DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement
The Information Disclosure Statement filed 12/21/2023 has been considered by the Examiner.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: 1000. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
*Reference character 1000 is mentioned in Par. [0052] and [0054], but is not shown in the drawings.
Specification
The disclosure is objected to because of the following informalities:
Page 8, line 1: “the authentication unit 230” should be “the authentication unit 110”.
Appropriate correction is required.
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claim 1 objected to because of the following informalities:
Line 9: please remove the phrase “determined that there is”.
Claim 6 objected to because of the following informalities:
Line 7: please remove the phrase “determined that there is”.
Claim 10 objected to because of the following informalities:
Line 8: please remove the phrase “determined that there is”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-13 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claims 1, 6, and 10 recite the limitation “analyze an image of a subject person to generate state information indicating a state of the subject person”. A “state” of a subject person is a very broad categorization that includes many subcategories, such as mental state, physical state, psychological state, spiritual state, emotional state, etc. Therefore, claim 1 is considered to be drawn to a genus. MPEP 2163(II)(A)(3)(a)(ii) explains that the written description must lead a person of ordinary skill in the art to understand that the inventor possessed the entire scope of the claimed invention. Ariad, 598 F.3d at 1353–54. It is also explained that a "representative number of species" means that the species which are adequately described are representative of the entire genus. Thus, when there is substantial variation within the genus, one must describe a sufficient variety of species to reflect the variation within the genus. See AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc., 759 F.3d 1285, 1300, 111 USPQ2d 1780, 1790 (Fed. Cir. 2014). The Applicant’s specification does have support for certain physical and mental/emotional states (Pars. [0016], [0077] – feeling/physical condition, [0079-0081] – glad feeling, negative feelings (sad, angry, depressed, or the like), and [0095] – disheveled clothing/hair, bad expression/movement/pose), but does not reasonably provide support for a representative number of states of a person (e.g., spiritual, other mental states (such as alertness, concentration, motivation, self-awareness, stress), and other physical states (such as tired, fatigue, energetic, in pain, etc.), in order to reasonably convey that the inventor possessed the entire scope of the claimed invention.
*All other claims are rejected due to their dependency on a rejected claim.
Claims 1-13 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claims 1, 6, and 10 include the limitation of at least one processor configured to “analyze an image of a subject person to generate state information indicating a state of the subject person”. The Applicant’s specification appears to essentially recite this claim limitation in Par. [0013], wherein the functional intent of generating state information indicating a state of a target person is recited, but without disclosing how this functional intent is achieved. The Applicant’s specification discusses potential results where the state information indicates that the target person is glad (Par. [0079-0080]) or has a negative feeling (Par. [0081]), but does not explain how the processor processes an image in order to generate state information indicating a state of a target person. In other words, there is no written description support for how the processor determines a particular state of the target person, such as gladness or a negative feeling.
MPEP 2161.01(I) explains that it is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See, e.g., Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 681-683, 114 USPQ2d 1349, 1356, 1357 (Fed. Cir. 2015). MPEP 2161.01(I) also explains that the description requirement of the patent statute requires a description of an invention, not an indication of a result that one might achieve if one made that invention. Original claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed (MPEP 2161.01(I), MPEP 2163.02, and MPEP 2181(IV)).
*All other claims are rejected due to their dependency on a rejected claim.
Claims 1-13 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for certain physical and mental/emotional states (Pars. [0016], [0077] – feeling/physical condition, [0079-0081] – glad feeling, negative feelings (sad, angry, depressed, or the like), and [0095] – disheveled clothing/hair, bad expression/movement/pose), does not reasonably provide enablement for all types of states of a person (e.g., spiritual, other mental states (such as alertness, concentration, motivation, self-awareness, stress), and other physical states (such as tired, fatigue, energetic, in pain, etc.). The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the invention commensurate in scope with these claims. The Applicant’s specification is not enabling for the claim limitation of instant claims 1, 6, and 10 of “generate state information indicating a state of a target person”. The Wands factors detailed in MPEP 2164.01(a) have been considered. For example, (A) the breadth of the claims was considered. The breadth associated with “a state of a target person” is so large and encapsulates many subcategories (i.e., mental state, physical state, emotional state, etc.). Also, (G) the existence of working examples has been considered. The limited examples of physical and mental/emotional states in the Applicant’s specification are not enabling for this broad limitation encapsulating all states of a target person, and would therefore require undue experimentation. An excessive amount of experimentation (Wands Factor (H)) would be necessary to make or use the invention that is commensurate with the scope of generating state information indicating all states of a target person, including spiritual states and other mental states such as anxiety/stress. Only limited examples involving general positive feelings of gladness and negative feelings of sadness, anger, and depression, along with examples of physical states such as disheveled clothing/hair and bad expressions, movement, and poses, are provided. These limited examples do not provide enough direction (Wands Factor (F)) to extrapolate out to the numerous amounts of states of a human.
*All other claims are also rejected due to their dependency on a rejected claim.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-13 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “negative” in claims 1, 6, and 10 is a relative term which renders the claim indefinite. The term “negative” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. In the context of the claims, it is unclear what constitutes a “negative” feeling. A few examples of a negative feeling are provided in Par. [0081] (e.g., sad, angry, depressed, or the like). However, this does not equate to a specific definition for “negative” and it is therefore considered a relative term that renders the claims indefinite.
The limitation “cancel[ling] transmitting the first information determined that there is when the state information indicates that the subject person has the negative feeling” renders claims 1, 6, and 10 indefinite. This limitation requires that the action of transmitting the first information must first occur in order to be canceled. However, claims 1, 6, and 10 do not require the first information to be transmitted. Therefore, the “cancelling” limitation is found to be indefinite.
*All other claims are rejected due to their dependency on a rejected claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 2-4, 7-9, and 11-13 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims 2, 7, and 11 fail to further limit the claim upon which they depend (that is, claims 1, 6, and 10, respectively). Each of claims 2, 7, and 11 does not change the scope of claims 1, 6, and 10, respectively, because when or how the image is being generated does not further limit the limitations of claims 1, 6, and 10 regarding analyzing an image. The image being analyzed in claims 1, 6, and 10 is being analyzed regardless of how it is generated. Claims 2, 7, and 11 do not further limit or affect the processor configuration or how it performs. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
*All other claims are rejected due to their dependency on a rejected claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-13 rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea (mental process) without significantly more.
Step 1
Independent claims 1, 6, and 10 are directed to a communication apparatus, a communication method, and a non-transitory computer-readable storage medium storing a program, and thus meets the requirements for step 1.
Step 2A, Prong 1
Regarding claims 1, 6, and 10, the following steps recite an abstract idea:
“analyz[ing] an image of a subject person to generate information indicating a state of the subject person” is a mental process when given its broadest reasonable interpretation. As discussed in MPEP 2106.04(a)(2)(III), the mental process grouping includes observations, evaluation, judgements, and opinions. In this case, a human could evaluate an image of a subject person in order to make a judgement about their state.
“determin[ing] whether there is first information to be transmitted to a first terminal” is a mental process when given its broadest reasonable interpretation. As discussed in MPEP 2106.04(a)(2)(III), the mental process grouping includes observations, evaluation, judgements, and opinions. In this case, a human could make a judgement on whether there is first information that should be transmitted to a first terminal.
“determin[ing] whether the state information indicates that the subject person has a negative feeling” is a mental process when given its broadest reasonable interpretation. As discussed in MPEP 2106.04(a)(2)(III), the mental process grouping includes observations, evaluation, judgements, and opinions. In this case, a human could make an evaluation of the state information to determine if it indicates that the subject person has a negative feeling.
“cancel[ling] transmitting the first information determined that there is when the state information indicates that the subject person has the negative feeling” is a mental process when given its broadest reasonable interpretation. As discussed in MPEP 2106.04(a)(2)(III), the mental process grouping includes observations, evaluation, judgements, and opinions. In this case, a human could cancel transmitting the first information when it is determined that the subject person has a negative feeling.
Step 2A – Prong 2
Regarding claims 1, 6, and 10, the claims do not include any additional elements that integrate the abstract idea into a practical application. The following elements do not add any meaningful limitation to the abstract idea:
“at least one memory”, “at least one processor”, “at least one computer”, and “first terminal” are all recited with a high level of generality. The at least one memory is described (Fig. 6, # 1030) as a main storage apparatus implemented by a random access memory (RAM) and the like (Par. [0050]). The at least one processor is described as (Fig. 6, # 1020) a processor implemented by a central processing unit (CPU), a graphics processing unit (GPU), and the like (Par. [0049]). The computer is interchangeably described as the processor (Par. [0052] and [0054]). The first terminal is described as possibly being a portable terminal such as a smartphone and a tablet type terminal (Par. [0022]). The involvement of the “at least one memory”, “at least one processor”, “at least one computer”, and “first terminal” is insignificant extra-solution activity in that they amount to generic computer implementation of the abstract idea [MPEP 2106.04(a)(2)(III)(C)].
Furthermore, the “at least one memory”, “at least one processor”, “at least one computer”, and “first terminal”, along with their associated functions and components, do not add any meaningful limitation to the abstract idea when considered in combination because these elements are recited at a high level of generality and their related functions and components are merely implementing the abstract idea on a computer.
Step 2B
The additional elements of claims 1, 6, and 10, when considered either individually or in an ordered combination, are not enough to qualify as significantly more than the abstract idea. As discussed above with respect to the integration of the abstract idea into a practical application, the “at least one memory”, “at least one processor”, “at least one computer”, and “first terminal”, along with their associated functions and components, are recited with a high level of generality and simply amount to implementing the abstract idea on a computer. The additional elements that were considered insignificant extra-solution activity have been re-analyzed and do not amount to anything more than what is well-understood, routine, and conventional. Also, simply appending well-understood, routine, and conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception is not indicative of an inventive concept [MPEP 2106.05(d)].
The involvement of the “at least one memory”, “at least one processor”, “at least one computer” is considered storing and retrieving information in memory, a well-understood, routine, and conventional computer activity [MPEP 2106.05(d)(II) Versata Dev. Group, Inc.].
The involvement of the “first terminal” is considered receiving and transmitting data, a well-understood, routine, and conventional computer activity [MPEP 2106.05(d)(II) Symantec].
Additionally, “transmit[ting] first information” is transmitting data, a well-understood, routine, and conventional computer activity [MPEP 2106.05(d)II) Symantec].
In this case, well-known elements of a general computer system are used to implement the abstract idea.
Dependent claims
Regarding dependent claims 2, 7, and 11, the limitations only further define the abstract idea.
Regarding dependent claims 3-5, 8-9, and 12-13, the limitations only further define insignificant extra-solution activity of generic computer implementation of the abstract idea.
Therefore, claims 1-13 are unpatentable under 35 U.S.C. 101.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 6-9 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Mishra, et al. (U.S. PGPub No. 2023/0035981).
Regarding claim 6, Mishra teaches (Fig. 1, # 100, 110) a communication method comprising, by a computer (Abstract; Par. [0004]; Par. [0009] – processor, Par. [0077-0078] – establishing communication between a user 101A and a patient 101B; Par. [0082] – the server 110 may have or utilize the database 112 as a non-transitory repository of data accessible to at least one processor of the server 110):
(Fig. 1, # 103B; Fig. 3A, # 301B) analyzing an image of a subject person to generate state information indicating a state of the subject person (Par. [0005]; Par. [0010] – the processor executes a module responsible for analyzing video data received from a user device to determine a mood of the user (e.g., neutral, happy, distressed); Par. [0079] – each of the user devices 102 may include the camera 103B to capture images/video to determine facial expression, mood, body position, movement, etc.; Par. [0088]);
determining whether there is first information to be transmitted to a first terminal (Par. [0005] – this information (e.g., information from image capturing device) can be used to determine a state of the user/issue and to automatically notify the doctors/nurses to setup a live call/scheduled call based on the urgency on the patient condition; Par. [0026-0027]; Par. [0090]);
determining whether the state information indicates that the subject person has a negative feeling (Par. [0005]; Par. [0010] – the processor executes a module responsible for analyzing video data received from a user device to determine a mood of the user (e.g., neutral, happy, distressed)); and
canceling transmitting the first information determined that there is when the state information indicates that the subject person has the negative feeling (Par. [0005]; Par. [0010]; Mishra’s method may determine that the subject is in a comfortable / happy / neutral mood (i.e., no determination of a negative feeling), and therefore not require canceling transmitting).
Therefore, claim 6 is unpatentable over Mishra, et al.
Regarding claim 7, Mishra teaches the communication method according to claim 6, wherein
the image of the subject person is being generated while the subject person is viewing a content or after the subject person views the content (Par. [0005-0006] – an image for analysis is taken of the subject person. – The person is necessarily viewing a content (i.e., the subject’s environment) while or before interacting with the intelligent detection system).
Therefore, claim 7 is unpatentable over Mishra, et al.
Regarding claim 8, Mishra teaches the communication method according to claim 7, further comprising, by the computer,
including the image of the subject person in the first information when the state information indicates that the subject person is glad (Par. [0005]; Par. [0006]; Par. [0010]; Par. [0078]; Par. [0088]; Par. [0107] – the user data may indicate the user is happy (based on facial expressions) and communicate with the user that the provider will check-in in an hour).
Therefore, claim 8 is unpatentable over Mishra, et al.
Regarding claim 9, Mishra teaches the communication method according to claim 7, further comprising, by the computer,
including the content as at least a part of the first information when the state information indicates that the subject person is glad (Par. [0088] – video/image data associated with the patient indicates the patient’s mood is happy. A server may determine that the operation to perform is to gather additional information/verbally check-in with the patient sent through the monitoring device).
Therefore, claim 9 is unpatentable over Mishra, et al.
Prior Art
Claims 1-5 and 10-13 are currently free from the prior art. The limitation involving the processor/computer being configured to “cancel transmitting the first information determined that there is when the state information indicates that the subject person has the negative feeling” in independent claims 1 and 10, in view of the entirety of the independent claims, is not found in the prior art. The Examiner notes that the Applicant has support for this particular limitation in Par. [0083] of their specification. It is noted that depending claims 2-5 and 11-13 are also considered to currently be free of the prior art due to their dependency on the independent claims 1, and 10. Mishra, et al. (U.S. PGPub No. 2023/0035981) is considered to be the closest prior art. However, Mishra teaches that the system may detect that the user is in distress requiring immediate attention (e.g., a video call with a provider, dispatching emergency services, etc.) (Par. [0004] and [0086]). Therefore, Mishra does not reasonably teach or suggest a processor/computer that is configured to cancel transmitting the first information when the state information indicates that the subject person has a negative feeling (e.g., stress).
While it is being indicated that claims 1-5 and 10-13 are free from the prior art, it is noted that 35 U.S.C. 101, 35 U.S.C. 112(a), and 35 U.S.C. 112(b) rejections are outstanding and detailed hereinabove. Allowability will be considered if/when these outstanding rejections are overcome.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Kim, et al. (U.S. PGPub No. 2023/0225653)
Hsu, et al. (U.S. PGPub No. 2019/0240842)
Lee (U.S. PGPub No. 2020/0411154)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL TAYLOR HOLTZCLAW whose telephone number is (571)272-6626. The examiner can normally be reached Monday-Friday (7:30 a.m.-5:00 p.m. EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer McDonald can be reached at (571) 270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL T. HOLTZCLAW/Primary Examiner, Art Unit 3796