforcement Notice, in the same field of endeavor, discloses screening passengers for fever prior to boarding, and denying boarding based on the body temperature measurement (p 3, para 2-5). The Enforcement Notice further discloses that airlines may screen passengers during the check-in and boarding process for flights to the United States from countries with travel health notices issued by the U.S. Centers for Disease and Control Prevention (CDC) (p 1, para 1).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the temperature screening method and systems disclosed by Sun, with using that information to make boarding decisions, as disclosed by the Enforcement Notice, because airlines may screen passengers during the check-in and boarding process for flights to the United States from countries with travel health notices issued by the U.S. Centers for Disease and Control Prevention (CDC). There would be a reasonable expectation of success because using the acquired temperature data to make boarding decision, not just quarantine decisions, would not impede the steps of Sun, but rather expand its use.
With respect to claims 3-6, Sun discloses the isotherm low temperature was set at 35.4 °C and displaying the subjects above the set temperature in red, surface temperature of median forehead was measured for those who showed a temperature of above 35.4 °C, and that fevers were detected as temperature above 37 °C as detected by thermal scanning (section 2.1-3.2; fig 1). The Enforcement Notice also discloses detecting fevers, indicating the user’s body temperature was compared to a reference in order to detect a fever (p 3, para 2-5).
With respect to claim 7-8, Sun discloses IRT could sufficiently detect febrile individuals and the detection accuracy was improved by corroborating surveillance with self-reporting questionnaires, which can be highly reliable when used in combination with thermal scanning that detects feverish passengers negligent to report their symptoms in the questionnaires, and discloses the subjects displayed in red on the screen for high temperature detections using thermal imaging were led to the Health Consultation Room for further measurements of either axillary or tympanic temperature by digital thermometers, as individual-related causes would alter body surface temperatures. (fig 1; section 1; section 2.1; section 3.2). The prior art to Chandler discusses the use of thermography in elevated body temperature screening and discloses that if an elevated temperature is detected using thermal imaging, the person must have a secondary exam, usually with an ear thermometer inside the ear canal to determine a truer basal temperature (p 61, col 2, para 2-p 62, col 1, para 1).
With respect to claims 8-9, Sun considers the effect of seasonal changes on detecting the temperature of feverish subjects and discloses the fluctuation was affected by age and destination of passengers during long holiday seasons, i.e., Golden Week, summer vacation, and New Year’s holiday in Japan, and not affected by internal and external conditions of passengers (section 3.2).
With respect to claims 10 and 12, Sun discloses determining the temperature of subjects with the IRT and then determining if they are febrile based on additional measurements taken at a different location, suggesting subsequent measurements have a predetermined higher weight, and that there is a maximum value that is considered to be febrile (section 2.1-3.1).
With respect to claims 11 and 13, Sun discloses looking at the effects of multiple factors on detecting the temperature of feverish people, such as the effect of seasonal changes and the correlation between axillary temperature and facial skin temperature (section 3.2). Therefore, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to have make a determination based on the average, deviation or range of variation of the plurality of body surface temperatures through routine experimentation of examination of the correlation between axillary temperature and facial skin temperature in the prior art conditions of applications of infrared thermography for noncontact and noninvasive mass screening of febrile international travelers at airport quarantine stations (title; section 3.1-3.2). See MPEP 2144.05 II. A.
Therefore, the invention is prima facie obvious.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Sun et al. (In: Ng, E., Etehadtavakol, M. (eds) Application of Infrared to Biomedical Sciences. Series in BioEngineering. (2017) Springer, Singapore; hereafter referred to as Sunn) further in view of U.S. DEP'T OF TRANSP., “ENFORCEMENT NOTICE REGARDING DENYING BOARDING BY AIRLINES OF INDIVIDUALS SUSPUSPECTED OF HAVING CORONAVIRUS” (March 2020; hereafter referred to as the Enforcement Notice), as applied to claims 1 above, and in further view of Van Natta et al. (Journal of Law and the Biosciences 2020, 7(1), p 1-17; hereafter referred to as Van Natta).
With respect to claim 3, Sun in view of the Enforcement Notice discloses steps of claim 1, as applied above.
However, neither Sun nor the Enforcement Notice appear to disclose associating the registered face image of the user and the body surface temperature acquired at a procedure place in a check-in procedure with identification information that uniquely identifies the user performs face matching between the registered face image and the user's face image acquired at the location of procedure whose order is later than the check-in procedure, wherein the process associates the body surface temperature at the procedure place to the identification information when the user is authenticated by the face matching.
However, the prior art to Van Natta, in the same field of endeavor, discloses several private companies have integrated thermal imaging with facial recognition technology, such as a body temperature detection network camera that is able to identify individuals, collect real-time biometric data and trigger a warning system upon detecting an unusual temperature, an integrated thermal imaging and facial recognition technology to launch an attendance tracking system that will ostensibly enable organizations to track employees and visitors with elevated temperatures, highly sensitive, high-resolution fever detection cameras that can be deployed as a standalone system or part of a network to conduct precise temperature detection and profiling, and integrated thermal facial recognition technology to monitor populations at airports, train stations, schools, shopping centers, and on public transportation with optional biometric features, including infrared technology, the ability to store up to 65,000 facial images, and integrated gate and door access protocols, and that these companies suggest there are clear benefits of combining thermal detection with facial recognition capabilities to detect and track potentially infected individuals (p 5, para 1-p 6, para 2).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the temperature screening method and systems to determine boarding on an airplane, as disclosed by Sun in view of the Enforcement notice , with the integration of facial recognition technology as disclosed by Van Natta, because there are clear benefits of combining thermal detection with facial recognition capabilities to detect and track potentially infected individuals, as disclosed by Van Natta. There would be a reasonable expectation of success because identifying and tracking the subjects (including associating the temperatures with them) would not impede the steps of Sun, but rather expand its use. Therefore, the invention is prima facie obvious.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of copending Application No. 18030432 in view of Sun et al. (In: Ng, E., Etehadtavakol, M. (eds) Application of Infrared to Biomedical Sciences. Series in BioEngineering. (2017) Springer, Singapore; hereafter referred to as Sunn) and U.S. DEP'T OF TRANSP., “ENFORCEMENT NOTICE REGARDING DENYING BOARDING BY AIRLINES OF INDIVIDUALS SUSPUSPECTED OF HAVING CORONAVIRUS” (March 2020; hereafter referred to as the Enforcement Notice).
This is a provisional nonstatutory double patenting rejection.
Conclusion
No claims allowed.
Inquiries
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NIDHI DHARITHREESAN whose telephone number is (571)272-5486. The examiner can normally be reached Monday - Friday 9:00 - 5:00.
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, Larry D Riggs II can be reached at (571) 270-3062. 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.
/N.D./
Examiner, Art Unit 1686
/Karlheinz R. Skowronek/Supervisory Patent Examiner, Art Unit 1687
Prosecution Insights