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 .
Status of the Claims
Claims 1-20 are pending in this application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02/14/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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:
(A) 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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
an interface configured to in claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-15 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 limitation “an interface configured to” 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. The specification references multiple “interfaces” (e.g., graphical user interface, start button, interaction with a display, etc.), however, no association between the structure and the function can be found in the specification. 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.
Double Patenting
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 1, 4-7, 18 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11908129 in view of Biondo et al. (US 20180037228 A1).
Here, claim 1 of U.S. Patent No. 11908129 recites an impairment analysis system comprising: a handheld image capture device that captures a plurality of images of an eye of a subject illuminated by ambient light over a period of time; a computing device comprising at least one processor and memory configured to: control a light source to emit light in a predetermined pattern for guiding the subject's eyes during capture of the plurality of images of the eye over the period of time; receive, from the image capture device, the captured plurality of images, wherein the images include pixels corresponding to a pupil, iris, background, or other features of the eye of the subject; maintain a database of machine learning analysis of other subject's normal eye movement in response to an applied light stimulus; classify pixels from the captured plurality of images as either pupil, iris, background, or other features of the eye of the subject based on the database of machine learning analysis; track movement of the classified pixels in the plurality of images over the period of time; analyze impairment of the subject based on the tracked movement as compared to the machine learning analysis in the database; and present, to a user, a result of the impairment analysis. The system of claim 1 of U.S. Patent No. 11908129 differs from claim 1 of the instant application herein in that it fails to disclose a vehicular impairment detection system for a vehicle, the vehicular impairment detection system comprising: an interface configured to communicate a start control signal to a start system of a vehicle; an image capture device that captures a plurality of images of an eye of a subject illuminated by light over a period of time, wherein the image capture device is configured for attachment to an interior component of the vehicle; determine that the subject is at an unsafe level of impairment based on the analysis of impairment; and communicate, to the interface, a control signal to disable the start system of the vehicle based on a determination that the subject is at an unsafe level of impairment.
Biondo et al. teach a vehicular impairment detection system for a vehicle (fig. 1: apparatus for detecting impairment 100), the vehicular impairment detection system comprising: an interface configured to communicate a start control signal to a start system of a vehicle (fig. 1: vehicle operation inhibitor 105; ¶0044); an image capture device that captures a plurality of images of an eye of a subject illuminated by light over a period of time (fig. 1: user input 106 being a camera; ¶0045), wherein the image capture device is configured for attachment to an interior component of the vehicle (fig. 1: user input 106 being a camera; ¶0045); determine that the subject is at an unsafe level of impairment based on the analysis of impairment (¶¶0058-0059); and communicate, to the interface, a control signal to disable the start system of the vehicle based on a determination that the subject is at an unsafe level of impairment (¶¶0058-0059). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system of claim 1 of U.S. Patent No. 11908129 such that the impairment analysis system is implemented in a vehicle, as taught by Biondo, in order to prevent a vehicle operator from operating the vehicle while impaired or prior to becoming impaired (Biondo, Abstract).
Concerning claims 4-5, Biondo further teaches wherein the computing device is configured to communicate a command signal to a user interface for instructing the subject to interact with the vehicular impairment detection system and wherein the instruction to the subject includes one of voice instructions and display instructions (figs. 4A-4B; ¶¶0063-0064).
Claim 6 of the instant application is not patentably distinct from claims 7 and 9 of U.S. Patent No. 11908129.
Claim 7 of the instant application is not patentably distinct from claims 7 and 9 of U.S. Patent No. 11908129.
Concerning claim 18, Biondo further teaches wherein the computing device is configured to communicate a command signal to a user interface for informing the subject that the start system of the vehicle is disabled based on the determination that the subject is at an unsafe level of impairment (figs. 4A-4B; ¶¶0063-0064).
Claim 20 of the instant application is not patentably distinct from claim 5 of U.S. Patent No. 11908129.
Claim 15 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11908129 in view of Whillock et al. (US 8226574 B2).
Here, claim 1 of U.S. Patent No. 11908129 recites an impairment analysis system comprising: a handheld image capture device that captures a plurality of images of an eye of a subject illuminated by ambient light over a period of time; a computing device comprising at least one processor and memory configured to: control a light source to emit light in a predetermined pattern for guiding the subject's eyes during capture of the plurality of images of the eye over the period of time; receive, from the image capture device, the captured plurality of images, wherein the images include pixels corresponding to a pupil, iris, background, or other features of the eye of the subject; maintain a database of machine learning analysis of other subject's normal eye movement in response to an applied light stimulus; classify pixels from the captured plurality of images as either pupil, iris, background, or other features of the eye of the subject based on the database of machine learning analysis; track movement of the classified pixels in the plurality of images over the period of time; analyze impairment of the subject based on the tracked movement as compared to the machine learning analysis in the database; and present, to a user, a result of the impairment analysis. The system of claim 1 of U.S. Patent No. 11908129 differs from claim 15 of the instant application herein in that it fails to disclose wherein the computing device is configured to identify the subject based on the captured images of the face or iris.
Whillock et al. teach an impaired subject detection system, wherein the computing device is configured to identify the subject based on the captured images of the face or iris (col. 3, ll. 20-30). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system of claim 1 of U.S. Patent No. 11908129 such that the impairment analysis system is configured to identify the subject based on the captured images of the face or iris, in order to obtain the identification of the subject (Whillock, Abstract).
Allowable Subject Matter
Claims 1-15 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES M ANDERSON II whose telephone number is (571)270-1444. The examiner can normally be reached Monday - Friday 10AM-6PM.
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/James M Anderson II/Primary Examiner, Art Unit 2425