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 .
Information Disclosure Statement
The Information Disclosure Statement filed 08/02/2023 has been considered by the Examiner.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: 1000. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. 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). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
*Reference character 1000 is mentioned in Par. [0052] and [0054], but is not shown in the drawings.
Specification
The disclosure is objected to because of the following informalities:
Page 8, line 1: “the authentication unit 230” should be “the authentication unit 110”.
Appropriate correction is required.
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
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 1-12 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 12 recite the limitation “generate state information indicating a state of a target person by processing an image in which the target person is captured”. A “state” of a target person is a very broad categorization that includes many subcategories, such as mental state, physical state, psychological state, spiritual state, emotional state, etc. Therefore, claim 1 is considered to be drawn to a genus. MPEP 2163(II)(A)(3)(a)(ii) explains that the written description must lead a person of ordinary skill in the art to understand that the inventor possessed the entire scope of the claimed invention. Ariad, 598 F.3d at 1353–54. It is also explained that a "representative number of species" means that the species which are adequately described are representative of the entire genus. Thus, when there is substantial variation within the genus, one must describe a sufficient variety of species to reflect the variation within the genus. See AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc., 759 F.3d 1285, 1300, 111 USPQ2d 1780, 1790 (Fed. Cir. 2014). The Applicant’s specification does have support for certain physical and mental/emotional states (Pars. [0016], [0077] – feeling/physical condition, [0079-0081] – glad feeling, negative feelings (sad, angry, depressed, or the like), and [0095] – disheveled clothing/hair, bad expression/movement/pose), but does not reasonably provide support for a representative number of states of a person (e.g., spiritual, other mental states (such as alertness, concentration, motivation, self-awareness, stress), and other physical states (such as tired, fatigue, energetic, in pain, etc.), in order to reasonably convey that the inventor possessed the entire scope of the claimed invention.
*All other claims are rejected due to their dependency on a rejected claim.
Claims 1, 11, and 12 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 12 include the limitation of at least one processor configured to “generate state information indicating a state of a target person by processing an image in which the target person is captured”. The Applicant’s specification appears to essentially recite this claim limitation in Par. [0013], wherein the functional intent of generating state information indicating a state of a target person is recited, but without disclosing how this functional intent is achieved. The Applicant’s specification discusses potential results where the state information indicates that the target person is glad (Par. [0079-0080]) or has a negative feeling (Par. [0081]), but does not explain how the processor processes an image in order to generate state information indicating a state of a target person. In other words, there is no written description support for how the processor determines a particular state of the target person, such as gladness or a negative feeling.
MPEP 2161.01(I) explains that it is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See, e.g., Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 681-683, 114 USPQ2d 1349, 1356, 1357 (Fed. Cir. 2015). MPEP 2161.01(I) also explains that the description requirement of the patent statute requires a description of an invention, not an indication of a result that one might achieve if one made that invention. Original claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed (MPEP 2161.01(I), MPEP 2163.02, and MPEP 2181(IV)).
*All other claims are rejected due to their dependency on a rejected claim.
Claims 8-9 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.
Claim 8 recites the limitation “the at least one processor is further configured to execute the instructions to generate the status information indicating a result of estimating whether previously taken medicine is effective or not, using a machine learning model that has learned correspondence between an image when the target person takes the medicine and information indicating whether the medicine is suitable for the target person or not”. The Applicant’s specification appears to essentially recite this claim limitation in Par. [0095], wherein the functional intent of estimating whether previously taken medicine is effective or not is recited, but without disclosing how this functional intent is achieved. Specifically, it is unclear how the machine learning model is being trained and what “information indicating whether the medicine is suitable for the target person or not” is being corresponded to the image of the target person when they take the medicine in order to make the estimation.
MPEP 2161.01(I) explains that it is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See, e.g., Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 681-683, 114 USPQ2d 1349, 1356, 1357 (Fed. Cir. 2015). MPEP 2161.01(I) also explains that the description requirement of the patent statute requires a description of an invention, not an indication of a result that one might achieve if one made that invention. Original claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed (MPEP 2161.01(I), MPEP 2163.02, and MPEP 2181(IV)).
It is further noted that Applicant’s Par. [0095] explains how when an expression, movement, and a pose of the target person are good, and there are less disheveled clothing and disheveled hair of the target person, the judgement unit decides that the medicine is effective. When the opposite is true (i.e., bad expression, bad movement, bad pose, more disheveled clothing, and more disheveled hair), the judgement unit decides the medicine is unsuitable (i.e., ineffective). It is unclear to the Examiner how such a machine learning model is trained and what constitutes “information indicating whether or not the medication is appropriate for the target person”. It is unclear how it is being measured or known that medication is appropriate for the target person, when it is solely just explained how certain aspects of an image/video of a patient (expression, movement, pose, clothing, hair) could correspond to a determination of the suitability of the medication. There doesn’t appear to be a “true” or “known” value or indication of medication suitability, or a means to acquire a “true” or “known” value or indication of medication suitability, contemplated or provided by the Applicant. Par. [0096] mentions that “a pharmacist can easily recognize an effect of a medicine being described”, but is unclear how and if this is at all tied into the training of the machine learning model. While Applicant’s Par. [0096] further discusses the machine learning model and certain machine learning algorithms that can be used, the Specification is still lacking in written description support as to how machine learning is applied to achieve the desired result. Therefore, claim 8 lacks written description support because the specification does not sufficiently describe how the function is performed or the result is achieved. Also, the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail in the Applicant’s specification.
*Claim 9 is rejected due to their dependency on a rejected claim.
Claims 1-12 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for certain physical and mental/emotional states (Pars. [0016], [0077] – feeling/physical condition, [0079-0081] – glad feeling, negative feelings (sad, angry, depressed, or the like), and [0095] – disheveled clothing/hair, bad expression/movement/pose), does not reasonably provide enablement for all types of states of a person (e.g., spiritual, other mental states (such as alertness, concentration, motivation, self-awareness, stress), and other physical states (such as tired, fatigue, energetic, in pain, etc.). The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the invention commensurate in scope with these claims. The Applicant’s specification is not enabling for the claim limitation of instant claims 1, 11, and 12 of “generate state information indicating a state of a target person”. The Wands factors detailed in MPEP 2164.01(a) have been considered. For example, (A) the breadth of the claims was considered. The breadth associated with “a state of a target person” is so large and encapsulates many subcategories (i.e., mental state, physical state, emotional state, etc.). Also, (G) the existence of working examples has been considered. The limited examples of physical and mental/emotional states in the Applicant’s specification are not enabling for this broad limitation encapsulating all states of a target person, and would therefore require undue experimentation. An excessive amount of experimentation (Wands Factor (H)) would be necessary to make or use the invention that is commensurate with the scope of generating state information indicating all states of a target person, including spiritual states and other mental states such as anxiety/stress. Only limited examples involving general positive feelings of gladness and negative feelings of sadness, anger, and depression, along with examples of physical states such as disheveled clothing/hair and bad expressions, movement, and poses, are provided. These limited examples do not provide enough direction (Wands Factor (F)) to extrapolate out to the numerous amounts of states of a human.
*All other claims are also rejected due to their dependency on a rejected claim.
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 1-12 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.
The limitation “perform, by using the state information, at least one of processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and processing of deciding whether to transmit the first information to the first terminal” renders claim 1 (lines 6-9) indefinite. The limitation is written as if only one (i.e., “at least one of”) of two options is required to anticipate the claim: (1) processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and (2) processing of deciding whether to transmit the first information to the first terminal. However, it is unclear how only option (2) can be required because “the first information” is introduced and determined in option (1). Therefore, it is unclear how only option (2) can be required when first information must first be determined (i.e., option 1) before it can be transmitted (i.e., option 2).
The limitation “transmit the first information to the first terminal” renders claim 1 (line 10) indefinite. It is unclear why this step would be required when option (2) earlier in claim 1 involves “processing of deciding whether to transmit the first information to the first terminal”. So, if the processing step in option (2) results in a decision to not transmit the first information to the first terminal, will you still ultimately transmit the first information to the first terminal regardless of the decision made in the processing step? If so, why have the decision step?
Claim 8 recites the limitation "the status information" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. The Examiner wonders if the Applicant intended for this to be “the state information”.
Claim 8 recites the limitation “medicine” in line 3, whereas medicine was already introduced in a claim that claim 8 depends from (claim 7, line 9). It is unclear whether the Applicant intended to claim the same or a different medicine. Consider changing to “the medicine”.
The limitation “performing, by using the state information, at least one of processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and processing of deciding whether to transmit the first information to the first terminal” renders claim 11 (lines 5-8) indefinite. The limitation is written as if only one (i.e., “at least one of”) of two options is required to anticipate the claim: (1) processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and (2) processing of deciding whether to transmit the first information to the first terminal. However, it is unclear how only option (2) can be required because “the first information” is introduced and determined in option (1). Therefore, it is unclear how only option (2) can be required when first information must first be determined (i.e., option 1) before it can be transmitted (i.e., option 2).
The limitation “transmitting the first information to the first terminal” renders claim 11 (line 9) indefinite. It is unclear why this step would be required when option (2) earlier in claim 11 involves “processing of deciding whether to transmit the first information to the first terminal”. So, if the processing step in option (2) results in a decision to not transmit the first information to the first terminal, will you still ultimately transmit the first information to the first terminal regardless of the decision made in the processing step? If so, why have the decision step?
The limitation “a process of performing, by using the state information, at least one of processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and processing of deciding whether to transmit the first information to the first terminal” renders claim 12 (lines 5-8) indefinite. The limitation is written as if only one (i.e., “at least one of”) of two options is required to anticipate the claim: (1) processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and (2) processing of deciding whether to transmit the first information to the first terminal. However, it is unclear how only option (2) can be required because “the first information” is introduced and determined in option (1). Therefore, it is unclear how only option (2) can be required when first information must first be determined (i.e., option 1) before it can be transmitted (i.e., option 2).
The limitation “a process of transmitting the first information to the first terminal” renders claim 12 (line 9) indefinite. It is unclear why this step would be required when option (2) earlier in claim 12 involves “processing of deciding whether to transmit the first information to the first terminal”. So, if the processing step in option (2) results in a decision to not transmit the first information to the first terminal, will you still ultimately transmit the first information to the first terminal regardless of the decision made in the processing step? If so, why have the decision step?
*All other claims are rejected due to their dependency on a rejected claim.
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 1-12 rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea (mental process) without significantly more.
Step 1
Independent claims 1, 11, and 12 are directed to a communication apparatus, a communication method, and a non-transitory computer-readable storage medium storing a program, and thus meets the requirements for step 1.
Step 2A, Prong 1
Regarding claims 1, 11, and 12, the following steps recite an abstract idea:
“generat[ing] state information indicating a state of a target person by processing an image in which the target person is captured” is a mental process when given its broadest reasonable interpretation. As discussed in MPEP 2106.04(a)(2)(III), the mental process grouping includes observations, evaluation, judgements, and opinions. In this case, a human could evaluate an image of a target person in order to make a judgement about their state.
“perform[ing] at least one of processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and processing of deciding whether to transmit the first information to the first terminal” is a mental process when given its broadest reasonable interpretation. As discussed in MPEP 2106.04(a)(2)(III), the mental process grouping includes observations, evaluation, judgements, and opinions. In this case, a human could determine (i.e., evaluate) information to share or send (i.e., communicate) to a different person from the target person and decide (i.e., evaluate) whether to transmit/share the information.
“transmit[ting] the first information to the first terminal” is a mental process when given its broadest reasonable interpretation. As discussed in MPEP 2106.04(a)(2)(III), the mental process grouping includes observations, evaluation, judgements, and opinions. In this case, a human could transmit (e.g., share/communicate) first information to a different person from the target person.
Step 2A – Prong 2
Regarding claims 1, 11, and 12, the claims do not include any additional elements that integrate the abstract idea into a practical application. The following elements do not add any meaningful limitation to the abstract idea:
“at least one memory”, “at least one processor”, “at least one computer”, and “first terminal” are all recited with a high level of generality. The at least one memory is described (Fig. 6, # 1030) as a main storage apparatus implemented by a random access memory (RAM) and the like (Par. [0050]). The at least one processor is described as (Fig. 6, # 1020) a processor implemented by a central processing unit (CPU), a graphics processing unit (GPU), and the like (Par. [0049]). The computer is interchangeably described as the processor (Par. [0052] and [0054]). The first terminal is described as possibly being a portable terminal such as a smartphone and a table type terminal (Par. [0022]). The involvement of the “at least one memory”, “at least one processor”, “at least one computer”, and “first terminal” is insignificant extra-solution activity in that they amount to generic computer implementation of the abstract idea [MPEP 2106.04(a)(2)(III)(C)].
Furthermore, the “at least one memory”, “at least one processor”, “at least one computer”, and “first terminal”, along with their associated functions and components, do not add any meaningful limitation to the abstract idea when considered in combination because these elements are recited at a high level of generality and their related functions and components are merely implementing the abstract idea on a computer.
Step 2B
The additional elements of claims 1, 11, and 12, when considered either individually or in an ordered combination, are not enough to qualify as significantly more than the abstract idea. As discussed above with respect to the integration of the abstract idea into a practical application, the “at least one memory”, “at least one processor”, “at least one computer”, and “first terminal”, along with their associated functions and components, are recited with a high level of generality and simply amount to implementing the abstract idea on a computer. The additional elements that were considered insignificant extra-solution activity have been re-analyzed and do not amount to anything more than what is well-understood, routine, and conventional. Also, simply appending well-understood, routine, and conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception is not indicative of an inventive concept [MPEP 2106.05(d)].
The involvement of the “at least one memory”, “at least one processor”, “at least one computer” is considered storing and retrieving information in memory, a well-understood, routine, and conventional computer activity [MPEP 2106.05(d)(II) Versata Dev. Group, Inc.].
The involvement of the “first terminal” is considered receiving and transmitting data, a well-understood, routine, and conventional computer activity [MPEP 2106.05(d)(II) Symantec].
Additionally, “transmit[ting] first information” is transmitting data, a well-understood, routine, and conventional computer activity [MPEP 2106.05(d)II) Symantec].
In this case, well-known elements of a general computer system are used to implement the abstract idea.
Dependent claims
Regarding dependent claims 2-3 and 9, the limitations only further define the abstract idea.
Regarding dependent claims 4-8 and 10, the limitations only further define insignificant extra-solution activity of generic computer implementation of the abstract idea.
Therefore, claims 1-12 are unpatentable under 35 U.S.C. 101.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-7 and 10-12 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Mishra, et al. (U.S. PGPub No. 2023/0035981).
Regarding claim 1, Mishra teaches (Fig. 1, # 100) a communication apparatus (Par. [0077-0078] – establishing communication between a user 101A and a patient 101B) comprising:
(Fig. 1, # 110 – server, 112 – database) at least one memory configured to store instructions (Par. [0062]; Par. [0082]; Par. [0113]; Par. [0117] – it should be appreciated that the components or portions thereof (e.g., microprocessor, memory/storage, interfaces, etc.) of the system can be combined into one or more devices, such as a server); and
(Fig. 1, # 110) at least one processor (Par. [0009]; Par. [0082] – the server 110 may have or utilize the database 112 as a non-transitory repository of data accessible to at least one processor of the server 110) configured to execute the instructions to:
(Fig. 1, # 103B; Fig. 3A, 301B) generate state information indicating a state of a target person by processing an image in which the target person is captured (Par. [0010] – the processor executes a module responsible for analyzing video data received from a user device to determine a mood of the user (e.g., neutral, happy, distressed); Par. [0079] – each of the user devices 102 may include the camera 103B to capture images/video to determine facial expression, mood, body position, movement, etc.; Par. [0088]);
perform, by using the state information, at least one of processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and processing of deciding whether to transmit the first information to the first terminal (Par. [0005] – this information (e.g., information from image capturing device) can be used to determine a state of the user/issue and to automatically notify the doctors/nurses to setup a live call/scheduled call based on the urgency on the patient condition; Par. [0026-0027]; Par. [0090]); and
(Fig. 2) transmit the first information to the first terminal (Par. [0005]; Par. [0026-0027]; Par. [0090]).
Therefore, claim 1 is unpatentable over Mishra, et al.
Regarding claim 2, Mishra teaches the communication apparatus according to claim 1, wherein
(Fig. 1, # 102B; Fig. 5, # 502 – user interface module) the image is generated while the target person is viewing a content or after the target person views the content (Par. [0080] – the user device may be a smart phone with a camera or a personal computer with a camera; Par. [0097] – the user interface module comprises components (such as a display screen) to interact with a user 101B to present media (e.g., audio/video calls) – target person is capable of viewing a content when image is generated (i.e., while on a video call with provider or other user); Par. [0103]).
Therefore, claim 2 is unpatentable over Mishra, et al.
Regarding claim 3, Mishra teaches the communication apparatus according to claim 2, wherein (Fig. 1, # 101A, 102B) the content includes an image in which a relative of the target person is captured (Par. [0077] – user 101A, who can be on video call with patient 101B, could be a family member/relative; Par. [0080] – the user device (Fig. 1, # 102B) could be a smart phone, which would be known to be useable for a video call with a family member/relative).
Therefore, claim 3 is unpatentable over Mishra, et al.
Regarding claim 4, Mishra teaches the communication apparatus according to claim 2, wherein
the at least one processor is further configured to execute the instructions to include the image in the first information when the state information indicates that the target person is glad (Par. [0010]; Par. [0088]; Par. [0107] – the user data may indicate the user is happy (based on facial expressions) and communicate with the user that the provider will check-in in an hour).
Therefore, claim 4 is unpatentable over Mishra, et al.
Regarding claim 5, Mishra teaches the communication apparatus according to claim 2, wherein
the at least one processor is further configured to execute the instructions to include information indicating the content as at least a part of the first information in the first information when the state information indicates that the target person is glad (Par. [0088] – video/image data associated with the patient indicates the patient’s mood is happy. A server may determine that the operation to perform is to gather additional information/verbally check-in with the patient sent through the monitoring device.).
Therefore, claim 5 is unpatentable over Mishra, et al.
Regarding claim 6, Mishra teaches the communication apparatus according to claim 1, wherein
(Fig. 1, # 101A) the first terminal is used by a relative of the target person (Par. [0077] – user 101A, who can be on video call with patient 101B, could be a family member/relative; Par. [0080] – the user device (Fig. 1, # 102B) could be a smart phone, which would be known to be useable for a video call with a family member/relative), and
the at least one processor is further configured to execute the instructions to, when (Fig. 4, # 406, 408, 410) a state where the state information satisfies a criterion continues for a fixed period, include information indicating that the state continues for the fixed period as at least a part of the first information in the first information (Par. [0005]; Par. [0092] – facial expression data may be correlated to determine a mood of the user. The user data may be correlated to medical device data to determine a state of the user. Based on the user’s state, the system/method determines if an issue is detected and doctors/nurses can be notified to set up a live call/scheduled call).
Therefore, claim 6 is unpatentable over Mishra, et al.
Regarding claim 7, Mishra teaches the communication apparatus according to claim 1, wherein
(Fig. 1, # 101B) the target person is in a care facility, a nursing home, or a hospital (Par. [0007] – monitoring device may be available in all patient care locations such as a hospital room),
(Fig. 1, # 101A, 102A) the first terminal is used by a person in charge of the target person in the care facility, the nursing home, the hospital, or a pharmacy (Par. [0077] – user 101a may be a provider; Par. [0109] – provider may be a nurse or doctor), and
the at least one processor is further configured to execute the instructions to, when (Fig. 4, # 406, 408, 410) a number of times the state information satisfies a criterion is equal to or more than a predetermined number, include, as at least a part of the first information in the first information, at least one of information indicating that the number of times is equal to or more than the predetermined number and information indicating a kind of a medicine prescribed to the target person (Par. [0005]; Par. [0006] - one or more algorithms can also take information from some other sources such as medical records (i.e., which would include medications); Par. [0024]; Par. [0026]; Par. [0078] – medical record; Par. [0092] – facial expression data may be correlated to determine a mood of the user. The user data may be correlated to medical device data to determine a state of the user. Based on the user’s state, the system/method determines if an issue is detected and doctors/nurses can be notified to set up a live call/scheduled call).
Therefore, claim 7 is unpatentable over Mishra, et al.
Regarding claim 10, Mishra teaches the communication apparatus according to claim 7, wherein
the at least one processor is further configured to execute the instructions to generate an explanatory text for the image and include the explanatory text as at least part of the first information in the first information (Par. [0007] – the server uses the determined state to decide an operation to perform (e.g., send a page/text to provider, etc.); Par. [0027]; Par. [0086] – the operation may be to text/email the provider details regarding the user data and/or the patient vitals).
Therefore, claim 10 is unpatentable over Mishra, et al.
Regarding claim 11, Mishra teaches (Fig. 1, # 100) a communication method (Par. [0077-0078] – establishing communication between a user 101A and a patient 101B) comprising,
(Fig. 1, # 110) by at least one computer (Par. [0009]; Par. [0082] – the server 110 may have or utilize the database 112 as a non-transitory repository of data accessible to at least one processor of the server 110):
(Fig. 1, # 103B; Fig. 3A, 301B) generating state information indicating a state of a target person by processing an image in which the target person is captured (Par. [0010] – the processor executes a module responsible for analyzing video data received from a user device to determine a mood of the user (e.g., neutral, happy, distressed); Par. [0079] – each of the user devices 102 may include the camera 103B to capture images/video to determine facial expression, mood, body position, movement, etc.; Par. [0088]);
performing, by using the state information, at least one of processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and processing of deciding whether to transmit the first information to the first terminal (Par. [0005] – this information (e.g., information from image capturing device) can be used to determine a state of the user/issue and to automatically notify the doctors/nurses to setup a live call/scheduled call based on the urgency on the patient condition; Par. [0026-0027]; Par. [0090]); and
(Fig. 2) transmitting the first information to the first terminal (Par. [0005]; Par. [0026-0027]; Par. [0090]).
Therefore, claim 11 is unpatentable over Mishra, et al.
Regarding claim 12, Mishra teaches (Fig. 1, # 110) a non-transitory computer-readable storage medium storing a program causing a computer (Par. [0009]; Par. [0033]; Par. [0044]; Par. [0082] – the server 110 may have or utilize the database 112 as a non-transitory repository of data accessible to at least one processor of the server 110) to execute:
(Fig. 1, # 103B; Fig. 3A, 301B) a process of generating state information indicating a state of a target person by processing an image in which the target person is captured (Par. [0010] – the processor executes a module responsible for analyzing video data received from a user device to determine a mood of the user (e.g., neutral, happy, distressed); Par. [0079] – each of the user devices 102 may include the camera 103B to capture images/video to determine facial expression, mood, body position, movement, etc.; Par. [0088]);
a process of performing, by using the state information, at least one of processing of determining first information needed to be transmitted to a first terminal being associated with the target person and being operated by a different person from the target person and processing of deciding whether to transmit the first information to the first terminal (Par. [0005] – this information (e.g., information from image capturing device) can be used to determine a state of the user/issue and to automatically notify the doctors/nurses to setup a live call/scheduled call based on the urgency on the patient condition; Par. [0026-0027]; Par. [0090]); and
a process of transmitting the first information to the first terminal (Par. [0005]; Par. [0026-0027]; Par. [0090]).
Therefore, claim 12 is unpatentable over Mishra, et al.
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.
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 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Mishra, et al. (U.S. PGPub No. 2023/0035981) in view of Lee (U.S. PGPub No. 2020/0411154).
Regarding claim 8, Mishra teaches the communication apparatus according to claim 7, as indicated hereinabove. Mishra does not explicitly teach the limitation of instant claim 8, that is wherein the at least one processor is further configured to execute the instructions to generate the status information indicating a result of estimating whether previously taken medicine is effective or not, using a machine learning model that has learned correspondence between an image when the target person takes the medicine and information indicating whether the medicine is suitable for the target person or not.
Lee teaches an artificial intelligence robot that discharges medication to a user and reads image data and biometric data of the user after the medicine is administered to determine whether there is an abnormality in the user (Title, Abstract). Lee teaches wherein the (Fig. 1, # 140 – controller, i.e. processor) at least one processor is further configured to execute the instructions to (Fig. 4, S19-S24) generate the status information indicating a result of estimating whether previously taken medicine is effective or not, using a machine learning model that has learned correspondence between an image when the target person takes the medicine and information indicating whether the medicine is suitable for the target person or not (Abstract – The AI robot detects a user’s reaction after medicine-taking through a sensor, and performs deep learning, etc. to learn the user’s reaction, so as to determine an emergency situation (i.e., the medicine is not effective/suitable for the patient); Par. [0028]; Par. [0075]; Par. [0154-0164] – Namely the AI robot analyzes image data of the user after medicine-taking, stores a result of the analysis, transmits the stored analysis result to the server 2, measures biometric information of the user, and transfers the resulting information to the server 2. In this case, for example, upon determining through the image data that the user flops down and determining through the biometric information that the user's temperature suddenly rises, the server 2 may determine that the current situation requires an alarm and an emergency measure, and transmit a result of the determination to the AI robot).
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 implemented Lee’s teaching of using machine learning for determining suitability of medicine for a patient into Mishra’s apparatus, because doing so would be an example of using a known technique to improve similar devices in the same way. One of ordinary skill in the art would have recognized Mishra’s and Lee’s similar image processing steps and would have desired implementing Lee’s machine learning algorithm for corresponding the image of a target person with medicine effectiveness/suitability, because doing so would ensure that a patient can quickly receive help if a medication causes an abnormality in the user (see Par. [0025] of Lee).
Therefore, claim 8 is unpatentable over Mishra, et al. and Lee.
Regarding claim 9, Mishra, in view of Lee, renders obvious the communication apparatus according to claim 8, as indicated hereinabove. Lee also teaches the limitation of instant claim 9, that is wherein the criterion is that the state information is an estimated result indicating that the last time the medicine was taken was not effective (Par. [0156-0157] – the controller 140 may extract an action of the user after medicine-taking through the acquired image data).
Therefore, claim 9 is unpatentable over Mishra, et al. and Lee.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Kim, et al. (U.S. PGPub No. 2023/0225653)
Hsu, et al. (U.S. PGPub No. 2019/0240842)
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/MICHAEL T. HOLTZCLAW/Examiner, Art Unit 3796