DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim 11 recites “(b) means for transferring the images to a processor”. The term is being interpreted according to [Page 14, 1st full paragraph].of the Applicant’s specification. “Ethernet connection to a network storage (NAS) from QNAP.”
Claim 11 recites “(b) means for sending a signal to a farmer that the animal is in estrus”. The term is being interpreted according to pages 3, 11, and 12 of the Applicant’s specification, which is a broad restatement of the term as recited in the claim, “means for sending a signal that the animal is in estrus to the farmer.” This could include any means of sending a signal, communicating the message to a farmer. It is not shown in a figure, nor is it clear if the “means” is an electronic, mechanical, or human-communicated “means” to signal that the animal is in estrus to the farmer.
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 11 – 15 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 11 recites the limitation “means for sending a signal to a farmer that the animal is in estrus”. The specification notes at pages 3, 11, and 12 that there is a “means” for accomplishing a step of signaling to a farmer that the animal is in estrus”, but provides no description of the structure, hardware, or personnel necessary to accomplish this step, and whether the signal is visual, electronic, mechanical, or possibly spoken word. It is not shown in a figure, nor is it clear if the “means” is an electronic, mechanical, or human-communicated “means” to signal that the animal is in estrus to the farmer. Therefore, adequate disclosure is needed. Claims 12 – 15 are similarly rejected due to their dependence on Claim 11.
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 - 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 (line 14) and Claim 16 (line recites the limitation "a range from one hour to 10 hours" in line 14. It is unclear if the range is intended to be the same as the previously-recited “range from every second to every hour”, but the range is simultaneously also one hour to 10 hours. For the purposes of examination, the term "a range from one hour to 10 hours” is deemed to claim, “a second range from one hour to 10 hours.” Claims 2 – 15 and Claims 17 - 20 are similarly rejected due to their dependence on Claims 1 and 16, respectively.
Claim 4 (line 2), Claim 13 (line 2), and Claim 1 (lines 1 - 2) recite the limitation "a range from two days to one month". It is unclear if the range is intended to be the same as the previously-recited ranges in Claims 1 and 11 (from which this claim depends), including “range from every second to every hour”, such that the range is simultaneously also two days to one month. For the purposes of examination, the term "a range from two days to one month" is deemed to claim, "a third range from two days to one month."
Claim 5 (line 2), Claim 14 (line 2), Claim 20 (line 2) recites the limitation "a range from every second to every 30 seconds". It is unclear if the range is intended to be the same as the previously-recited ranges in Claims 1, 11, and 16 (from which these claims depend), including “range from every second to every hour”, such that the range is simultaneously also the narrower every 1 – 30 seconds. For the purposes of examination, the term "a range from every second to every 30 seconds" is deemed to claim, "a third range from every second to every 30 seconds."
Claim 6 recites the limitation "a range from 2 to 6 hours" in line 2. It is unclear if the range is intended to be the same as the previously-recited ranges in Claim 1 (from which this claim depends) including “range from every second to every hour”, such that the range is simultaneously also 2 – 6 hours. For the purposes of examination, the term "a range from 2 to 6 hours" is deemed to claim, "a third range from every second to every 30 seconds."
Claim 7 recites the limitation "a range from one minute to 6 hours" in line 2. It is unclear if the range is intended to be the same as the previously-recited ranges in Claim 1 (from which this claim depends) including “range from every second to every hour”, such that the range is simultaneously also one minute to 6 hours. For the purposes of examination, the term "a range from one minute to 6 hours" is deemed to claim, "a third range from one minute to 6 hours."
Claim 11 recites the limitation "a range from every second to every hour" in lines 5-6. It is unclear if the range is intended to be the same as the previously-recited ranges in Claim 1 (from which this claim depends) including “range from every second to every hour”, or a different range of the same amount of time. For the purposes of examination, the term "a range from every second to every hour" is deemed to claim, "the range from every second to every hour."
Claim 9 recites the limitation "the time of insemination" in line 2. There is insufficient antecedent basis for this limitation in the claim. There is no previously-recited “time of insemination”. For the purposes of examination, the term "the time of insemination" is deemed to claim, "a time of insemination.”
Claim 9 recites the limitation "the lowest number of inseminations possible" in line 2. There is insufficient antecedent basis for this limitation in the claim. There are no previously-recited numbers of inseminations to which the “number” can be compared a deemed “lowest”. For the purposes of examination, the term "the lowest number of inseminations possible" is deemed to claim, "a minimum number of inseminations possible”.
Claim 11 recites the limitation "at least one processor for obtaining" in line 9. It is unclear if the “at least one processor” is intended to be the same or different than the processor previously recited in claim 9 in the term “transferring the images to a processor” is deemed to claim “transferring the images to at least one processor”, and the term . For the purposes of examination, the term "at least one processor for obtaining” is deemed to claim, “the at least one processor for obtaining.” Claims 12 – 15 are similarly rejected due to their dependence on Claim 11.
Claim 11 recites the limitation “software for carrying out steps (2) to (7) of the method as defined in claim 1”. When looking to steps (2) to (7) of Claim 1, steps (4) and (5) include “repeating steps (1) to …”. It is unclear if the software was intended to also carry out step (1) that is recited in claim 1, and if therefore the entirety of the method of claim 1 is intended to be in Claim 11. For the purposes of examination, the term “software for carrying out steps (2) to (7) of the method as defined in claim 1” is deemed to claim “software for carrying out the method of claim 1.” Claims 12 – 15 are similarly rejected due to their dependence on Claim 11.
Claim 11 recites the limitation "at least one camera" in line 3. It is unclear if the “at least one camera” is intended to be the same or different than the camera previously recited in claim 1 from which this claim depends. For the purposes of examination, the term “at least one camera” is deemed to claim “the at least one camera”. Claims 12 – 15 are similarly rejected due to their dependence on Claim 11.
Claim 11 recites the term “at least one processor for obtaining” in line 9. It is unclear if the “at least one processor for obtaining” is intended to be the same or different than the “a processor” previously recited in Claim 11, line 8 for transferring images. For the purposes of examination, the term "at least one processor for obtaining” in line 9 is deemed to claim, “the at least one processor for obtaining”, and the term “transferring the images to a processor” in line 8 is deemed to claim “transferring the images to an at least one processor.” Claims 12 – 15 are similarly rejected due to their dependence on Claim 11.
Claim limitation “means for sending a signal to a farmer that the animal is in estrus” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Per Applicant’s specification, “means for sending a signal” is described generically on Pages 3, 11, and 12 as generic restatements of the term as recited in the claim, “means for sending a signal that the animal is in estrus to the farmer.” It is not shown in a figure, nor is it clear if the “means” is an electronic, mechanical, or human-communicated “means” to signal that the animal is in estrus to the farmer. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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 - 20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Regarding Claims 1 and 16, the claims recite "an act or step, or series of acts or steps" and is therefore a process, which is a statutory category of invention (Step 1). The claim is then analyzed to determine whether it is directed to any judicial exception (Step 2A, Prong 1).
Each of claims 1 – 20 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1 – 20 recites at least one step or instruction for observations, evaluations, judgments, and opinions, which are grouped as a mental process under the 2019 PEG. The claimed invention involves making observations, evaluations, judgments, and opinions, which are concepts performed in the human mind and certain methods of directing human activity under the 2019 PEG.
Accordingly, each of Claims 1 – 20 recites an abstract idea.
Specifically, Claims 1 – 20 recite (underlined are certain methods of directing human activity, and observations, judgments, evaluations, or opinions, which are grouped as a mental process under the 2019 PEG) (additional elements bolded, see Step 2A, prong 2);
Claim 1
A method for determining estrus and ovulation of an animal for determining time for insemination, comprising the steps of:
(1) monitoring at least one animal from above a crate or pen using at least one camera, which comprises collecting images at time points over a period of time, wherein the time points in said period of time are in a range from every second to every hour
(2) at each time point, obtaining a grey value in each pixel of the collected image;
(3) comparing the grey value of each pixel of the images of two consecutive time points and obtaining an activity value for each image by summing up the changes over all pixels;
(4) repeating steps (1) to (3) for an activity interval of time, wherein the activity interval of time is in a range from one hour to 10 hours and obtaining a sample of activity values for said activity interval of time and obtaining a statistical estimator from said sample of activity values
(5) repeating steps (1) to (4) to obtain a difference value by comparing the value of the statistical estimator for said sample of activity values of said activity interval of time with the value of the statistical estimator of a sample of activity values of the respective activity interval of time 24 hours ago
(6) repeating step (5) at time differences over said period of time, thereby obtaining a time series of the difference values over said period of time; and
(7) obtaining estrus and ovulation time of the animal and/or time for insemination from the time series of the difference values over said period of time;
Claim 16
A method for improved insemination of an animal, comprising the steps of:
(1) monitoring at least one animal using at least one camera, wherein said monitoring comprises collecting images at time points over a period of time, wherein the time points in said period of time are in a range from every second to every hour;
(2) at each time point, obtaining a grey value in each pixel of the collected images;
(3) comparing the grey value of each pixel of the collected images of two consecutive time points and obtaining an activity value for each collected image by summing up changes over all pixels;
(4) repeating steps (1) to (3) for an activity interval of time to obtain a sample of activity values for said activity interval of time, wherein the activity interval of time is in a range from one hour to 10 hours, and obtaining a statistical estimator from said sample of activity values;
(5) repeating steps (1) to (4) to obtain a difference value by comparing the value of the statistical estimator for said sample of activity values of said activity interval of time with the value of the statistical estimator of a sample of activity values of the respective activity interval of time 24 hours ago;
(6) repeating step (5) at time differences over said period of time to obtain a time series of the difference values over said period of time;
(7) obtaining estrus and ovulation time of the animal and/or time for insemination from the time series of the difference values over said period of time;
(8) perform artificial insemination according to the time obtained in step (7); and
(9) monitoring the success of artificial insemination.
(observation, judgment or evaluation, which is grouped as a mental process, and certain methods of human activity under the 2019 PEG);
These underlined limitations describe a mathematical calculation and/or a mental process, as a skilled practitioner is capable of performing the recited limitations and making a mental assessment thereafter. Examiner notes that nothing from the claims suggests that the limitations cannot be practically performed by a human with the aid of a pen and paper, or by using a generic computer as a tool to perform mathematical calculations and/or mental process steps in real time. Examiner additionally notes that nothing from the claims suggests and undue level of complexity that the mathematical calculations and/or the mental process steps cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform mathematical calculations and/or mental process steps. For example, in Independent Claims 1 and 16, these limitations include:
Observation and judgment to compare the grey value of each pixel of the images of two consecutive time points
Evaluating an activity value for each image by summing up the changes over all pixels
Observation and judgment to repeat steps (1) to (3) for an activity interval of time
Evaluation of a statistical estimator from said sample of activity values
Repeating steps (1) to (4) to observe and judge a difference value by evaluating the value of the statistical estimator for said sample of activity values of said activity interval of time with the value of the statistical estimator of a sample of activity values of the respective activity interval of time 24 hours ago
repeating step (5) at time differences over said period of time, thereby evaluating a time series of the difference values over said period of time
Observation and judgment to evaluate estrus and ovulation time of the animal and/or time for insemination from the time series of the difference values over said period of time;
Certain methods of directing human activity
performing artificial insemination according to the time obtained in step (7);
monitoring the success of artificial insemination.
all of which are grouped as mental processes and certain methods of directing human activity under the 2019 PEG.
Similarly, Dependent Claims 2 – 15, and 17 - 20 include the following abstract limitations, in addition the aforementioned limitations in Independent Claims 1 and 16 (underlined observation, judgment or evaluation, which is grouped as a mental process under the 2019 PEG):
wherein the grey value of the image is determined within a region of interest (ROI) of said image
wherein the grey value of the image is evaluated within a region of interest (ROI) of said image
establishing the probability of early pregnancy.
Observation and judgment to evaluate the probability of early pregnancy.
obtaining and comparing the grey values of the images collected with the at least one camera;
Observation and judgment to obtain and compare the grey values of the images collected with the at least one camera;
sending a signal to a farmer that the animal is in estrus
Observation and judgment to communicate a signal to a farmer that the animal is in estrus
Certain methods of directing human activity
recommending the time of insemination,
recommending the lowest number of inseminations possible to achieve a pregnancy in this estrous cycle; and/or
monitoring of health status of the animal.
all of which are grouped as mental processes or certain methods of directing human activity under the 2019 PEG.
Accordingly, as indicated above, each of the above-identified claims recite an abstract idea.
Step 2A, Prong 2
The above-identified abstract ideas in each of Independent Claims 1 and 16 (and their respective Dependent Claims) are not integrated into a practical application under 2019 PEG because the additional elements (identified above in Independent Claims 1 and 16), either alone or in combination, generally link the use of the above-identified abstract ideas to a particular technological environment or field of use. More specifically, the additional elements of:
“at least one camera”
“crate”
“pen”
“processor”, “at least one processor”
“software”
“means for transferring the images to a processor”
“means for sending a signal”
Additional elements recited include an “at least one camera”, “crate”, “pen”, “at least one processor”, “software”, “means for transferring the images to a processor” and “means for sending a signal” in the Independent Claims 1 and 16, their dependent claims. These component are recited at a high level of generality, , i.e., as a generic camera performing a generic function of capturing images (the collecting) and a processor performing a generic function of processing data (the comparing, repeating, and obtaining). These generic hardware component limitations for “at least one camera”, “crate”, “pen”, “at least one processor”, “software”, “means for transferring the images to a processor” and “means for sending a signal” are no more than mere instructions to apply the exception using generic computer and hardware components. As such, these additional elements do not impose any meaningful limits on practicing the abstract idea.
Further additional elements from Independent Claims 1 and 16 include pre-solution activity limitations, such as:
monitoring at least one animal from above a crate or pen using at least one camera, which comprises collecting images at time points over a period of time, wherein the time points in said period of time are in a range from every second to every hour
(2) at each time point, obtaining a grey value in each pixel of the collected image;
the activity interval of time is in a range from one hour to 10 hours
obtaining a sample of activity values for said activity interval of time
monitoring at least one animal using at least one camera, wherein said monitoring comprises collecting images at time points over a period of time, wherein the time points in said period of time are in a range from every second to every hour;
In addition the aforementioned extra-solution activity limitations in Independent Claims 1 and 16, additional extra-solution activity limitations recited in Dependent Claims 2 – 15 and 17 – 20 include:
wherein the animal is a pig, a cow, or a sheep
wherein the period of time is in a range from two days to one month
wherein the time points in said period of time are in a range from every second to every 30 seconds
wherein the activity interval of time is in a range from 2 to 6 hours
wherein the time differences are in a range from one minute to 6 hours
wherein one camera collects images for 4 to 5 crates, and/or wherein further information about age, number of former pregnancies, number of offspring per pregnancy, and/or back fat thickness of the animal are provided
at least one camera that is located above the crate or pen for monitoring at least one animal from above, which collects images at time points over a period of time, wherein the time points in said period of time are in a range from every second to every hour ,
(b) means for transferring the images to a processor ;
These pre-solution measurement elements are insignificant extra-solution activity, setting up the parameters of the system, and serve as data-gathering for the subsequent steps.
The “at least one camera”, “crate”, “pen”, “at least one processor”, “software”, “means for transferring the images to a processor” and “means for sending a signal” as recited in Independent Claims 1 and 16 and their dependent claims are generically recited computer and hardware elements which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract ideas identified above in Independent Claims 1 and 16 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer processor as claimed. In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in Independent Claims 1 and 16 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, Independent Claims 1 and 16 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B –
None of Claims 1 – 20 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: “at least one camera”, “crate”, “pen”, “at least one processor”, “software”, “means for transferring the images to a processor” and “means for sending a signal” as recited in Independent Claims 1 and 16 and their dependent claims.
The additional elements of the “at least one camera”, “crate”, “pen”, “at least one processor”, “software”, “means for transferring the images to a processor” and “means for sending a signal” Claims 1 - 20, as discussed with respect to Step 2A Prong Two, amounts to no more than mere instructions to apply the exception using generic computer and hardware components. The same analysis applies here in 2B, i.e., mere instructions to apply an exception using a generic computer component cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Per Applicant’s specification, the “at least one camera” is described on [Page 11, 3rd Paragraph from bottom] as a camera that an collect images of 4 – 5 crates, and [Page 14, 1st Full Paragraph] as a surveillance camera, “Surveillance cameras model VIO-DP20 from Blaupunkt.” The “at least one camera” is not shown in a figure.
Per Applicant’s specification, the “crate” is defined generically at [Page 6, Paragraph 4] as “individual housing of the animals.” It is shown as “crates” in Figure 1.
Per Applicant’s specification, the “pen” is defined generically at [Page 6, Paragraph 4] as “group housing of the animals.” It is not shown in a figure.
Per Applicant’s specification, the “at least one processor” is described generically on [Page 14, 1st Full Paragraph] as “an external PC connected to the NAS.” It is not shown in a figure.
Per Applicant’s specification, the “software” is described generically on Pages 3, 11, and 12 as generic restatements of the term as recited in the claim, “a software for carrying out steps (2) to (7) of the method of the present invention.” It is not shown in a figure.
Per Applicant’s specification, as described above in the 112(f) interpretation, the “means for transferring the images to a processor” is described as a generic “Ethernet connection to a network storage (NAS) from QNAP” at [Page 14, 1st full paragraph]. It is not shown in a figure.
Per Applicant’s specification, as described above in the 112(f) interpretation, the “means for sending a signal” is described generically on Pages 3, 11, and 12 as generic restatements of the term as recited in the claim, “means for sending a signal that the animal is in estrus to the farmer.” It is not shown in a figure, nor is it clear if the “means” is an electronic, mechanical, or human-communicated “means” to signal that the animal is in estrus to the farmer.
Accordingly, in light of Applicant’s specification, the claimed terms “at least one camera”, “crate”, “pen”, “at least one processor”, “software”, “means for transferring the images to a processor” and “means for sending a signal” are reasonably construed as a generic computing and hardware devices. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the “at least one camera”, “crate”, “pen”, “at least one processor”, “software”, “means for transferring the images to a processor” and “means for sending a signal”. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these 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) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1 – 20 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the methods of Claims 1 - 20 are directed to applying an abstract idea as identified above on a general-purpose computer without (i) improving the performance of the computer itself, or (ii) providing a technical solution to a problem in a technical field. None of Claims 1 - 20 provides meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements for Step 2A Prong 2 in Independent Claims 1 and 16 (and their dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1 - 20 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1 - 20 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1 - 20 are not patent eligible and are rejected 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.
Claims 1 – 8, 11 – 15, and 17 – 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Higaki, et. al., “Estrus Detection Using Background Image Subtraction Technique in Tie-Stalled Cows”, hereinafter Higaki.
Regarding Claim 1, Higaki discloses A method for determining estrus and ovulation of an animal for determining time for insemination ([Abstract]; [Page 6, Paragraph 3]), comprising the steps of:
(1) monitoring at least one animal ([Page 2, “2.1. Animals” Section] “cows”) from above a crate or pen using at least one camera ([Page 3] Figure 1a - d, “webcams” monitoring 4 cows), which comprises collecting images at time points over a period of time ([Page 3, “2.3. Video Data Analysis” Section] “…recorded videos…background subtraction…pixel counting…at every frame, at a rate of 5 data per second”; [Page 3] Figure 1a - d,), wherein the time points in said period of time are in a range from every second ([Page 3, “2.3. Video Data Analysis” Section] “…at every frame, at a rate of 5 data per second”) (Examiner notes that the range for plural time points is 5 time points within every “second” period of time.) to every hour
(2) at each time point, obtaining a grey value in each pixel of the collected image ([Page 3, “2.3. Video Data Analysis” Section] “all videos were converted to grayscale”; [Page 4] Figure 2.);
(3) comparing the grey value of each pixel of the images of two consecutive time points and obtaining an activity value for each image by summing up the changes over all pixels ([Page 3, “2.3. Video Data Analysis” Section] “…videos…greyscale…”,”…background subtraction step…binary images…0 represents the background (black pixels: static objects)…1 represents the foreground (white pixels: moving objects)”,”…foreground pixels (white pixels…) were counted at every frame”; Figure 2)(Examiner notes that the contents of the consecutive time point frames are compared by background subtraction based on brightness from the grayscale video. Applicant’s specification at [Page 6, Bottom] notes that “The term "grey value" as used herein refers to the brightness of a pixel, wherein the color and/or RGB composition of the pixel is not considered.”)
(4) repeating steps (1) to (3) for an activity interval of time ([Page 4, “Statistical Analysis” Section] “Hourly values…”), wherein the activity interval of time is in a range from one hour to 10 hours ([Page 4, “Statistical Analysis” Section] “Hourly values of pixel ratio from 168 h prior to 240 h after ovulation were compared with the values during the reference period (--240 to --169 h from ovulation: mid-luteal phase) using the Steel test.”; [Page 3, “2.3. Video Data Analysis” Section])(Examiner notes that the values are hourly, or in a range of one hour.) and obtaining a sample of activity values for said activity interval of time and obtaining a statistical estimator from said sample of activity values ([Page 4, “2.4. Background-Subtracted Pixel Data Analysis” Section] “hourly averaged pixel counts”)(Examiner notes that an average is a “statistic”);
(5) repeating steps (1) to (4) to obtain a difference value ([Page 4, “2.4. Background-Subtracted Pixel Data Analysis” Section] “pixel ratio”) by comparing the value of the statistical estimator for said sample of activity values of said activity interval of time with the value of the statistical estimator of a sample of activity values of the respective activity interval of time 24 hours ago ([Page 4, “2.4. Background-Subtracted Pixel Data Analysis” Section] “hourly averaged pixel counts…calculated…changes in hourly averaged pixel counts were expressed as the pixel ratio (total pixel counts during the last 24 h/total pixel counts during the last 24 to 48 h)…pixel ratio becomes constant at 1…if…no daily fluctuation in the pixel counts”.);
(6) repeating step (5) at time differences ([Page 4, “2.6. Statistical Analysis” Section] “hourly values…”) over said period of time, thereby obtaining a time series of the difference values over said period of time ([Page 4, “2.6. Statistical Analysis” Section] “Hourly values of pixel ratio from 168 h prior to 240 h after ovulation were compared with the values during the reference period”; [Page 5, Figure 3]); and
(7) obtaining estrus and ovulation time of the animal and/or time for insemination from the time series of the difference values over said period of time ([Page 4, “3.2. Estrus Detection based on Background-Subtracted Pixel Data” Section] “Using these detection criteria, the mean intervals from the start and end of estrus alert to ovulation were 19.3 ± 5.2 h and 4.6 ± 5.8 h, respectively”; [Page 5, Figure 3])
Regarding Claims 2 and 17 Higaki discloses as described above, The method of claim 1, and The method of claim 16, respectively. For the remainder of Claims 2 and 17, Higaki discloses wherein the animal is a pig, a cow ([Page 2, “2.1. Animals” Section] “cows”), or a sheep.
Regarding Claims 3, 15, and 18, Higaki discloses as described above, The method of claim 1, The system of claim 11, and The method of claim 16, respectively. For the remainder of Claims 3, 15, and 18, Higaki discloses wherein the grey value of the image is determined within a region of interest (ROI) of said image ([Page 3, “2.3. Video Data Analysis” Section] “foreground pixels (white pixels in the background-subtracted video) in a region of interest…(510 x 640, 1000 x 540, and 350 x 720 pixels for the images from the front, top, and rear webcams, respectively), were counted…”; [Page 4, Figure 2] “In the pixel-counting step, foreground pixels in a region of interest were counted at every frame”)
Regarding Claims 4, 13, and 19, Higaki discloses as described above, The method of claim 1, The system of claim 11, and The method of claim 16, respectively. For the remainder of Claims 4, 13, and 19, Higaki discloses wherein the period of time is in a range from two days to one month ([Page 2, “2.2. Data Collection” Section] “Cows during a total of ten estrous cycles, (each of the six animals was used one to three times) from day 10 of the cycle (day 0 = ovulation day) to day 11 of the subsequent cycle, were recorded by video.”; [Page 5, Paragraph 1] “mean duration of video recording …26.2 ± 5.6 days.”).
Regarding Claims 5, 14, and 20, Higaki discloses as described above, The method of claim 1, The system of claim 11, and The method of claim 16, respectively. For the remainder of Claims 5, 14, and 20, Higaki discloses wherein the time points in said period of time are in a range from every second ([Page 3, “2.3. Video Data Analysis” Section] “…recorded videos…background subtraction…pixel counting…at every frame, at a rate of 5 data per second”)(Examiner notes that the range for plural time points is 5 time points within every second) to every 30 seconds.
Regarding Claim 6, Higaki discloses as described above, The method of claim 1. For the remainder of Claim 6, Higaki discloses wherein the activity interval of time is in a range from 2 to 6 hours ([Page 4, “2.5. Estrus Detection based on Background-Subtracted Pixel Data” Section] “…pixel ratios exceeded the threshold for more than three consecutive hours, we regarded the increments as estrus alerts.”)(Examiner notes that the activity period of note becomes more than just hourly, but a ”more than 3 hours” when the values for 3 consecutive hours indicate movement activity, indicative of merited estrus alerts.)
Regarding Claim 7, Higaki discloses as described above, The method of claim 1. For the remainder of Claim 7, Higaki discloses wherein the time differences are in a range from one minute to 6 hours ([Page 4, “2.6. Statistical Analysis” Section] “Hourly values of pixel ratio from 168 h prior to 240 h after ovulation were compared with the values during the refe