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 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.
The USPTO “Interim Guidelines for Examination of Patent Applications for Patent Subject Matter Eligibility” (Official Gazette notice of 22 November 2005), Annex IV, reads as follows:
Descriptive material can be characterized as either "functional descriptive material" or "nonfunctional descriptive material." In this context, "functional descriptive material" consists of data structures and computer programs which impart functionality when employed as a computer component. (The definition of "data structure" is "a physical or logical relationship among data elements, designed to support specific data manipulation functions." The New IEEE Standard Dictionary of Electrical and Electronics Terms 308 (5th ed. 1993).) "Nonfunctional descriptive material" includes but is not limited to music, literary works and a compilation or mere arrangement of data.
When functional descriptive material is recorded on some computer-readable medium it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized. Compare In re Lowry, 32 F.3d 1579, 1583-84, 32 USPQ2d 1031, 1035 (Fed. Cir. 1994) (claim to data structure stored on a computer readable medium that increases computer efficiency held statutory) and Warmerdam, 33 F.3d at 1360-61, 31 USPQ2d at 1759 (claim to computer having a specific data structure stored in memory held statutory product-by-process claim) with Warmerdam, 33 F.3d at 1361, 31 USPQ2d at 1760 (claim to a data structure per se held nonstatutory).
In contrast, a claimed computer-readable medium encoded with a computer program is a computer element which defines structural and functional interrelationships between the computer program and the rest of the computer which permit the computer program's functionality to be realized, and is thus statutory. See Lowry, 32 F.3d at 1583-84, 32 USPQ2d at 1035.
Claims 1 and 11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter as follows. Claims 1 and 11 define a “system”. However, while the preamble defines a “system”, which would typically be indicative of an “apparatus”, the body of the claim lacks definite structure indicative of a physical apparatus. Furthermore, the specification indicates that the invention may be embodied as pure software, i.e. paragraph 109 of the PGPub. Therefore, the claim as a whole appears to be nothing more than a “system” of software elements, thus defining functional descriptive material per se.
Functional descriptive material may be statutory if it resides on a “non-transitory computer-readable medium or non-transitory computer-readable memory”. The claim(s) indicated above lack structure, and do not define a computer readable medium and are thus non-statutory for that reason (i.e., “When functional descriptive material is recorded on some computer-readable medium it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized” – Guidelines Annex IV). The scope of the presently claimed invention encompasses products that are not necessarily computer readable, and thus NOT able to impart any functionality of the recited program. The examiner suggests:
1. Amending the claim(s) to embody the program on “non-transitory computer-readable medium” or equivalent; assuming the specification does NOT define the computer readable medium as a “signal”, “carrier wave”, or “transmission medium” which are deemed non-statutory; or
2. Adding structure to the body of the claim that would clearly define a statutory apparatus.
Any amendment to the claim should be commensurate with its corresponding disclosure.
Claim 10 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter as follows. Claim 9 defines a program embodying functional descriptive material. However, the claim does not define a computer-readable medium or memory and is thus non-statutory for that reason (i.e. “When functional descriptive material is recorded on some computer-readable medium it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized” –Guidelines Annex IV). That is the scope of the presently claimed program can range from paper on which the program is written, to a program simply contemplated and memorized by a person. The examiner suggests amending the claim to embody the program on “computer-readable medium” or equivalent in order to make the claim statutory. Any amendment to the claim should commensurate with its corresponding disclosure.
Claims 2-8, 9 and 12 are considered eligible subject matter. A vehicle, in light of the specification, can only be interpreted as a vehicle as related to a car, (not simply a means of conveyance/ transmission), and is therefore cannot be interpreted as functional descriptive material. Furthermore, even if the claims are considered an abstract idea, the claims provide a practical application, i.e. air drag calculation of a vehicle.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 2 recite the limitation “it” in line 7 and 9, respectively. It is unclear as to what “it” is referring to.
Claims 1 and 2 recite the limitation “that data” in line 14 and 16, respectively. It is unclear as to what “that data” is referring to.
Claims 1 and 2 recite the limitation “the vehicle’s” in lines 18-19 and 21, respectively. It is unclear as to which vehicle the applicant is referring to, since a vehicle is previously claimed, but also “vehicle and air drag…” which allows an interpretation of another vehicle in the claim beyond the previously claimed “a vehicle” in line 2.
Claim 4 recites the limitation “the machine learning algorithm: in line 1. It is unclear as to which machine learning algorithm the applicant is referring to.
Claims 5 and 6 recite the limitation “it” in line 3. It is unclear as to what “it” is referring to.
Allowable Subject Matter
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Claims 1-12 contain allowable subject matter. Claims 1 and 2 contain allowable subject matter regarding the estimation of an impact that the at least one air drag affecting portion of the claimed vehicle, that has at least one image obtained therefrom, has on the imaged vehicle’s air drag and energy consumption, by using the claimed input enhanced air drag resistance data, the enhanced air drag resistance data obtained as claimed, and that the estimated air drag of the at least one air drag affecting portion uses the claimed first learning algorithm (which classifies the vehicle in at least one vehicle class to point out the vehicle in an air drag resistance database) and the claimed second machine learning algorithm (which classifies the at least one air drag affecting portion in the claimed air drag resistance database of the first machine learning algorithm, and enhances the air drag resistance data from the same air drag resistance database of the first machine learning algorithm by combing the at least one air drag affecting portion together with the at least one image of the vehicle returning an air resistance for a combination of vehicle and air drag affecting portions).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHLEEN YUAN DULANEY whose telephone number is (571)272-2902. The examiner can normally be reached M1:9am-5pm, th1:9am-1pm, fri1 9am-3pm, m2: 9am-5pm, t2:9-5 th2:9am-5pm, f2: 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Terrell can be reached at 5712703717. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATHLEEN Y DULANEY/Primary Examiner, Art Unit 2666 11/17/2025