DETAILED ACTION
1. Claims 1-19 of application 18/603,300, filed on 13-March-2024, are presented for examination.
The present application, filed on or after 16-March-2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections under 35 U.S.C. § 101
2.1 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 therefore, subject to the conditions and requirements of this title.
2.2 Claim 7 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 7: Fine tuning work modes for heavy equipment [generic linking to technical field, 2106.05(h)], comprising:
a programmable controller includes control software, said programmable controller receives performance data from an engine, said performance data is monitored by said control software [pre-solution activity (data gathering), 2106.05(g) using generic sensors, generic link to technical field, 2106.05(h)];
a control panel includes a work mode selection device; and a display interface includes a power and application indicator display, an engine rpm adjustment dial, an engine rpm display and a work mode display, movement of said engine rpm adjustment dial is displayed on said engine rpm display, movement of said work mode dial is displayed on said work mode display [applying the abstract idea using generic computing module, Apply it 2106.05(f)],
data from said work mode selection device and said performance data from the engine are calculated by said control software [mathematical concepts and mental process/step] and displayed on said power and application indicator display, wherein adjustment of said engine rpm and said work mode selection device by an operator is capable of optimizing the operation of a piece of heavy equipment [insignificant post-solution activity (outputting results of the mental process) 2106.05(g)].
101 Analysis – Step 1: Statutory Category - Yes
The claim recites a process including at least one step. Therefore, the claim falls within one of the four statutory categories [see MPEP 2106.03].
101 Analysis – Step 2A/Prong 1: Judicial Exception – Yes
In Step 2A/Prong 1 of the 2019 Patent Eligibility Guidance (PEG), a claim is to be analyzed to determine whether it recites subject matter that falls within one of the following groups of abstract ideas: a) mathematical concepts, b) certain methods of organizing human activity, and/or c) mental processes [see MPEP 2106(A)(II)(1) and MPEP 2106.04(a)-(c)].
The Office submits that the foregoing bolded limitation(s) constitutes judicial exceptions in terms of “mathematical concepts and mental processes” because under its broadest reasonable interpretation, the limitations can be “performed in the human mind, or by a human using a pen and paper” [see MPEP 2106.04(a)(2)(III)].
The claim recites the limitation(s) of data from said work mode selection device and said performance data from the engine are calculated by said control software. This limitation, as drafted, is a simple process that, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of “by said control software”. That is, other than reciting “by said control software”, nothing in the claim elements precludes the step from practically being performed in the mind. For example, but for the “by said control software” language, the claim encompasses a person looking at data collected and forming a simple judgement. The mere nominal recitation of by sad control software does not take the claim limitations out of the mental process grouping.
Thus, the claim recites a mathematical concept and a mental process.
101 Analysis – Step 2A/Prong 2: Practical Application - No
In Step 2A/Prong 2 of the 2019 PEG, a claim is to be evaluated whether, as a whole, it integrates the recited judicial exception into a practical application. As noted in MPEP 2106.04(d), it must be determined whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.
The courts have indicated that additional elements such as: (1) Merely reciting the words “apply it” (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea (2106.05(f)); (2) Adding insignificant extra-solution activity to the judicial exception (2106.05 (g)); and/or (3) generic/generally linking the use of a judicial exception to a particular technological environment or field of use (2106.05 (h)), do not integrate a judicial exception into a practical application.
The Office submits that the foregoing underlined limitation(s) recite additional elements that do not integrate the recited judicial exception into a practical application.
The claim recites additional elements or steps of a programmable controller includes control software, said programmable controller receives performance data from an engine, said performance data is monitored by said control software; a control panel includes a work mode selection device; and a display interface includes a power and application indicator display, an engine rpm adjustment dial, an engine rpm display and a work mode display, movement of said engine rpm adjustment dial is displayed on said engine rpm display, movement of said work mode dial is displayed on said work mode display; and displayed on said power and application indicator display, wherein adjustment of said engine rpm and said work mode selection device by an operator is capable of optimizing the operation of a piece of heavy equipment. The receiving of data from the engine step is recited at a high level of generality (i.e. as a general means of gathering equipment data for use in the calculating step), and amounts to mere data gathering, which is a form of insignificant extra-solution activity. The displaying steps are also recited at a high level of generality (i.e. as a general means of displaying the equipment data resulting from the calculating step), and amounts to mere post solution displaying, which is a form of insignificant extra-solution activity. The “control panel” merely describes how to generally “apply” the otherwise mental judgements using a generic or general-purpose equipment control environment, i.e. a computer. The programmable controller is recited at a high level of generality and merely automates the calculating step. Accordingly, even in combination, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea.
101 Analysis – Step 2B: Inventive Concept - No
In Step 2B of the 2019 PEG, a claim is to be evaluated as to whether the claim, as a whole, amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim [see MPEP 2106.05].
As discussed with respect to Step 2A/Prong 2, the additional elements in the claim amount to no more than mere instructions to apply the exception as a general means of gathering equipment data for use in the calculating step, and amounts to mere data gathering, which is a form of insignificant extra-solution activity. The same analysis applies here in 2B, i.e., mere instructions to apply an exception on a generic computer cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
In addition to determining whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception, it is noted that the phrase “capable of” does not provide a practical application or an inventive concept that positively recites a real-world application of control of the calculated data, but merely states that the invention is capable of doing so.
Independent claim 1 is similar in scope to claim 7, and is therefore rejected under the same rationale as detailed above in regard to claim 7.
Dependent claims 2-6 and 8-12 do not recite any further limitations that cause the claim(s) to be patent eligible. Rather, the limitations of the dependent claims are directed toward additional aspects of the judicial exception and/or well-understood, routine and conventional additional elements that do not integrate the judicial exception into a practical application Therefore, dependent claims 2-6 and 8-12 are not patent eligible under the same rationale as provided for in the rejection of independent claims 1 and 7.
Therefore, claims 1-12 are ineligible under 35 USC §101.
2.3 Claim 14 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 14: The fine tuning of work modes for heavy equipment [generic linking to technical field, 2106.05(h)], comprising:
a programmable controller includes control software [pre-solution activity (generic link to technical field, 2106.05(h)], said control software includes a tuning algorithm for recording commonly used engine rpm and work mode combinations for attachment settings in an algorithm database [mathematical concepts]; and
a manual override button and a toggle algorithm button, wherein said manual override button is capable of overriding manual settings [applying the abstract idea using generic computing module, Apply it 2106.05(f)], said toggle algorithm button is capable of displaying different combinations of engine rpm and work mode for specific attachments [insignificant post-solution activity (outputting results of the mental process) 2106.05(g)].
101 Analysis – Step 1: Statutory Category - Yes
The claim recites a process including at least one step. Therefore, the claim falls within one of the four statutory categories [see MPEP 2106.03].
101 Analysis – Step 2A/Prong 1: Judicial Exception – Yes
In Step 2A/Prong 1 of the 2019 Patent Eligibility Guidance (PEG), a claim is to be analyzed to determine whether it recites subject matter that falls within one of the following groups of abstract ideas: a) mathematical concepts, b) certain methods of organizing human activity, and/or c) mental processes [see MPEP 2106(A)(II)(1) and MPEP 2106.04(a)-(c)].
The Office submits that the foregoing bolded limitation(s) constitutes judicial exceptions in terms of “mathematical concepts” because under its broadest reasonable interpretation, the limitations can be “performed in the human mind, or by a human using a pen and paper” [see MPEP 2106.04(a)(2)(III)].
The claim recites the limitation(s) of said control software includes a tuning algorithm for recording commonly used engine rpm and work mode combinations for attachment settings in an algorithm database. This limitation, as drafted, is a simple process that, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of “control software”. That is, other than reciting “control software”, nothing in the claim elements precludes the step from practically being performed in the mind. For example, but for the “control software” language, the claim encompasses a person looking at data collected and forming a simple judgement. The mere nominal recitation of by sad control software does not take the claim limitations out of the mental process grouping.
Thus, the claim recites a mathematical concept.
101 Analysis – Step 2A/Prong 2: Practical Application - No
In Step 2A/Prong 2 of the 2019 PEG, a claim is to be evaluated whether, as a whole, it integrates the recited judicial exception into a practical application. As noted in MPEP 2106.04(d), it must be determined whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.
The courts have indicated that additional elements such as: (1) Merely reciting the words “apply it” (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea (2106.05(f)); (2) Adding insignificant extra-solution activity to the judicial exception (2106.05 (g)); and/or (3) generic/generally linking the use of a judicial exception to a particular technological environment or field of use (2106.05 (h)), do not integrate a judicial exception into a practical application.
The Office submits that the foregoing underlined limitation(s) recite additional elements that do not integrate the recited judicial exception into a practical application.
The claim recites additional elements or steps of a programmable controller includes control software; a manual override button and a toggle algorithm button, wherein said manual override button is capable of overriding manual settings, said toggle algorithm button is capable of displaying different combinations of engine rpm and work mode for specific attachments. The displaying steps are recited at a high level of generality (i.e. as a general means of displaying the equipment data resulting from the tuning step), and amounts to mere post solution displaying, which is a form of insignificant extra-solution activity. The “programmable controller” merely describes how to generally “apply” the otherwise mental judgements using a generic or general-purpose equipment control environment, i.e. a computer. The programmable controller is further recited at a high level of generality and merely automates the tuning step. Accordingly, even in combination, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea.
101 Analysis – Step 2B: Inventive Concept - No
In Step 2B of the 2019 PEG, a claim is to be evaluated as to whether the claim, as a whole, amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim [see MPEP 2106.05].
As discussed with respect to Step 2A/Prong 2, the additional elements in the claim amount to no more than mere instructions to apply the exception as a general means of gathering equipment data for use in the tuning step, and amounts to mere data gathering, which is a form of insignificant extra-solution activity. The same analysis applies here in 2B, i.e., mere instructions to apply an exception on a generic computer cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
In addition to determining whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception, it is noted that the phrase “capable of” does not provide a practical application or an inventive concept that positively recites a real-world application of control of the calculated data, but merely states that the invention is capable of doing so.
Dependent claims 15-19 do not recite any further limitations that cause the claim(s) to be patent eligible. Rather, the limitations of the dependent claims are directed toward additional aspects of the judicial exception and/or well-understood, routine and conventional additional elements that do not integrate the judicial exception into a practical application Therefore, dependent claims 15-19 are not patent eligible under the same rationale as provided for in the rejection of independent claim 14.
Therefore, claims 14-19 are ineligible under 35 USC §101.
2.4 Therefore, claims 1-19 are ineligible under 35 USC §101.
Prior Art
3. The following prior art, discovered in an updated search and herein made of record, is considered pertinent to Applicant’s disclosure, and consists of documents A-D on the attached PTO-892 Notice of References Cited, such documents defining the general state of the art which is not considered to be of particular relevance.
Response Guidelines
4.1 A shortened statutory period for response to this non-final action is set to expire 3 (three) months and 0 (zero) days from the date of this letter. Unless the applicant is notified in writing that a reply is required in less than six months (see the shortened response period previously noted), a maximum period of six months is allowed, if a petition for an extension of time and the fee set in § 1.17(a) are filed (see MPEP 710 and 35 U.S.C. 133). Failure to respond within the required period for response will cause the application to become abandoned (see MPEP 710.02, 710.02(b)).
4.2 Any response to the Examiner in regard to this non-final action should be
directed to: Russell Frejd, telephone number (571) 272-3779, Monday-Friday from 0730 to
1600 ET. If attempts to reach the examiner by telephone are unsuccessful,
please contact the examiner’s supervisor, Peter Nolan, who can be reached at
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/RUSSELL FREJD/
Primary Examiner AU 3661