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.
With respect to claim 10, claims may be rejected under 35 U.S.C. 101 based on the theory that the claim is directed to neither a "process" nor a "machine," but rather embraces or overlaps two different statutory classes of invention set forth in 35 U.S.C. 101 which is drafted so as to set forth the statutory classes of invention in the alternative only. See Ex parte Lyell, 17 USPQ2d 1548, 1551 (BPAI 1990). Specifically, claim 10 encompasses two statutory categories, apparatus and method, and therefore violates 35 U.S.C. § 101.
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.
1-10 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 1-10 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 independent claim 1, the claim recites the abstract idea of:
detecting, in at least one measurement step, a first distance between the distance measuring device and the measurement point in a measurement position of the distance measuring device; and
detecting, in at least one additional measurement step, an additional distance between the distance measuring device and the additional measurement point in an additional measurement position of the distance measuring device,
wherein in at least one method step, the distance between the measurement point and the additional measurement point is ascertained as a function of at least one body model parameter of a user.
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 mind 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)”)
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.”).
For example, a human mind could mentally detect a first distance by viewing a separation between a DMD and a measurement point, similarly detect an additional distance, wherein the determination is a function of K1, i.e., the posture of the viewing position, the height of the viewing position, etc. of the person viewing separations.
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 “distance measurement device” outside of the abstract idea. In addition, the body of the claim does not recite that the distance measurement device itself performs the method steps.
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 additional element of a distance measurement device does not transform the abstract idea into a practical application of the abstract idea.
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 “distance measurement device” does 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., “a method for the indirect length measurement of a distance between a measurement point and an additional measurement point using a distance measuring device of a handheld length measuring device”, preamble, claim 1).
Claim Rejections - 35 USC § 112
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.
With respect to claim 10, a single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. §112 second paragraph. See In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303 (Fed. Cir. 2011). In Katz, a claim directed to “A system with an interface means for providing automated voice messages…to certain of said individual callers, wherein said certain of said individual callers digitally enter data” was determined to be indefinite because the italicized claim limitation is not directed to the system, but rather to actions of the individual callers, which creates confusion as to when direct infringement occurs. In re Katz, 639 F.3d at 1318 (citing IPXL Holdings v. Amazon.com, Inc., 430 F.2d 1377, 1384, 77 USPQ2d 1140, 1145 (Fed. Cir. 2005), in which a system claim that recited “an input means” and required a user to use the input means was found to be indefinite because it was unclear “whether infringement … occurs when one creates a system that allows the user [to use the input means], or whether infringement occurs when the user actually uses the input means.”). See MPEP 2173.05 (p). Specifically, claim 10 is rejected for reciting both “A method for the indirect length measurement of a distance . . . ” (claim 10) and “A length measuring device for an indirect length measurement of a distance . . . and having at least one computing unit configured to perform the method according to claim 1 in a single claim, since claim 10 depends from claim 1 and all limitations of the parent claim are incorporated into a claim depending therefrom.
Claim 10 is rejected for at least an additional reason. Claim 10 depends from claim 1 and repeats many of the steps recited in claim 1 without indicating proper antecedent basis such that it is unclear if the steps are performed a second time, are unrelated to the claim 1 steps or if the steps are intended to refer back to the claim 1 steps.
In addition, claims 1-10 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. Specifically, the metes and bounds of what is and is not included in the term “body model parameter of a user” is unclear and indefinite in view of the specification and remaining claim language, including the dependent claims. For example, a body model parameter includes many different potential and unrelated possible data sets including but not limited to: “a degree of rotation”, an indication of body posture (Spec. ¶ 5). For example, the body pivot point may be a wrist (Spec. ¶ 9) where the change in position is purely rotational and has zero translational movement (¶ 7). K1 may be “non-specific, group-specific . . . randomly selected people . . . gender specific, country specific or region specific (¶ 5 “body model parameter . . . of a users’ body . . . non-specific, group-specific . . . randomly selected people . . . gender specific, country specific or region specific”; an arm length, body size, body dimension, it may be ascertained as a result of a movement, or it may be the average height of people with one common characteristic (¶ 5) such that it is not a dimension of the person using the measuring device. Accordingly, it is unclear what “of a user of the distance measuring device” includes and does not include. For example, if a user enters input they are a male in North America, and the memory of the measuring device uses the average arm length for that population subset, would that be a “body model parameter of a user of the distance measuring device”? The definition in ¶ 5 and the depiction of what K1 is in FIG. 5 as it relates to the claim language is further unclear because K1 “preferably” describes “a change in position of the distance measuring device from the measurement position to the additional measurement position carried out by the user”. K1 in FIG. 5 however is unrelated to a change in position measured in distance between measurement positions.
Because a “body model parameter” generally could be a distance, i.e., between a pivot point and the measuring device (¶ 31 as shown in FIG. 5) (i.e., an arm length) or “pure rotation” of the measurement device (¶ 7), that is either related to a particular user or unrelated to a particular user (¶ 5) the metes and bounds of what is and is not included is unclear in view of the remaining claim language. For example, claims 2-3 requires K1 corrects E1 or E2, such that K1 must conform to the definition exemplified in ¶ 31 and FIG. 5. However, claim 3 requires the K1 recited therein is “at least one additional” K1 value. The examiner could not find enabling disclosure in the specification wherein there are multiple K1 values, and one of those values is used to correct E1 and/or E2 wherein both K1 values are dependent on a change in position of the distance measuring device from position 26 to position 32, for example, further contributing to the lack of clarity as to the metes and bounds of the limitation.
In addition, the limitation “a selection of which of the body model parameters (K1) is used and/or to what extent the body model parameters (K1) are used, is dependent on a detection of a change in position (38) of the distance measuring device (18) from the measurement position (26) to the additional measurement position (32)” is unclear and indefinite. Claim 3 requires that there are multiple K1 values, and one of those values is used to correct E1 and/or E2 wherein both K1 values (claim 3 “the body model parameters”) are “dependent on a change in position of the distance measuring device” from position 26 to position 32, for example. It cannot be ascertained what two K1 values could be used to satisfy all requirements of claim 3. For example, if K1 is used and K1 is a pure rotation how can at least two K1 values including pure rotation depend on, for example a change in position? (i.e., 38, FIG. 5). Furthermore, making multiple K1 values dependent upon an unknown variable renders the claim indefinite. As noted in MPEP 2173.05(b), “relative terminology”, section II states: “reference to an object that is variable may render the claim indefinite”. Here, the change in position is an unknown and unknowable quantity that changes what the multiple K1 values will be. It is recommended to more clearly indicate in the claim language which embodiment is being considered and which example of the various K1 possibilities is being recited in general throughout the claim set.
With respect to claim 7, the limitation “A method for calibrating a handheld length measuring device for an indirect length measurement according to a claim 1 wherein the at least one body model parameter of the user of the length measuring device is ascertained” is unclear and indefinite in view of the combined limitations recited in claims 1 and 7 and the specification and drawings. Claim 7 appears to correspond to Fig. 7 and corresponding description in Spec. ¶¶ 37-38. As noted above, it is unclear what is and is not considered a body model parameter “of the user”, particularly a body parameter that can be resolved using the process described in ¶¶ 37-38. FIG. 7 purports to “ascertain” the body model parameter of the user, but fails to indicate how this is done. ¶ 38 indicates “The body model parameter K1 is ascertained as a function of a plurality of detected values of the known distance d'. In particular, the computing unit 62 in the calibration computing step 100 forms a mean value or median of the detected values. In particular, in a memory step 102 of the calibration method 58, the computing unit 62 stores the ascertained body model parameter K1, in particular the mean value or median of the body model parameter K1”. However, the specification indicates body model parameters of the user such as an arm length and body size. How can these two BMP be determined from the calibration procedure discussed in ¶¶ 37-38 and shown in FIG. 7? It is recommended to amend the claims with particular examples of K1 that would be clear and enabled.
Accordingly, with respect to claims 3 and 7-9, a great degree of uncertainty and confusion exists regarding the proper interpretation of the claim in light of the multiplicity and scope of rejections set forth under 35 USC §112(b) above and their interrelation with one another. Considerable speculation is required to interpret the intended meaning of the claim and what the claim is intended to encompass. As such, the examiner is unable to interpret the meaning and scope of this claim with substantial certainty that would be required to attempt to apply prior art to reject the claim. Therefore, the examiner will not attempt to apply prior art to reject this claim because unreasonable and speculative assumptions as to the proper interpretation of claimed limitations that would be required to reject the claim on the basis of prior art would be improper. (See In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), MPEP §2143.03(I), MPEP §2173.06(II)¶2; “it is improper to rely on speculative assumptions regarding the meaning of a claim and then base a rejection under 35 U.S.C. 103 on these assumptions”; “a rejection under 35 U.S.C. 103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.”).
Claim Rejections - 35 USC § 112(a)
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.
Claims 3 and 7-9 are rejected under 35 U.S.C. 112(a), as failing to comply with the enablement requirement. The claims contain 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.
To satisfy the enablement requirement of 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112,
first paragraph, the specification must teach those skilled in the art how to make and use the full
scope of the claimed invention without "undue experimentation." See, e.g., In re Wright, 999
F.2d 1557, 1561, 27 USPQ2d 1510, 1513 (Fed. Cir. 1993); MPEP 2161.01, III. “The Federal Circuit has stated that "‘[i]t is the specification, not the knowledge of one skilled in the art, that must supply the novel aspects of an invention in order to constitute adequate enablement.’" Auto. Technologies, 501 F.3d at 1283, 84 USPQ2d at 1115 (quoting Genentech, Inc. v. Novo Nordisk A/S, 108 F.3d 1361, 1366, 42 USPQ2d 1001, 1005 (Fed. Cir.1997)). The rule that a specification need not disclose what is well known in the art is "merely a rule of supplementation, not a substitute for a basic enabling disclosure." Genentech, 108 F.3d at 1366. See MPEP 2161.01, III. Furthermore, a rejection under 35 U.S.C. 112(a) for lack of enablement must be made when the specification does not enable the full scope of the claim. See MPEP 2161.01, III. Here, the specification fails to enable the full scope of the limitations
As elaborated in the 112(b) rejection above, because a “body model parameter” generally could be a distance, i.e., between a pivot point and the measuring device (¶ 31 as shown in FIG. 5) (i.e., an arm length) or “pure rotation” of the measurement device (¶ 7), that is either related to a particular user or unrelated to a particular user (¶ 5) the metes and bounds of what is and is not included is unclear in view of the remaining claim language. For example, claims 2-3 requires K1 corrects E1 or E2, such that K1 must conform to the definition exemplified in ¶ 31 and FIG. 5. However, claim 3 requires the K1 recited therein is “at least one additional” K1 value. The examiner could not find enabling disclosure in the specification wherein there are multiple K1 values, and one of those values is used to correct E1 and/or E2 wherein both Ki values are dependent on a change in position of the distance measuring device from position 26 to position 32, for example, further contributing to the lack of clarity as to the metes and bound of the limitation. Accordingly, claim 3 is rejected for lack of enablement because the specification fails to enable the combined limitations of claims 1 and 3 to a PHOSITA without undue experimentation. The enablement is further appropriate since the metes and bounds of what is and is not a “at least one body model parameter of a user of the distance measuring device”. Such a wide variety of disparate possibilities contributes to undue experimentation in the context of the limitations of claims 1 and 3 discussed above.
The requirements that there are multiple K1 values, and one of those values is used to correct E1 and/or E2 wherein both K1 values (claim 3 “the body model parameters”) are “dependent on a change in position of the distance measuring device” from position 26 to position 32, for example, further contributing to the undue experimentation for a PHOSITA since it is not clear what versions of K1 qualify for this requirement and lack of guidance in the specification as to how a change in position is used to select multiple K1 values that correct an E1 and/or E2 value.
Accordingly, under the Wands factors (MPEP 2164.01(a) A-H), with respect to the above limitations, there are (G), no working examples for the full claim scope, (F) overlapping or conflicting terminology used to describe related concepts that cannot be discerned, and (H) a high degree of speculation and experimentation required of a PHOSITA due to the lack of clear and concise terms to carry out making or using the invention.
Claims 7-9 are also rejected under 112(a) as failing to comply with the enablement requirement. The claims contain 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. For the reasons recited above in the 112(b) rejection, the specification fails to provide adequate guidance to a PHOSITA at the time of effective filing to make or use the invention.
Reiterating one portion noted above, the limitation “A method for calibrating a handheld length measuring device for an indirect length measurement according to a claim 1 wherein the at least one body model parameter of the user of the length measuring device is ascertained” is unclear and indefinite in view of the combined limitations recited in claims 1 and 7 and the specification and drawings. Claim 7 appears to correspond to Fig. 7 and corresponding description in Spec. ¶¶ 37-38. As noted above, it is unclear what is and is not considered a body model parameter “of the user”, particularly a body parameter that can be resolved using the process described in ¶¶ 37-38. FIG. 7 purports to “ascertain” the body model parameter of the user, but fails to indicate how this is done. ¶ 38 indicates “The body model parameter K1 is ascertained as a function of a plurality of detected values of the known distance d'. In particular, the computing unit 62 in the calibration computing step 100 forms a mean value or median of the detected values. In particular, in a memory step 102 of the calibration method 58, the computing unit 62 stores the ascertained body model parameter K1, in particular the mean value or median of the body model parameter K1”. However, the specification indicates body model parameters of the user such as an arm length and body size. How can these two BMP be determined from the calibration procedure discussed in ¶¶ 37-38 and shown in FIG. 7? It is recommended to amend the claims with particular examples of K1 that would be clear and enabled.
A PHOSITA would not be able to make or use an invention that could determine a users’ body dimensions from measuring a distance d as recited in claim 7 without undue experimentation given the limited guidance provided in the specification, particularly ¶¶ 37-38 and shown in FIG. 7.
Furthermore, to satisfy the written description requirement, the Specification must describe the claimed invention in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention. Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1562–63 (Fed. Cir. 1991). Specifically, to have “possession,” the Specification must describe the claimed invention in a manner understandable to a person of ordinary skill in the art and show that the inventor actually invented the claimed invention. Id.; Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc).
Original claims may fail to satisfy the written description requirement when the invention is claimed and described in functional language but the specification does not sufficiently identify how the invention achieves the claimed function. Id. This can occur when the algorithm or steps for performing the computer function are not explained at all or are not explained in sufficient detail.
Additionally, it is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 681–683 (Fed. Cir. 2015); see also Examining Computer-Implemented Functional Claim Limitations for Compliance with 35 U.S.C. § 112, 84 Fed. Reg. 57, 62 (Jan. 7, 2019). Claimed subject matter should be described in the specification in such a manner as to enable one of ordinary skill in the art to make and use the invention. The specification fails to mention how at least two K1 values of the user are “ascertained” and further comply with the requirements of claims 1 and 7.
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 1-2, 4 and 10 are rejected under 35 U.S.C. 102(a)(1) as anticipated by U.S. 20110288818 to Theirman et al. (Their)
With respect to claims 1 and 10, as best understood in view of the 112(b) rejection, Their discloses a method for the indirect length measurement of a distance (d) between a measurement point (14) and an additional measurement point (16) using a distance measuring device (18) of a handheld length measuring device, comprising:
(FIG. 18, distance L3, using measurement points Y and Z and handheld device 1810/1820 and corresponding description, i.e., ¶¶ 94-106, i.e., 104 “the two distance measuring devices 1810 and 1820 are incorporated into a single apparatus or system and may share one housing unit”)
detecting, in at least one measurement step (22), a first distance (E1) between the distance measuring device (18) and the measurement point in a measurement position (26) of the distance measuring device; and
(FIG. 18, L1 and corresponding description, i.e., ¶¶ 65, 84, 90, 94-106)
detecting, in at least one additional measurement step (28), an additional distance (E2) between the distance measuring device (18) and the additional measurement point (16) in an additional measurement position (32) of the distance measuring device (18),
(FIG. 18, L2 and corresponding description, i.e., ¶¶ 65, 84, 90, 94-106)
wherein in at least one method step, the distance (d) between the measurement point (14) and the additional measurement point (16) is ascertained as a function of at least one body model parameter (K1)1 of a user.
(FIG 18, distance L3 and corresponding description, i.e., ¶¶ 65, 84, 90, 94-106; measurement point L3 is ascertained as a function of at least one body model parameter (K1) of a user because Their discloses using a compensated distance for L1 and L2 as shown in instant FIG. 5, i.e., ¶¶ 103-105 “measuring the distances L1 and L2, whether by direct measurement or using a compensation so that they are measured with respect to an origin point at reference location X . . . length compensations . . . a user may wield a hand-held geometric measuring apparatus and position himself or herself essentially at an arbitrary location (e.g., X) with respect to the object being measured 1800” wherein the compensation is a function of a body model parameter of a user, i.e., ¶ 84 “The way the apparatus compensates for such movement is to detect such movement of the apparatus in space by way of the on-board accelerometers, gyroscopic devices, compass devices, or optical (camera) feature recognition. So, here, when user 1420 swings his or her arm or wrist to point the apparatus from a first target point to the next, the apparatus can make the respective distance measurements to the respective target points and subtract or compensate for the shift in its base position”, i.e., the device measures the body model parameter of the user specific to the user during use and uses it to calculate a compensated distance L3)
(Cf. Their FIG. 18 and instant application FIG. 4 and corresponding description of FIG. 18)
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With respect to claim 2, Their discloses the at least one body model parameter is used to correct the detected first distance and/or the detected additional distance to ascertain the distance between the measurement point and the additional measurement point
(FIG 18, distance L3 and corresponding description, i.e., ¶¶ 65, 84, 90, 94-106; measurement point L3 is ascertained as a function of at least one body model parameter (K1) of a user because Their discloses using a compensated distance for L1 and L2 as shown in instant FIG. 5, i.e., ¶¶ 103-105 “measuring the distances L1 and L2, whether by direct measurement or using a compensation so that they are measured with respect to an origin point at reference location X . . . length compensations . . . a user may wield a hand-held geometric measuring apparatus and position himself or herself essentially at an arbitrary location (e.g., X) with respect to the object being measured 1800” wherein the compensation is a function of a body model parameter of a user, i.e., ¶ 84 “The way the apparatus compensates for such movement is to detect such movement of the apparatus in space by way of the on-board accelerometers, gyroscopic devices, compass devices, or optical (camera) feature recognition. So, here, when user 1420 swings his or her arm or wrist to point the apparatus from a first target point to the next, the apparatus can make the respective distance measurements to the respective target points and subtract or compensate for the shift in its base position”, i.e., the device measures the body model parameter of the user specific to the user during use and uses it to calculate a compensated distance L3)
With respect to claim 4, Their discloses a pivot point describing a change in position of the distance measuring device from the measurement position to the additional measurement position and on which the at least one body model parameter is dependent is selected
(Fig. 18, “X” and corresponding description, i.e., ¶¶ 65, 84, 90, 94-106; measurement point L3 is ascertained as a function of at least one body model parameter (K1) of a user because Their discloses using a compensated distance for L1 and L2 as shown in instant FIG. 5, i.e., ¶¶ 103-105 “measuring the distances L1 and L2, whether by direct measurement or using a compensation so that they are measured with respect to an origin point at reference location X . . . length compensations . . . a user may wield a hand-held geometric measuring apparatus and position himself or herself essentially at an arbitrary location (e.g., X) with respect to the object being measured 1800”; ¶ 55-56 pivot point, 65, 101)
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 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. 20110288818 to Theirman et al. (Their) in view of US 20170184721 to Sun et al. (Sun)
With respect to claim 5, Their fails to explicitly disclose a measurement error is ascertained and output as a function of the at least one body model parameter of the user of the distance measuring device.
Sun is from the same field of endeavor, since Sun also discloses indirect measurement of a distance using a distance measuring device (title, abstract). The invention in Sun essentially operates in the same manner as Their and the claimed invention, i.e., see FIG. 6-7 and corresponding description.
Sun discloses a measurement error is ascertained and output as a function of the at least one body model parameter of the user of the distance measuring device.
(¶¶ 72 “As shown in FIG. 10, the example distance engine 930 is configured to use one or more algorithms to compensate for user movement between Position 1 and Position 2 and/or adjust for inaccuracies introduced from the user . . . routines, calculations, and/or algorithms described below are configured to correct for user movement so as to determine indirect distance D3 between Point 1 and an adjusted Point 2, which is compensated for linear and unintended angular movement”; 73-96 with various examples of ascertaining measurement error as a function of at least one body model parameter of the user, i.e., 85 vertical correction is applied to Point 2. For instance, a user may be attempting to measure the distance along a straight line. However, while moving to Position 2, the user may have unintentionally tilted the laser distance device 300 upward or downward slightly. FIG. 10 shows an example where Point 2 is not vertically aligned with Point 1. In some examples, the application 308 may provide a user an option to select whether vertical correction is to be applied)
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of effective filing date to ascertain a measurement error as a function of the at least one body model parameter of the user of the distance measuring device as taught by Sun, in the system of Their in order to compensate for a users inability or lack of knowledge that can lead to inaccurate measurements in a manner that does not require more rigid and cumbersome equipment like a tripod (Sun, ¶¶ 6-9).
With respect to claim 6, Their in view of Sun disclose a proposal as to how the measurement error can be reduced is output.
(Sun, ¶¶ 72-96, i.e., ¶ 85 vertical correction is applied to Point 2. For instance, a user may be attempting to measure the distance along a straight line. However, while moving to Position 2, the user may have unintentionally tilted the laser distance device 300 upward or downward slightly. FIG. 10 shows an example where Point 2 is not vertically aligned with Point 1. In some examples, the application 308 may provide a user an option to select whether vertical correction is to be applied)
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 1 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over US 20150109407 to Giger (Giger) in view of US 20160282107 to Roland et al. (Roland)
With respect to claims 1 and 10, Giger discloses a method for the indirect length measurement of a distance (d) between a measurement point (14) and an additional measurement point (16) using a distance measuring device (18) of a handheld length measuring device, comprising:
(¶ 1 “The present invention relates to a method for indirectly determining distances with a handheld distance measurement device by means of two directly measured distances and an angle”)
detecting, in at least one measurement step (22), a first distance (E1) between the distance measuring device (18) and the measurement point in a measurement position (26) of the distance measuring device; and
(¶¶ 1, 54-56; FIG. 1A-1B distance of laser 7 in Fig. 1A from measurement device 1 to a measurement point 10 on the wall and all other corresponding descriptions)
detecting, in at least one additional measurement step (28), an additional distance (E2) between the distance measuring device (18) and the additional measurement point (16) in an additional measurement position (32) of the distance measuring device (18),
(¶¶ 1, 54-56; FIG. 1A-1B distance of laser 7 in Fig. 1B from measurement device 1 to a measurement point 11 on the wall and all other corresponding descriptions)
wherein in at least one method step, the distance (d) between the measurement point (14) and the additional measurement point (16) is ascertained as a function of at least one body model parameter (K1)2
(¶¶ 55-56 the handheld distance measurement device 1 . . . for the measurement with respect to the second point 11, the position of the distance measurement device 1 is changed by the user relative to the measurement with respect to the first point 10, illustrated here as a rotation by the angle α If said angle α can be detected in addition to the distances to the two points 10, 11, the section 15 between the two points 10, 11 can be calculated; FIG. 1B showing user movement based change in position which is purely rotational and non-translational)
However, as best understood in view of the 112(b) rejection above, Giger may fail to explicitly disclose that the body model parameter K1 is “of a user” of the distance measuring device, i.e., a dimension of the user.
Roland, from the same field of endeavor, discloses a body model parameter of the user of the distance measuring device, i.e., a dimension of the user
(¶¶ 13, 41-50, i.e., 41 “The processor may be configured to use prior knowledge to enhance the accuracy of measurements. Prior knowledge may include user characteristics, such as forearm length and wrist to sensor distances, and may also include certain assumptions, such as the measurement points being located in plane (which is typically the case when measuring a wall”; claims 1-5, i.e., claim 5 “the processor is configured to take user characteristics into consideration in determining the geometric characteristic of the measurement object, the user characteristics comprising at least one of a forearm length and a distance between a wrist of the user and the laser range finder”)
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of effective filing date to use a dimension of the user using the measuring device as taught by Roland in the system of Giger in order to improve accuracy of the measurement (Roland, ¶ 41).
Conclusion
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/KENNETH J MALKOWSKI/Primary Examiner, Art Unit 3667
1 The broadest reasonable interpretation of a body model parameter K1 is a change in position of the distance measuring device from a measurement position to the additional measurement position and is not necessarily related to the body of the user of the measuring device. K1 could simply be “a degree of rotation”, an indication of body posture, (Spec. ¶ 5). For example, the body pivot point may be a wrist (Spec. ¶ 9) where the change in position is purely rotational and has zero translational movement (¶ 7). K1 may be “non-specific, group-specific . . . randomly selected people . . . gender specific, country specific or region specific (¶ 5 “body model parameter . . . of a users body . . . non-specific, group-specific . . . randomly selected people . . . gender specific, country specific or region specific”).
2 The broadest reasonable interpretation of a body model parameter K1 is a change in position of the distance measuring device from a measurement position to the additional measurement position and is not necessarily related to the body of the user of the measuring device. K1 could simply be “a degree of rotation” (Spec. ¶ 5). For example, the body pivot point may be a wrist (Spec. ¶ 9) where the change in position is purely rotational and has zero translational movement (¶ 7).
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