DETAILED ACTION
Notice of Pre-AIA or AIA Status
[1] The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Notice to Applicant
[2] This communication is in response to the patent application filed 1 February 2024. It is noted that this application is a Continuation of United States Patent Application Serial No. 18/098,554, filed 18 January 2023, now United States Patent No. 11,991,019, which is a Continuation of United States Patent Application Serial No. 17/135,009, filed 28 December 2020, Now United States Patent No. 11,824,680, which benefits from Provisional Patent Application Serial Nos. 62/955,856, 63/005,841, and 63/105,754 filed 31 December 2019, 6 April 2020, and 26 October 202, respectively. The Information Disclosure Statements (IDSs) filed 2/29/24, 4/4/24, 5/17/24, 10/9/24, 2/6/25, 3/19/25, 4/15/25, 5/27/25, 1/30/26, and 6/1/26 been entered and considered. Claims 21-40 are pending.
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.
[3] Claims 21-40 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter, specifically an abstract idea without significantly more.
The following analysis is based on the framework for determining patent subject matter eligibility under 35 U.S.C. 101 established in the decisions of the Supreme Court in Mayo Collaborative Services v. Prometheus Labs., Incorporated and Alice Corporation Pty. Ltd. v. CLS Bank International, et al. (See MPEP 2106 subsection III and 2106.03-2106.05). Claim(s) 21-40 as a whole is/are determined to be directed to an abstract idea. The rationale for this determination is explained below:
Abstract ideas are excluded from patent eligibility based on a concern that monopolization of the basic tools of scientific and technological work might serve to impede, rather than promote, innovation. Still, inventions that integrate the building blocks of human ingenuity into something more by applying the abstract idea in a meaningful way are patent eligible (See MPEP 2106.04).
Consistent with the findings of the Supreme Court in Mayo Collaborative Services v. Prometheus Labs., Incorporated and Alice Corporation Pty. Ltd. v. CLS Bank International, et al. ineligible abstract ideas are defined in groups, namely: (1) Mathematical Concepts (e.g., mathematical relationships, mathematical formulas or equations, and mathematical calculations; (2) Mental Processes (e.g., concepts performed or performable in the human mind including observations, evaluations, judgements, or opinions); and (3) Certain Methods of Organizing Human Activity. Groupings of Certain Methods of Organizing Human Activity include three sub-categories within the group, namely: (1) fundamental economic principles or practices; (2) commercial or legal interactions (e.g., agreements in the form of contracts, legal obligations, advertising, marketing or sales activities or behaviors, and business relations); (3) managing personal behavior or relationships or interactions between people (e.g., social activities, teaching, and following rules or instructions) (See MPEP 2106.04(a).
Eligibility Step 1: Four Categories of Statutory Subject Matter (See MPEP 2106.03): Independent claims 21, 30, and 39 are directed to a method, a system, and non-transitory computer-readable storage medium and are reasonably understood to be properly directed to one of the four recognized statutory classes of invention designated by 35 U.S.C. 101; namely, a process or method, a machine or apparatus, an article of manufacture, or a composition of matter. While the claims, generally, are directed to recognized statutory classes of invention, each of method/process, system/apparatus claims, and computer-readable media/articles of manufacture are subject to additional analysis as defined by the courts to determine whether the particularly claimed subject matter is patent-eligible with respect to these further requirements. In the case of the instant application, each of claims 21, 30, and 39 are determined to be directed to ineligible subject matter based on the following analysis/guidance:
Eligibility Step 2A prong 1: (See MPEP 2106.04): In reference to claim 30, the claimed invention is directed to non-statutory subject matter because the claim(s) as a whole, considering all claim elements both individually and in combination, do/does not amount to significantly more than an abstract idea. The claim(s) is/are directed to the abstract idea of determining changes to a graph and recording change event(s) and determining a category to which the change belongs, which is reasonably considered to be an inventive concept directed to ineligible processes/functions which are performable by Human Mental Processing.
The courts have previously identified subject matter limited to steps/processes performable by Human Mental Processing and/or by a human using pen and paper to be ineligible abstract ideas (See CyberSource Corp v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011). Further, if a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for a recitation of generic computer components, then the claim is still to be grouped as a mental process unless the limitation cannot practically be performed in the human mind (See MPEP 2106.04(a)(2)).
With respect to functions/steps limited to processes performable by Human Mental Processing and/or by a human using pen and paper, representative claim 30 recites:
“…receiving…a change to a graph, the graph comprising a plurality of nodes and a plurality of edges between the plurality of nodes, the plurality of nodes representing entities of an environment and the plurality of edges representing relationships between the entities of the environment; generating…an event recording the change to the graph; and posting…the event to a topic to cause the event to be delivered to a system or component subscribed to the topic; wherein a plurality of events are posted to the topic to provide a feed of changes to the graph made a plurality of different times…”
Respectfully, absent further clarification of the processing steps executed by the recited “one or more processing circuits”, one of ordinary skill in the art would readily be relied upon to implement or enter changes to a graph (e.g., add or delete an edge of node of the graph), create an event to record the change (e.g., a name or time of the change to store or record the change) and assess/determine/categorize the recorded event as belonging to a topic, and decide to communicate or post the event based on the determined topic are practicable/performable by using pen and paper and/or employing by the human mental processing (See CyberSource Corp v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011) (“a method that can be performed by human thought alone is merely an abstract idea and is not patent eligible under 35 U.S.C 101).
Claims 21, 30, and 39 recite technical elements which have been considered at each step of Examiner’s analysis but are determined to constitute generic computing structures executing generic computing functions previously identified by the courts, as further analyzed under Step 2A prong 2 and Step 2B below.
Eligibility Step 2A prong 2: (See MPEP 2106.04(d)): Under step 2A prong two, Examiners are to consider additional elements recited in the claim beyond the judicial exception and evaluate whether those additional elements integrate the exception into a practical application. Further, to be considered a recitation of an element which integrates the judicial exception into a practical application, the additional elements must apply, rely on, or use the judicial exception in a manner that imposes meaningful limits on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception.
Additional technical elements of claim 30 that potentially integrate the claimed ineligible subject matter into a practical application of the claimed subject are limited to: “one or more processing circuits” and “system or component”. Claims 21 and 39, directed to a system and storage media introduce “one or more processors” and processor-executable “instructions”. With respect to these potential additional elements:
(1) The “one or more processing circuits”, “one or more processors”, and “instructions” are identified as engaged in an unspecified, general manner in the performance of each of the recited steps/functions.
(2) The “system or component” is identified as receiving the event associated with a topic and storing an updated second graph.
With respect to the above noted functions attributable to the identified additional elements, MPEP 2106.05 stipulates that: Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea – see MPEP 2106.05(f); Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h) serve as indications that the use of the technology recited does not indicate integration into a practical application of the judicial exception.
Each of the above noted limitations states a result (e.g., changes are received an implemented in a graph, events and changes are identified recorded, events are associated with topics sent to recipients etc.) as associated with a respective “one or more processors” or “system or component”. Beyond the general statement that “one or more processors” or “system or component” are engaged in an unspecified manner in the claimed method steps and functions, the limitations provide no further clarification with respect to the functions performed by the “one or more processors” or “system or component” in producing the claimed result. A recitation of “by a processor” or “by a component”, absent clarification of particular processing steps executed by the underlying technology to produce the result are reasonably understood to be an equivalent of “apply it”. The identified functions performed by the recited technology are limited to: (1) receiving and sending data via a computer network (e.g., posted events/topics); (2) storing and retrieving information and data from a generic computer memory (e.g., graph, graph changes, and events); and (3) performing repetitive calculations and/or mental observations using the obtaining information/data (e.g., enter changes to a graph (e.g., add or delete an edge of node of the graph), create an event to record the change (e.g., a name or time of the change to store or record the change) and assess/determine/categorize the recorded event as belonging to a topic, and decide to communicate or post the event based on the determined topic) (See MPEP 2106.05(f)).
Accordingly, claim 30 is reasonably understood to be conducting standard, and formally manually performed process of determining changes to a graph and recording change event(s) and determining a category to which the change belongs using the generic devices as tools to perform the abstract idea. The identified functions of the recited additional elements reasonably constitute a general linking of the abstract idea to a generic technological environment. The claimed determining changes to a graph and recording change event(s) and determining a category to which the change belongs benefits from the inherent efficiencies gained by data transmission, data storage, and information display capacities of generic computing devices, but fails to present an additional element(s) which practical integrates the judicial exception into a practical application of the judicial exception.
Eligibility Step 2B: (See MPEP 2106.05): Analysis under step 2B is further subject to the Revised Examination Procedure responsive to the Subject Matter Eligibility Decision in Berkheimer v. HP, Inc. issued by the United States Patent and Trademark Office (19 April 2018). Examiner respectfully submits that the recited uses of the underlying computer technology constitute well-known, routine, and conventional uses of generic computers operating in a network environment. In support of Examiner’s conclusion that the recited functions/role of the computer as presented in the present form of the claims constitutes known and conventional uses of generic computing technology, Examiner provides the following:
In reference to the Specification as originally filed, Examiner notes paragraphs [241]-[246]. In the noted disclosure, the Specification provides listings of generic computing systems, e.g., a general computing platform including exemplary servers, network configurations and various processor configuration which are identified as capable and interchangeable for performing the disclosed processes. The disclosure does not identify any particular modifications to the underlying hardware elements required to perform the inventive methods and functions. Accordingly, it is reasonably understood that this disclosure indicates that the hardware elements and network configurations suitable for performing the inventive methods are limited to commercially available systems at the time of the invention. Absent further clarification, it is reasonably understood that any modifications/improvements to the underlying technology attributable to the inventive method/system are limited to improvements realized by the disclosed computer-executable routines and the associated processes performed.
While the above noted disclosure serves to provide sufficient explanation of technical elements required to perform the inventive method using available computing technology, the disclosure does not appear to identify any particular modifications or inventive configurations of the underlying hardware elements required to perform the inventive methods and functions. Accordingly, it is reasonably understood that the disclosure indicates that the hardware elements and network configurations suitable for performing the inventive methods are limited to commercially available systems at the time of the invention. Further, absent further clarification, it is reasonably understood that any modifications/improvements to the underlying technology attributable to the inventive method/system are limited to improvements realized by the disclosed computer-executable routines and the associated processes performed.
The claims specify that the above identified generic computing structures and associated functions/routines include:
(1) The “one or more processing circuits”, “one or more processors”, and “instructions” are identified as engaged in an unspecified, general manner in the performance of each of the recited steps/functions.
(2) The “system or component” is identified as receiving the event associated with a topic and storing an updated second graph.
While Examiner acknowledges that the noted limitations are computer-implemented, Examiner respectfully submits that, in aggregate (e.g., “as a whole”) they do not amount to significantly more than the abstract idea/ineligible subject matter to which the claimed invention is primarily directed.
While utilizing a computer, the claimed invention is not rooted in computer technology nor does it improve the performance of the underlying computer technology. The computer-implemented features of the claimed invention noted above are reasonably limited to: (1) receiving and sending data via a computer network (e.g., posted events/topics); (2) storing and retrieving information and data from a generic computer memory (e.g., graph, graph changes, and events); and (3) performing repetitive calculations and/or mental observations using the obtaining information/data (e.g., enter changes to a graph (e.g., add or delete an edge of node of the graph), create an event to record the change (e.g., a name or time of the change to store or record the change) and assess/determine/categorize the recorded event as belonging to a topic, and decide to communicate or post the event based on the determined topic).
The above listed computer-implemented functions are distinguished from the generic data storage, retrieval, transmission, and data manipulation/processing capacities of the generic systems identified in the Specification solely by the recited identification of particular data elements that are of utility to a user performing the specific method of determining changes to a graph and recording change event(s) and determining a category to which the change belongs. In summary, the computer of the instant invention is facilitating non-technical aims, i.e., determining changes to a graph and recording change event(s) and determining a category to which the change belongs, because it has been programmed to store, retrieve, and transmit specific data elements and/or instructions that is/are of utility to the user. The non-technical functions of determining changes to a graph and recording change event(s) and determining a category to which the change belongs benefit from the use of computer technology, but fail to improve the underlying technology.
In support, the courts have previously found that utilization of a computer to receive or transmit data and communications over a network and/or employing generic computer memory and processor capacities store and retrieve information from a computer memory are insufficient computer-implemented functions to establish that an otherwise unpatentable judicial exception (e.g. abstract idea) is patent eligible. With respect to the determinations of the Courts regarding using a computer for sending and receiving data or information over a computer network and storing and retrieving information from computer memory, see at least: receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362; sending messages over a network OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); receiving and sending information over a network buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93 and see performing repetitive calculations, Flook, 437 U.S. at 594, 198 USPQ2d at 199; and Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) with respect to the performance of repetitive calculations does not impose meaningful limits on the scope of the claims.
Independent claims 21 and 39, directed to an apparatus/system and computer-executable instructions stored on computer-readable media for performing the method steps are rejected for substantially the same reasons, in that the generically recited computer components in the apparatus/system and computer readable media claims add nothing of substance to the underlying abstract idea.
Dependent claims 22-29, 31-38, and 40, when analyzed as a whole are held to be ineligible subject matter and are rejected under 35 U.S.C. 101 because the additional recited limitation(s) fail(s) to establish that the claimed invention is not directed to an abstract idea.
Viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself. Therefore, the claim(s) are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
For further guidance and authority, see Alice Corporation Pty. Ltd. v. CLS Bank International, et al. 573 U.S.____ (2014)) (See MPEP 2106).
Claim Rejections - 35 USC § 103
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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
[4] Claim(s) 21-27, 30-36, 39, and 40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Martinez Canedo et al. (United States Patent Application Publication No. 2020/0090085 hereinafter ‘Martinez Canedo’) in view of Gawrys et al. (United States Patent Application Publication No. 2020/0097493 hereinafter ‘Gawrys’)
With respect to claim 30, Martinez Canedo discloses a method comprising: receiving, by one or more processing circuits, a change to a graph (Martinez Canedo et al.; paragraphs [0021] [0025]; See at least changes to graph-based digital twin based on data updates, queries, i.e., events), the graph comprising a plurality of nodes and a plurality of edges between the plurality of nodes, the plurality of nodes representing entities of an environment and the plurality of edges representing relationships between the entities of the environment (Martinez Canedo et al.; paragraphs [0021] [0022] [0025] [0029]; See at least graph, sub-graphs, nodes and edges. See further digital twin graphs representing real world equipment and objects including exemplary buildings, transportations systems, airplanes etc.); generating, by the one or more processing circuits, an event recording the change to the graph (Martinez Canedo et al.; paragraphs [0025] [0028] [0029]; See at least changes to graphs including modifying sub-graph, eliminating or adding nodes and edges. The receipt of sensor data from objects/components represented in the graph are reasonably forms of “events” and the associated changes to the graph and/or sub-graphs are reasonably forms recording the event).
While Martinez Canedo discloses reportable events, e.g., data updates or changes, that are conveyed to entities represented in the graph, and further recording timing of graph changes Martinez Canedo fails to specify that events are posted to subscribing entities.
However, Gawrys discloses posting, by the one or more processing circuits, the event to a topic to cause the event to be delivered to a system or component subscribed to the topic (Gawrys et al.; paragraphs [0024] [0031] [0057] [0069]; See at least publish/subscribe delivery of categorized events).
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the conveying reportable events to entities represented in a graph-based digital twin features of Martinez Canedo by further including publish/subscribe delivery of categorized events as taught by Gawrys. The instant invention is directed to a system and method of monitoring and recording events associated with physical system in the form of a graph-based structure. As Martinez Canedo disclose the use of conveying reportable events to entities represented in a graph-based digital twin in the context of a system and method for monitoring and recording events associated with physical system in the form of a graph-based structure and Gawrys similarly discloses the utility publish/subscribe delivery of categorized events in the context of a system and method for monitoring and recording events associated with physical system in the form of a graph-based structure, the teachings are reasonably considered to have been derived from analogous references and applied in the manner disclosed by the respective references. Accordingly, one of ordinary skill in the art would have been motivated to make the noted combination/modification as rationalized by combining prior art elements accordingly to known methods to yield the predictable results of efficiently tracking activity and controlling entities in a complex environment (Gawrys et al.; paragraph [0002]).
With respect to claim 31, Martinez Canedo discloses a method comprising: receiving, by the one or more processing circuits, the change to the graph, wherein: the plurality of nodes of the graph represent entities of a building; and the plurality of edges represent relationships between the entities of the building (Martinez Canedo et al.; paragraphs [0021] [0022] [0025] [0029]; See at least graph, sub-graphs, nodes and edges. See further digital twin graphs representing real world equipment and objects including exemplary buildings, transportations systems, airplanes etc.).
With respect to claim 32, Martinez Canedo discloses a method comprising: receiving, by the one or more processing circuits, the change to the graph, wherein: the graph is digital twin of a building, wherein the entities are at least one of building equipment, a location of the building, users of the building, and one or more events of the building (Martinez Canedo et al.; paragraphs [0021] [0022] [0025] [0029]; See at least digital twin graphs representing real world equipment and objects including exemplary buildings, transportations systems, airplanes, people etc.).
With respect to claim 33, Martinez Canedo discloses a method comprising: constructing, by the one or more processing circuits, the graph at a plurality of points in time including a first time and a second time by: selecting a first set of the plurality of events occurring up to the first time (Martinez Canedo et al.; paragraphs [0007] [0023] [0025]; See at least DTG graph represents data in spatio-temporal manner); generating the graph at the first time based on the first set of the plurality of events; selecting a second set of the plurality of events occurring up to the second time (Martinez Canedo et al.; paragraphs [0007] [0023] [0025]; See at least snapshots of graph morphing marked by time-stamps associated with data events; and generating the graph at the second time based on the second set of the plurality of events (Martinez Canedo et al.; paragraphs [0023] [0025] [0029] [0030]; See at least changes in the graph including generation of second or sub-graphs over time).
With respect to claim 34, Martinez Canedo discloses a method comprising: receiving, by the one or more processing circuits, the change to the graph, wherein the change is at least one of: adding a new node to the plurality of nodes of the graph; adding a new edge to the plurality of edges of the graph; deleting an existing node of the plurality of nodes of the graph; deleting an existing edge of the plurality of edges of the graph; modifying the existing node of the plurality of nodes of the graph; or modifying the existing edge of the plurality of edges of the graph (Martinez Canedo et al.; paragraphs [0025] [0028] [0029]; See at least changes to graphs including modifying sub-graph, eliminating or adding nodes and edges. The receipt of sensor data from objects/components represented in the graph are reasonably forms of “events” and the associated changes to the graph and/or sub-graphs are reasonably forms recording the event).
With respect to claims 35 and 36, as noted above, while Martinez Canedo discloses reportable events, e.g., data updates or changes, that are conveyed to entities represented in the graph, and further recording timing of graph changes Martinez Canedo fails to specify that events are posted to subscribing entities.
However, Gawrys discloses posting, by the one or more processing circuits, the event to a topic to cause the event to be delivered to a system or component subscribed to the topic (Gawrys et al.; paragraphs [0024] [0031] [0057] [0069]; See at least publish/subscribe delivery of categorized events).
However, with respect to claim 35, Gawrys discloses a method comprising: transmitting, by the one or more processing circuits, the event of to the system or the component subscribed to the topic responsive to the event being posted to the topic (Gawrys et al.; paragraphs [0024] [0031] [0057] [0069]; See at least publish/subscribe delivery of categorized events).
With respect to claim 36, Gawrys discloses a method comprising: posting, by the one or more processing circuits, the event to the topic to cause the event to be delivered to a system or component subscribed to the topic and cause the system or the component to update a second graph stored by the system or the component (Gawrys et al.; paragraphs [0024] [0031] [0057] [0069]; See at least publish/subscribe delivery of categorized events, See further modifications to spatial intelligence graph).
Regarding claims 35 and 36, the conclusions of obviousness and rationale to modify as established for claim 1 above are applicable to claims 35 and 36 and are hereby incorporated by reference.
Claims 21-27 and 39-40 substantially repeat the subject matter addressed above with respect to claims 30-36 as directed to the enabling system and computer-readable medium storing computer-executable instructions. With respect to these elements, Martinez Canedo discloses enabling the disclosed method employing analogous systems and executable instructions. Accordingly, claims 21-27 and 39-40 are rejected under the applied teachings, conclusions obviousness, and rationale to modify as discussed above with respect to claims 30-36.
Allowable Subject Matter
[5] Claims 28-29 and 37-38 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 101 set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Double Patenting
[6] The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 21-40 of the Instant Application (‘262 Application) are rejected on the ground of nonstatutory double patenting as being unpatentable over: Claims 1-20 of U.S. Patent No. 11,777,758 (‘758 Patent); Claims 1-20 of U.S. Patent No. 12,040,911 (‘911 Patent).
With respect to claims 1-20 of U.S. Patent No. 11,777,758 and conflicting claims 21-40 of the instant application, the below listed claim chart maps the claimed features/functions of method claim 11 of the ‘758 Patent to method claim 30 of the ‘262 Application. Claims 1 and 20 of the ‘758 Patent map comparably to claims 21 and 39 of the ‘262 Application.
Issued Patent No. 11,777,758: Claim 11
Instant Application 18/430,262: Claim 30
storing, by a processing circuit, a digital twin of a building comprising a graph data structure…receiving, by the processing circuit, a modification to the digital twin of the building, the modification modifying at least one of the plurality of nodes or the plurality of edges [graph]
receiving, by one or more processing circuits, a change to a graph
the graph data structure comprising a plurality of nodes representing entities of the building and a plurality of edges between the plurality of nodes representing relationships between the entities of the building
the graph comprising a plurality of nodes and a plurality of edges between the plurality of nodes, the plurality of nodes representing entities of an environment and the plurality of edges representing relationships between the entities of the environment
generating, by the processing circuit, a change feed event of a change feed, the change feed event recording the modification to the graph data structure
generating, by the one or more processing circuits, an event recording the change to the graph
generating, by the processing circuit, an update for an external digital twin stored by an external system based on the change feed event, the update indicating a change to the external digital twin
and posting, by the one or more processing circuits, the event to a topic to cause the event to be delivered to a system or component subscribed to the topic
the change feed comprising a plurality of change feed events representing modifications to the graph data structure at a plurality of different times
wherein a plurality of events are posted to the topic to provide a feed of changes to the graph made a plurality of different times
With respect to claims 1-20 of U.S. Patent No. 12,040,911 and conflicting claims 21-40 of the instant application, the below listed claim chart maps the claimed features/functions of method claim 8 of the ‘911 Patent to method claim 30 of the ‘262 Application. Claims 1 and 15 of the ‘911 Patent map comparably to claims 21 and 39 of the ‘262 Application. NOTE: The “digital twin” having nodes and edges of claim 15 of the ‘911 Patent is reasonably understood to be a “graph” digital twin as claimed by claim 1 of the ‘262 Application.
Issued Patent No. 12,040,911: Claim 8
Instant Application 18/430,262: Claim 30
receiving, by a processing circuit, a modification to a graph
receiving, by one or more processing circuits, a change to a graph
the graph comprising a plurality of nodes and a plurality of edges between the plurality of nodes, the plurality of nodes representing entities of a building and the plurality of edges representing relationships between the entities of the building
the graph comprising a plurality of nodes and a plurality of edges between the plurality of nodes, the plurality of nodes representing entities of an environment and the plurality of edges representing relationships between the entities of the environment
generating, by the processing circuit, a change feed event, the change feed event recording a change to one node of the plurality of nodes and one edge of the plurality of edges of the graph made responsive to receiving the modification to the graph
generating, by the one or more processing circuits, an event recording the change to the graph
posting, by the processing circuit, the change feed event to a change feed comprising a plurality of change feed events posted to the change feed representing modifications to the graph
and posting, by the one or more processing circuits, the event to a topic to cause the event to be delivered to a system or component subscribed to the topic
the change feed event to a change feed comprising a plurality of change feed events posted to the change feed representing modifications to the graph at a plurality of different times
wherein a plurality of events are posted to the topic to provide a feed of changes to the graph made a plurality of different times
Although the conflicting claims are not identical, they are not patentably distinct from each other because they are all directed to similar methods, systems, and storage media storing computer/processor executable instructions for maintaining updating and reporting events and modifications to a graph-based representation of a building. Further, the distinctions between the claims of the ‘262 Application and the issued claims of the ‘758 and ‘911 Patents are limited to a rewording of common features and to omissions of elements recited in the claims. Examiner further notes that the omission of an element with a corresponding loss of function is an obvious expedient. See In re Karlson, 136 USPQ 184 and Ex parte Rainu, 168 USPQ 375. For these reasons, the claims of the instant application are not identical to claims 1-20 of U.S. Patent No. 11,777,758 (‘758 Patent) and claims 1-20 of U.S. Patent No. 12,040,911 (‘911 Patent), but they are not patently distinct.
Conclusion
[7] The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Cited NON-PATENT Literature:
Cheng et al., FogFlow: Easy Programming of IoT Services Over Cloud and Edges for Smart Cities, 2018-04-27, IEEE Internet of Things Journal (Volume: 5, Issue: 2, 2018, Page(s): 696-707): Relevant Teachings: Cheng discloses three case studies/applications of smart city infrastructure monitoring using sensor networks and event processing. The publication establishes that at least graph-based modelling of infrastructure to identify infrastructure-associated events and to implement task instructions is common practice in the art.
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/ROBERT D RINES/ Primary Examiner, Art Unit 3625
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