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 .
Drawings
The drawings are objected to because the text in FIG. 2 is generally hard to read. 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 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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Each of Claims 1-20 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1-20 recites at least one step or instruction for activating an alert of present/future intoxication, which is grouped as a mental process under the 2019 PEG. Accordingly, each of Claims 1-20 recites an abstract idea.
Specifically, Claims 1 and 14 recite detecting alcoholic content of a user and performing steps to determine future alcoholic content and reporting/performing an alert (observation, judgment or evaluation, which is grouped as a mental process under the 2019 PEG);
Further, dependent Claims 2-13 and 15-20 merely include limitations that either further define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed.
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Step 2A, Prong 2
The above-identified abstract idea in each of independent Claims 1 and 14 (and their respective dependent Claims 2-13 and 15-20) is not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claims 1 and 14), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use. More specifically, the additional elements of: a sensor are generically recited computer elements in independent Claims 1 and 14 (and their respective dependent claims) which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea identified above in independent Claims 1 and 14 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer (e.g., the sensor as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1 and 14 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claims 1 and 14 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B
None of Claims 1-20 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: a sensor.
The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Accordingly, in light of Applicant’s specification, the claimed term is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the sensor. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these 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) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1-20amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the method of Claims 1-20 are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself, or (ii) providing a technical solution to a problem in a technical field. None of Claims 1-20 provides meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1 and 14 (and their dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1-20 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1-20 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1-20 are not patent eligible and rejected under 35 U.S.C. 101.
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 1-20 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.
The term “present” BAC/impairment and “future” BAC/impairment are relative terms which render the claims indefinite. The terms “present” BAC, “future” BAC and “impairment” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. While BAC is a known term in the art, the limitations of “present”, “future” and “impairment” are not standardized terms. The specification provides no definition of what comprises “present”, therefore, a “future” cannot be determined. Furthermore, “impairment” is not directly related to BAC in the specification. In para. [0004] the specification lists BAC levels and correlates them to physical symptoms and in para. [0037] the specification defines impairment using a 0 to 100 scale, but there is not a link between the two. For purposes of examination the indefinite limitation has been deemed to claim where a present BAC is a first measurement and a future BAC is a estimated measurement after the first measurement and where impairment generally relates to being intoxicated.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(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.
Claim(s) 1-6, 10-16 and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 20170027504 A1 to Nothacker et al. (hereinafter, Nothacker).
Regarding Claims 1, 2, 4 and 14, Nothacker discloses a computer-implemented method for evaluating and predicting impairment in a subject, the method comprising (para. [0023] “As shown in FIG. 1A, an embodiment of a method 100 for monitoring intoxication of a user includes… receiving a set of signals… determining a set of values of an intoxication metric, derived from the set of signals… generating a predicted temporal profile of the intoxication metric…”) (para. [0024] “The method 100 functions to provide a tool that allows a user to monitor his/her alcohol consumption… can provide short-term and/or long-term predictions of a state of the user…”) inter alia:
a) detecting a blood alcohol content using one or more sensors on a wearable device (para. [0026] “…implementing features of a wearable mobile computing device… wrist-borne mobile computing device… allow a user to be actively informed of his/her sobriety…”) (para. [0046] “…determining the value of the intoxication metric comprises determining a value of a BAC of the user… analyzing a magnitude of an electrical signal… produced when alcohol in the user's breath reacts with a sensing element…”) (paras. [0079-0080] describe the sampling processing module (sensor) housing within the body of the device);
b) detecting one or more physiological events using one or more sensors on a wearable device (para. [0042] “… receiving a supplementary dataset characterizing at least one of a demographic profile of the user… can be determined based upon… biometric information (e.g., heart rate, respiration rate, pupilometric information, neural activity information, etc.)…”) (para. [0091] “…system 200 can additionally include a supplementary sensing module 280… a biometric sensor 285 (e.g., heart rate monitor, respiration sensor, blood pressure sensor, electroencephalogram activity sensor, etc.)…”);
c) determining a present level of impairment based on the blood alcohol content and the one or more physiological events (para. [0023] “As shown in FIG. 1A, an embodiment of a method 100 for monitoring intoxication of a user includes… receiving a set of signals… determining a set of values of an intoxication metric, derived from the set of signals…”) (para. [0049] describes adjusting the user’s intoxication analysis based on “biometric information” and “stress state”);
d) estimating a future level of impairment based on the blood alcohol content and the one or more physiological events (para. [0023] “As shown in FIG. 1A, an embodiment of a method 100 for monitoring intoxication of a user includes… receiving a set of signals… determining a set of values of an intoxication metric, derived from the set of signals… generating a predicted temporal profile of the intoxication metric for the user based upon the set of values, the set of time points, and the supplementary dataset…”) (para. [0049] “…predicted temporal profile can incorporate an increased alcohol absorption rate... if the supplementary dataset includes biometric data indicating that the user is experiencing stress (e.g., fast heart rate, fast respiration rate, large pupil diameter, high neural activity, etc.).”);
e) reporting the present level of impairment and future level of impairment to a server (para. [0023] “…transmitting at least one of the predicted temporal profile [future level], the analysis [present level], and the notification to an entity…” and detailed in para. [0071]) (para. [0090] “The storage module 270 can be implemented with… external server (e.g., cloud)… in a network configured to transmit, store, and receive data. Preferably, data from the storage module 270 is automatically transmitted to any appropriate external device continuously…”);
f) activating an alert system if the present level of impairment/alcohol content and the future level of impairment/content is at or above a threshold level (para. [0060] “providing a notification… automatically based upon a given alert state (e.g., an automated notification upon detection that the user is entering a dangerous intoxication state)… informs the user that he or she is: currently above a legal limit of intoxication (e.g., for operating a vehicle)…”) (paras. [0060-0061] describe notifications of current intoxication state and additional notifications of predicted future intoxication states).
Regarding Claim 3, 15, Nothacker discloses wherein the one or more physiological events are selected from eye/pupil activity, heart rate, change in heart rate, bodily movement, temperature, change in temperature, blood pressure, change in blood pressure, respiration rate, level of oxygen saturation, perspiration rate and blood glucose level (para. [0042] “…biometric information (e.g., heart rate, respiration rate, pupilometric information, neural activity information, etc.)…”).
Regarding Claims 5 and 16, Nothacker discloses wherein historical data is used in the step of estimating a future level of impairment (para. [0051] “…historical dataset (e.g., including at least one previously generated performance dataset and at least one previously generated predicted temporal profile) from the user can be used to refine predictions of alcohol absorption and/or elimination characteristics of the user, to increase the accuracy of the predicted temporal profile…”).
Regarding Claim 6, Nothacker discloses wherein the threshold blood alcohol content is 0.08% (para. [0063] “… an identified BAC in the range of 0.060-0.090…”).
Regarding Claim 10, Nothacker discloses wherein the alert system notifies one or more of a parent, employer, probation officer, insurance company, ride share agent, tow truck operator, group leader or custodial agent (para. [0024] “…wherein information related to a user's intoxication-induced behavior and/or physiological state can be communicated to another entity (e.g., a supervisor, a caretaker, a family member, an acquaintance)...”).
Regarding Claim 11, Nothacker discloses the computer-implemented method of claim 1, wherein the alert system comprises geographical location information (para. [0036] “…location detection (e.g., by a GPS)…”).
Regarding Claim 12, Nothacker discloses the computer-implemented method of claim 1, wherein the future blood alcohol content is estimated for a future time point, wherein the future time point is between 15 to 120 minutes from a present time (para. [0047] discusses two hours [120 minutes], para. [0056] discusses 15-20 minutes).
Regarding Claims 13 and 20, Nothacker discloses a step of encrypting data related to identity of the subject (para. [0087] “The data encryption may also comply with standards such as the Data Encryption Standard (DES), Triple Data Encryption Standard (3-DES), or Advanced Encryption Standard (AES).”).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 9 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nothacker.
Nothacker discloses the claimed invention as set forth and cited above except for expressly disclosing in a single embodiment wherein the blood alcohol content is detected transdermally. However, Nothacker teaches at para. [0029] “Furthermore, the set of samples can include any one or more of: breath samples (e.g., samples collected at a breathalyzer unit), urine samples, blood samples, interstitial fluid samples, and any other suitable sample that can be used to assess the user's intoxication.” and teaches at para. [0030] “Furthermore, in some variations, the set of signals can be received without directly collecting samples from the user; for example, the set of signals can be generated in an indirect manner, as derived from an interaction between a stimulus and the user's body (e.g., spectrometer-based analysis of light transmitted from a user's blood vessels).” From the teachings of paras. [0029] and [0030], one having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the breath analysis of Nothacker to be the transdermal blood alcohol content as also contemplated by Nothacker, because Nothacker teaches in these paragraphs that this method would have been a suitable and noninvasive manner of blood alcohol detection.
Claim(s) 7, 8, 17 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nothacker in view of US 20210113153 A1 to Nothacker et al. (hereinafter, ‘153).
Nothacker discloses the claimed invention as set forth and cited above except for expressly disclosing wherein the step of estimating the future level of impairment uses a data model selected from a linear regression model, a polynomial regression model, a naive Bayes model and a gradient boosted model. However, ‘153 teaches a method for monitoring the intoxication of a user in the Abstract and teaches at para. [0104] where future levels of impairment can be estimated uses a naïve Bayes model. One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the estimation of future level of impairment of Nothacker to be modeled using the Bayes model of ‘153 as ‘153 teaches at the end of para. [0104] that this would have been a suitable model for determining intoxication of a user.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN PATRICK DOUGHERTY whose telephone number is (571)270-5044. The examiner can normally be reached 8am-5pm (Pacific Time).
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/SEAN P DOUGHERTY/Primary Examiner, Art Unit 3791