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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
This office acknowledges receipt of the following item(s) from the applicant:
Information Disclosure Statement(s) (IDS) filed on 21 May 2024. The references have been considered.
Drawings
The drawings are objected to under 37 CFR 1.83(a) because they fail to show blank boxes (Fig. 2, 3 and 4) as described in the specification. A blank box does not describe the invention or method steps as they are to be understood by viewing the drawings as described in the specification. Any structural detail that is essential for a proper understanding of the disclosed invention should be shown in the drawing. MPEP § 608.02(d). 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 1-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more and is not integrated into a practical application. The claim(s) recite(s) limitations that are considered to be data processing. Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219—20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594—95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). The 101 guidance instructs us to look to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)). Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. As best understood, the claims contain limitations are directed to data processing, as is similar to Electric Power Group, Benson and Flook.
Specifically, the claims obtain data and process the data using various algorithms and mathematical concepts to make a determination based on the processed data; mathematical formulas, equations or calculations to provide the output, these will all fall under the category of Mathematical Concepts and along with mental processes they are considered to be abstract. See the updated 101 guidance issued in October 2019, sections A and C.
Analysis of the claims
Step 2A, Prong One: This part of the eligibility analysis evaluates whether the claim recites a judicial exception. As explained in MPEP 2106.04, subsection II, a claim “recites” a judicial exception when the judicial exception is “set forth” or “described” in the claim.
Claim 1 recites: transmitting, by the transceiver, an electromagnetic transmit signal through the feed-through to the probe; guiding, by the probe, the transmit signal towards and into the product in the tank; receiving, by the transceiver, an electromagnetic reflection signal resulting from reflection of the transmit signal at impedance transitions encountered thereby; determining, by the processing circuitry, based on a timing relation between the reflection signal and the transmit signal, an echo representation of echo signal strength as a function of a propagation parameter indicative of distance from the transceiver, the echo representation including a fiducial echo local extremum indicating reflection of the transmit signal at an impedance transition from the feed-through impedance to the probe impedance; and estimating, by the processing circuitry, when the echo representation has a local extremum of the same type as the fiducial echo local extremum within a predefined first distance from a position of the fiducial echo local extremum towards the probe end, the level of the surface based on a propagation parameter for the local extremum within the first distance from the fiducial echo local extremum; and/or estimating, by the processing circuitry, when the echo representation includes a probe end echo local extremum indicating reflection of the transmit signal at the probe end and the echo representation has a local extremum of the same type as the probe end echo local extremum within a predefined second distance from a position of the probe end echo local extremum towards the transceiver, the level of the surface based on a propagation parameter for the local extremum within the second distance from the probe end echo local extremum.
This judicial exception is not integrated into a practical application because the claims do not recite any limitation that links the process to anything other than the processing of data and making a determination and estimations based on the result of the data processing which encompass the use of mathematical operations or can be performed as a mental process which are recognized abstract ideas.
Step 2A, Prong Two: This part of the eligibility analysis evaluates whether the claim as a whole integrates the recited judicial exception into a practical application of the exception. This evaluation is performed by (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (2) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. See MPEP 2106.04(d).
The claim recites multiple additional elements of “transmitting, by the transceiver, an electromagnetic transmit signal through the feed-through to the probe; guiding, by the probe, the transmit signal towards and into the product in the tank; receiving, by the transceiver, an electromagnetic reflection signal resulting from reflection of the transmit signal at impedance transitions encountered thereby…”. These steps are recited at a high level of generality and aid in data gathering/processing and interpreted insignificant pre-solution activity, i.e., necessary data gathering and data outputting, to the abstract idea. See MPEP 2106.05(g). It is necessary to acquire the data to allow for it to be processed for use of the recited judicial exception. The step amounts to insignificant extra-solution activity and does not integrate the exception into a practical application.
When determining whether a claim simply recites a judicial exception with the words “apply it” (or an equivalent), such as mere instructions to implement an abstract idea on a computer, examiners may consider: (1) whether the claim recites only the idea of a solution or outcome i.e., the claim fails to recite details of how a solution to a problem is accomplished; (2) whether the claim invokes computers or other machinery merely as a tool to perform an existing process; and (3) the particularity or generality of the application of the judicial exception. See MPEP 2106.05(f). Here, this judicial exception is not integrated into a practical application because the claims do not recite any limitation that links the process to anything other than the processing of data and output (determination) of a result.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there are no elements in Claim 1 that appear to clearly have any actionable steps other than collecting data, making a determination or estimating a result which would be mere extra-solution activity.
As is best understood Claim 1 is directed to gathering data for processing by a processor using well known and conventional structural elements. There are no limitations in this claim that would be considered enough to make the claims non-abstract as the heart of the claim is directed to abstract processing steps. The use of generic/well known elements and general processors/computers for the mere implementation of an abstract idea on a computer does not qualify as significantly more. It is not claimed what happens after the final estimating/determination step. How is the is the data used, is it transmitted or output in some manner for use, does the system perform another task based on the determination or is the operation merely used for determining the level of material in the tank. As currently claimed the limitations are just an operation of determining position without anything that would be considered significantly more, the operation of processing data to determine a position has been found to be an abstract idea.
Therefore, the limitation represents no more than mere instructions to apply the judicial exception on a computer and does not integrate the exception into a practical application of the exception.
Step 2B:
A conclusion that an additional element is insignificant extra-solution activity in Step 2A should be re-evaluated in Step 2B. See MPEP 2106.05, subsection I.A. At Step 2B, the re-evaluation of the insignificant extra-solution activity consideration takes into account whether or not the extra-solution activity is well understood, routine, and conventional in the field. See MPEP 2106.05(g).
Here, the transceiver, probe and processor is equal to a tool/machine being merely an object on which the method operates, which does not integrate the exception into a practical application or provide significantly more. Transmitting/Receiving data is basic data gathering and would not provide significantly more and is insignificant extra-solution activity as the use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not integrate a judicial exception or provide significantly more (MPEP 2106.05 (b), III). The processor also does` not pertain to an improvement to the functioning of a “computer system.” See MPEP § 2106.05(a). There is no indication that the assumed CPU being used needs to be more than a generic device.
Therefore, these limitation remains insignificant extra-solution activity even upon reconsideration and does not amount to significantly more.
The analysis under Step 2A, Prong Two is carried through to Step 2B.
Even when considered in combination, these additional elements represent mere instructions to apply an exception and insignificant extra-solution activity, and therefore the claimed invention is directed to an abstract idea without significantly more.
There are no limitations in the independent or the dependent claims that would make the processor/computer change in operation in a manner that would make it work in a way that is new and not capable of being done on a generic processor/computer. The processor in these claims performs merely as a tool and does not appear to provide an improvement to the functionality of a computer. Absent evidence to the contrary, claims 1-10 merely rely on the processing of data. Making a determination as a result of processed data is well known and conventional.
Claims 2-8 and 10-14 expand on the processing/mathematical concepts limitations by claim limitations directed to defining steps of the processing, setting values and use of the processed data and do not provide a practical application of the abstract idea or significantly more than the abstract idea itself.
Claim 9 is directed to a system that is substantially the same as the method of Claim 1 that has been used for analysis. The system contains a transceiver, a probe and processor as recited in Claim 1 and the processor is configured to perform the same data processing steps as recited in claim and is consider abstract for the same reasons
Claim 15 teaches the probe is a single conductor probe, while a probe itself is not abstract, it is a well known and convention tool that aids in data gathering and as such does not provide a practical application of the abstract idea or significantly more for Claim 1 or 9 to be more than the abstract idea itself.
Claims 1-15 do not include additional elements that are sufficient to amount to significantly more than the abstract idea itself, and thus, the additional elements do not transform the abstract idea into a patent eligible application of the abstract idea. The additional elements, individually and as an ordered combination, do not transform the nature of the claim into a patent-eligible application. Taken alone or as an ordered combination, the limitations of claims do not amount to a claim as a whole that is significantly more than the judicial exception. Using obtained values from the computational operations is not a meaningful limitation that alone can amount to significantly more than the exception.
Claims 1-15 merely rely on generic components as a tool to apply the abstract idea. The application of the abstract idea to generic components does not transform the claim into a patent-eligible application of the abstract idea. While the newly provided guidance of December 2025 states that “When evaluating a claim as a whole, examiners should not dismiss additional elements as mere “generic computer components” without considering whether such elements confer a technological improvement to a technical problem, especially as to improvements to computer components or the computer system.” There are no limitations stating that the any assumed structural elements behave in a non-conventional manner or that the assumed processor is using collected and stored data for anything more than evaluation. All other dependent claims build upon the abstract idea and do not result in significantly more or a practical application and merely just expand on how the software and algorithms operate to process the data. There is no claim to how the processed data is used besides simply making a determination or what tangible step is taken once the processing is done that would link the processing of data to practical application or an actual actionable step. While the algorithms and calculation processing may be novel, novelty does not change the claim from being an abstract idea.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 6 and 7 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The limitations of Claims 6 and 7 are already present in claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US PGPub 2023/0243688 teaches a method for determining fill level in a tank using techniques of determining local maxima and minima using the echo from the impedance transition and while it is not applicable as prior art it is a good representation of the state of the art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WHITNEY T MOORE whose telephone number is (571)270-3338. The examiner can normally be reached Monday-Friday from 7am-4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jack Keith can be reached at (571) 272-6878. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WHITNEY MOORE/Primary Examiner, Art Unit 3646
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