DETAILED ACTION
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.
1-20 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.
In sum, claims 1-20 are rejected under 35 U.S.C. §101 because the claimed invention is directed to a judicial exception to patentability (i.e., a law of nature, a natural phenomenon, or an abstract idea) and do not include an inventive concept that is something “significantly more” than the judicial exception under the January 2019 patentable subject matter eligibility guidance (2019 PEG) analysis which follows.
Revised Guidance Step 2A – Prong 1
Under the 2019 PEG step 2A, Prong 1 analysis, it must be determined whether the claims recite an abstract idea that falls within one or more designated categories of patent ineligible subject matter (i.e., organizing human activity, mathematical concepts, and mental processes) that amount to a judicial exception to patentability.
Here, with respect to claim 1 and similarly claims 9 and 14, the claims recite the abstract idea of:
receiving an indication of an emission plume traveling along a first direction;
determining a cross-section of the emission plume, wherein the cross-section is substantially perpendicular to the first direction; and
determining a travel path for an optical detector to obtain optical measurements along the cross-section, wherein the travel path extends in a second direction along the cross-section, and the optical detector is configured to obtain the optical measurements in a third direction crosswise to the travel path
Specifically, a mental process, that can be performed in the human mind since the above limitations could alternatively be performed in the human mind or with the aid of pen and paper. This conclusion follows from CyberSource Corp. v. Retail Decisions, Inc., where our reviewing court held that section 101 did not embrace a process defined simply as using a computer to perform a series of mental steps that people, aware of each step, can and regularly do perform in their heads. 654 F.3d 1366, 1373 (Fed. Cir. 2011); see also In re Grams, 888 F.2d 835, 840–41 (Fed. Cir. 1989); In re Meyer, 688 F.2d 789, 794–95 (CCPA 1982); Elec. Power Group, LLC v. Alstom S.A., 830 F. 3d 1350, 1354–1354 (Fed. Cir. 2016) (“we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category”).
For example, a human could perform the above limitation entirely mentally since the limitations amount to comparing data. See, e.g., MPEP 2106.04(a)(2), III, A (“claims do recite a mental process when they contain limitations that can practically be performed in the human mind, including for example, observations, evaluations, judgments, and opinions. Examples of claims that recite mental processes include . . . a claim to collecting and comparing known information (claim 1), which are steps that can be practically performed in the human mind, Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057, 1067, 100 USPQ2d 1492, 1500 (Fed. Cir. 2011)”). For example, a human mind could visually view an emission plume, mentally determine a cross section of the viewed plume, and mentally determine a travel path for an aircraft to take measurements in the plume.
Furthermore, mental processes remain unpatentable even when automated to reduce the burden on the user of what once could have been done with pen and paper. See CyberSource, 654 F.3d at 1375 (“That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson.”).
In addition, the independent claims recite the abstract idea of a mathematical concept in addition to being a mental process since the limitation invokes “determination” and “generate” steps, i.e., determination of emission rates, plume properties and gas concentrations. See October 2019 Update: Subject Matter eligibility p. 3-4 “Mathematical Relationships” and “Mathematical Calculations” (“A mathematical relationship may be expressed in words or using mathematical symbols . . . [t]here is no particular word or set of words that indicates a claim recites a mathematical calculation. That is, a claim does not have to recite the word “calculating” in order to be considered a mathematical calculation. For example, a step of “determining” a variable or number using mathematical methods or “performing” a mathematical operation may also be considered mathematical calculations when the broadest reasonable interpretation of the claim in light of the specification encompasses a mathematical calculation.”) citing Diamond v. Diehr, Gottschalk v. Benson, Parker v. Flook, and Burnett v. Panasonic Corp (“using a formula to convert geospatial coordinates into natural numbers”).
Revised Guidance Step 2A – Prong 2
Under the 2019 PEG step 2A, Prong 2 analysis, the identified abstract idea to which the claim is directed does not include limitations that integrate the abstract idea into a practical application, since the recited features of the abstract idea are being applied on a computer or computing device or via software programming that is simply being used as a tool (“apply it”) to implement the abstract idea. (See, e.g., MPEP §2106.05(f)). This follows conclusion follows from the claim limitations which only recite a generic components outside of the abstract idea. Claim 1 merely passively recites an optical detector, i.e., only a travel path for the optical detector is actively recited and what the detector is configured to do. Claim 9 recites “one or more vehicles” and a “processor”; Claim 14 recites unmanned vehicles and processor.
In addition, merely “[u]sing a computer to accelerate an ineligible mental process does not make that process patent-eligible.” Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d 1266, 1279 (Fed. Cir. 2012); see also CLS Bank Int’l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1286 (Fed. Cir. 2013) (en banc) (“simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility.”), aff’d, 573 U.S. 208 (2014). Accordingly, the processor recited above does not transform the abstract idea into a practical application of the abstract idea.
In addition, the limitation “receiving an indication of an emission plume traveling along a first direction”; “receive the optical measurements”; “receive an indication of an emission plume traveling along a first direction” constitute insignificant presolution activity that merely gathers data and, therefore, do not integrate the exception into a practical application. See In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en banc), aff’d on other grounds, 561 U.S. 593 (2010) (characterizing data gathering steps as insignificant extra-solution activity); see also CyberSource, 654 F.3d at 1371–72 (noting that even if some physical steps are required to obtain information from a database (e.g., entering a query via a keyboard, clicking a mouse), such data-gathering steps cannot alone confer patentability); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (presenting offers and gathering statistics amounted to mere data gathering). Accord Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(g)).
Revised Guidance Step 2B
Under the 2019 PEG step 2B analysis, the additional elements are evaluated to determine whether they amount to something “significantly more” than the recited abstract idea. (i.e., an innovative concept). Here, the additional elements, such as a vehicle or processor do not amount to an innovative concept since, as stated above in the step 2A, Prong 2 analysis, the claims are simply using the additional elements as a tool to carry out the abstract idea (i.e., “apply it”) on a computer or computing device and/or via software programming (See, e.g., MPEP §2106.05(f)). The additional elements are specified at a high level of generality to simply implement the abstract idea and are not themselves being technologically improved. See, e.g., MPEP §2106.05 I.A; Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.”). Thus, these elements, taken individually or together, do not amount to “significantly more” than the abstract ideas themselves.
The additional elements of the dependent claims merely refine and further limit the abstract idea of the independent claims and do not add any feature that is an “inventive concept” which cures the deficiencies of their respective parent claim under the 2019 PEG analysis. None of the dependent claims considered individually, including their respective limitations, include an “inventive concept” of some additional element or combination of elements sufficient to ensure that the claims in practice amount to something “significantly more” than patent-ineligible subject matter to which the claims are directed.
The elements of the instant process steps when taken in combination do not offer substantially more than the sum of the functions of the elements when each is taken alone. The claims as a whole, do not amount to significantly more than the abstract idea itself because the claims do not effect an improvement to another technology or technical field; the claims do not amount to an improvement to the functioning of an electronic device itself which implements the abstract idea (e.g., the general purpose computer and/or the computer system which implements the process are not made more efficient or technologically improved); the claims do not perform a transformation or reduction of a particular article to a different state or thing (i.e., the claims do not use the abstract idea in the claimed process to bring about a physical change. See, e.g., Diamond v. Diehr, 450 U.S. 175 (1981), where a physical change, and thus patentability, was imparted by the claimed process; contrast, Parker v. Flook, 437 U.S. 584 (1978), where a physical change, and thus patentability, was not imparted by the claimed process); and the claims do not move beyond a general link of the use of the abstract idea to a particular technological environment (e.g., “the optical detector is configured to obtain the optical measurements in a third direction crosswise to the travel path” claim 1).
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.
Claims 1, 4-5, 9-11 and 13 are rejected under 35 U.S.C. 102(a)(1) as anticipated by US 20120092649 to Wong et al. (Wong)
With respect to claim 1, Wong discloses a method, comprising:
receiving an indication of an emission plume traveling along a first direction;
(¶¶ 15-16 method of mapping concentrations of airborne matter in an emission plume . . . method for measuring the emission discharge rate from an emission source, 20, 50)
determining a cross-section of the emission plume, wherein the cross-section is substantially perpendicular to the first direction; and
(i.e., cross section of emission plume ¶¶ FIG. 1; ¶¶ 17, 34, 81, 114, 120; perpendicular to first direction, i.e., FIG. 1 and 6, ¶¶ 13, 34, 48, 50)
determining a travel path for an optical detector to obtain optical measurements along the cross-section, wherein the travel path extends in a second direction along the cross-section, and
(¶¶ 17, 25, 52, 76, i.e., step III)
the optical detector is configured to obtain the optical measurements in a third direction crosswise to the travel path, i.e., an emission
(FIG. 3 and corresponding description, i.e., ¶ 76)
With respect to claim 4, Wong discloses determining an emission rate of the emission plume based on the optical measurements.
(Wong, ¶¶ 2, 13, 15, 20, 50, 84, 100, 103-104, 109-110, 113, claims 1-2)
With respect to claim 5, Wong discloses the first direction is substantially horizontal relative to a ground below the emission plume.
(FIG. 1-2, ¶ 63 the first direction is substantially horizontal relative to a ground below the emission plume; ¶¶ 15-16 method of mapping concentrations of airborne matter in an emission plume . . . method for measuring the emission discharge rate from an emission source, 20, 50; cross section of emission plume ¶¶ FIG. 1; ¶¶ 17, 34, 81, 114, 120; perpendicular to first direction, i.e., FIG. 1 and 6, ¶¶ 13, 34, 48, 50)
With respect to claim 9, Wong discloses a system comprising one or more vehicles; and
(18, FIG. 1-2 and corresponding descriptions; ¶¶ 18, 29)
a processor configured to instruct one or more vehicles to execute a travel path along a length of a cross-section of an emission plume and obtain optical measurements along a width of the cross-section during the travel path, receive the optical measurements; and
(¶¶ 15-16 method of mapping concentrations of airborne matter in an emission plume . . . method for measuring the emission discharge rate from an emission source, 20, 50; i.e., cross section of emission plume ¶¶ FIG. 1; ¶¶ 17, 34, 81, 114, 120; perpendicular to first direction, i.e., FIG. 1 and 6, ¶¶ 13, 34, 48, 50; ¶¶ 17, 25, 52, 76, i.e., step III; FIG. 3 and corresponding description, i.e., ¶ 76)
determine an emission rate corresponding to the emission plume based on the optical measurements
(Wong, ¶¶ 2, 13, 15, 20, 50, 84, 100, 103-104, 109-110, 113, claims 1-2)
With respect to claim 10, Wong discloses the emission rate corresponds to a flux of a chemical species through a cross-section spanning the travel path.
(Wong, chemical species, i.e., emission source of interest, ¶ 51 “an emission source of interest include, but are not limited to compounds, molecules, one or more than one gas of a single species or a mixture of two or more gasses for example but not limited to greenhouse gasses for example but not limited to carbon dioxide, methane, nitrous oxide, and the like, gaseous organic compounds for example combustible gasses, natural gas, methane, ethane, propane, or emissions from petrochemical plants, polluting gasses for example, sulphur dioxide, ammonia, ozone, vehicle emissions, emissions from landfills, industrial emissions, radioactive emissions, toxic emissions, particulate material and the like. Airborne matter may also be referred to as a subject gas”; 2 he flux is the mass flow rate per unit area; 13 map can then be applied to a wind velocity distribution map to obtain the emission discharge rate of airborne matter released by an emission source; 20 obtaining a mass flow rate of airborne matter from an emission source of interest; 31; 50; 70; 84; 103-114)
With respect to claim 11, Wong discloses the travel path is substantially parallel to a ground below the one or more vehicles.
(Fig. 1 depicting flight path 22, ground surface 17 and vehicle 18 and corresponding descriptions of each element)
With respect to claim 13, Wong discloses the one or more vehicles comprise a land vehicle having a mast, wherein a light detection unit is disposed at an elevated location on the mast.
(Fig. 5 and corresponding description, i.e., vehicle 50, mast 52)
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 2-3, 6-8, 12 and 14-20 are rejected under 35 U.S.C. 103 as being unpatentable over Wong in view of US 20200182780 to Kasten et al. (Kasten)
With respect to claim 2, Wong fails to explicitly disclose determining a height of the emission plume wherein the optical detector is configured to obtain the optical measurements approximately along the height of the emission plume.
Kasten, from the same field of endeavor, discloses determining a height of the emission plume wherein the optical detector is configured to obtain the optical measurements approximately along the height of the emission plume
(FIG. 12-13 and corresponding description; 23, 68-70 as analysis system 10 having the unmanned vehicle 12 (e.g., inspection drone 12) emitting the plurality of light beams 28 to determine a shape 158 of the gas plume 20. For example, in addition to determining a length 160 and a width 162 of the gas plume 20, the spectroscopy assembly 22 may be configured to determine a height 164 of the gas plume 20 in a vertical direction (e.g., along a z-axis 166) to obtain further data related to the shape 158 of the gas plume 20; 70-74 once shape determined scan plume to determine concentration and flow)
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of effective filing date to determine a height of the emission plume and obtain measurements along that height, as taught by Kasten, in the system of Wong, in order to provide more accurate and quicker concentration levels and a more detailed concentration profile (Kasten, ¶ 23) and can help determine whether the emission plume is increasing or decreasing in size (Kasten, ¶ 51).
With respect to claim 3, Wong discloses light detection and ranging measurements, but fails to explicitly disclose the term “LiDAR”
(¶¶ 25 “laser detection and ranging”, “laser range finder”)
Kasten discloses the optical measurements comprise light detection and ranging (LiDAR) measurements.
(¶¶ 43-44)
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of effective filing date to include LiDAR measurements, as disclosed by Kasten, in the system of Wong since Wong at least suggests LiDAR use and in order to improve ground surface topology determinations and reflectivity determinations which further allows for adjustments in analysis parameters and flight paths (Kasten, ¶¶ 43-44)
With respect to claim 6, Wong fails to disclose a UAV, i.e., a drone. Kasten discloses outputting a control signal to a controller of one or more unmanned vehicles to execute the travel path.
(¶¶ 25 main controller 13 configured to control movement of scanning platform via instructions output to a motion system 23 . . . unmanned vehicle (e.g., the unmanned aerial vehicle 12 or an inspection drone) as the scanning platform. The unmanned aerial vehicle 12 may be configured to move along a travel path 14 (e.g., a flight path) within an environment 15 in which gas may be detected based at least in part on instructions output from the main controller 13; 39, 42).
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of effective filing date to implement a UAV as taught by Kasten in the system of Wong in order to reduce harm to human operators, increase precision and speed of measurement scans and reduce cost of the operation overall.
With respect to claim 7, Wong in view of Kasten discloses outputting an additional control signal to the controller of the one or more unmanned vehicles to obtain the optical measurements along the travel path.
(Kasten, ¶¶ 31-38, i.e., controller 34, FIG. 2-3)
With respect to claim 8, Wong in view of Kasten discloses receiving the optical measurements obtained by the one or more unmanned vehicles and generating an emission plume property output based on the optical measurements
(Wong, ¶¶ 1 mapping airborne concentrations of airborne matter in an emission plume; 13; 30 obtain such concentrations throughout the entire thickness and width of the emission plume and provide a two-dimensional or three-dimensional map of the concentration of airborne matter; 45; 54-55; 112-120; claim 1)
(Kasten, ¶¶ 23, 27, 29, 32)
With respect to claim 12, Wong discloses the one or more vehicles comprise one or more aerial vehicles comprising a light detection unit to obtain the optical measurements.
(18, FIG. 1-2 and corresponding descriptions; ¶¶ 18, 29)
(¶¶ 25 “laser detection and ranging”, “laser range finder”)
Wong fails to disclose a UAV, i.e., a drone. Kasten discloses outputting a control signal to a controller of one or more unmanned vehicles to execute the travel path.
(¶¶ 25 main controller 13 configured to control movement of scanning platform via instructions output to a motion system 23 . . . unmanned vehicle (e.g., the unmanned aerial vehicle 12 or an inspection drone) as the scanning platform. The unmanned aerial vehicle 12 may be configured to move along a travel path 14 (e.g., a flight path) within an environment 15 in which gas may be detected based at least in part on instructions output from the main controller 13; 39, 42).
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of effective filing date to implement a UAV as taught by Kasten in the system of Wong in order to reduce harm to human operators, increase precision and speed of measurement scans and reduce cost of the operation overall.
With respect to claim 14, Wong discloses a system, comprising: one or more vehicles;
(18, FIG. 1-2 and corresponding descriptions; ¶¶ 18, 29)
a processor configured to: receive an indication of an emission plume traveling along a first direction; determine a cross-section corresponding to a cross-section of the emission plume, wherein the cross-section is substantially perpendicular to the first direction; instruct a controller of the one or more unmanned vehicles to: execute a travel path along a length of the cross-section; and obtain optical measurements along a width of the cross-section during the travel path; and receive the optical measurements; and
(¶¶ 15-16 method of mapping concentrations of airborne matter in an emission plume . . . method for measuring the emission discharge rate from an emission source, 20, 50; i.e., cross section of emission plume ¶¶ FIG. 1; ¶¶ 17, 34, 81, 114, 120; perpendicular to first direction, i.e., FIG. 1 and 6, ¶¶ 13, 34, 48, 50; ¶¶ 17, 25, 52, 76, i.e., step III; FIG. 3 and corresponding description, i.e., ¶ 76)
generate an emission plume property output indicative of a concentration of one or more gases within the emission plume.
(Wong, ¶¶ 1 mapping airborne concentrations of airborne matter in an emission plume; 13; 15-16 method of mapping concentrations of airborne matter in an emission plume 30 obtain such concentrations throughout the entire thickness and width of the emission plume and provide a two-dimensional or three-dimensional map of the concentration of airborne matter; 45; 54-55; 58-64, 112-120; claims 1-3, 17, 20)
Wong fails to disclose a UAV, i.e., a drone. Kasten discloses outputting a control signal to a controller of one or more unmanned vehicles to execute the travel path.
(¶¶ 25 main controller 13 configured to control movement of scanning platform via instructions output to a motion system 23 . . . unmanned vehicle (e.g., the unmanned aerial vehicle 12 or an inspection drone) as the scanning platform. The unmanned aerial vehicle 12 may be configured to move along a travel path 14 (e.g., a flight path) within an environment 15 in which gas may be detected based at least in part on instructions output from the main controller 13; 39, 42).
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of effective filing date to implement a UAV as taught by Kasten in the system of Wong in order to reduce harm to human operators, increase precision and speed of measurement scans and reduce cost of the operation overall.
With respect to claim 15, Wong in view of Kasten discloses the one or more unmanned vehicles comprise an unmanned aerial vehicle comprising a light detection and ranging (LIDAR) detection unit (Kasten, ¶¶ 43-44)
With respect to claim 16, Wong in view of Kasten discloses the travel path is substantially parallel to a reflective surface.
(Wong, Fig. 1 depicting flight path 22, ground surface 17 and vehicle 18 and corresponding descriptions of each element)
With respect to claim 17, Wong in view of Kasten discloses the one or more unmanned vehicles comprise an unmanned aerial vehicle comprising a reflective surface.
(Kasten, ¶ 39 The multiplexed light beam 190 may reflect off of the scanning micro-mirror 64 toward the target surface 30. The scanning micro-mirror 64 may be configured to rotate with respect to a light beam sensor housing 65. Thus, the scanning-micro mirror 64 may be configured to direct the multiplexed light beam 190 toward the target surface 30. In some embodiments, the scanning micro-mirror 64 is configured to rotate to sweep (e.g., oscillate or otherwise move) the multiplexed light beam 190 along the ground surface 32.)
With respect to claim 18, Wong in view of Kasten discloses the processor is configured to: instruct a first unmanned aerial vehicle to execute the travel path; and instruct a second unmanned aerial vehicle to execute an additional travel path complementary to the travel path.
(Kasten, FIG. 9 and corresponding description, i.e., ¶¶ 62-63)
With respect to claim 19, Wong in view of Kasten discloses the emission plume property output comprises a positional adjustment for one or more light detector units of the one or more unmanned aerial vehicles.
(Karsten, ¶¶ 39-41, 55-56, 65-66, claims 10-12)
With respect to claim 20, Wong in view of Kasten discloses the emission plume property output comprises instructions for the one or more unmanned aerial vehicles to obtain additional optical measurements of additional regions of the emission plume.
(Karsten, claim 12 “the scanning mirror is configured to rotate between a first angle and a second angle to move the multiplexed light beam from the target surface to an additional target surface”; ¶¶ 54-56, 60-69)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KENNETH J MALKOWSKI whose telephone number is (313)446-4854. The examiner can normally be reached 8:00 AM - 5:00 PM.
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/KENNETH J MALKOWSKI/Primary Examiner, Art Unit 3667
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