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 .
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: the specification does not provide antecedent basis for the “at least one measurer” recited in claims 1 and 12.
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: “distance measuring device” in claims 12 and 14-23.
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. Corresponding structure is shown at 1A in Figs. 3 and 4.
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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 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 11 and 23 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.
Regarding claims 11 and 23, “calculate a distance to the probe target by using a hypothetical relay point between the probe target and the at least one measurer” was not described in the specification in such a way as to reasonably convey possession of the claimed invention.
The specification describes hypothetical relay points in para. [0175]:
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However there is no description of how to determine the assumed number and positions of hypothetical relay points, how to weight distances based on the number and positions of the hypothetical relay points, or how to calculate the distance based thereon. The description does not reasonably convey possession of the claimed invention.
Claims 11 and 23 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 enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Regarding claims 11 and 23, “calculate a distance to the probe target by using a hypothetical relay point between the probe target and the at least one measurer” was not described in the specification in such a way as to enable one of ordinary skill to make and/or use the invention.
The specification describes hypothetical relay points in para. [0175]:
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However there is no description of how to determine the assumed number and positions of hypothetical relay points, how to weight distances based on the number and positions of the hypothetical relay points, or how to calculate the distance based thereon such that one of ordinary skill would be enabled to make and/or use the claimed invention.
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 1-12 and 24-23 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.
Regarding claim 1 line 2 and claim 12 line 3, the scope of “A distance measuring device comprising: at least one measurer” cannot be clearly determined, as it is unclear what a “measurer” comprises. The specification does not appear to describe, and one of ordinary skill would not understand, what structures fall within the scope of a “measurer”.
The “at least one measurer” is recited as performing the function “acquire a transmission timing at which a probe packet was transmitted to a probe target, and a reception timing at which a response packet to the probe packet was received from the probe target”. This function includes within its scope merely receiving transmission and reception timing data, which is capable of being performed by generic computer equipment. The “at least one measurer” will therefore be interpreted as comprising generic computer equipment. This interpretation is consistent with claim 13, which recites a computer acquiring transmission and reception timing, and with 1A in Figs. 3 and 4, which show the distance measuring device as comprising generic computer equipment.
Regarding claim 4 lines 17-21 and claim 16 lines 12-16, the scope of “calculate the distance by taking the medium velocity to be an average value of medium velocities based on results obtained by the first measurer measuring other probe targets and an average value of medium velocities based on results obtained by the second measurer measuring other probe targets” cannot be clearly determined.
The medium velocity appears to be described as two distinct things – the first being “an average value of medium velocities based on results obtained by the first measurer measuring other probe targets” and the second being “an average value of medium velocities based on results obtained by the second measurer measuring other probe targets”. Para. [0127] of the specification describes these results as “a first medium velocity Vm” and “a second medium velocity Vm”. However it is unclear how the medium velocity can be both of these at once, and unclear which is used to calculate the distance.
Regarding claim 5 lines 8-10 and claim 17 lines 5-6, “generate the presentation information that is presented by adding information regarding a prescribed distance range from the distance” is ungrammatical and its scope cannot be clearly determined. It is unclear what “a prescribed distance range from the distance” comprises, and further unclear what it is added to.
The remaining claims are dependent.
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, 5, 6, 8, 10-13, 17, 18, 20, 22, and 23 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1 – Statutory Category
Claim 1 recites a distance measuring device and is therefore a process/apparatus.
Step 2A, Prong One – Recitation of a Judicial Exception
Claim 1 recites:
calculate a response time by using the transmission timing and the reception timing; and
calculate a distance to the probe target by using the response time and the medium velocity.
These steps comprise mathematical calculations and therefore fall within the mathematical concepts grouping of abstract ideas enumerated in the 2019 PEG.
Claim 1 therefore recites an abstract idea.
Step 2A, Prong Two – Practical Application
Claim 1 further recites:
- at least one measurer configured to acquire transmission timing at which a probe packet was transmitted to a probe target, and a reception timing at which a response packet to the probe packet was received from the probe target;
- at least one memory configured to store instructions, and a medium velocity, which is a signal transmission velocity in a transmission medium used for transmission between the distance measuring device and the probe target; and
- at least one processor configured to execute the instructions to calculate the response time and distance.
However the at least one memory and at least one processor comprise generic computer equipment that is merely used as a tool to perform the abstract idea, and, as discussed above, the at least one measurer has also been interpreted as generic computer equipment. In performing the abstract idea, the at least one measurer, at least one memory, and at least one processor merely perform the generic computer functions of receiving data, storing data, and performing calculations.
The courts have found that generic computer equipment performing generic computer functions does not integrate an abstract idea into a practical application (MPEP 2106.04(d) I). These elements therefore do not integrate the judicial exception into a practical application of the exception.
Step 2B – Inventive Concept
As discussed in Step 2A, Prong Two above, the additional elements recited in the claim include comprise generic computer equipment that is merely used as a tool to perform the abstract idea. The courts have found that generic computer equipment performing generic computer functions does not amount to significantly more, i.e. it does not amount to an inventive concept (MPEP 2106.5 A). These elements therefore do not amount to significantly more than the abstract idea itself, i.e. they do not amount to an inventive concept. Claim 1 is therefore not patent eligible.
Claims 12 differs from claim 1 in reciting a distance measuring method executed by a distance measuring device. The distance measuring device comprises generic computer equipment as shown at 1A in Figs. 3 and 4. Generic computer equipment does not integrate the abstract idea into a practical application or add significantly more.
Claim 13 differs from claims 1 and 12 in reciting a non-transitory storage medium having a program stored thereon, the program making a computer of a distance measuring device execute a process. These elements comprise generic computer equipment that does not integrate the abstract idea into a practical application or add significantly more.
Claims 5 and 17 recite the at least one processor generating presentation information by adding information regarding a prescribed distance range from the distance. This is a mathematical calculation that provides further description of the abstract idea and therefore does not integrate the abstract idea into a practical application or add significantly more.
Claims 6 and 18 recite the at least one processor generating presentation information for presenting information relating to the calculated distance, the presentation information presenting a range in which the probe target is positioned by presenting the distance using a circle centered at the position of the distance measuring device and having a radius equal to the distance. Providing a circle with a particular radius is a mathematical operation that provides further description of the abstract idea and therefore does not integrate the abstract idea into a practical application or add significantly more. Providing presentation information is insignificant extra-solution activity, i.e. outputting data.
Claims 8 and 20 recite generating the presentation information in which another circle having a radius that is a prescribed distance range from the distance is also added. As for claim 6 above, providing a circle with a particular radius is a mathematical operation that provides further description of the abstract idea and therefore does not integrate the abstract idea into a practical application or add significantly more, and providing presentation information is insignificant extra-solution activity, i.e. outputting data.
Claims 10 and 22 recite generating the position information based on information regarding terrain and selection conditions for selecting, from multiple candidate positions for the probe target based on the calculated distance, at least one of the multiple candidate positions, and generating the presentation information for presenting the generated position information by adding the position information to a map. However the selecting is capable of being performed in the human mind and is therefore an abstract idea comprising a mental process, and generating presentation information is insignificant extra-solution activity, i.e. outputting data. These elements therefore do not integrate the abstract idea into a practical application or add significantly more
Claims 11 and 23 recite calculating a distance to the probe target by using a hypothetical relay point between the probe target and the at least one measurer. This is a mathematical calculation that provides further description of the abstract idea and therefore does not integrate the abstract idea into a practical application or add significantly more.
Claim Rejections - 35 USC § 102
For applicant’s benefit portions of the cited reference(s) have been cited to aid in the review of the rejection(s). While every attempt has been made to be thorough and consistent within the rejection it is noted that the PRIOR ART MUST BE CONSIDERED IN ITS ENTIRETY, INCLUDING DISCLOSURES THAT TEACH AWAY FROM THE CLAIMS. See MPEP 2141.02 VI.
“The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including non-preferred embodiments. Merck & Co.v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert, denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) See MPEP 2123.
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.
Claims 1, 2, 5-9, 12-14, and 17-21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Silverman (US 20030046022 A1, cited on IDS).
Regarding claims 1, 12, and 13, Silverman (US 20030046022 A1) teaches a distance measuring device (test stations 74-78, Fig. 2) comprising:
at least one measurer (as best understood, inherent to “computer”, para. [0085], or “distance calculator”, claim 7, in one of test stations 74-78;) configured to acquire a transmission timing at which a probe packet was transmitted to a probe target (target station 72, Fig. 2), and a reception timing at which a response packet to the probe packet was received from the probe target (para. [0041] “test station executes long and short ping routines with target station 72... and time stamps and stores the transmit and receive times for the ping echo packets”);
at least one memory (para. [0085] “program storage or memory device”) configured to store instructions, and a medium velocity (para. [0038] “network speed”), which is a signal transmission velocity in a transmission medium used for transmission between the distance measuring device and the probe target (para. [0021] “copper and fiberoptic cables”); and
at least one processor (inherent to “computer”, para. [0085]) configured to execute the instructions to:
calculate a response time by using the transmission timing and the reception timing (para. [0038] “best round trip packet time”); and
calculate a distance to the probe target by using the response time and the medium velocity (para. [0038] “Each test device uses the trace route result and the network speed, latency and best round trip packet time that it has calculated between itself and the target station to determine the distance between itself and the target station”).
Regarding claims 2 and 14, Silverman teaches wherein:
the at least one measurer comprises first measurer and second measurer that are installed at mutually different positions (each of test stations 74-78 comprises a ‘measurer’, each of which is installed at mutually different positions as shown in Fig. 2; para. [0058] “situated in triangular fashion”);
wherein the at least one processor is configured to execute the instructions to:
calculate a first response time by using the transmission timing and the reception timing measured by the first measurer, and calculate a second response time by using the transmission timing and the reception timing measured by the second measurer (each test station comprises a processor performing such calculation as per para. [0038] “Each test device uses the ... best round trip packet time that it has calculated between itself and the target station”);
calculate a first distance between the first measurer and the probe target by using the first response time and the medium velocity, and a second distance between the second measurer and the probe target by using the second response time and the medium velocity (each test station comprises a processor performing such calculation as per para. [0038] “Each test device uses the ... network speed and best round trip packet time that it has calculated between itself and the target station to determine the distance between itself and the target station”).
Regarding claims 5 and 17, as best understood, Silverman’s Figs. 4-8 show presentation information that can be considered to meet the claim language.
Regarding claims 6 and 18, Silverman’s Figs. 4-8 show presentation information presenting a range in which the probe target is positioned by presenting the distance as a circle centered at the position of the distance measuring device and having a radius equal to the distance.
Regarding claims 7, 9, 19, and 21, the claimed intersection, overlap, or proximity between first and second circles is shown in Silverman Figs. 4-8.
Regarding claims 8 and 20, Silverman’s Figs. 4-8 show presentation information in which another circle having a radius that is a prescribed distance range from the distance is also added.
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.
Claims 4 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Silverman (US 20030046022 A1) in view of OFFICIAL NOTICE.
Regarding claims 4 and 16, Silverman teaches wherein:
the at least one measurer comprises first measurer and second measurer that are installed at mutually different positions (each of test stations 74-78 comprises a ‘measurer’, each of which is installed at mutually different positions as shown in Fig. 2; para. [0058] “situated in triangular fashion”);
wherein the at least one processor is configured to execute the instructions to:
calculate a first response time by using the transmission timing and the reception timing measured by the first measurer, and calculate a second response time by using the transmission timing and the reception timing measured by the second measurer (each test station comprises a processor performing such calculation as per para. [0038] “Each test device uses the ... best round trip packet time that it has calculated between itself and the target station”); and
if the at least one memory stores a medium velocity relating to the probe target, calculate the distance by using the medium velocity relating to the probe target (para. [0038] “Each test device uses the ...network speed... to determine the distance between itself and the target station”, where storage of the calculated speed in memory is considered inherent).
Silverman further teaches the network speed determined by a plurality of measurers (paras. [0036], [0037], [0059]-[0060]). Silverman does not teach:
if the at least one memory does not store the medium velocity relating to the probe target, calculate the distance by taking the medium velocity to be an average value of medium velocities based on results obtained by the first measurer measuring other probe targets and an average value of medium velocities based on results obtained by the second measurer measuring other probe targets, stored in the at least one memory.
This language has been rejected as indefinite. For purposes of this rejection, Examiner takes OFFICIAL NOTICE that it is well-known to calculate an average in order to increase the accuracy of a result. It therefore would have been obvious to take the medium velocity as an average value of medium velocities in order to increase the accuracy of the determined medium velocity. Regarding including measurements from first and second measurers, one of ordinary skill would recognize that this would further increase the number of medium velocities available, further increasing the accuracy. It would have been obvious to modify Silverman in this way because it would be a mere duplication of parts with the advantage of increasing accuracy – see MPEP 2144.04 VI. B.
Claims 10 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Silverman (US 20030046022 A1) in view of [Nagori (US 20220046383 A1) or Mehta (US 20200003906 A1)].
Regarding claims 10 and 22, Silverman does not teach generating position information regarding a position of the probe target based on information regarding terrain and selection conditions for selecting, from multiple candidate positions for the probe target based on the calculated distance, at least one of the multiple candidate positions, wherein the generating of the presentation information includes generating the presentation information for presenting the generated position information by adding the position information to a map.
Regarding generating position information regarding a position of the probe target based on information regarding terrain and selection conditions for selecting, from multiple candidate positions for the probe target based on the calculated distance, at least one of the multiple candidate positions, Nagori para. [0099] teaches “A trajectory of the entity, however, is often aligned with one or more environmental constraints, i.e., physical features of an environment (e.g., a heading of a road, an angle of a building edge, a location of a road, a location of a sidewalk, a boundary of a body of water, etc.). ... Knowledge of the physical constraints may be used to improve positioning accuracy, e.g., navigation accuracy, for example by not using positioning information that is inconsistent with the physical constraints and/or by limiting entity direction and/or entity position based on the physical constraints”, and Mehta para. [0025] teaches “For example, an initial location estimate of a user device can include one or more approximate locations associated with the user device at a current time. If any of the one or more approximate locations associated with the user device conflict with the set of permissible areas (e.g., are outside the set of permissible areas), then the conflicting one or more approximate locations are excluded from the location estimate”.
It would have been obvious to modify Silverman in view of Nagori in order to limit position based on physical constraints, or in view of Mehta in order to exclude conflicting locations.
Regarding generating of the presentation information includes generating the presentation information for presenting the generated position information by adding the position information to a map, see Mehta para. [0036] “mapping applications” and “display.. of location data”. It would have been obvious to further modify Silverman in view of Mehta by adding the position information to a map in order to provide a user with a visual representation of their position.
Allowable Subject Matter
Claims 3, 11, 15, and 23 have not been rejected in view of the prior art and would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(a), 35 U.S.C. 112(b), and 35 U.S.C. 101 set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Eisen (US 8779981 B2) teaches determining the location of a network device based on the time latency between a request by a user device and the receipt of the request by a plurality of satellite servers provided at different locations and a triangulation technique (abstract).
Castro (US 20040109417 A1) teaches estimating coordinates of a network node based on predicted coordinate distances between network nodes using round trip time (para. [0005]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CASSI J GALT whose telephone number is (571)270-1469. The examiner can normally be reached Monday-Friday, 9AM - 5PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, WILLIAM KELLEHER can be reached at (571)272-7753. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CASSI J GALT/Primary Examiner, Art Unit 3648
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