DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “a point cloud data acquisition unit that has a preset detection range and acquires point cloud data that . . .”; and “a controller that acquires information on a reference monitoring area . . .” in claim 1.
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.
35 U.S.C. 101 requires that a claimed invention must fall within one of the four eligible categories of invention (i.e. process, machine, manufacture, or composition of matter) and must not be directed to subject matter encompassing a judicially recognized exception as interpreted by the courts. MPEP 2106. Three categories of subject matter are found to be judicially recognized exceptions to 35 U.S.C. § 101 (i.e. patent ineligible) (1) laws of nature, (2) physical phenomena, and (3) abstract ideas. MPEP 2106(II). To be patent-eligible, a claim directed to a judicial exception must as whole be directed to significantly more than the exception itself. See 2014 Interim Guidance on Patent Subject Matter Eligibility, 79 Fed. Reg. 74618, 74624 (Dec. 16, 2014). Hence, the claim must describe a process or product that applies the exception in a meaningful way, such that it is more than a drafting effort designed to monopolize the exception. Id
Claims 1, 2, 4 and 5 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., an abstract idea) without significantly more. Claim 1 is directed to a point cloud data acquisition unit that has a preset detection range and acquires point cloud data, and a controller that acquires information on a reference monitoring area that is an area set to include a work machine located within the detection range, identifies an operation range of the work machine as an excluded area based on the point cloud data, and excludes the excluded area from the reference monitoring area to set an actual monitoring area for the work machine, without additional elements that are sufficient to amount to significantly more than the judicial exception. Specifically, a point cloud data acquisition unit that has a preset detection range and acquires point cloud data, is referring to gathering data under insignificant Extra-solution activity e.g. pre-solution activity (MPEP 2106.05(g)) and a controller that acquires information on a reference monitoring area that is an area set to include a work machine located within the detection range, identifies an operation range of the work machine as an excluded area based on the point cloud data, and excludes the excluded area from the reference monitoring area to set an actual monitoring area for the work machine, referring to mental process as abstract idea, by visually observing the gathered data, the concepts are performed in the human mind (including an observation, evaluation, judgment, opinion) (see MPEP § 2106.04(a)(2), subsection III). Therefore, claim 1, meets the requirement of the step 2A, prong one of the guidelines for including an abstract idea.
The claim is then considered under step 2A, prong two, for integrating the judicial exception into a practical application. Limitations that the courts have found indicative that an additional element (or combination of elements) may have integrated the exception into a practical application include:
• An improvement in the functioning of a computer, or an improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
• Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
• Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
• Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
• Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception, as discussed in MPEP § 2106.05(e).
The courts have also identified limitations that did not integrate a judicial exception into a practical application:
• 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, as discussed in MPEP § 2106.05(f);
• Adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g); and
• Generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
Based on the above qualifying conditions, Examiner does not believe that the language of claim 1 includes any of the qualifying conditions above. Therefore claim 1 fails step 2A, prong two.
Additionally, claim 1 is considered under step 2B to include additional elements that amount to significantly more than the judicial exception. Limitations that the courts have found to qualify as "significantly more" when recited in a claim with a judicial exception include:
i. Improvements to the functioning of a computer, e.g., a modification of conventional Internet hyperlink protocol to dynamically produce a dual-source hybrid webpage, as discussed in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258-59, 113 USPQ2d 1097, 1106-07 (Fed. Cir. 2014) (see MPEP § 2106.05(a));
ii. Improvements to any other technology or technical field, e.g., a modification of conventional rubber-molding processes to utilize a thermocouple inside the mold to constantly monitor the temperature and thus reduce under- and over-curing problems common in the art, as discussed in Diamond v. Diehr, 450 U.S. 175, 191-92, 209 USPQ 1, 10 (1981) (see MPEP § 2106.05(a));
iii. Applying the judicial exception with, or by use of, a particular machine, e.g., a Fourdrinier machine (which is understood in the art to have a specific structure comprising a headbox, a paper-making wire, and a series of rolls) that is arranged in a particular way to optimize the speed of the machine while maintaining quality of the formed paper web, as discussed in Eibel Process Co. v. Minn. & Ont. Paper Co., 261 U.S. 45, 64-65 (1923) (see MPEP § 2106.05(b));
iv. Effecting a transformation or reduction of a particular article to a different state or thing, e.g., a process that transforms raw, uncured synthetic rubber into precision-molded synthetic rubber products, as discussed in Diehr, 450 U.S. at 184, 209 USPQ at 21 (see MPEP § 2106.05(c));
v. Adding a specific limitation other than what is well-understood, routine, conventional activity in the field, or adding unconventional steps that confine the claim to a particular useful application, e.g., a non-conventional and non-generic arrangement of various computer components for filtering Internet content, as discussed in BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350-51, 119 USPQ2d 1236, 1243 (Fed. Cir. 2016) (see MPEP § 2106.05(d)); or
vi. Other meaningful limitations beyond generally linking the use of the judicial exception to a particular technological environment, e.g., an immunization step that integrates an abstract idea of data comparison into a specific process of immunizing that lowers the risk that immunized patients will later develop chronic immune-mediated diseases, as discussed in Classen Immunotherapies Inc. v. Biogen IDEC, 659 F.3d 1057, 1066-68, 100 USPQ2d 1492, 1499-1502 (Fed. Cir. 2011) (see MPEP § 2106.05(e)).
Limitations that the courts have found not to be enough to qualify as "significantly more" when recited in a claim with a judicial exception include:
i. Adding the words "apply it" (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, e.g., a limitation indicating that a particular function such as creating and maintaining electronic records is performed by a computer, as discussed in Alice Corp., 573 U.S. at 225-26, 110 USPQ2d at 1984 (see MPEP § 2106.05(f));
ii. Simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry, as discussed in Alice Corp., 573 U.S. at 225, 110 USPQ2d at 1984 (see MPEP § 2106.05(d));
iii. Adding insignificant extra-solution activity to the judicial exception, e.g., mere data gathering in conjunction with a law of nature or abstract idea such as a step of obtaining information about credit card transactions so that the information can be analyzed by an abstract mental process, as discussed in CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011) (see MPEP § 2106.05(g)); or
iv. Generally linking the use of the judicial exception to a particular technological environment or field of use, e.g., a claim describing how the abstract idea of hedging could be used in the commodities and energy markets, as discussed in Bilski v. Kappos, 561 U.S. 593, 595, 95 USPQ2d 1001, 1010 (2010) or a claim limiting the use of a mathematical formula to the petrochemical and oil-refining fields, as discussed in Parker v. Flook, 437 U.S. 584, 588-90, 198 USPQ 193, 197-98 (1978) (MPEP § 2106.05(h)).
Based on the above conditions, Examiner is unable to identify one or more claimed elements that amount to significantly more than the judicial exception. The claim language leaning over to non-qualifying condition i.e. “ii. Simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry, as discussed in Alice Corp., 573 U.S. at 225, 110 USPQ2d at 1984 (see MPEP § 2106.05(d)). Specifically, Para [0044] of Applicant’s published disclosure recites “the monitoring area 70 may be manually set”. Therefore, the setting of the areas does not seem to require a controller. Even so, the courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. Hence the claim fails step 2B as well, and is not eligible under 101.
Regarding claim 2, reciting, the controller detects intrusion of an object into the actual monitoring area based on the point cloud data in the actual monitoring area, referring to mental process of abstract idea since a human by monitoring the area depicted on a display, as a device that is customary and ordinary device for displaying data, can observe the any object present or entering the area. Therefore, the claim is not eligible.
Regarding claim 4, reciting, wherein the controller is capable of identifying a plurality of different ones of the excluded areas according to a plurality of different operations of the work machine, and sets the excluded area according to current operation of the work machine, as referring to mental process of observing, analyzing and judging by setting the areas mentally as abstract idea. Therefore, the claim is not eligible.
Regarding claim 5, reciting, wherein the controller identifies a position of the work machine within the detection range, and sets the reference monitoring area according to a result of the identification to acquire information on the reference monitoring area, as referring to mental process of observing, analyzing, and judging therefore, the reference monitoring area according to a result of the identification mentally as abstract idea. Therefore, the claim is not eligible.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-2 and 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over US 12,243,403 B2 to Yoshizawa et al (hereinafter ‘Yoshizawa’).
Regarding claim 1, Yoshizawa discloses a monitoring area setting system (Fig. 1 or 2) comprising: a point cloud data acquisition unit (Fig. 2, Processing unit 16b) that has a preset detection range and acquires point cloud data that is data indicating a distance from a predetermined reference point to a target object within the detection range (column 2, lines 52-57, wherein the safety monitoring device according to any one of (1) to (4), in which the moving body recognition analysis unit extracts point cloud data representing a moving body from three-dimensional data measured with a lidar, as the range and distance is inherently known from any point to the reference point i.e. the Lidar, which is the safety sensor, and creates a bounding box having a size necessary for surrounding the point cloud data); and a controller (Fig. 2, Control unit 11) that acquires information on a reference monitoring area that is an area set to include a work machine located within the detection range, (column 26, lines 1-6, wherein at a construction site, a manufacturing site, and the like, various management areas are assumed, such as an area, as the reference monitoring area, where a heavy machine (for example, a crane) works, an area where a work vehicle such as a forklift moves around, and an area where all moving bodies should not enter for vibration suppression, security, and the like), identifies an operation range of the work machine as an excluded area based on the point cloud data (column 3, lines 1-8, and Fig. 3, wherein the safety monitoring device according to (5), in which the moving body recognition analysis unit: identifies a large object larger than a person, inherently as in the work machine, by using any one or more or all of the five pieces of data including the width, the depth, and the height of the bounding box, and the height of the bottom surface and the height of the top surface of the bounding box, calculates, as a distance between the person and the large object, and detecting the exclusion area A62) and excludes the excluded area from the reference monitoring area to set an actual monitoring area for the work machine (column 9, lines 65 through column 10, line 6, wherein the safety monitoring device 10 does not issue a warning even when a moving body is sensed outside the alarm activation target area. A plurality of alarm activation target areas can be set. Setting of the alarm activation target area is valid only in the sensing target area, inherently monitoring area that is including the work machine area. Note that when the alarm activation target area is set to overlap the alarm activation exclusion area, inherently as excluded area from alarm monitoring, the alarm activation exclusion area is prioritized, and thus the safety monitoring device 10 does not issue a warning.). As much as Applicant may disagree with the Examiner’s assessment of Yoshizawa disclosing operation range of the work machine, Yoshizawa specifically disclose in column 3, lines 1-14, wherein the safety monitoring device according to (5), in which the moving body recognition analysis unit: identifies a large object larger than a person by using any one or more or all of the five pieces of data including the width, the depth, and the height of the bounding box, inherently as preset range of the object, and the height of the bottom surface and the height of the top surface of the bounding box, calculates, as a distance between the person and the large object, a distance obtained by subtracting a radius of a circumscribed circle of the bottom surface or the top surface of the bounding box of the person from a minimum value of a distance between a center of the bottom surface or the top surface of the bounding box of the person and each side of the bottom surface or the top surface of the bounding box of the large object, inherently as the operation range of the work machine). Therefore, before the effective filing data of the claimed invention it would have been obvious to one of ordinary skill in the art to combine the operation range of the work machine and the bounding box of a person in order to determine the distance between the person and the large object (column 3, lines 7-8).
Regarding claim 2, Yoshizawa discloses wherein the controller detects intrusion of an object into the actual monitoring area based on the point cloud data in the actual monitoring area (column 2, lines 52-64, wherein the safety monitoring device according to any one of (1) to (4), in which the moving body recognition analysis unit extracts point cloud data representing a moving body from three-dimensional data measured with a lidar, which is the safety sensor, and creates a bounding box having a size necessary for surrounding the point cloud data, determines a minimum value and a maximum value of each of five pieces of data including a width, a depth, and a height of the bounding box, and a height of a bottom surface and a height of a top surface of the bounding box, as a size of a person by using any one or more or all of the five pieces of data, and determines that the size of the moving body, inherently as the intruding object, is within a determined range as a determination condition of person).
Regarding claim 4, Yoshizawa discloses wherein the controller is capable of identifying a plurality of different ones of the excluded areas according to a plurality of different operations of the work machine, and sets the excluded area according to current operation of the work machine (column 10, lines 29-33, wherein although only one alarm activation exclusion area A62 is set in the example illustrated in FIG. 3, the area setting unit 12 can set a plurality of alarm activation exclusion areas for one sensing target area (measurement space)).
Regarding claim 5, Yoshizawa discloses wherein the controller identifies a position of the work machine within the detection range, and sets the reference monitoring area according to a result of the identification to acquire information on the reference monitoring area (column 3, lines 33-45, wherein the moving body recognition analysis unit changes an alarm level according to the distance between the person and the large object. The moving body recognition analysis unit calculates a speed of the moving body from a distance over which a center position of the bounding box has moved for a certain time. The safety monitoring device including: a video processing unit that superimposes a position of the moving body, inherently as either the moving person or the moving work machine, sensed by the safety sensor on video data).
Allowable Subject Matter
Claim 3 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The following is a statement of reasons for the indication of allowable subject matter: the prior art or the prior art of record specifically, Yoshizawa does not disclose:
. . . . wherein in a case where the work machine performs a series of operations including a plurality of operations, the controller identifies a range in which the operation range of each of the plurality of operations is superimposed as the excluded area, of claim 3 combined with other features and elements of the claim.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHERVIN K NAKHJAVAN whose telephone number is (571)272-5731. The examiner can normally be reached Monday-Friday 9:00-12:00 PST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Lefkowitz can be reached at (571)272-3638. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHERVIN K NAKHJAVAN/Primary Examiner, Art Unit 2672