DETAILED ACTION
This office action is in response to the communication received on January 6, 2026 concerning application No. 18/201,053 filed on May 23, 2023.
Claims 1-20 are currently pending.
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 with respect to the double patenting rejection have been fully considered but they are not persuasive. Independent claims 1, 9, and 19 of 18/201,036 disclose “detect whether the breath sample includes at least a minimum volume of gas”, which is not patentably distinct from the claims of the present application because in order to detect a minimum volume of gas a gas flow volume sensor must be present. Additionally, newly cited prior art reference Keays is being applied to teach the gas flow volume sensor is on the breath input device and that the determination of whether the individual is interfering with gas flowing from the breath tube based, at least in part, on the detected minimum gas flow from the breath tube. See the double patenting rejection below for further details. For at least the same reasons as above the double patenting rejection of claims 3, 5, 12, and 20 stand.
Applicant’s arguments with respect to claim(s) 1, 11, and 18 regarding the newly filed claim limitation have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant's arguments filed 01/06/2025 regarding the prior art rejection have been fully considered but they are not persuasive. In response to the applicant’s arguments on pgs. 11-12 that the prior art fails to teach “the interference classification model yields a probability that the individual is interfering with gas flowing from the mouth based, at least in part, on whether the breath tube is properly inserted into the mouth of the individual”, examiner respectfully disagrees. As set forth in the previous office action, Grigaliunas is relied upon for teaching the recited limitation. Applicant argues that the cited portions of Grigaliunas does not teach the limitation because “Grigaliunas is not related to determining whether the individual is interfering with gas flowing from the mouth of the individual via the breath input device”. However, pg. 3, para. 1 of Grigaliunas discloses, “Equipment and method for measuring allows to identify whether the person really touches a transparent luminous tube of the alcohol testing apparatus to identify whether there are no external or other air-feed devices in the tube or the integrity of the tube is intact” and pg. 5, para. 1, “Also the smart device (1 ) has software means for analyzing an image captured by an illuminated translucent tube of the alcohol testing apparatus (2) to determine whether external sources of the measured air are used, i.e. to determine the integrity of the tube”. By determining whether an external device is being used within the breath input tube, Grigaliunas is determining whether an individual is interfering with gas flowing from the mouth of the individual via the breath input device because it is determining whether the user is the one performing the breath input.
Additionally, for the same reasons as recited above the dependent claims argued on pgs. 13-17 are rejected by Wojcik and Grigaliunas in view of the newly recited prior art reference relied upon in the rejection of the claims below.
Claim Objections
Claims 1 and 11 are objected to because of the following informalities:
Claim 1, line 16, “a detected minimum gas flow” should read “the detected minimum gas flow”,
Claim 11, lines 11-12, “a detected minimum gas flow” should read “the detected minimum gas flow”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claims 1, 11, and 18 recite the limitation “apply an interference classification model to the image to yield a probability that the individual is interfering with gas flowing from the mouth of the individual via the breath input device based, at least in part, on the detected minimum gas flow from the breath tube” which is not recited in the specification in such a way as to reasonably convey that the inventor has possession of the limitation at the time the application was filed. [0141]-[0142] and fig. 12 of the specification disclose a sensor that detects whether at least a minimum gas flow is reported from the breath tube at block 1210. When sufficient gas flow has been detected an image of the individual is isolated at block 1225, the image is then used at block 1230 by the classification model to yield an indication of whether the monitored individual is interfering with the breath tube, therefore the classification model is relying on the image to yield the indication. However, nowhere in the specification could it be found where the classification model uses the detected minimum gas flow from the breath tube to yield the indication of whether the individual is interfering with the breath tube as is currently recited in the claim limitation above. The detected minimum gas flow is only being relied upon for isolating the image at block 1225. For at least that reason the recited claim limitation is considered new matter.
Claims dependent upon the rejected claims above, but not directly addressed, are also rejected because they inherit the indefiniteness of the claim(s) they respectively depend upon.
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 1-2, 4, 6-12, and 14-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-9, 11, 13, 15-16, and 19 of copending Application No. 18/201,036 in view of Wojcik et al. (US 20150212063, hereinafter Wojcik), Grigaliunas (WO2019111044), and Keays et al. (US 20140311215, hereinafter Keays).
Instant Application:
18201053
Copending Application:
18201036
Claim 1:
A system for detecting alcohol based impairment, the system comprising:
a camera;
a breath input device comprising a breath tube;
a breath sensor configured to receive a breath sample of an individual via the breath input device and to generate an alcohol level based upon the breath sample;
a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube; and
one or more processors;
a non-transient computer readable medium coupled to the one or more processors, and having stored therein instructions which when executed by the one or more processors, causes the one or more processors to:
receive an image captured by the camera of the individual blowing into the breath tube of the breath input device;
apply an interference classification model to the image to yield a probability that the individual is interfering with gas flowing from the mouth of the individual via the breath input device based, at least in part, on a detected minimum gas flow from the breath tube and whether the breath tube is properly inserted into the mouth of the individual;
indicate a likelihood of no interference when the probability is less than a threshold;
and based at least in part on the likelihood of no interference, indicate the alcohol level as reliable.
Claim 1:
A system for determining proper use of a breath tester, the system comprising:
a camera;
a breath tube;
a breath sensor configured to receive a breath sample of an individual via the breath tube and to generate an alcohol level based on the breath sample;
one or more processors configured to receive an image from the camera of a monitored individual blowing into the breath tube; and
a non-transient computer readable medium coupled to the one or more processors, and having stored therein instructions which when executed by the one or more processors, causes the one or more processors to:
transmit a request to deliver the breath sample to the breath tube, measure an amount of time between transmitting the request and receiving the breath sample, determine whether the amount of time is less than a defined time period, detect whether the breath sample includes at least a minimum volume of gas, in response to determining that the amount of time is less than the defined time period and that the breath sample includes at least the minimum volume of gas:
apply an interference classification model to the image to yield a probability that the monitored individual is interfering with gas flowing from the monitored individual's mouth via the breath tube;
indicate interference when the probability exceeds a first threshold; and indicate no interference when the probability is less than a second threshold.
Claim 1 of the copending application recites all of the limitations of claim 1 of the instant application except the interference application model application being “a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube”, “based, at least in part, on a detected minimum gas flow from the breath tube and whether the breath tube is properly inserted into the mouth of the individual” and “based at least in part on the likelihood of no interference, indicate the alcohol level as reliable”.
Similarly, every limitation or independent claim 11 of the instant application is taught by claim 9 of the copending application except for the interference application model application being “a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube”, “based, at least in part, on a detected minimum gas flow from the breath tube and whether the breath tube is properly inserted into the mouth of the individual” and “based at least in part on the likelihood of no interference, indicate the alcohol level as reliable”. Similarly, every limitation of independent claim 18 of the instant application is taught by claim 19 of the copending application except for the interference application model application being “a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube”, “based, at least in part, on a detected minimum gas flow from the breath tube and whether the breath tube is properly inserted into the mouth of the individual” and “based at least in part on the likelihood of no interference, indicate the alcohol level as reliable”.
However,
Wojcik teaches based at least in part on the likelihood of no interference, indicate the alcohol level as reliable ([0112]-[0113] discloses when the match score is acceptable, the results of the test are sent to the monitor network for analysis, by sending the test results to the monitor network the system is indicating the alcohol level as reliable).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to indicate the alcohol level as reliable based at least in part on the likelihood of no interference in order to indicate to the user the test has been performed correctly, thereby increasing the accuracy of the results.
Further, the copending application in view of Wojcik does not specifically teach the interference application model application being is based, at least in part, on whether the breath tube is properly inserted into the mouth of the individual.
However,
Grigaliunas teaches an interference classification model yields a determination that the individual is interfering with gas flowing from the mouth, based at least in part, on whether the breath tube is properly inserted into the mouth of the individual (pg. 3, para. 1, “Equipment and method for measuring allows to identify whether the person really touches a transparent luminous tube of the alcohol testing apparatus to identify whether there are no external or other air-feed devices in the tube or the integrity of the tube is intact” and pg. 5, para. 1, “Also the smart device (1 ) has software means for analyzing an image captured by an illuminated translucent tube of the alcohol testing apparatus (2) to determine whether external sources of the measured air are used, i.e. to determine the integrity of the tube”. Also see pg. 5, para. 2 and pg. 7, para. 2-3).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the interference classification model of the copending application in view of Wojcik for the interference classification model of Grigaliunas because it amounts to simple substitution of one known element for another to allow for the predictable results of determining whether an individual is interfering with gas flowing from the mouth.
Further, the copending application in view of Wojcik and Grigaliunas does not specifically teach a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube and determining whether the individual is interfering based at least in part on a detect minimum gas flow from the breath tube.
However,
Keays in a similar field of endeavor teaches a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube ([0099] “ the pressure sensor and air sampling system may provide a running estimate of total air volume blown and the air may be sampled after a prescribed minimum volume has been reached”. [0098] and fig. 10 disclose the pressure sensor is on the breath input device) and determining whether the individual is interfering based at least in part on a detect minimum gas flow from the breath tube ([0087] “breath testing device may utilize software algorithms analyzing pressure and temperature sensor data to ensure that the breath being analyzed is that of a person”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the known technique of a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube and yielding a probability that the individual is interfering based at least in part on a detect minimum gas flow from the breath tube of Keays to the system of the copending application in view of Wojcik and Grigaliunas to allow for the predictable results of increasing the accuracy of the interference determination by adding an extra layer of information being analyzed.
Claims 4, 6-9, and 14-17 of the instant application recite limitations that are the same as claims 3-8, 11, 13, and 15-16 of the copending application.
Regarding claims 2 and 12, the copending application in view of Wojcik, Grigaliunas, and Keays teaches the system of claim 1 and the method of claim 11, as set forth above. Wojcik further teaches the one or more processors cause a request to be sent to the individual to perform an additional impairment test ([0014] discloses “a positive initial test is automatically followed by a…confirmation test”. [0076] discloses displaying (requesting) to the offender to start blowing for the confirmation (additional) test), wherein the additional test is selected based at least in part on the alcohol level ([0014] discloses “a positive initial test is automatically followed by a…confirmation test”. By having a positive test the alcohol level is over a threshold).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have the one or more processors cause a request to be sent to the individual to perform an additional impairment test in order to increase the reliability of the test result by having the user confirm their results, thereby increasing the accuracy of the system.
Regarding claim 10, the copending application in view of Wojcik, Grigaliunas, and Keays teaches the system of claim 9, as set forth above. Wojcik further teaches the sample value is a level of a defined volatile organic compound ([0014] discloses the BrAC corresponds to the breath alcohol content and [0019] discloses the BrAC is a level (0.020%, 0.050%) and is therefore a level of a defined volatile organic compound (alcohol)).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the sample value of the copending application in view of Wojcik, Grigaliunas, and Keays for the level of a defined volatile organic compound of Wojcik because it amounts to simple substitution of one known element for another to obtain the predictable results of determining impairment of the user.
Regarding claim 19, the copending application in view of Wojcik, Grigaliunas, and Keays teaches the non-transient computer readable medium of claim 18, as set forth above. Wojcik further teaches the threshold is a first threshold and wherein the non-transient computer readable medium further having stored therein instructions which when executed by the one or more processors, causes the one or more processors to:
indicate a likelihood of interference when the probability exceeds a second threshold ([0110] discloses if the quality score of the image does not meet a threshold no facial recognition will be performed and therefore the test results will not be analyzed. [0111] discloses at step 730 there is a determination of whether to retest or not based on the quality score. By indicating that the offender needs to retest because the quality score was below a threshold the system is indicating a likelihood of interference); and
cause a request to be sent to the individual to modify use of the breath input device when the probability exceeds the second threshold ([0111] discloses at step 730 when it is determined to retest because of a poor quality score (probability exceeds the second threshold) a message (request) is displayed to the offender to modify use so the breath test can be properly performed).
Claim 3, 13, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-9, 11, 13, 15-16, and 19 of copending Application No. 18/201,036 in view of Wojcik, Grigaliunas, and Keays as applied above, and further in view of Bae et al. (US 20170135620, hereinafter Bae).
Regarding claims 3 and 13, the copending application in view of Wojcik, Grigaliunas, and Keays teaches the system of claim 2 and the method of claim 12, as set forth above. the copending application in view of Wojcik, Grigaliunas, and Keays does not specifically teach the additional impairment test is selected from a group consisting of: a voice based impairment test, and a movement based impairment test.
However,
Bae in a similar field of endeavor teaches performing a voice based impairment test to determine whether an individual is impaired ([0040] discloses detecting a input voice signal and using the voice signal to determine whether alcohol has been consumed).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system and method disclosed by the copending application in view of Wojcik, Grigaliunas, and Keays to have the additional impairment test be a voice based impairment test in order to supply an additional method for indirectly and objectively determining whether an individual is impaired, as recognized by Bae ([0007]). Adding the voice based impairment test would allow a secondary test to determine whether an individual is impaired, thereby making the system more accurate.
Regarding claim 20, the copending application in view of Wojcik, Grigaliunas, and Keays teaches the non-transient computer readable medium of claim 18, as set forth above. Wojcik further teaches causing a request to be sent to the individual to perform an additional impairment test ([0014] discloses “a positive initial test is automatically followed by a…confirmation test”. [0076] discloses displaying (requesting) to the offender to start blowing for the confirmation (additional) test).
Copending application in view of Wojcik, Grigaliunas, and Keays does not specifically teach the additional impairment test is selected from a group consisting of: a voice based impairment test, a facial image based impairment test, and a movement based impairment test.
However,
Bae in a similar field of endeavor teaches performing a voice based impairment test to determine whether an individual is impaired ([0040] discloses detecting a input voice signal and using the voice signal to determine whether alcohol has been consumed).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the non-transient computer readable medium disclosed by the copending application in view of Wojcik, Grigaliunas, and Keays to have the additional impairment test be a voice based impairment test in order to supply an additional method for indirectly and objectively determining whether an individual is impaired, as recognized by Bae ([0007]). Adding the voice based impairment test would allow a secondary test to determine whether an individual is impaired, thereby making the system more accurate.
Claim 5 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-9, 11, 13, 15-16, and 19 of copending Application No. 18/201,036 in view of Wojcik, Grigaliunas, and Keays as applied above, and further in view of Mohanty et al. (US 20230294514, hereinafter Mohanty).
Regarding claim 5, the copending application in view of Wojcik, Grigaliunas, and Keays teaches the system of claim 1, as set forth above. Wojcik further teaches the one or more processors receives a facial image of the individual captured by the camera ([0091] discloses the processor circuit board is sent a digital image taken by camera 18).
Copending application in view of Wojcik, Grigaliunas, and Keays does not specifically teach performing a facial image based impairment test using the facial image.
However,
Mohanty in a similar field of endeavor teaches performing a facial image based impairment test using the facial image ([0073] discloses detecting and using one or more facial features of the driver to determine the BAC level of the driver).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system disclosed by the copending application in view of Wojcik, Grigaliunas, and Keays to perform a facial image based impairment test using the facial image in order to make the system more accurate in determining impairment by having a second test in addition to the initial test of impairment.
This is a provisional nonstatutory double patenting rejection.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1-2, 4, 6, 9-12, 14-15 and 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable by Wojcik et al. (US 20150212063, hereinafter Wojcik) in view of Grigaliunas (WO2019111044) and Keays et al. (US 20140311215, hereinafter Keays).
Regarding claim 1, Wojcik teaches a system for detecting alcohol based impairment (abstract), the system comprising:
a camera ([0091] “camera 18”);
a breath input device comprising a breath tube ([0069] “breath tube 14”);
a breath sensor configured to receive a breath sample of an individual via the breath input device ([0090] discloses the breath sample is received by the fuel cell (breath sensor)) and to generate an alcohol level based upon the breath sample ([0090] “the electrical signal registered in the fuel cell, whose signal strength is proportional to the alcohol content of the breath sample” and [0014] “RBAM employs an ethanol fuel cell to determine breath alcohol content (BrAC)”);
one or more processors (the electronic circuitry of the device 200 shown in figs. 5A-C. Also the main circuit board and processor circuit board in fig. 8 are made of processors (see [0090]-[0091]));
a non-transient computer readable medium coupled to the one or more processors, and having stored therein instructions ([0090] the part of the main circuit board and processor circuit board that store the processes performed by the processors is considered the non-transient computer readable medium and the stored processes are considered the instructions) which when executed by the one or more processors, causes the one or more processors to:
receive an image captured by the camera ([0091] discloses the processor circuit board is sent a digital image taken by camera 18) of the individual blowing into the breath tube of the breath input device ([0094] discloses the camera takes an image of the offender (individual blowing into the breath input device). [0095] further teaches the image is of the user blowing into the breath tube 14);
apply an interference classification model to the image to yield a probability that the individual is interfering with gas flowing from the mouth of the individual via the breath input device ([0110] the facial recognition software analyzes the facial image and determines a match score for the image, the match score corresponds to whether or not there is a facial match. [0113] discloses the facial match corresponds to whether an obstruction is present or not within the image. The presence of an obstruction corresponds to an individual interfering with gas flow. Additionally, the facial recognition software is considered the interference classification model);
indicate a likelihood of no interference when the probability is less than a threshold ([0111]-[0112] discloses at step 730 there is a determination of whether to retest or not based on if the match score is acceptable (above a threshold), by having the match score be above a threshold, a probability of interference is less than a threshold and the system is indicating that there is a likelihood of no interference); and
based at least in part on the likelihood of no interference, indicate the alcohol level as reliable ([0112]-[0113] discloses when the match score is acceptable, the results of the test are sent to the monitor network for analysis, by sending the test results to the monitor network the system is indicating the alcohol level as reliable).
Wojcik does not specifically teach the interference classification model yield a probability that the individual is interfering with gas flowing from the mouth based, at least in part, on whether the breath tube is properly inserted into the mouth of the individual.
However,
Grigaliunas in a similar field of endeavor teaches an interference classification model yields a determination that the individual is interfering with gas flowing from the mouth, based at least in part, on whether the breath tube is properly inserted into the mouth of the individual (pg. 3, para. 1, “Equipment and method for measuring allows to identify whether the person really touches a transparent luminous tube of the alcohol testing apparatus to identify whether there are no external or other air-feed devices in the tube or the integrity of the tube is intact” and pg. 5, para. 1, “Also the smart device (1 ) has software means for analyzing an image captured by an illuminated translucent tube of the alcohol testing apparatus (2) to determine whether external sources of the measured air are used, i.e. to determine the integrity of the tube”. Also see pg. 5, para. 2 and pg. 7, para. 2-3).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the interference classification model of Wojcik for the interference classification model of Grigaliunas because it amounts to simple substitution of one known element for another to allow for the predictable results of determining whether an individual is interfering with gas flowing from the mouth.
Wojcik in view of Grigaliunas does not specifically teach a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube and yielding a probability that the individual is interfering based at least in part on a detect minimum gas flow from the breath tube.
However,
Keays in a similar field of endeavor teaches a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube ([0099] “ the pressure sensor and air sampling system may provide a running estimate of total air volume blown and the air may be sampled after a prescribed minimum volume has been reached”. [0098] and fig. 10 disclose the pressure sensor is on the breath input device) and determining whether the individual is interfering based at least in part on a detect minimum gas flow from the breath tube ([0087] “breath testing device may utilize software algorithms analyzing pressure and temperature sensor data to ensure that the breath being analyzed is that of a person”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the known technique of a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube and yielding a probability that the individual is interfering based at least in part on a detect minimum gas flow from the breath tube of Keays to the system of Wojcik in view of Grigaliunas to allow for the predictable results of increasing the accuracy of the interference determination by adding an extra layer of information being analyzed.
Regarding claims 11 and 18, Wojcik teaches a method for detecting use of a controlled substance (abstract and figs. 7A-D) and a non-transient computer readable medium having stored therein instructions ([0090] the part of the main circuit board and processor circuit board that store the processes performed by processors is considered the non-transient computer readable medium and the stored processes are considered the instructions. [0091] further discloses facial matching software that is run by the processor), which when executed by a hardware processing system causes the processing system to perform the method comprising:
receiving, by a processor, an image captured by a camera ([0091] discloses the processor circuit board is sent a digital image taken by camera 18) of an individual blowing into a breath tube of a breath input device ([0094] discloses the camera takes an image of the offender (individual blowing into the breath input device). [0095] further teaches the image is of the user blowing into the breath tube 14);
processing, by a breath sensor of the breath input device, a breath sample derived from the individual via a breath input device ([0090] discloses the breath sample from the offender is received by the fuel cell (breath sensor)) to yield an alcohol level in the breath sample ([0090] “the electrical signal registered in the fuel cell, whose signal strength is proportional to the alcohol content of the breath sample” and [0014] “RBAM employs an ethanol fuel cell to determine breath alcohol content (BrAC)”);
applying, by the processor, an interference classification model to the image to yield a probability that the individual is interfering with gas flowing from the mouth of the individual via the breath input device ([0110] the facial recognition software analyzes the facial image and determines a match score for the image, the match score corresponds to whether or not there is a facial match. [0113] discloses the facial match corresponds to whether an obstruction is present or not within the image. The presence of an obstruction corresponds to an individual interfering with gas flow. Additionally, the facial recognition software is considered the interference classification model);
indicating, by the processor, a likelihood of no interference when the probability is less than a threshold ([0111]-[0112] discloses at step 730 there is a determination of whether to retest or not based on if the match score is acceptable (above a threshold), by having the match score be above a threshold, a probability of interference is less than a threshold and the system is indicating that there is a likelihood of no interference); and
based at least in part on the likelihood of no interference, indicating the alcohol level as reliable ([0112]-[0113] discloses when the match score is acceptable, the results of the test are sent to the monitor network for analysis, by sending the test results to the monitor network the system is indicating the alcohol level as reliable).
Wojcik does not specifically teach the interference classification model yield a probability that the individual is interfering with gas flowing from the mouth based, at least in part, on whether the breath tube is properly inserted into the mouth of the individual.
However,
Grigaliunas in a similar field of endeavor teaches an interference classification model yields a determination that the individual is interfering with gas flowing from the mouth, based at least in part, on whether the breath tube is properly inserted into the mouth of the individual (pg. 3, para. 1, “Equipment and method for measuring allows to identify whether the person really touches a transparent luminous tube of the alcohol testing apparatus to identify whether there are no external or other air-feed devices in the tube or the integrity of the tube is intact” and pg. 5, para. 1, “Also the smart device (1 ) has software means for analyzing an image captured by an illuminated translucent tube of the alcohol testing apparatus (2) to determine whether external sources of the measured air are used, i.e. to determine the integrity of the tube”. Also see pg. 5, para. 2 and pg. 7, para. 2-3).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the interference classification model of Wojcik for the interference classification model of Grigaliunas because it amounts to simple substitution of one known element for another to allow for the predictable results of determining whether an individual is interfering with gas flowing from the mouth.
Wojcik in view of Grigaliunas does not specifically teach detecting by a gas flow volume sensor on the breath input device a minimum gas flow from the breath tube and yielding a probability that the individual is interfering based at least in part on a detect minimum gas flow from the breath tube.
However,
Keays in a similar field of endeavor teaches detecting by a gas flow volume sensor on the breath input device a minimum gas flow from the breath tube ([0099] “ the pressure sensor and air sampling system may provide a running estimate of total air volume blown and the air may be sampled after a prescribed minimum volume has been reached”. [0098] and fig. 10 disclose the pressure sensor is on the breath input device) and determining whether the individual is interfering based at least in part on a detect minimum gas flow from the breath tube ([0087] “breath testing device may utilize software algorithms analyzing pressure and temperature sensor data to ensure that the breath being analyzed is that of a person”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the known technique of a gas flow volume sensor on the breath input device configured to detect a minimum gas flow from the breath tube and yielding a probability that the individual is interfering based at least in part on a detect minimum gas flow from the breath tube of Keays to the method and non-transitory computer readable medium of Wojcik in view of Grigaliunas to allow for the predictable results of increasing the accuracy of the interference determination by adding an extra layer of information being analyzed.
Regarding claims 2 and 12, Wojcik in view of Grigaliunas and Keays teaches the system of claim 1 and the method of claim 11, as set forth above. Wojcik further teaches the one or more processors cause a request to be sent to the individual to perform an additional impairment test ([0014] discloses “a positive initial test is automatically followed by a…confirmation test”. [0076] discloses displaying (requesting) to the offender to start blowing for the confirmation (additional) test), wherein the additional test is selected based at least in part on the alcohol level ([0014] discloses “a positive initial test is automatically followed by a…confirmation test”. By having a positive test the alcohol level is over a threshold).
Regarding claims 4, 14 and 19, Wojcik in view of Grigaliunas and Keays teaches the system of claim 1, the method of claim 11 and the non-transient computer readable medium of claim 18, as set forth above. Wojcik further teaches the threshold is a first threshold and wherein the non-transient computer readable medium further having stored therein instructions which when executed by the one or more processors, causes the one or more processors to:
indicate a likelihood of interference when the probability exceeds a second threshold ([0110] discloses if the quality score of the image does not meet a threshold no facial recognition will be performed and therefore the test results will not be analyzed. [0111] discloses at step 730 there is a determination of whether to retest or not based on the quality score. By indicating that the offender needs to retest because the quality score was below a threshold the system is indicating a likelihood of interference); and
cause a request to be sent to the individual to modify use of the breath input device when the probability exceeds the second threshold ([0111] discloses at step 730 when it is determined to retest because of a poor quality score (probability exceeds the second threshold) a message (request) is displayed to the offender to modify use so the breath test can be properly performed).
Regarding claims 6 and 15, Wojcik in view of Grigaliunas and Keays teaches the system of claim 2 and the method of claim 11, as set forth above. Wojcik further teaches reporting a likelihood of impairment (alcohol level) based, at least in part, on a probability that the individual is impaired to a recipient device apart from the one or more processors ([0112] discloses the results of the test (BrAC- Alcohol level/likelihood of impairment) is sent to the monitor network 206 and [0112]-[0113] discloses when the match score is acceptable, the results of the test are sent to the monitor network for analysis).
Regarding claim 9, Wojcik in view of Grigaliunas and Keays teaches the system of claim 1, as set forth above. Wojcik further teaches the breath sensor is further configured to provide a sample value corresponding to the breath sample ([0090] discloses the fuel cell registers an electrical signal that corresponds to the alcohol content of the breath sample. The alcohol content is considered the sample value. [0014] discloses the alcohol content corresponds to the breath alcohol content (BrAC)) and the one or more processors perform a drug based impairment test using the sample value ([0073]-[0075] disclose the system analyzes the BrAC value by comparing it to the lower limit of detection (LLOD) and if the BrAC is above the LLOD it is considered a failed test and the offender is positive for alcohol and is impaired (see 396 in fig. 3D and [0028]-[0029])).
Keays further teaches providing a breath sample and performing a drug based impairment test of a drug other than alcohol using the sample value ([0050] discloses using breath to detect “traces of controlled substances or narcotics or their derivatives, such as, for example: methamphetamines, amphetamines, barbituates, tetrahydrocannabinol (THC) or other cannabinoids, benzoylmethylecgonine, diacetylmorphine or other opiates/opioids, lysergic acid diethylamide, psilocin, phencyclidine and the like”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system and method disclosed by Wojcik in view of Grigaliunas and Keays to have the drug based impairment test be of a drug other than alcohol in order to increase the ability of the system, thereby making the system more versatile and reducing the overall number of systems needed to perform breath based testing.
Regarding claim 10, Wojcik in view of Grigaliunas and Keays teaches the system of claim 9, as set forth above. Wojcik further teaches the sample value is a level of a defined volatile organic compound ([0014] discloses the BrAC corresponds to the breath alcohol content and [0019] discloses the BrAC is a level (0.020%, 0.050%) and is therefore a level of a defined volatile organic compound (alcohol)).
Claim(s) 3, 13 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wojcik in view of Grigaliunas and Keays as applied to claims 2, 12, and 18 above, and further in view of Bae et al. (US 20170135620, hereinafter Bae).
Regarding claims 3 and 13, Wojcik in view of Grigaliunas and Keays teaches the system of claim 2 and the method of claim 12, as set forth above. Wojcik in view of Grigaliunas and Keays does not specifically teach the additional impairment test is selected from a group consisting of: a voice based impairment test, and a movement based impairment test.
However,
Bae in a similar field of endeavor teaches performing a voice based impairment test to determine whether an individual is impaired ([0040] discloses detecting a input voice signal and using the voice signal to determine whether alcohol has been consumed).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system and method disclosed by Wojcik in view of Grigaliunas and Keays to have the additional impairment test be a voice based impairment test in order to supply an additional method for indirectly and objectively determining whether an individual is impaired, as recognized by Bae ([0007]). Adding the voice based impairment test would allow a secondary test to determine whether an individual is impaired, thereby making the system more accurate.
Regarding claim 20, Wojcik in view of Grigaliunas and Keays teaches the non-transient computer readable medium of claim 18, as set forth above. Wojcik further teaches causing a request to be sent to the individual to perform an additional impairment test ([0014] discloses “a positive initial test is automatically followed by a…confirmation test”. [0076] discloses displaying (requesting) to the offender to start blowing for the confirmation (additional) test).
Wojcik in view of Grigaliunas and Keays does not specifically teach the additional impairment test is selected from a group consisting of: a voice based impairment test, a facial image based impairment test, and a movement based impairment test.
However,
Bae in a similar field of endeavor teaches performing a voice based impairment test to determine whether an individual is impaired ([0040] discloses detecting a input voice signal and using the voice signal to determine whether alcohol has been consumed).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the non-transient computer readable medium disclosed by Wojcik in view of Grigaliunas and Keays to have the additional impairment test be a voice based impairment test in order to supply an additional method for indirectly and objectively determining whether an individual is impaired, as recognized by Bae ([0007]). Adding the voice based impairment test would allow a secondary test to determine whether an individual is impaired, thereby making the system more accurate.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wojcik in view of Grigaliunas and Keays as applied to claim 1 above, and further in view of Mohanty et al. (US 20230294514, hereinafter Mohanty).
Regarding claim 5, Wojcik in view of Grigaliunas and Keays teaches the system of claim 1, as set forth above. Wojcik further teaches the one or more processors receives a facial image of the individual captured by the camera ([0091] discloses the processor circuit board is sent a digital image taken by camera 18).
Wojcik in view of Grigaliunas and Keays does not specifically teach performing a facial image based impairment test using the facial image.
However,
Mohanty in a similar field of endeavor teaches performing a facial image based impairment test using the facial image ([0073] discloses detecting and using one or more facial features of the driver to determine the BAC level of the driver).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system disclosed by Wojcik in view of Grigaliunas and Keays to perform a facial image based impairment test using the facial image in order to make the system more accurate in determining impairment by having a second test in addition to the initial test of impairment.
Claim(s) 7-8 and 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wojcik in view of Grigaliunas and Keays as applied to claims 1 and 11 above, and further in view of Reddy et al. (“Real-time Face Mask Detection Using Machine Learning/Deep Feature-Based Classifiers For Face Mask Recognition”, hereinafter Reddy.
Regarding claims 7 and 16, Wojcik in view of Grigaliunas and Keays teaches the system of claim 1 and the method of claim 11, as set forth above. Wojcik in view of Grigaliunas and Keays does not specifically teach the interference classification model is a machine learning model trained using at least one hundred images that have each been classified as exhibiting interference or not exhibiting interference.
However,
Reddy in a similar field of determining whether an interference is present teaches a interference classification model that is a machine learning model (pg. 1, Abstract discloses a model that utilizes machine learning and deep learning to categorize whether a user is wearing a facemask and to what extent they are wearing the facemask. The presence of a facemask is considered the interference) trained using at least one hundred images that have each been classified as exhibiting interference or not exhibiting interference (pg. 3, “Experimental Results” section discloses the model was trained using 767 images that were classified into a face without a mask (not exhibiting interference) and face with a mask (exhibiting interference)).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the interference classification model of Wojcik in view of Grigaliunas and Keays for the Machine learning model of Reddy because it amounts to simple substitution of one known element for another to obtain the predictable results of determining whether an interference is present on an individual’s face that is performing the breath test.
Regarding claims 8 and 17, Wojcik in view of Grigaliunas, Keays, and Reddy teaches the system of claim 7 and the method of claim 16, as set forth above. Wojcik further teaches the test is a breath based impairment test (Abstract). Reddy further teaches the at least one hundred images depict at least ten different individuals undergoing the test (figs. 1-2 show the data set depicts at least ten different individuals undergoing the test).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system and method disclosed by Wojcik in view of Grigaliunas and Reddy to have the at least one hundred images depict at least ten different individuals undergoing a breath based impairment test in order to ensure that the model is trained with a diverse group of images so that the model can accurately perform when making its determination, thereby making the model more accurate.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 nonprovisional extension fee (37 CFR 1.17(a)) 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.
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/ANDREW W BEGEMAN/Examiner, Art Unit 3798