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 .
Summary
Claims 1-33 are pending. Claims 17-33 are withdrawn due to a Restriction Requirement. Claims 1-16 are rejected herein. This is a First Action on the Merits. This action is in response to the election dated 05 Jan 2026 (hereinafter “the Response”).
Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on 05 Jan 2026 is acknowledged. The traversal on the grounds that there is unity of invention is unpersuasive. The Applicant has argued (page 3 of the Response) that because claim 17 depends from claim 15 which depends from claim 1, all of the claims have the same Unity of Invention. This argument has been fully considered and is not persuasive. Claims 17-33 are apparatus claims that recite structural limitations and depend from an apparatus claim with a processor that performs the method of claim 1. The scope of these claims is unclear because it is not apparent if the method is supposed to be within the scope of the apparatus claim or how that would affect the structure of the apparatus. The language in the preamble “in particular for the testing system of claim 15” is especially unclear. Furthermore, insofar as the special technical feature of claims 1-16 is the processing algorithm, the rejections below show that these specific algorithms are known in the art. Therefore, the special technical feature cited by the Applicant does not make a contribution to the art. The requirement is still deemed proper and is therefore made FINAL.
Drawings
FIG. 7 is objected for containing unlabeled boxes. Regarding the content of drawings 37 C.F.R. 1.83 (a) states:
(a) The drawing in a nonprovisional application must show every feature of the invention specified in the claims. However, conventional features disclosed in the description and claims, where their detailed illustration is not essential for a proper understanding of the invention, should be illustrated in the drawing in the form of a graphical drawing symbol or a labeled representation (e.g., a labeled rectangular box). In addition, tables and sequence listings that are included in the specification are, except for applications filed under 35 U.S.C. 371, not permitted to be included in the drawings.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim(s) 1 is/are objected to because of the following informalities. Appropriate correction is required.
Regarding claim 1: There is no antecedent basis for “the method” in line 1.
Claim Rejections - 35 USC § 112(b)
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.
Claim(s) 1-16 is/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.
Regarding claim 1: Claim 1 recites “providing options to process the raw data by at least a first and a second processing algorithm.” This limitation is indefinite. It is inherent in the next step “processing the raw data by at least one of the first and the second processing algorithm” that the user has the option to use one of the two algorithms. Therefore either the “providing options…” step means nothing and does not affect the scope of the claim or its meaning is unclear. The Examiner recommends deleting this step.
Regarding claims 3, 7, 9, 11, 12, 13, 14: All of these claims use the phrase “in particular” followed by a limitation. This is indefinite because it constitutes a broader limitation followed by a narrower one. See MPEP § 2173.05(c). The claims are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Please note that claims 7 and 13 both use “in particular” twice.
Regarding claim 14: There is no antecedent basis for “the impact position” therefore it is unclear if claim 14 was meant to depend from claim 1 or claim 11. Claim 14 is assumed to depend from claim 11.
Regarding 16: Claim 16 is directed to a “computer program” and depends from an apparatus claim, which depends from a method claim. It is impossible for a computer program to have all of the structural limitations of an apparatus, therefore the scope of claim 16 is unclear.
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 are rejected for failing to meet the requirements of 35 U.S.C. 101.
Regarding claim 16: Claim 16 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claim is a “computer program” which depends from a manufacture which depends from a method. The claim does not fit into one of the four categories of patent eligible subject matter.
Regarding claims 1-10: Claim(s) 1-10 rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) purely mathematical processing of data. This judicial exception is not integrated into a practical application because it is completely separate from any hardware or method steps of obtaining the data. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because while claim 1 mentions “a testing device,” this is only a statement of the origin of the data. Providing a testing device or using it to obtain data are not within the scope of the claim. Therefore, the scope of claims 1-10 are only directed to an algorithm for processing data. Therefore, claims 1-10 are directed to an abstract idea without significantly more and are not eligible subject matter under 35 U.S.C. 101. The Examiner recommends adding “providing a testing device” and “positioning the testing device at a measurement position in mechanical contact with the specimen” before “receiving from the measuring device, raw data representing acoustic waves that propagated through the specimen.” Claims 11-14 have not been rejected here because they explicitly recite using an impactor to generate the acoustic waves. Please note that claim 14 is assumed to depend from claim 11.
Claim Rejections - 35 USC § 102
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.
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-6, 8, 9, 11, and 13-16 is/are rejected under 35 U.S.C. 102(a1 and a2) as being anticipated by GUTHRIE et al. (US 2018/0011088).
Regarding claim 1: As best understood, GUTHRIE discloses: The method for non-destructively testing a specimen by acoustic waves (para. 41), comprising: receiving from a testing device (microphone 230 in FIG. 2) at a measurement position, in mechanical contact with the specimen (concrete surface in para. 41), raw data representing acoustic waves that propagated through the specimen (para. 33), providing options to process the raw data by at least a first and a second processing algorithm, and processing the raw data by at least one of the first and the second processing algorithm, wherein the first processing algorithm comprises deriving information about the specimen from multiple reflections of the acoustic waves (Many acoustic measurements are taken as discussed in para. 33.), wherein the second processing algorithm comprises deriving information about the specimen from a travel time of a single reflection of the acoustic waves (Such as wave speed within the concrete as discussed in para. 51. This is determined from a single reflection/echo and the difference in time it takes to reach two different microphones.).
Regarding claim 2: As best understood, GUTHRIE discloses: the first processing algorithm includes determining a frequency spectrum of the raw data (para. 43), in particular by applying a Fourier transform to the raw data (para. 43).
Regarding claim 3: As best understood, GUTHRIE discloses: the first processing algorithm includes using frequency components of the raw data with frequencies up to at least 15 kHz, in particular up to at least 20 KHz (FIGS. 14A and 14B show frequency responses in this range.).
Regarding claim 4: As best understood, GUTHRIE discloses: the first processing algorithm includes determining a dominant frequency component in the frequency spectrum (Different resonant frequencies based on the integrity of the concrete in para. 39).
Regarding claim 5: As best understood, GUTHRIE discloses: receiving, from the testing device, raw data from several different measurement positions (Taking data while traversing the concrete surface in para. 33), and compiling a data set comprising the dominant frequency component per measurement position, in particular displaying the data set as a heat map (FIG. 17A is a heat map of the surface of a two lane brige. Para 115).
Regarding claim 6: As best understood, GUTHRIE discloses: detecting a deviating dominant frequency component, which deviates from other dominant frequency components in the data set, and in particular attributing the deviating dominant frequency component to a defect located at the corresponding measurement position (Different resonant frequencies based on the integrity of the concrete in para. 39).
Regarding claim 8: As best understood, GUTHRIE discloses: the second processing algorithm includes evaluating the raw data in time domain (para. 64).
Regarding claim 9: As best understood, GUTHRIE discloses: the second processing algorithm includes using frequency components of the raw data with frequencies up to 10 kHz and in particular above 100 Hz (FIGS. 14A and 14B show using frequencies up to 5 kHz.).
Regarding claim 11: As best understood, GUTHRIE discloses: generating the acoustic waves at an impact position on the specimen, in particular by letting an impactor impact on the specimen (para. 41).
Regarding claim 13: As best understood, GUTHRIE discloses: generating the acoustic waves includes triggering an automatic impactor to hit the specimen (para. 33), in particular wherein the impact position is located at a known distance from the measurement position, and in particular wherein the method further comprises determining a speed of sound in the specimen based on the known distance (para. 51).
Regarding claim 14: As best understood, GUTHRIE discloses: generating the acoustic waves at the impact position repetitively, thereby generating several raw signals, averaging over the several raw signals at one measurement position (para. 72), in particular before determining the travel time.
Regarding claim 15: As best understood, GUTHRIE discloses: A testing system comprising: a testing device comprising an acoustic wave sensor (microphone 230 in FIG. 2), a processing unit (controller 105 in FIG. 8) adapted to execute the method of claim 1, in particular a first processor adapted to execute the first processing algorithm and a second processor adapted to execute the second processing algorithm.
Regarding claim 16: As best understood, GUTHRIE discloses: A computer program comprising instructions to cause the testing system of claim 15 to receive from the testing device at a measurement position, in mechanical contact with the specimen, raw data representing acoustic waves that propagated through the specimen, provide options to process the raw data by at least a first and a second processing algorithm, and process the raw data by at least one of the first and the second processing algorithm, wherein the first processing algorithm comprises deriving information about the specimen from multiple reflections of the acoustic waves, wherein the second processing algorithm comprises deriving information about the specimen from a travel time of a single reflection of the acoustic waves (This is the software installed in the controller 105 in FIG. 8 to perform the steps as discussed in the rejection of claim 1.).
Claim(s) 1 and 7 is/are rejected under 35 U.S.C. 102(a1 and a2) as being anticipated by HIRONAKA et al. (JP 2002267639). A machine translation of HIRONAKA has been included with this office action. All references to text in HIRONAKA are to the attached machine translation.
Regarding claim 1: As best understood, HIRONAKA discloses: The method for non-destructively testing a specimen by acoustic waves (para. 1), comprising: receiving from a testing device (para. 16) at a measurement position, in mechanical contact with the specimen (para. 16), raw data representing acoustic waves that propagated through the specimen (para. 16), providing options to process the raw data by at least a first and a second processing algorithm (different processes described in para. 31 and 35), and processing the raw data by at least one of the first and the second processing algorithm, wherein the first processing algorithm comprises deriving information about the specimen from multiple reflections of the acoustic waves (para.31), wherein the second processing algorithm comprises deriving information about the specimen from a travel time of a single reflection of the acoustic waves (para. 35).
Regarding claim 7: As best understood, HIRONAKA discloses: the first processing algorithm comprises determining a thickness of the specimen (para. 38), in particular based on the dominant frequency component, in particular wherein the specimen has a plate-like shape with the acoustic waves propagating transversally to the plate-like shape.
Claim Rejections - 35 USC § 103
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.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over HIRONAKA in view of HIROSE (JP H09189599). A machine translation of HIROSE has been provided with this office action. All references to text in HIROSE are to the attached machine translation.
Regarding claim 10: As best understood, HIRONAKA does not disclose using the sensor to determine the length of a pile-like shaped specimen.
HIROSE however does teach a concrete pile (31 in FIG. 75) and using an acoustic sensor (6, 7) to measure the length of the pile based on travel time (para. 116).
One skilled in the art at the time the application was effectively filed would be motivated to use the device of HIRONAKA to measure the length of a pile as taught by HIROSE because it may be buried and its length unknown (para. 115 of HIROSE).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over GUTHRIE.
Regarding claim 12: As best understood, GUTHRIE discloses: generating the acoustic waves includes hitting the specimen, in particular with an impact hammer (para. 33).
GUTHRIE discloses doing this automatically (para. 33) and so does not specify that it is done manually.
It is obvious that one skilled in the art could use an impactor manually to test a small spot instead of the automated system of GUTHRIE that scans an entire road lane while continuously moving.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHANIEL J KOLB whose telephone number is (571)270-7601. The examiner can normally be reached M-F 9-5 EST.
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/NATHANIEL J KOLB/Examiner, Art Unit 2896