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 .
Status of Claims
Claims 1 and 11-25 are under examination.
Claims 2-10 are cancelled. Claims 11-25 are newly added.
Priority
Applicant’s claim for the benefit of foreign priority under 35 U.S.C. 119(a)-(d) to Chinese Patent application 202211626195.1, filed 12/15/2022, is acknowledged. However, applicant has not filed a certified copy of the aforementioned application as required by 35 U.S.C. 119(b). Applicant is also reminded that a foreign priority claim has NO EFFECT on the effective filing date of a U.S. application. The filing date of the foreign priority document is not the effective filing date of the U.S. application. MPEP §§ 201.13 III. and 706.02 V. Thus, the one-year bar of 35 U.S.C. § 102(b) dates from the effective U.S. filing date and not from the foreign filing date. This means that a reference with a publication or patent date less than a year before the priority date but more than a year before the effective U.S. filing date, is a reference under 35 U.S.C. § 102(b). This also applies when the claimed invention had been into a public use or on sale in this country more than one year prior to the effective U.S. filing date. 35 U.S.C. § 119(a). Accordingly, the effective filing date for the instant application is 02/16/2023.
Information Disclosure Statement
No information disclosure statement (IDS) document(s) have been submitted for the instant application.
Drawings
No drawings have been filed in the instant application. However, this application is directed to a method for detecting a population density of a specific type of beetle based on a series of mathematical and/or algorithmic steps. As such, the subject matter of this application admits to illustration by a drawing to facilitate understanding of the invention (e.g. to help explain mathematical relationships, internal structures, and how components interact). Applicant is required to furnish a drawing under 37 CFR 1.81(c). No new matter may be introduced in the required drawing. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d).
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 and 11-25 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
The Supreme Court has established a two-step framework for this analysis, wherein a claim does not satisfy § 101 if (1) it is “directed to” a patent-ineligible concept, i.e., a law of nature, natural phenomenon, or abstract idea, and (2), if so, the particular elements of the claim, considered “both individually and ‘as an ordered combination,” do not add enough to “transform the nature of the claim into a patent-eligible application.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (quoting Alice, 134 S. Ct. at 2355).
Guidance: Step 1.
Under the broadest reasonable interpretation, the claimed invention (claim 1 being representative) is directed to a method for performing a process and therefore falls within one of the four statutory categories.
A. Guidance Step 2A, Prong 1
The Revised Guidance instructs us first to determine whether any judicial exception to patent eligibility is recited in the claim. The Revised Guidance identifies three judicially-excepted groupings identified by the courts as abstract ideas: (1) mathematical concepts, (2) certain methods of organizing human behavior such as fundamental economic practices, and (3) mental processes. In this case, the following steps encompass an abstract idea for the reasons set forth below:
constructing a prediction model of a population density of Cryptolestes ferrugineus based on a relationship between different stored grain temperatures, stored grain water contents, as well as CO2 release rates in the environment and the population density of the Cryptolestes ferrugineus; [claim 1]
measuring the stored grain temperature and the C02 release rate in the environment, substituting measured values into the prediction model of the population density of the Cryptolestes ferrugineus for calculation to obtain the population density of the Cryptolestes ferrugineus in a grain storage environment. [claim 1]
using a method for detecting a population density of Cryptolestes ferrugineus based on a CO2 release rate [claim 24]
Mental Processes
With regards to constructing, this step is recited at a high level of generality (without any technological details directed to how it is performed) and does not explicitly require a computer. In addition, human brains routinely perform model construction. As such, this step encompasses a mental process of observing data and organizing information. MPEP 2106.04(a)(2), section III.
With regards to substituting, this step is recited at a high level of generality (without any technological details directed to how it is performed) and does not explicitly require a computer. In addition, scientist routinely observe numerical data and input them into models. As such, these steps encompass a mental process of observing data, performing analysis, and making a judgement. MPEP 2106.04(a)(2), section III.
It is important to note that a claim to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016). [Step 2A, Prong 1: YES].
Mathematical Concept
With regards to constructing and substituting, these steps explicitly require a “prediction model” comprising a relationship between specific model parameters as well as calculating a population density based on said relationships. Accordingly, when read in light of the specification, this step also encompasses a mathematical concept of manipulating information through mathematical correlations or calculations. MPEP 2106.04(a)(2) Section I. It is important to note that a mathematical concept need not be expressed in mathematical symbols, because “[w]ords used in a claim operating on data to solve a problem can serve the same purpose as a formula.” In re Grams, 888 F.2d 835, 837 and n.1, 12 USPQ2d 1824, 1826 and n.1 (Fed. Cir. 1989). See, e.g., SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163, 127 USPQ2d 1597, 1599 (Fed. Cir. 2018) (holding that claims to a ‘‘series of mathematical calculations based on selected information’’ are directed to abstract ideas). See also Digitech Image Techs., LLC v. Electronics for Imaging, Inc., 758 F.3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed. Cir. 2014)[Step 2A, Prong 1: YES].
B. Guidance Step 2A, Prong 2
Having made that determination, under the 2019 Guidance, the examiner next determines whether there are additional elements beyond the recited abstract idea(s) that integrate them into a practical application. In this case, the additional steps/elements that are not part of the abstract idea are as follows:
measuring the stored grain temperature and the CO2 release rate in the environment;
With regards to said measuring, this step is recited at a high level of generality and results in gathering data for use by the abstract idea. Accordingly, this step amounts to insignificant extra-solution activity and are not indicative of an integration into a practical application. See MPEP 2106.05(g).
In summary, the claimed invention does not provide any objective evidence of an improvement to the technology, nor does the specification explain the details of an unconventional technical solution expressed in the claim, or identify technical improvements realized by the claim over the prior art. See MPEP 2106.04(d)(1) and MPEP 2106.05(a). Therefore, even when viewed in combination, these additional steps/elements do not integrate the recited judicial exception into a practical application. [Step 2A, Prong 2: NO].
C. Guidance Step 2B:
This part of the eligibility analysis evaluates whether the claim as a whole amount to significantly more than the recited exception i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim. See MPEP 2106.05.
As discussed above, the non-abstract steps/elements amount to nothing more than insignificant extra-solution activity. Moreover, Fang et al. (CN109990826; Pub. Date: 03/09/2021) teaches a detection method and device of stored grain biological hazards. The detection method comprises measuring a moisture value RH, a temperature T and a carbon dioxide concentration value CO2 of a grain pile [Abstract]. Therefore, even upon reconsideration, there is nothing unconventional with regards to the above non-abstract elements/steps. See MPEP 2106.05(d)(Part II). Thus, the independent claim(s) as a whole do not amount to significantly more than the exception itself. Therefore, the claim(s) is/are not patent eligible. [Step 2B: NO].
Dependent Claims
Dependent claims 11-25 have also been considered under the two-part analysis but do not include additional steps/elements appended to the judicial exception that are sufficient to amount to significantly more than the judicial exception(s) for the following reasons. Regarding claims 11-25, these claims further limit the specificity of the abstract idea or the nature of the data being used and therefore are not patent eligible for reasons set forth above (Step 2A, prong 1). Therefore, the claims as a whole are not patent eligible.
Claim Rejections - 35 USC § 101
This is a lack of utility rejection.
Claims 1 and 11-25 are rejected under 35 U.S.C. 101 because the claimed invention is not supported by either a substantial asserted utility or a well-established utility.
For an invention to be “useful” it must satisfy the utility requirement of section 101. The USPTO’s official interpretation of the utility requirement provides that the utility of an invention has to be (i) specific, (ii) substantial and (iii) credible. See MPEP § 2107 and Fisher, 421 F.3d at 1372, 76 USPQ2d at 1230.
In this case, as discussed above, the claimed methods purport to detect a population density of a specific type of beetle. However, claim 1 results in merely “substituting” measured values into a model (for the intended use of calculating) and claim 24 also lacks any positive process limitations and results in an intended use recitation. Accordingly, as intended use recitations are not limiting, the claimed invention would require or constitute carrying out further research to identify or reasonably confirm a "real world" context of use and, therefore, does not define a "substantial utility" (i.e. merely putting information into a model is not useful). Therefore, the claimed invention does not require a practical application.
In addition, the claimed invention is deemed to be "inoperative" (i.e., it does not operate to produce the results claimed by the patent applicant) for the following reasons. In particular, the claimed invention does not require any particular computer, computer code, or programming logic for performing the suggested functions. Therefore, the claimed system is deemed to be inoperable since there is no defined computer or device for processing the claimed data. For the above reasons, the claimed invention is not supported by a specific and/or substantial utility.
Claims 1 and 11-25 are also rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph. Specifically, since the claimed invention is not supported by either a specific, substantial, and credible asserted utility or a well-established utility for the reasons set forth above, one skilled in the art clearly would not know how to use the claimed invention. [See MPEP 2106.02].
Claim rejections - 35 USC § 112, 2nd Paragraph
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 and 11-25 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 pre-AIA the applicant regards as the invention. Claims that depend directly or indirectly from claim(s) 1 and 24 are also rejected due to said dependency.
Claim 1 recites “constructing a prediction model of a population density…based on a relationship between different stored grain temperatures, stored grain water contents, as well as OC2 release rates…and the population density of the Cryptolestes ferrugineus”. It is unclear as to the metes and bounds of said “prediction model” such that the artisan would recognize what structural limitation is intended. A review of the specification does not provide any limiting definition that would serve to clarify the scope. In addition, it is unclear in what way the prediction model is “based on” the very thing that it is trying to prediction (i.e. the population density of Cryptolestes ferrugineus). Clarification is requested via amendment. Notably, claims 11-13 do add further specificity with regards to the prediction model. However, it is improper to import these narrowing limitations into the parent claim.
Claim 1 recites “measuring the stored grain temperature and the C02 release rate in the environment, substituting measured values into the prediction model of the population density of the Cryptolestes ferrugineus for calculation to obtain the population density of the Cryptolestes ferrugineus in a grain storage environment.” In this case, the above steps are problematic for the following reasons. Firstly, the claimed “prediction model” (as claimed in the constructing step) is based in part on “stored grain water contents”. However, the measuring step does not require measuring grain water contents. Accordingly, it is unclear how this parameter is involved in the calculation. Secondly, the phrase “for calculation to obtain the population density” is an intended use recitation and therefore does not have any limiting effect on the method as claimed. As a result, it is unclear in what way the claimed method achieves the purpose of the preamble as the claimed method results in “substituting” measured values into the prediction model. In each case, clarification is requested via amendment.
Claims 11-13 recite different “Z” formulas associated with the population density of Cryptolestes ferrugineus. However, in each case, the equations include an “R2” parameter that is not defined in the equation or anywhere in the claim. And while the artisan would understand what a regression equation is as well as the coefficient of determination (R²), the instant claims refer to a prediction model and not a “regression equation”, per se, nor does the specification provide any limiting definition for R² that would serve to clarify the scope. As a result, it is unclear as to the metes and bounds of R² such that one of ordinary skill in the art would know how to avoid infringement. Clarification is requested via amendment.
Claim 24 recites “A method for determining a pest-carrying grain grade by using a method for detecting a population density of Cryptolestes ferrugineus based on a CO2 release rate”. Firstly, it is unclear as to the metes and bounds of a “pest-carrying grade”. A review of the specification does not provide any limiting definition that would serve to clarify the scope, nor does it provide any algorithms or equations for calculating such a term. Secondly, the method as claimed does not set forth any steps involved in the method/process of use nor does it recite any positive process limitations that would serve to achieve the intended result (of determining a pest-carrying grade). As such, it is unclear what method/process applicant is intending to encompass, i.e. what is the model and in what way is it the method “used” to achieve the claimed function. A claim is indefinite where it merely recites a use without any active, positive steps delimiting how this use is actually practiced. See MPEP § 2173.05(q). As such, the claim is indefinite. Clarification is again requested via amendment. The examiner suggests cancelling this claim (as it does not appear to provide anything inventive) or modifying it to include all the specific limitations of claim 1.
Examiner' s Comment – Prior Art Rejection of Indefinite Claims
In view of the indefiniteness and lack of clarity in the instant claims, as set forth in the 35 USC 112(b) rejections above, the Examiner has had difficulty in properly interpreting instant claims. However, to avoid piecemeal prosecution and to give applicant a better appreciation for relevant prior art if the claims are redrafted to avoid the 35 USC 112(b) rejections, the following prior art made of record and not presently relied upon is considered pertinent to applicant' s disclosure. Applicant is reminded that prior art rejections under 35 U.S.C. 102 and/or 35 U.S.C. 103 may be applied in the next Office action in light of applicant's amendments, and that the next Office action can properly be made "Final" if these rejections are necessitated by amendment. See MPEP 706.07.
Jian et al. (Insector® System to Monitor Insect Activity and Density During Grain Storage and Fumigation, Proc 9th. Int. Conf. on Controlled Atmosphere and Fumigation in Stored Products, Antalya, Turkey. 15 – 19 October 2012, pp: 396-402) teaches a system and method for monitoring insect activity and density during grain storage.
Cofie-Agblor et al. (J. Agric. Engng Res., 1995, 62, pp.95-104) teaches methods of cumulative carbon dioxide (CO2) production from the respiration of Cryptolestes ferrugineus (Stephens) in stored wheat was measured in an adiabatic respiratory calorimeter.
Campbell et al. (Researches on Population Ecology, 1990, Volume 32, pages 235–254) teaches methods of Analysis and simulation modelling of population dynamics and bioenergetics of Cryptolestes ferrugineus in stored wheat.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PABLO S WHALEY whose telephone number is (571)272-4425. The examiner can normally be reached between 1pm-9pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Anita Coope can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PABLO S WHALEY/Primary Examiner, Art Unit 3619
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