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 .
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:
“microprocessor” performing the computer implemented means-plus-function of “calculating a roughness value indicating a roughness of surface of the road corresponding to a predetermined period based on the driving information of the plurality of vehicles driving on the road during the predetermined period; and wherein calculating the roughness value corresponding to a second predetermined period after a first predetermined period, estimating whether or not a magnitude of a change rate of the roughness value corresponding to the second predetermined period with respect to the roughness value corresponding to the first predetermined period exceeds a predetermined threshold to acquire, in a case where the magnitude of the change rate is estimated to exceed the predetermined threshold, more pieces of the driving information to be used for calculating the roughness value corresponding to the second predetermined period than in a case where the magnitude of the change rate is estimated to be equal to or less than the predetermined threshold” in claim 1; however the examiner was unable to find supporting structure in applicant’s filed disclosure of the algorithmic steps of the calculative process.
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 1-8 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 1 recites “the microprocessor is configured to perform…calculating a roughness value indicating a roughness of surface of the road corresponding to a predetermined period based on the driving information of the plurality of vehicles driving on the road during the predetermined period”. The examiner was unable to determine the mete and bounds of the “calculating” from applicant’s filed specification; as the specification is devoid of adequate structure to perform the claimed function of the microprocessor. In particular, the specification states the claimed function of calculating the road roughness but details no structure of the algorithmic process. As would be recognized by those of ordinary skill in the art, the term “calculating” refers to something involved in computing, estimating, or performing mathematical operations and can be performed in any number of ways in hardware, software or a combination of the two. The specification does not provide sufficient details such that one of ordinary skill in the art would understand what calculations are being used to perform the claimed function of the microprocessor.
Further, claim 1 recites “estimating whether or not a magnitude of a change rate of the roughness value corresponding to the second predetermined period with respect to the roughness value corresponding to the first predetermined period exceeds a predetermined threshold” is unclear. The use of the word “estimating” adds confusion because it relies on subjective judgment rather than objective measurement. Therefore, clarification is required.
In addition, “a magnitude of a change of rate of the roughness value” is unclear. When and how is this value determined? Clarification is required.
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. As described above, the disclosure does not provide adequate structure of the microprocessor to perform the claimed function of calculating. The specification does not demonstrate that applicant has made an invention that achieves the claimed function because the invention is not described with sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor had possession of the claimed invention.
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 1-8 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 1 recites calculating a roughness value indicating a roughness of surface of the road corresponding to a predetermined period based on the driving information of the plurality of vehicles driving on the road during the predetermined period; and wherein calculating the roughness value corresponding to a second predetermined period after a first predetermined period, estimating whether or not a magnitude of a change rate of the roughness value corresponding to the second predetermined period with respect to the roughness value corresponding to the first predetermined period exceeds a predetermined threshold to acquire, in a case where the magnitude of the change rate is estimated to exceed the predetermined threshold, more pieces of the driving information to be used for calculating the roughness value corresponding to the second predetermined period than in a case where the magnitude of the change rate is estimated to be equal to or less than the predetermined threshold which has been identified as an abstract idea falling into the abstract idea groupings of both mathematical concepts and mental concepts.
The limitation directed towards the calculating a roughness value, under the broadest reasonable interpretation as best understood in light of applicant’s filed specification, involve mathematical operations for performing the calculation of a roughness value during the first and second predetermined periods. In addition, estimating whether or not a magnitude of a change rate of the roughness value corresponding to the second predetermined period with respect to the roughness value corresponding to the first predetermined period exceeds a predetermined threshold to acquire, in a case where the magnitude of the change rate is estimated to exceed the predetermined threshold, more pieces of the driving information to be used for calculating the roughness value corresponding to the second predetermined period than in a case where the magnitude of the change rate is estimated to be equal to or less than the predetermined threshold. The identified limitation involves observations that establish an initial baseline condition of the roughness of the road. A re-evaluation is then performed during a second period to see if conditions have changed by performing a simple threshold check. If the rate of change is greater, more data collection is triggered. The simple comparison of data is capable of being performed in the human mind with the aid of pen and paper.
This judicial exception is not integrated into a practical application because the additional element of a microprocessor and a memory connected to the microprocessor merely read as tools for performing the identified abstract ideas; as neither the performance or result of the abstract idea improve these generically claimed computer elements. MPEP 2106.05(a)
The additional elements of a plurality of vehicles and a road are considered to generically link the abstract ideas to a field of use; as neither the performance or result of the abstract ideas improve these generically claimed elements. MPEP 2106.05(h)
The additional element related to the step of “acquiring driving information of each of a plurality of vehicles, including acceleration information indicating acceleration of each of the plurality of vehicles and map information including information of a road where the plurality of vehicles have driven” reads merely as an insignificant extra-solution data gathering step; as the gathered data is merely used by the abstract idea without bettering the data gathering step. Therefore, the acquiring steps fails to integrate the abstract ideas into a practical application. MPEP 2106.05(g)
Lastly, the “outputting roughness information including the roughness value in association with the information of the road included in the map information” merely reads as an instruction to apply the exception; as the outputting data is a nominal addition to the claim. Outputting the results of a calculative and mental process is well-known; see U.S. Pub. No. 2017/0307368 which teaches in the Abstract, displaying the results of road roughness determinations. Therefore, the additional element does not integrate the abstract ideas into a practical application. MPEP 2106.05(g)
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the generically claimed computer elements are not improved during the performance or result of the abstract idea. The limitation directed towards acquiring data relative to the vehicle merely feeds the abstract ideas the needed data to perform the abstract ideas. The collected and outputted data does nothing to improve the vehicle or road. Therefore, the additional elements are not sufficient to amount to significantly more than the abstract ideas themselves.
Claim 2 recites “to perform the acquiring including, in case where the magnitude of the change rate is estimated to exceed the predetermined threshold, changing a start point of the second predetermined period to extend the second predetermined period” further defines the abstract idea falling into the abstract idea grouping of mental concepts, as changing a start point based on the comparison to a threshold is capable of being performed in the human mind. Further, the recited “acquiring the driving information of the plurality of vehicles corresponding to the second predetermined period after extension” merely reads as an insignificant data gathering step; as the gathered data is merely used by the abstract idea without bettering the data gathering step. Therefore, the acquiring steps fails to integrate the abstract ideas into a practical application or amount to significantly more. MPEP 2106.05(g)
Claim 3 recites “to perform the acquiring including, in case where the magnitude of the change rate is estimated to exceed the predetermined threshold, changing an end point of the second predetermined period to extend the second predetermined period” further defines the abstract idea falling into the abstract idea grouping of mental concepts, as changing a start point based on the comparison to a threshold is capable of being performed in the human mind. Further, the recited “acquiring the driving information of the plurality of vehicles corresponding to the second predetermined period after extension” merely reads as an insignificant data gathering step; as the gathered data is merely used by the abstract idea without bettering the data gathering step. Therefore, the acquiring steps fails to integrate the abstract ideas into a practical application or amount to significantly more. MPEP 2106.05(g)
Claim 4 further defines the insignificant activity of data gathering based on the result of the abstract idea. MPEP 2106.05(g) Further, the claimed “a vehicle other than the plurality of vehicles” generically links the abstract ideas to a field of use without providing significantly more or integrating the abstract ideas into a practical application; as neither the performance or result of the abstract ideas improves the generically claimed elements. MPEP 2106.05(h)
Claim 5 further defines the interval of data gathering and the abstract idea “threshold” without providing significantly more or integrating the abstract idea into a practical application.
Claim 6 recites “the memory stores the driving information of the plurality of vehicles corresponding to each of the first predetermined period and the second predetermined period, and the microprocessor is configured to further perform in a case where the magnitude of the change rate exceeds the predetermined threshold and the roughness value corresponding to the second predetermined period is smaller than the roughness value corresponding to the first predetermined period, deleting the driving information corresponding to the first predetermined period from the memory”. The limitation further defines the additional elements of the generically claimed computer elements, i.e. microprocessor and memory. The examiner considers storing and deleting, as claimed, as ordinary and well-known actions performed by conventional microprocessors and memories. Therefore, the examiner considers these additional elements as acting as tools for performing the abstract ideas without integrating the abstract idea into a practical application or providing significantly more.
Claim 7 further defines the abstract idea falling into the abstract idea grouping of mental concepts by reciting to further perform determining whether or not there is a road surface change point where the magnitude of the change rate exceeds the predetermined threshold on the road. Additionally, the claim further defines the insignificant extra-solution activity of data gathering based on the results of the abstract idea without bettering or improving the data gathering step. The claim merely defines conditional states that are capable of being performed in the human mind and then gathering data based on if those conditions are met. Therefore, the claim fails to provide significantly more or integrate the abstract ideas into a practical application.
Claim 8 recites “the memory stores the driving information of the plurality of vehicles corresponding to each of the first predetermined period and the second predetermined period, and the microprocessor is configured to further perform in a case where the roughness value corresponding to the second predetermined period is smaller than the roughness value corresponding to the first predetermined period, deleting the driving information corresponding to the road surface change point from the memory”. The limitation further defines the additional elements of the generically claimed computer elements, i.e. microprocessor and memory. The examiner considers storing and deleting, as claimed, as ordinary and well-known actions performed by conventional microprocessors and memories. Therefore, the examiner considers these additional elements as merely acting as tools for performing the abstract ideas without integrating the abstract idea into a practical application or providing significantly more.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Sasaki et al. (2017/0307368) which teaches measure a road surface property using measurement results and determination results of a road surface in the past.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW G MARINI whose telephone number is (571)272-2676. The examiner can normally be reached Monday-Friday 8am-5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Stephen Meier can be reached at 571-272-2149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATTHEW G MARINI/Primary Examiner, Art Unit 2853
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