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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/30/2026 has been entered. Claims 1 and 16 are amended. Claims 11-15 are cancelled. Claims 1-10 and 16-25 are currently pending in the application.
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 1-10 and 16-25 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more.
Step 1: Statutory Category?
Independent claims 1 and 16 respectively recite a computer-implemented method (i.e., a “process”), a non-transitory computer-readable medium (i.e., a “manufacture”) and a system (i.e., a “machine”). Thus, each of the claims recites a recognized statutory category of § 101. (Step 1: YES).
Step 2A – Prong 1: Judicial Exception Recited?
Independent claim 1, analyzed as representative of the claimed subject matter, is reproduced below. The limitations determined to be abstract ideas are shown in italics. The additional element(s) recited at a high level of generality are shown in bold. The limitation(s) determined to be extra-solution activity are underlined.
A method, comprising:
[L1] using one or more audio sensors to capture verbal communication from one or more users within a physical environment;
[L2] generating a textual representation of the verbal communication at the physical environment from the one or more users within the physical environment;
[L3] generating a communicated state of the physical environment at the physical environment based on the textual representation;
[L4] using one or more instruments to detect one or more measured characteristics of the physical environment;
[L5] determining an actual state of the physical environment based on the one or more measured characteristics of the physical environment as detected by the one or more instruments;
[L6] comparing the communicated state of the physical environment based on the textural representation with the actual state of the physical environment as detected by the one or more instruments; and
[L7] in response to the comparing, automatically displaying an alert with the physical environment to at least one of the one or more users.
The originally filed disclosure as reproduced in the published Specification discloses (¶¶ 2, 3) that “human instructors are typically responsible for the monitoring and assessment of students' communication skills during aviation training activities. The assessment of crew communication during training sessions conducted in flight training devices (e.g. flat panel trainers, full-flight simulators, or any other suitable flight training devices) is conducted by the human instructor who is facilitating the training session. This human-in-the-loop activity introduces subjectivity to the assessment process, potentially leading to misclassifications of communication performance and other errors. Further, access to expert human instructors is limited, which in turn limits the amount of training that can be conducted. Automated training systems are designed to provide greater opportunity for students to engage in training activities by reducing the reliance on expert human instructors”. The published Specification additionally discloses (¶ 67) that “a user (e.g., crewmember) can also be expected to communicate variables (e.g., unknown values). For example, a user could communicate the airspeed, or fuel level, of an aircraft”. Indeed, duties/responsibilities of crewmembers of an aircraft generally require observation and subsequent reporting on their observation which may be done verbally and/or in writing. It is apparent that, other than reciting the additional non-abstract limitations of the “one or more audio sensors”, “physical environment” and “one or more instruments” noted above, nothing in the claim precludes the steps from practically being performed by a human, in the mind, and/or using pen and paper. The mere nominal recitation of the “one or more audio sensors”, “physical environment” and “one or more instruments” does not take the claim out of the method of organizing human activity and mental processes groupings. Accordingly, the claim recites a judicial exception (Step 2A, Prong One: YES).
Step 2A – Prong 2: Integrated into a Practical Application?
The body of the claim, as shown above, recites the additional limitations of the “one or more audio sensors”, “physical environment” and “one or more instruments”. The i originally filed Specification, as published, provides supporting exemplary descriptions of generic computer components: at least ¶ 2: assessment of crew communication during training sessions conducted in flight training devices (e.g. flat panel trainers, full-flight simulators, or any other suitable flight training devices) is conducted by the human instructor who is facilitating the training session … ; ¶ 8: identifying one or more expected checklist items or procedures for an aircraft, and determining the communicated state of the physical environment by probabilistically matching a first phrase in the textual representation with a second phrase in the one or more expected checklist items or procedures; ¶ 34: the environment 302 can be a physical environment. This can include a flight training simulator, a flight deck, an autonomous vehicle command and control station, or any other suitable physical environment. In an aspect, physical environments may incorporate digital elements, such as computing devices. As a third example, the environment 302 can be a physical environment augmented with virtual elements displayed by a mixed reality device. These are merely examples, and the environment 302 can be any suitable environment; ¶ 67: a user (e.g., crewmember) can also be expected to communicate variables (e.g., unknown values). For example, a user could communicate the airspeed, or fuel level, of an aircraft. This airspeed or fuel level values are not known ahead of time, and thus cannot be directly matched to expected checklist values.
The lack of details about the “one or more audio sensors”, “physical environment” and “one or more instruments” indicates that these additional elements are generic, or part of generic computer elements performing or being used in performing the generic functions to “capture”, “detect” and for “providing an alert”. Any improvements provided by the claim are in the abstract realm, and they are insufficient to integrate the recited abstract idea into a practical application. SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018) (“What is needed is an inventive concept in the non-abstract application realm.”). See also Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 90 (2012) (holding that a novel and nonobvious claim directed to a purely abstract idea is, nonetheless patent-ineligible). Also see also Synopsys, 839 F.3d at 1151 (“[A] claim for a new abstract idea is still an abstract idea.”) (Emphasis omitted). The claim does not recite (i) an improvement to the functionality of a computer or other technology or technical field (see MPEP § 2106.05(a)); (ii) a “particular machine” to apply or use the judicial exception (see MPEP § 2106.05(b)); (iii) a particular transformation of an article to a different thing or state (see MPEP § 2106.05(c)); or (iv) any other meaningful limitation (see MPEP § 2106.05(e)). See 84 Fed. Reg. at 55. The claimed invention merely implements the abstract idea using instructions executed on generic computer components, as shown in bold type in Table One, and as supported in the above noted pertinent portions of the Specification. Thus, the instant claim merely uses a programmed computer as a tool to perform an abstract idea. See MPEP § 2106.05(f). Each of steps [L1] “capture verbal communications” (i.e., data gathering), [L4] “detect one or more measured characteristics” (i.e., data gathering), and [L7] “displaying an alert” (i.e., data presentation) as shown above, reflects the type of extra-solution activity (i.e., in addition to the judicial exception) the courts have determined insufficient to transform judicially excepted subject matter into a patent-eligible application. See MPEP § 2106.05(g); see also In re Bilski, 545 F.3d at 963 (characterizing data gathering steps as insignificant extra-solution activity); Elec. Power Grp., 830 F.3d at 1353 (holding that collecting information is an abstract idea). The instant claim as a whole merely uses computer instructions to implement the abstract idea on a computer or, alternatively, merely uses a computer as a tool to perform the abstract idea. Hence, the claim limitations amount to merely indicating a field of use or technological environment (a computer) in which to apply a judicial exception and, as such, cannot integrate the judicial exception into a practical application. See MPEP § 2106.05(h). Hence, as per MPEP §§ 2106.05(a)–(c), (e)–(h), the additional elements in representative claim 1, namely the “one or more audio sensors”, “physical environment” and “one or more instruments” do not, either individually or in combination, integrate the abstract idea into a practical application. Because the abstract idea is not integrated into a practical application, the claim is directed to the judicial exception. (Step 2A, Prong Two: NO).
Step 2B: Claim provides an Inventive Concept?
As discussed with respect to Step 2A Prong Two, the additional elements in the claim amount to no more than mere instructions to apply the exception using generic computer components. The same analysis applies here in Step 2B, i.e., mere instructions to apply an exception using generic computer components cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B. Because the Specification, as noted above (¶¶ 2, 8, 34, 67) describes the “one or more audio sensors”, “physical environment” and “one or more instruments” in general terms, without describing the particulars, the claim limitations may be broadly but reasonably construed as reciting conventional computer components and techniques, particularly in light of the published Specification sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See MPEP 2106.05(d), as modified by the USPTO Berkheimer Memorandum. Furthermore, the Berkheimer Memorandum, Section III (A)(1) explains that a specification that describes additional elements “in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a)” can show that the elements are well understood, routine, and conventional); Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The claimed mobile interface is so lacking in implementation details that it amounts to merely a generic component (software, hardware, or firmware) that permits the performance of the abstract idea, i.e., to retrieve the user-specific resources.” The generic description of the “one or more audio sensors”, “physical environment” and “one or more instruments” indicates the steps are well-known enough that no further description is required for a skilled artisan to understand the process. That is, the recited data gathering (i.e., [L1] “capture verbal communications”, [L4] “detect one or more measured characteristics”) and data presentation/transmission (i.e., [L7] “displaying an alert”), constitute insignificant extra-solution data gathering or data presentation and were nothing more than well-understood, routine, and conventional activities because they are not distinguished from the generic receiving, and obtaining of information with a computer. Mayo, 566 U.S. at 72–73; OIP Techs. v. Amazon.com, 788 F.3d 1359, 1363 (Fed. Cir. 2015) (presenting offers to potential customers, gathering statistics generated based on the testing about how potential customers responded to the offers, and using statistics to calculate an optimized price are merely data gathering steps); see also buySAFE, “[t]hat a computer receives and sends the information over a network—with no further specification—is not even arguably inventive.” 765 F.3d at 1355; see Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (“[W]e have recognized that merely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis.”). Hence, the additional elements are generic, well-known, and conventional computing elements. The use of the additional elements either alone or in combination amounts to no more than mere instructions to apply the judicial exception using generic computer components. Mere instructions to apply an exception using generic computer components cannot provide an inventive concept, and thus the claims are patent ineligible. (Step 2B: NO).
In regard to independent Claim 16:
Independent claim 16 recites “a system, comprising: a computer processor; and a memory having instructions stored thereon which, when executed on the computer processor, performs operations comprising” steps comparable to those of representative claim 1. Accordingly, independent claim 16 is rejected for reasons similar to those previously explained when addressing representative claim 1.
In regard to the dependent claims:
Dependent claims 2-10 and 17-25 include all the limitations of corresponding independent claims 1 and 16 from which they depend and, as such, recite the same abstract idea(s) noted above for corresponding independent claims 1 and 16. Any additional claim element is recited as being used according to its conventional purpose in a conventional manner. The Examiner fails to see any claim activity used in some unconventional manner nor does any produce some unexpected result. An invocation to use known technology in the manner it is intended to be used for its ordinary purpose is both generic and conventional. As per MPEP §§ 2106.05(a)–(c), (e)–(h), none of the limitations of claims 2-10 and 17-25 integrates the judicial exception into a practical application. Additionally, while dependent claims 2-10 and 17-25 may have a narrower scope than corresponding independent claims 1 and 16, no claim contains an “inventive concept” that transforms the corresponding claim into a patent-eligible application of the otherwise ineligible abstract idea(s). Therefore, dependent claims 2-10 and 17-25 are not drawn to patent eligible subject matter as they are directed to (an) abstract idea(s) without significantly more.
Response to Arguments
Applicant first argues that the “claims are eligible under the first prong of the Step 2A analysis because the features recited in the claims do not fall within any of the groupings identified in the MPEP”, that “a physical environment is a mechanical structure such as a flight training simulator, flight deck, or an autonomous vehicle command and control station”, that “When read in context of the Original Specification a human cannot generate a textual representation of a verbal communication at a flight training simulator, flight deck, autonomous vehicle command”, that “a human cannot generate a communicated state of such a mechanical device based on such a textual representation”, that “a human cannot generate a communicated state of such a mechanical device based on such a textual representation”, that “a human also cannot display an alert”, that “All of these represent components of a mechanical device (e.g. the physical environment) that are not mental processes that can be performed by a human” and that “These recitations are also the structure and accompanying that function that provide the improved result of the claim”. Applicant’s arguments have been fully considered but they are not persuasive as shown below.
The originally filed Specification, as published, supports the finding that representative claim 1 recites an abstract idea: “human instructors are typically responsible for the monitoring and assessment of students' communication skills during aviation training activities …access to expert human instructors is limited, which in turn limits the amount of training that can be conducted” (¶ 2); “a user (e.g., crewmember) can also be expected to communicate variables (e.g., unknown values). For example, a user could communicate the airspeed, or fuel level, of an aircraft” (¶ 67). Indeed, duties/responsibilities of crewmembers of an aircraft generally require observation and subsequent reporting on their observation which may be done verbally and/or in writing. The claims steps generally recite steps to collect information, analyze the information, and display results of the analysis. These steps constitute a mental process and, therefore, an abstract idea. See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167–68 (Fed. Cir. 2018) (holding claims for “selecting certain information, analyzing it using mathematical techniques, and reporting or displaying the results of the analysis” patent-ineligible and explaining that “the focus of the claims is not a physical-realm improvement but an improvement in wholly abstract ideas—the selection and mathematical analysis of information, followed by reporting or display of the results”). See also Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353–54 (Fed. Cir. 2016) (concluding that claims directed to “collecting information, analyzing it, and displaying certain results of the collection and analysis” were directed to a patent-ineligible abstract idea). Each of the “one or more audio sensors”, “physical environment” and “one or more instruments” is generically claimed and generically disclosed in the Specification. See originally filed Specification, as published (¶¶ 2, 8, 34, 67). Indeed, the Specification describes the “physical environment” technology generically at a high level that is merely applied to the abstract idea of monitoring and evaluation of crew communications. To the extent representative claim 1 reflects an improvement at all, that improvement, as described above, is, at best, an improvement to the abstract idea of monitoring and evaluation of crew communications which is not enough for patent eligibility. See SAP Am., 898 F.3d at 1170 (Fed. Cir. 2018). As a result, the Examiner maintains representative claim 1 recites an abstract idea, and that the claim does not include an additional element or a combination of additional elements that integrates the recited abstract idea into a practical application.
Applicant then argues “The Examiner agreed that claim 1 was novel and non-obvious accordingly.”, that “the use of the additional element one or more instruments and then comparing the textural representation generated by the additional element physical environment to the actual state detected is a novel and non-obvious methodology that then results in the additional element physical environment displaying an alert”, that “”, that “The physical displaying of the alert allows a user to be notified of discrepancies between the generated textural representation and the actual detected characteristics resulting in a practical application”, that “As a result, claims 1 and 16 and all claims that depend thereon are eligible for at least these reasons” and that “The Examiner has recognized this technical solution as both novel and non-obvious and the determining of the actual state and using it as a comparison for the generated textual representation and then displaying the alert with the physical environment is not post solution activity”. Applicant’s arguments have been fully considered but they are not persuasive as shown below.
Neither a finding of novelty nor a non-obviousness determination automatically leads to the conclusion that claimed subject matter is patent eligible. “Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the § 101 inquiry.” Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013). A novel and non-obvious claim directed to a purely abstract idea is, nonetheless, patent ineligible. See Mayo, 566 U.S. at 90; see also Diamond v. Diehr, 450 U.S. 175, 188–89 (1981) (“The ‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.”).
Applicant then alleges “addressing problems associated with automated training systems (e.g., physical environments) and the lack of crew communications available for training”, that “Applicant provides a physical environment that utilizes both sensors and one or more instruments to generate textual representations and compare them against the actual state of the physical environment thus providing a technical solution to the stated technical problem associated with the automated training systems” and that “the determining of the actual state and using it as a comparison for the generated textual representation and then displaying the alert with the physical environment is not post solution activity, instead, it is the solution”. Applicant’s arguments have been fully considered but they are not persuasive as shown below.
As noted earlier, each of the “one or more audio sensors”, “physical environment” and “one or more instruments” is generically claimed and generically disclosed in the Specification (¶¶ 2, 8, 34, 67). The claim focuses almost entirely on what the recited components do, not what they are. This is a hallmark of an abstract idea. In re TLI Commc'ns LLC Pat. Litig., 823 F.3d 607, 612 (Fed. Cir. 2016) (holding that structure defined in functional terms “is merely a conduit for the abstract idea.”). The claim steps of capturing, detecting and providing an alert are merely post-solution data gathering and presentation steps, which also cannot confer eligibility. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (“[W]e have recognized that merely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis.”). The claim steps of capturing, detecting, generating, comparing and providing an alert are well-understood, routine, and conventional functions previously known to the industry. See Elec. Power Grp., 830 F.3d at 1356 (The claims “do not include any requirement for performing the claimed functions of gathering, analyzing, and displaying in real time by use of anything but entirely conventional, generic technology. The claims therefore do not state an arguably inventive concept . . . .”).
In light of the foregoing, the Examiner maintains that each of Applicant’s claims 1-10 and 16-25 considered as a whole, is directed to a patent-ineligible abstract idea that is not integrated into a practical application and does not include an inventive concept.
Conclusion
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/EDDY SAINT-VIL/Primary Examiner, Art Unit 3715
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