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 .
Preliminary Amendment
The preliminary amendment filed March 19th, 2024 has been acknowledged and entered.
Information Disclosure Statement(s)
The Information disclosure statement (IDS) filed on March 29th, 2024 has been acknowledged and considered by the examiner.
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 limitations are:
1) “….feature identifying unit,” as recited in claim 1;
furthermore, additional claim limitations evoke 112(f) are:
2) “…..feature calculating unit” as recited in claim 1;
The specification discloses sufficient structure, material and act for the recited features as mentioned above to perform the recited functions as disclosed in [0077] wherein the feature identifying unit and the feature calculating unit are performed by software implemented by a processing circuit.
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 § 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 1-9 are rejected under 35 U.S.C. 101
Regarding Independent Claim 1 and its dependent claims 2-8,
Step 1 Analysis: Claim 1 is directed to a device, which falls within one of the four statutory categories.
Step 2A Prong 1 Analysis: Claim 1 recites, in part:
“identify a feature for which a calculation condition is satisfied on a basis of the information about the posture of the occupant from among a plurality of features that is to be used for determination of a physique of the occupant, the plurality of features each including a set calculation condition for calculating a value of the feature for each type;
calculate, on a basis of a captured image, the value of the feature having been identified; and
determine the physique of the occupant on a basis of the value of the feature having been calculated.”
The limitations as drafted, are processes that, under broadest reasonable interpretation, covers the performance of the limitation in the mind which falls within the “Mental Processes/Mathematical Concept” grouping of abstract ideas. The limitations of:
“identify a feature…for each type” is a step, under BRI, a human mind can perform through process of observation and evaluation, such as, the human mind can observe image and identify feature according to a certain condition/criteria or requirement such as recited in the claim being satisfied a condition that a basis of the information about the posture of the occupant from among a….a value of the feature for each type;
“calculate, on a basis of a captured image…been identified” is a mathematical calculation;
“determine the physique of the occupant…been calculated” is a step that the human mind can perform, under BRI, through process of observation and evaluation such as, the human mind can determine a physique according to a certain data/information and condition given.
Accordingly, the claim recites an abstract idea.
Step 2A Prong 2 Analysis: This judicial exception is not integrated into a practical application. particular, the claim recites the following additional element(s) –
“processing circuitry configured to
acquire information about a posture of an occupant”
The additional elements “processing circuitry” - recited at a high level of generality (i.e. as a processor performing executing instructions stored) such that it amounts to no more than mere instructions to apply the exception.
The additional element of “acquire information about a posture of an occupant” include steps of insignificant extra-solution/post-solution activities of data gathering, data generating, data transmitting, etc.
Accordingly, 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. The claim as a whole is directed to an abstract idea.. Please see MPEP §2106.04.(d).III.C.
Step 2B Analysis: there are no additional elements, such as for these additional elements as indicated above, that amount to significantly more than the judicial exception. Please see MPEP §2106.05. The claim is directed to an abstract idea.
For all of the foregoing reasons, claim 1 does not comply with the requirements of 35 USC 101.
Accordingly, the dependent claims 2-8 do not provide elements that overcome the deficiencies of the independent claim 1. Moreover, claims 3, 5-8 recites, in part, wherein clauses that provide further specification to the feature of which they each depends on, without giving further limitation that provide meaningful limit to more than abstract ideas, additional elements. Claim 2 recites, in part, “wherein the information about the posture is detection result output by a posture detecting device to detect a posture of an occupant on a basis on a captured image” which is an additional element of data outputting being insignificant extra-solution activity, and a mental process wherein a human min can detect an occupant by observing a capture image to be implemented as a mere attempt to use a generic device/detecting device to implement the mental process. claim 4 recites, in part, “wherein the information about the posture if information output by an authenticating device to perform personal authentication of an occupant” which is an additional element of data outputting being insignificant extra-solution activity, and a step of a mental process wherein the human mind can perform an authentication of an occupant implemented through a mere attempt to use a generic device/authenticating device to implement the mental process abstract idea.
Accordingly, the dependent claims 2-8 are not patent eligible under 101.
Regarding claim 9:
Claim 9 recites analogous limitations to the independent claim 1, hence, is analyzed under the same approach to be 101 ineligible.
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.
(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.
Claims 1-6 and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Toshio Hosokawa et. al. (“US 2021/0114541 A1” hereinafter as “Hosokawa”).
Regarding claim 1, Hosokawa discloses a physique determination device comprising (title): processing circuitry configured to acquire information about a posture of an occupant (FIG. 1 discloses image processor, [0022] discloses using camera and near-infrared LED to capture images of the occupant [acquiring information as claimed]); identify a feature for which a calculation condition is satisfied on a basis of the information about the posture of the occupant from among a plurality of features ([0042] and [0053] discloses identifying the length of right shoulder and left shoulder [plurality of features] and calculate a ratio of the shoulder [a calculation condition] must be satisfied within a predefined range) that is to be used for determination of a physique of the occupant (which is used to determine the build or physique of the occupant according to [0055]), the plurality of features each including a set calculation condition for calculating a value of the feature for each type (the length of each shoulder is a value of the feature for each type and these lengths are according to a condition such as disclosed in [0044] which is analogous to a set calculation condition as claimed); calculate, on a basis of a captured image, the value of the feature having been identified by the feature identifying unit (the length and the sized as discussed previously being analogous to the value of the feature having been identified; and the processor performing this step is analogous to the feature identifying unit as claimed); determine the physique of the occupant on a basis of the value of the feature having been calculated by the feature calculating unit (the build of the perform is being calculated according to [0045-0050] and the processor performing this step is analogous to the feature calculating unit as claimed).
Regarding claim 2, Hosokawa discloses the physique determination device according to claim 1, wherein the information about the posture is a detection result output by a posture detecting device to detect a posture of an occupant on a basis of a captured image ([0039] discloses a twisted posture determiner [posture detecting device] to detect the posture of the occupant based on the image).
Regarding claim 3, Hosokawa discloses the physique determination device according to claim 1, wherein the information about the posture is vehicle information (the image is being captured inside a vehicle cabin hence, vehicle information being processed for the determination of the posture according to [0022]).
Regarding claim 4, Hosokawa discloses the physique determination device according to claim 1, wherein the information about the posture is information output by an authenticating device to perform personal authentication of an occupant ([0098] discloses the operating condition setter to set the operation of the vehicle based on the build of the occupant for the vehicle hence according to the occupant’s build which, can be understood to be an personal authentication of the occupant based on their build according to the operating setting of the vehicle according to the resulted identification of the build and the posture determined).
Regarding claim 5, Hosokawa discloses the physique determination device according to claim 1, wherein the feature is a length of a shoulder width (the feature includes shoulder length according to [0034] and [0042]), a length of a neck or a length of an upper arm ([0034] discloses the feature further includes neck joint and the arm joint includes upper arm such as illustrated in FIG. 3, moreover these joints creates connections to the length of the linear ling segment, according to [0042] which includes the length of a neck and a length of an upper arm such as illustrated in FIG. 3).
Regarding claim 6, Hosokawa discloses the physique determination device according to claim 5, wherein the calculation condition set for the length of the shoulder width, which is the feature, is that a left-right orientation of a body of the occupant is a forward-facing orientation ([0066] discloses the twisted-posture determiner determines that the occupant is not in a twisted posture which is based on the angle of the shoulder [left-right orientation] since the shoulder expand from left to right, and the angle indicates an orientation, therefore, the non-twisted determination is determining that the occupant is forward-facing orientation such as recited in the claim).
Regarding claim 9, Hosokawa discloses a physique determination method comprising: (title): acquiring information about a posture of an occupant (FIG. 1 discloses image processor, [0022] discloses using camera and near-infrared LED to capture images of the occupant [acquiring information as claimed]); identifying a feature for which a calculation condition is satisfied on a basis of the information about the posture of the occupant from among a plurality of features ([0042] and [0053] discloses identifying the length of right shoulder and left shoulder [plurality of features] and calculate a ratio of the shoulder [a calculation condition] must be satisfied within a predefined range) that is to be used for determination of a physique of the occupant (which is used to determine the build or physique of the occupant according to [0055]), the plurality of features each including a set calculation condition for calculating a value of the feature for each type (the length of each shoulder is a value of the feature for each type and these lengths are according to a condition such as disclosed in [0044] which is analogous to a set calculation condition as claimed); calculating, on a basis of a captured image (the length and the sized as discussed previously being analogous to the value of the feature having been identified); determining the physique of the occupant on a basis of the value of the feature (the build of the perform is being calculated according to [0045-0050]).
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.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Toshio Hosokawa et. al. (“US 2021/0114541 A1” hereinafter as “Hosokawa”) in view of Kaoruko Okuno et. al. (“Body Posture and Face Orientation Estimation by Convolutional Network with Heterogeneous Learning, Jan. 2018, 2018 International Workshop on Advanced Image Technology, Chiang Mai, Thailand” hereinafter as “Okuno”).
Regarding claim 7, Hosokawa discloses the physique determination device according to claim 5, wherein the calculation condition set for the length of the neck, which is the feature, is that a left-right orientation of a body of the occupant is a forward-facing orientation [0066] discloses the twisted-posture determiner determines that the occupant is not in a twisted posture which is based on the angle of the shoulder [left-right orientation] since the shoulder expand from left to right, and the angle indicates an orientation, therefore, the non-twisted determination is determining that the occupant is forward-facing orientation such as recited in the claim).
However, Hosokawa does not explicitly disclose a left-right orientation of a face of the occupant is a forward-facing orientation, and an up-down orientation of the face of the occupant is a horizontally-facing orientation.
In the same field of driver posture determination (title and abstract, Okuno) Okuno discloses a left-right orientation of a face of the occupant is a forward-facing orientation (section III.C discloses the determination of the forward-facing posture which includes the angle determination [orientation] of the body and face orientation estimation of section III.A which includes left-right orientation of the face), and an up-down orientation of the face of the occupant is a horizontally-facing orientation (section IV.C discloses the vertical axis show the recognition rate and the horizontal axis show the face angle, moreover, the angle includes the face up-down direction such as the line in figure 7.b, wherein the face angle can also be horizontally facing such as shown in fig.7.b).
Thus, it would have been obvious for a person of ordinary skill in the art before the effective filing date to modify Hosokawa apparatus to have a physique determination device according to claim 5, wherein the calculation condition set for a left-right orientation of a face of the occupant is a forward-facing orientation, and an up-down orientation of the face of the occupant is a horizontally-facing orientation as taught by Okuno to arrive at the claimed invention discussed above. Such a modification is the result of combing prior art elements according to known methods to yield predictable results. The motivation for the proposed modification would have been to detect driver body and face orientation correctly and monitor them robustly (abstract and section III.A, Okuno).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Toshio Hosokawa et. al. (“US 2021/0114541 A1” hereinafter as “Hosokawa”) in view of Alexandra Kondyli et. al. (“Computer Assisted Analysis of Driver’s Body Activity Using a Range Camera, 2017, IEEE Intelligent Transportation Systems Magazine, Vol. 7, Issue 3” hereinafter as “Kondyli”).
Regarding claim 8, Hosokawa discloses the physique determination device according to claim 5, wherein the calculation condition set for the length of the upper arm, which is the feature, is that a difference between a depth distance of a joint point of a shoulder of the occupant is equal to or less than a predetermined threshold ([0079] discloses calculating of the difference between the position of the right should joint and the position of the lest shoulder joint to determine the twisted posture or not, moreover, the position of the right should joint is analogous to the depth distance of the joint point of a shoulder, since the position of the right shoulder joint is measured by the lidar which measure the depth in space point, which is within a certain threshold of the difference determined).
However, Hosokawa does not explicitly disclose the difference is and a depth distance of a joint point of an elbow of the occupant.
In the same field of posture of driver determination (title and abstract, Kondyli) Kondyli discloses the difference is and a depth distance of a joint point of an elbow of the occupant (the line segment further includes elbow and shoulder to determine the orientation of the driver according to page 22, 1st par.).
Thus, it would have been obvious for a person of ordinary skill in the art before the effective filing date to modify Hosokawa apparatus to perform determining difference between a depth distance of a joint point of a shoulder of the occupant is equal to or less than a predetermined threshold, and the difference is and a depth distance of a joint point of an elbow of the occupant as taught by Kondyli to arrive at the claimed invention discussed above. Such a modification is the result of combing prior art elements according to known methods to yield predictable results. The motivation for the proposed modification would have been to detect driver body and face orientation correctly and monitor them robustly (abstract, Kondyli).
Pertinent Prior Art(s)
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Aziz Rawal et. al. (“Defining the Upper Extremity Range for Safe Automobile Driving, May 2018, Clinical Biomechanics, Vol. 54, pp. 78-85”) discloses determination of driver posture (abstract) based on rotation and orientation (section II, 1st 2 pars.).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHUONG HAU CAI whose telephone number is (571)272-9424. The examiner can normally be reached M-F 8:30 am - 5:00pm.
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, Chineyere Wills-Burns can be reached at (571) 272-9752. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/PHUONG HAU CAI/Examiner, Art Unit 2673
/CHINEYERE WILLS-BURNS/Supervisory Patent Examiner, Art Unit 2673