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 .
Application Status
Present office action is in response to amendment filed 06/05/2026. Claims
Claims 1, 3, and 7 are amended. Claim 8 is cancelled. Claims 16-20 are added. Claims 1-7 and 9-20 are currently pending in the application.
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 1-7 and 9-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more.
In regard to independent claim 1, analyzed as representative claim:
Step 1: Statutory Category?
Independent Claim 1 recites “A method for assessing technical and non-technical skills of at least one operator in a mission or training situation on a real or simulated platform, the assessment method comprising:”. Independent Claim 1 falls within the “process” category of 35 U.S.C. § 101.
Step 2A – Prong 1: Judicial Exception Recited?
The Independent Claim 1/Revised 2019 Guidance Table below identifies in italics the specific claim limitations found to recite an abstract idea and in bold the additional (non-abstract) claim limitations that are generic computer components.
Independent Claim 1
Revised 2019 Guidance
A method for assessing technical and non-technical skills of at least one operator in a mission or training situation on a real or simulated platform, the assessment method comprising:
A process (method) is a statutory
subject matter class. See 35 U.S.C.
§ 101 (“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.”).
Abstract: “assessing technical and non-technical skills of at least one operator in a mission or training situation on a real or simulated platform …” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that a trainer/coach could assess the at least one operator through visual and/or verbal interactions.
[L1] implementing the assessment method, by one or more processors, an assessment device that comprises a collection component, a first data processing component, a second data processing component, a third data processing component, a display device, and a correspondence database
The “one or more processors” and “assessment device that comprises a collection component, a first data processing component, a second data processing component, a third data processing component, a display device, and a correspondence database” are additional non-abstract limitations – generic components.
Abstract: “implementing the assessment method” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that a trainer/coach could implement the assessment method through observation, opinion, visual and/or verbal interactions.
[L2] a step of collecting endogenous data with the collection component, wherein the collection component comprises one or more sensors including at least one of an image sensor, an audio sensor, a manipulandum sensor, and a physiological sensor, the one or more sensors being configured to sense physical manifestations and physical parameters of said at least one operator during a mission or training session, and
The “collection component” and “at least one sensor one or more sensors including at least one of an image sensor, an audio sensor, a manipulandum sensor, and a physiological sensor” are additional non-abstract limitations – generic components.
Collecting endogenous data is an additional element that adds insignificant extra-solution activity to the judicial exception, e.g., mere data gathering. See January 2019 Memorandum, 84 Fed. Reg. 55, n. 31.
Abstract: “collecting endogenous data … relating to physical manifestations and/or physical parameters of said at least one operator during a mission or training session” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that the person/instructor could collect data on the at least one operator visually and/or by hearing the information.
[L3] collecting exogenous data from a platform with the collection component, the exogenous data relating to a context of said mission or said training session on the platform, wherein the platform comprises a real platform or a simulated platform,
The “platform … comprises a real platform or a simulated platform” and the “collection component” are additional non-abstract limitations – generic components.
Collecting exogenous data is an additional element that adds insignificant extra-solution activity to the judicial exception, e.g., mere data gathering. See January 2019 Memorandum, 84 Fed. Reg. 55, n. 31.
Abstract: “collecting exogenous data … relating to a context of said mission or said training session” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that the person/instructor could collect data on the at least one operator visually and/or by hearing the information.
[L4] computer-implemented steps, performed by the assessment device, of: detecting, with the first data processing component, a plurality of trigger events originating from (i) the at least one operator based on detected operator actions and (ii) the platform based on detected platform states, and selecting at least one trigger event from among the detected trigger events;
The “assessment device” and “first data processing component” are additional non-abstract limitations – generic components.
“Detecting … a plurality of trigger events …” is an additional element that adds insignificant extra-solution activity to the judicial exception, e.g., mere data gathering. See January 2019 Memorandum, 84 Fed. Reg. 55, n. 31.
Abstract: “detecting … a plurality of trigger events …” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that the person/instructor could detect data visually and/or by hearing the information.
[L5] correlating the collected data with the first data processing component in order to link the endogenous data to the exogenous data;
Abstract: “correlating the collected data in order to link the endogenous data to the exogenous data …” could be performed alternatively as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that a trainer/coach could mentally and/or in writing correlate data.
[L6] wherein the correlating comprising temporally grouping endogenous data occurring following acquisition of at least one exogenous datum or thematically grouping endogenous data based on a given exogenous datum, and, in response to the selected trigger event;
Abstract: “temporally grouping endogenous data occurring following acquisition of at least one exogenous datum or thematically grouping endogenous data based on a given exogenous datum, and, in response to the selected trigger event…” could be performed alternatively as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that a trainer/coach could mentally and/or in writing group data.
[L7] detecting observable behavior data using the correlated data, an observable behavior datum comprising at least one parameter defining a trigger event parameter and one parameter defining an action parameter
“Detecting observable behavior data …” is an additional element that adds insignificant extra-solution activity to the judicial exception, e.g., mere data gathering. See January 2019 Memorandum, 84 Fed. Reg. 55, n. 31.
Abstract: “detecting observable behavior data using the correlated data, an observable behavior datum …” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that the person/instructor could detect data on the at least one operator visually and/or by hearing the information.
[L8] wherein the observable behavior datum being generated by the first data processing component and representing a detected physical reaction of the at least one operator to the selected trigger event;
“Observable behavior datum being generated … and representing a detected physical reaction of the at least one operator to the selected trigger event” is an additional element that adds insignificant extra-solution activity to the judicial exception, e.g., mere data gathering and presentation. See January 2019 Memorandum, 84 Fed. Reg. 55, n. 31.
Abstract: “[generating] behavior datum being … and representing a detected physical reaction …” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that the person/instructor could generate and represent data verbally and/or in writing.
[L9] analyzing the observable behavior data in predefined analysis sequences, with the second data processing component, each predefined analysis sequence being specific to one of a plurality of technical skills and a plurality of non-technical skills to be assessed, and comprising at least one trigger event parameter that represents an action that is at an origin of a potential reaction of the at least one operator and one action parameter characterizing an expected observable behavior according to a predefined situation, wherein the analyzing generating, for each observed behavior, at least one quantitative measurement indicator comprising one or more of a time delay, a duration, a frequency, or an ordered succession of events relative to the trigger event parameter;
The “second data processing component” is an additional non-abstract limitation – generic component.
Abstract: “analyzing the observable behavior data in predefined analysis sequences … each predefined analysis sequence being specific to a technical and non-technical skill to be assessed …” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that the person/instructor could collect data on the at least one operator visually and/or by hearing the information.
[L10] wherein the analyzing generating, for each observed behavior, at least one quantitative measurement indicator comprising one or more of a time delay, a duration, a frequency, or an ordered succession of events relative to the trigger event parameter;
“Generating, for each observed behavior, at least one quantitative measurement indicator …” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that the person/instructor could generate data verbally and/or in writing.
[L11] assessing the observed behaviors of said at least one operator with the third data processing component,
The “third data processing component” is an additional non-abstract limitation – generic component.
Abstract: “assessing the observed behaviors of said at least one operator” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that a trainer/coach could assess the at least one operator through visual and/or verbal interactions. See January 2019 Memorandum, 84 Fed. Reg. at 52.
[L12] said assessment by the third data processing component in comparing an observed behavior with an expected predefined reference behavior,
The “third data processing component” is an additional non-abstract limitation – generic component.
Abstract: “comparing an observed behavior with an expected predefined reference behavior …” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that a trainer/coach could compare data through visual and/or audible observation(s). See SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App’x 950, 955 (Fed. Cir. 2014) (“[T]he claim at issue here involves a mental process excluded from section 101: the mental steps of comparing new and stored information and using rules to identify medical options” …
[L13] the expected predefined reference behavior being stored in the correspondence database and the third data processing component
The “correspondence database” and the “third data processing component” are additional non-abstract limitations – generic components.
Storing data is an additional element that
adds insignificant extra-solution activity to
the judicial exception, e.g., mere data
gathering. See January 2019
Memorandum, 84 Fed. Reg. 55, n. 31.
[L14] and the third data processing component utilizing the expected predefined reference behavior for comparing to the observed behavior;
The “third data processing component” is an additional non-abstract limitation – generic component.
Abstract: “utilizing the expected predefined reference behavior for comparing to the observed behavior” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that a trainer/coach could compare data through visual and/or audible observation(s). See SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App’x 950, 955 (Fed. Cir. 2014) (“[T]he claim at issue here involves a mental process excluded from section 101: the mental steps of comparing new and stored information and using rules to identify medical options” …
[L15] assessing each technical skill and non-technical skill of said at least one operator with the third data processing component on a basis of results of the behavior assessments
The “third data processing component” is an additional non-abstract limitation – generic component.
Abstract: “assessing each technical skill and non-technical skill of said at least one operator on a basis of results of the behavior assessment” could be performed as a mental process, i.e., concept performed in the human mind or using pencil and paper (including an observation, evaluation, judgment, opinion) and a “[c]ertain method[] of organizing human activity. . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)” to the extent that a trainer/coach could compare data through visual and/or audible observation(s). See SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App’x 950, 955 (Fed. Cir. 2014) (“[T]he claim at issue here involves a mental process excluded from section 101: the mental steps of comparing new and stored information and using rules to identify medical options” …
[L16] and providing at least a portion of an assessment of the technical skill and/or the non- technical skill to said at least one operator and/or an instructor by displaying the assessments of the technical and non-technical skills with the display device, wherein the at least one sensor comprises one or more image sensors, audio sensors, manipulandum sensors and/or physiological sensors.
The “display device” and “at least one sensor comprises one or more image sensors, audio sensors, manipulandum sensors and/or physiological sensors” are additional non-abstract limitations – generic components.
Providing data by displaying the data is an additional element that adds insignificant extra-solution activity to the judicial exception, e.g., mere data presentation. See January 2019 Memorandum, 84 Fed. Reg. 55, n. 31.
[L17] wherein the method further comprises storing, in a storage device, at least a portion of the endogenous data, the exogenous data, the observable behavior data, and results of the behavior and skill assessments.
The “storage device” is an additional non-abstract limitation – generic component.
“Storing at least a portion of the endogenous data, the exogenous data, the observable behavior data, and results of the behavior and skill assessments” is an additional element that adds insignificant extra-solution activity to the judicial exception, e.g., mere data gathering. See January 2019 Memorandum, 84 Fed. Reg. 55, n. 31.
The instant Specification, as published, discloses “[T]he invention proposes a device and a method for precisely and succinctly assessing the skills of an operator or of a team of operators in a training situation or in a real or simulated mission situation” (¶ 2), that “the introduction of evidence-based training requires the instructor also to monitor the pilot and their team in order to detect the observable behavior (OB) data needed for the skills assessment” (¶ 12), that “Mentally overloaded and/or constrained by the activities necessary for the session to run smoothly, instructors are not able to detect all the behavior indicators (OB) needed for the correct assessment of pilots” (¶ 14), that “instructor assistance systems are generally not linked to evidence-based training skills and the information provided to the instructor does not generally allow the instructor to be easily directed to observable behavior data needed to assess skills”
(¶16), and that “the large amount of detectable observable behavior data combined with the need to study assistive media in order to be able to assess non-technical skills, for which the systems developed to date do not offer a solution, always partially increase the workload of the instructor without otherwise assisting them with their assessment” (¶ 17). Hence, under the broadest reasonable interpretation of the claims, as noted in the Independent Claim 1/Revised 2019 Guidance Table above, other than reciting the additional non-abstract limitations of the “one or more processors” and “assessment device that comprises a collection component comprising “one or more sensors including at least one of an image sensor, an audio sensor, a manipulandum sensor, and a physiological sensor”, “first data processing component”, ”second data processing component”, “third data processing component”, “display device”, “correspondence database” “at least one sensor that comprises one or more image sensors, audio sensors, manipulandum sensors and/or physiological sensors”, “platform that comprises a real platform or a simulated platform”, and “storage device”, nothing in the claim precludes the steps from practically being performed by a human, in the mind, and/or using pen and paper. The mere nominal recitation of the additional non-abstract limitations noted above does not take the claim out of the method of organizing human activity and mental processes groupings. Accordingly, the claim recites a judicial exception (Step 2A, Prong One: YES).
Step 2A – Prong 2: Integrated into a Practical Application?
The body of the claim, as noted in the Independent Claim 1/Revised 2019 Guidance Table above, recites the additional limitation of the “one or more processors” and “assessment device that comprises a collection component comprising “one or more sensors including at least one of an image sensor, an audio sensor, a manipulandum sensor, and a physiological sensor”, “first data processing component”, ”second data processing component”, “third data processing component”, “display device”, “correspondence database” “at least one sensor that comprises one or more image sensors, audio sensors, manipulandum sensors and/or physiological sensors”, “platform that comprises a real platform or a simulated platform”, and “storage device”. The instant Specification, as published, provides supporting exemplary descriptions of generic computer components: at least ¶ 24: computer-implemented steps, performed by data processing modules…; ¶ 40:… a device for assessing technical and non-technical skills of at least one operator in a training situation on a real or simulated platform…; ¶ 37: predefined sequences being contained in a correspondence database…; ¶ 42 program is executed on a computer; ¶ 79: The predefined sequences are contained in a correspondence database. This correspondence database thus comprises the predefined analysis sequences presenting observable behavior data known to those skilled in the art, as well as their assigned measurable and detectable physical manifestation…; ¶ 118:… invention also proposes a device 200, shown in FIG. 3, for assessing technical and non-technical skills of at least one operator in a training situation on a real or simulated platform 200…; ¶ 120:… assessment device 200 may thus comprise a display module 212 for implementing the display step 112 and a storage module 214 for implementing the storage step 114. The storage module 214 may be a physical module present in the assessment device 200 or be a digital module distributed on an Internet server, receiving and transmitting its data using an Internet network; ¶ 121: The collection module 204 also comprises at least one image sensor 216 and/or one audio sensor (for voice detection) 218 and/or one manipulandum sensor 220 and/or additional sensors 222 such as for example an electrocardiogram (ECG) physiological sensor in order to be able to collect all of the endogenous data from the at least one operator. The collection module 204 is also connected to the real or simulated platform 202 in order to have access to the exogenous data; ¶ 122:… a computer program product comprising code instructions for performing the data processing steps of the assessment method 100 when said program is executed on a computer; ¶ 123:… invention may be implemented by various means, for example by hardware, software, or a combination thereof; ¶ 124:… program code typically comprises computer-readable instructions that reside, at various times, in various memory and storage devices in a computer and that, when they are read and executed by one or more processors in a computer, prompt the computer to perform the operations necessary to carry out the operations and/or elements specific to the various aspects of the embodiments of the invention. The lack of details about the recited additional elements indicates that these additional elements are generic, or part of generic computer elements performing generic computer-implemented steps. The recited claim limitations, as noted in the Independent Claim 1/Revised 2019 Guidance Table above do not purport to improve the functioning of the “one or more processors” and “assessment device that comprises a collection component comprising “one or more sensors including at least one of an image sensor, an audio sensor, a manipulandum sensor, and a physiological sensor”, “first data processing component”, ”second data processing component”, “third data processing component”, “display device”, “correspondence database” “at least one sensor that comprises one or more image sensors, audio sensors, manipulandum sensors and/or physiological sensors”, “platform that comprises a real platform or a simulated platform”, and “storage device”, do not improve the technology of the technical field, and do not require a “particular machine.” Rather, they are performed using generic computer components as evident in the cited portions of the instant Specification, as published, and noted above (¶¶ 24, 37, 40, 42, 79, 118, 120, 121, 122, 123, 124). Further, the claim as a whole fails to effect any particular transformation of an article to a different state. The recited steps in the claim fail to provide meaningful limitations to limit the judicial exception. In this case, the claim merely uses the claimed computer elements as a tool to perform the abstract idea.
Considering the elements of the claim both individually and as “an ordered combination” the functions performed by the computer system at each step of the process are purely conventional. Each step performed in the claim does no more than require a generic computer to perform a generic computer function. Thus, the claimed elements have not been shown to integrate the judicial exception into a practical application as set forth in the Revised Guidance which references the Manual of Patent Examining Procedure (“MPEP”) §§ 2106.04(d) and 2106.05(a)–(c) and (e)–(h). Because the abstract idea is not integrated into a practical application, the claim is directed to the judicial exception. (Step 2A, Prong Two: NO).
Step 2B: Claim provides an Inventive Concept?
As discussed with respect to Step 2A Prong Two, the additional elements in the claim amount to no more than mere instructions to apply the exception using generic computer components. The same analysis applies here in Step 2B, i.e., mere instructions to apply an exception using generic computer components cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B. Because the instant Specification, as published, noted above (¶¶ 24, 37, 40, 42, 79, 118, 120, 121, 122, 123, 124) describes the “one or more processors” and “assessment device that comprises a collection component comprising “one or more sensors including at least one of an image sensor, an audio sensor, a manipulandum sensor, and a physiological sensor”, “first data processing component”, ”second data processing component”, “third data processing component”, “display device”, “correspondence database” “at least one sensor that comprises one or more image sensors, audio sensors, manipulandum sensors and/or physiological sensors”, “platform that comprises a real platform or a simulated platform”, and “storage device” in general terms, without describing the particulars, the claim limitations may be broadly but reasonably construed as reciting conventional computer components and techniques, particularly in light of the published Specification sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See MPEP 2106.05(d), as modified by the USPTO Berkheimer Memorandum. Furthermore, the Berkheimer Memorandum, Section III (A)(1) explains that a specification that describes additional elements “in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a)” can show that the elements are well understood, routine, and conventional); Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The claimed mobile interface is so lacking in implementation details that it amounts to merely a generic component (software, hardware, or firmware) that permits the performance of the abstract idea, i.e., to retrieve the user-specific resources.” The generic description of “one or more processors” and “assessment device that comprises a collection component comprising “one or more sensors including at least one of an image sensor, an audio sensor, a manipulandum sensor, and a physiological sensor”, “first data processing component”, ”second data processing component”, “third data processing component”, “display device”, “correspondence database” “at least one sensor that comprises one or more image sensors, audio sensors, manipulandum sensors and/or physiological sensors”, “platform that comprises a real platform or a simulated platform”, and “storage device” indicates the steps are well-known enough that no further description is required for a skilled artisan to understand the process and that these computer components are all used in a manner that is well-understood, routine, and conventional in the field. In particular, the recited data gathering (i.e., [L2] “collecting endogenous data”; [L3] “collecting exogenous data”; [L4] “detecting … a plurality of trigger events”; [L7] “detecting observable behavior data”; [L8] “generating observable behavior datum …”; [L17] ““Storing at least a portion of the endogenous data, the exogenous data, the observable behavior data, and results of the behavior and skill assessments”) and data presentation (i.e., [L8] “… providing at least a portion of an assessment …to said at least one operator and/or an instructor”) are nothing more than well-understood, routine, and conventional activity because it is not distinguished from the generic, conventional data gathering and data presentation with a computer. See Elec. Power Grp., 830 F.3d at 1356 (claims to gathering, analyzing, and displaying data in real time using conventional, generic technology do not have an inventive concept). Hence, the additional elements are generic, well-known, and conventional computing elements. The use of the additional elements either alone or in combination amounts to no more than mere instructions to apply the judicial exception using generic computer components. Mere instructions to apply an exception using generic computer components cannot provide an inventive concept, and thus the claims are patent ineligible. (Step 2B: NO).
In regard to independent Claim 10:
Independent claim 10 is a device for assessing technical and non-technical skills of at least one operator in a training situation on a real or simulated platform, which falls within the “machine” category of 35 U.S.C. § 101. The device for assessing technical and non-technical skills of at least one operator in a training situation on a real or simulated platform is claimed as comprising means for implementing the steps of the assessment method as claimed in claim 1. As a result, independent claim 10 is rejected similarly to representative independent Claim 1.
In regard to independent Claim 11:
Independent claim 11 is a flight simulator, which falls within the “machine” category of 35 U.S.C. § 101. The flight simulator is claimed as comprising an assessment device as claimed in claim 10. As a result, independent claim 11 is rejected similarly to independent claim 10 which is rejected similarly representative independent Claim 1.
In regard to independent Claim 12:
Independent claim 12 is a computer program product… which falls within the “product” category of 35 U.S.C. § 101. The computer program product is claimed as comprising code instructions for performing the steps of the method as claimed in claim 1 when said program is executed on a computer. As a result, independent claim 12 is rejected similarly to independent claim 10 which is rejected similarly to representative independent Claim 1.
In regard to the dependent claims:
Dependent claims 2-7, 9 and 13-20 include all the limitations of independent claim 1 from which they depend and as such recite the same abstract idea(s) noted above for claim 1. None of the additional claim activities is used in some unconventional manner nor does any produce some unexpected result. An invocation to use known technology in the manner it is intended to be used for its ordinary purpose is both generic and conventional. As per MPEP §§ 2106.05(a)–(c), (e)–(h), none of the limitations of claims 2-7, 9 and 13-20 integrates the judicial exception into a practical application. While dependent claims 2-7, 9 and 13-20 may have a narrower scope than the representative claim, no claim contains an “inventive concept” that transforms the corresponding claim into a patent-eligible application of the otherwise ineligible abstract idea(s). Therefore, dependent claims 2-7, 9 and 13-20 are not drawn to patent eligible subject matter as they are directed to (an) abstract idea(s) without significantly more.
Response to Arguments
Claim Objections
The previous objections to the claims are withdrawn in view of Applicant’s amendment and remarks.
Claim Rejections - 35 U.S.C. § 101
The Examiner addresses Applicant’s remarks not necessarily as presented but based on the rejection sequence under 35 U.S.C. § 101.
Applicant provides several arguments to assert to “the claims integrate any alleged abstract idea into a practical application”. Applicant’s arguments have been fully considered but they are not persuasive, as shown below.
The instant Specification, as published, discloses “[T]he invention proposes a device and a method for precisely and succinctly assessing the skills of an operator or of a team of operators in a training situation or in a real or simulated mission situation” (¶ 2), that “the introduction of evidence-based training requires the instructor also to monitor the pilot and their team in order to detect the observable behavior (OB) data needed for the skills assessment” (¶ 12), that “Mentally overloaded and/or constrained by the activities necessary for the session to run smoothly, instructors are not able to detect all the behavior indicators (OB) needed for the correct assessment of pilots” (¶ 14), that “instructor assistance systems are generally not linked to evidence-based training skills and the information provided to the instructor does not generally allow the instructor to be easily directed to observable behavior data needed to assess skills”
(¶16), and that “the large amount of detectable observable behavior data combined with the need to study assistive media in order to be able to assess non-technical skills, for which the systems developed to date do not offer a solution, always partially increase the workload of the instructor without otherwise assisting them with their assessment” (¶ 17). While “Claim 1 expressly requires collecting endogenous data using image, audio, manipulandum, and/or physiological sensors to sense physical manifestations and physical parameters of an operator”, contrary to Applicant’s arguments alleging “the Examiner improperly generalizes the claims”, the instant Specification, as published, supports the finding that an operator can be monitored solely using human senses, for example, by an instructor visually observing the operator, listening to sounds associated with the operator. Representative claim 1 does not recite any particular implementation of any of the additional claim elements recited but merely invokes each of the additional claim elements as a generic computer element utilized in its expected manner. For example, the instant Specification, as published describes “at least one image sensor 216 and/or one audio sensor (for voice detection) 218 and/or one manipulandum sensor 220 and/or additional sensors 222 such as for example an electrocardiogram (ECG) physiological sensor in order to be able to collect all of the endogenous data from the at least one operator” (¶ 121), making clear that each of the recited “sensor” elements is used in its generic capacity. The claim recites “collecting endogenous data with the collection component, wherein the collection component comprises one or more sensors including at least one of an image sensor, an audio sensor, a manipulandum sensor, and a physiological sensor, the one or more sensors being configured to sense physical manifestations and physical parameters of said at least one operator during a mission or training sessions; and collecting exogenous data from a platform with the collection component”. That is, the claimed one or more sensors including at least one of an image sensor, an audio sensor, a manipulandum sensor, and a physiological sensor, the one or more sensors are not recited as a particular type of image sensor, audio sensor or manipulandum sensor. The claim does not recite any particular data collection technique, nor any data analysis technique, nor any data presentation technique, nor any data storing technique. Contrary to Applicant’s arguments, the claim does not distinguish from generic “data collection” “data analysis”, “data presentation” and “data storing”. See Alice, 573 U.S. at 223, 225; see also Bilski, 561 U.S. at 604. The Applicant fails to indicate and the Examiner fails to find any indication of improved “automated operator skill monitoring and assessment”. If anything, the above cited references to the instant Specification, as published (¶¶ 12, 14, 16, 17) indicates automating human processes linked to evidence-based training skills. Indeed, “an operator can be monitored solely using human senses, for example, by an instructor visually observing the operator, listening to sounds associated with the operator”. Automating a human process, albeit linked to evidence-based training skills is not a problem rooted in technology. It is apparent that the recited additional elements are used to monitor “observable behavior” essentially as the “eyes” and “ears” of the instructor. “That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson.” CyberSource, 654 F.3d at 1375 (citing Gottschalk v. Benson, 409 U.S. 63, 65–67, 71 (1972)); id. at 1371 (discussing the holding in Parker v. Flook, 437 U.S. 584, 586 (1978) that calculations of alarm limit values for computerized applications could be done with pencil and paper). Contrary to Applicant’s remarks, representative claim 1 does not recite any improvement to the “functioning of a computer, or an improvement to other technology or technical field.” See 2019 Revised Guidance at 55; see also MPEP § 2106.05(a).
Applicant’s alleged analogy to Thales, CardioNet, McRo, Enfish and SiRF are unavailing at least in view of the fact that Applicant has not provided any evidence, example, or reasoning to support these arguments. Furthermore, Thales Visionix Inc. v. United States, 850 F.3d 1343, 1348–49 (Fed. Cir. 2017) found the claims were not directed to an abstract idea because they specified a particular configuration of inertial sensors and a particular method of using the raw data from the sensors to calculate the position and orientation of a moving object on a moving platform reference frame more accurately. Applicant has not shown how the instant claims recite similar inertial sensors or calculations of positions of moving objects on moving reference frames.
In CardioNet, the written description made clear that “the asserted claims [were] directed to a specific technological improvement—an improved medical device that achieves speedier, more accurate, and clinically significant detection of two specific medical conditions out of a host of possible heart conditions.” 955 F.3d at 1370. The instant Specification, as published (¶¶ 12, 14, 16, 17), at best, indicates automating human processes linked to evidence-based training skills.
In McRO, the Federal Circuit found the claims prevent preemption of all processes for achieving automated lip-synchronization of 3-D characters because the claims recite a rule with specific characteristics. Id at 1315. At best, the focus of the instant claims is to provide “objective skills assessment (competency-based training)”. See instant Specification, as published ¶ 8. Hence, unlike in McRO, the instant claims do not recite a rule-based improvement of a technological process. The claims in McRO were drawn to improvements in the operation of a computer at a task, rather than applying a computer system to perform generic data manipulation steps, as in Applicants' claims. See McRO, at 1314.
The recitation of “storing, in a storage device, at least a portion of the endogenous data, the exogenous data, the observable behavior data, and results of the behavior and skill assessments” in representative Claim 1 is not a recitation of “a specific type of data structure designed to improve the way a computer stores and retrieves data in memory” as in Enfish, 822 F.3d at 1339.
Contrary to the instant claims, in SiRF Technology, Inc. v. International Trade Commission, 601 F.3d 1319 (Fed. Cir. 2019), the Federal Circuit determined “that the methods at issue could not be performed without the use of a GPS receiver; indeed without a GPS receiver it would be impossible to generate pseudoranges or to determine the position of the GPS receiver whose position is the precise goal of the claims,” and “there is no evidence . . . that the calculations here can be performed entirely in the human mind.” As noted earlier, although additional elements are claimed, the instant Specification supports the finding that “an operator can be monitored solely using human senses, for example, by an instructor visually observing the operator, listening to sounds associated with the operator”. It is apparent that the recited additional elements are used to monitor “observable behavior” essentially as the “eyes” and “ears” of the instructor.
In BASCOM, the Federal Circuit held that “[t]he inventive concept described and claimed . . . is the installation of a filtering tool at a specific location, remote from the end-users, with customizable filtering features specific to each end user.” Bascom, 827 F.3d at 1350. The court explained that the remote location of a filtering tool having customizable user-specific filtering features provides the filter tool with both the benefits of a filter on a local computer and the benefits of a filter on the ISP server, which is a technical improvement over prior art ways of filtering content. Id. at 1350-51. In contrast to BASCOM, Applicant’s claims and Specification are directed to a method for assessing technical and non-technical skills of at least one operator in a mission or training session on a real or simulated platform. Spec. ¶¶ 7-16. There is no evidence in the record to support the contention that Applicant’s claimed invention is provided with any non-conventional and non-generic arrangement of known, conventional components.
In Amdocs, the Federal Circuit held that claim 1 of the patent at issue is also like the claims in Bascom because even though the system in the ‘065 patent relies upon some arguably generic limitations, when all limitations are considered individually and as an ordered combination, they provide an inventive concept through the use of distributed architecture. This is similar to the design in Bascom which permitted the invention to have a filtering tool with the benefits of a filter on a local computer and the benefits of a filter on an ISP server. The benefits in Bascom were possible because of customizable filtering features at specific locations remote from the user. Similarly, the benefits of the '065 patent's claim 1 are possible because of the distributed, remote enhancement that produced an unconventional result—reduced data flows and the possibility of smaller databases. This arrangement is not so broadly described to cause preemption concerns. Instead, it is narrowly circumscribed to the particular system outlined. As in Bascom this is a technical improvement over prior art technologies and served to improve the performance of the system itself. Amdocs, 841 F.3d at 1302. This is not the case for the instant application. As noted earlier, there is no evidence in the record to support the contention that Applicant’s claimed invention is provided with any non-conventional and non-generic arrangement of known, conventional components. There is no indication in the instant disclosure of unconventional results produced by a distributed, remote enhancement that reduces data flows and allows for the possibility of smaller databases.
Applicant provides several arguments to assert to “the claims recite significantly more than any alleged abstract idea”. Applicant’s arguments have been fully considered but they are not persuasive, as shown below.
As indicated earlier, the use of generic computer elements to perform steps generally performed by humans does not elevate a mental process and/or method of organizing human activity beyond (an) abstract idea(s). In other words, automating mental processes on generic computers does not make a claim non-abstract. Killian, 45 F.4th at 1384 (the Supreme Court did not hold that steps performed by a computer are not mental steps even if they are identical to steps that can be performed by a human mind); CyberSource, 654 F.3d at 1375 (“That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding . . . in Gottschalk v. Benson[, 409 U.S. 63 (1972)].”); Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1277–78 (Fed. Cir. 2012) (the interchangeability of certain mental processes and basic digital computations illustrates how using a computer to make calculations does not circumvent the prohibition of patenting abstract ideas). The Examiner finds no indication in the Specification that the operations recited in representative claim 1 require any specialized computer hardware or other inventive computer components, i.e., a particular machine, invoke any assertedly inventive programming, or that the claimed invention is implemented using other than generic computer components to perform generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.”).
As shown above, the additional elements are claimed at a high level of generality. As noted earlier, representative claim 1 does not recite any particular implementation of any of the additional claim elements recited but merely invokes each of the additional claim elements as a generic computer element utilized in its expected manner. For example, representative claim 1 does not recite any particular data collection technique, nor any data analysis technique, nor any data presentation technique, nor any data storing technique. Contrary to Applicant’s arguments, the claim does not distinguish from generic “data collection” “data analysis”, “data presentation” and “data storing”. See Alice, 573 U.S. at 223, 225; see also Bilski, 561 U.S. at 604.
The additional elements in the claim amount to no more than mere instructions to apply the exception using generic computer components. Furthermore, the Specification supports the finding that that the elements are well understood, routine, and conventional. Using generic computer components does not integrate the abstract idea into a practical application and cannot provide an inventive concept. “Mere automation of manual processes using generic computers does not constitute a patentable improvement in computer technology.” Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir. 2017).
Applicant’s SmartGene remarks are unavailing. A claim limitation may be shown to be abstract more than one reason. Even if a reasoning does not exactly match the reasoning used that establishes a particular case is abstract does not make the claim non-abstract. There are numerous reasonings expressed above to support the finding that the instant claims are abstract. Applicant’s Electric Power remarks are unavailing for the same reasons. These remarks also do not provide evidence of patent eligibility.
Any additional Applicant’s remarks are addressed above and not repeated herein.
In light of the foregoing, the Examiner maintains that each of Applicant’s claims 1-7 and 9-20 considered as a whole, is directed to a patent-ineligible abstract idea that is not integrated into a practical application, and does not include an inventive concept.
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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/EDDY SAINT-VIL/Primary Examiner, Art Unit 3715
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