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 .
Status of Claims
Claims 1-20 were previously pending and subject to a non-final Office Action having a notification date of February 12, 2026 (“non-final Office Action”). Following the non-final Office Action, Applicant filed an amendment on May 11, 2026 (the “Amendment”), amending claims 1, 7, and 15
The present Final Office Action addresses pending claims 1-20 in the Amendment.
Response to Arguments
Response to Applicant’s Arguments Regarding Claim Rejections Under 35 USC §101
1) The present claims recite "certain methods of organizing human activity":
At page 10 of the Amendment, Applicant takes the position that the present claims do not recite "certain methods of organizing human activity" because they are not similar to budgeting or tracking spending limits, voting and verifying ballots, or rules for playing a game. However, the sub-grouping under which the Examiner is placing the underlined limitations in the rejection below is managing personal behavior or interactions between people including following rules or instructions and tracking spending limits, voting and verifying ballots, or rules for playing a game are merely examples.
In this regard, and in relation to independent claim 1 for instance, displaying a fixed eye target (e.g., a finger on one hand), displaying a prompt (e.g., pointing to the left with a finger on the other hand) inducing a driver to move their head one direction while staring at the fixed target, receiving images of the driver's eyes during the first movement sequence (e.g., by visually observing the driver's eyes), displaying a second prompt (e.g., pointing to the right with the finger on the other hand) inducing a driver to move their head in an opposite direction while staring at the fixed target, receiving images of the driver's eyes during the second movement sequence (e.g., by observing the driver's eyes), thinking about the received images of the driver's eyes to perform a nystagmus test by detecting eye movement indicative of nystagmus while the driver stares at the fixed eye target (e.g., via determining whether the driver's eyes could remain fixed on the target while the head was moving, whether the pupils change by more than a predetermined amount during the head movement, whether the eyes move smoothly or in contrast including jerking movements, etc.), and using the test to determine whether the driver is intoxicated does in fact relate to managing personal behavior or interactions between people because such steps define rules/instructions that a first person is to carry out when conducting a nystagmus test of a second person (e.g., the first person telling the second person to stare at a finger on one hand while pointing to the left with a finger on the other hand to induce the person to turn his head to the left, the first person watching the eyes of the second person during such process, the first person then telling the second person to stare at the finger on the one hand while pointing to the right with the finger on the other hand to induce the person to turn his head to the right, the first person watching the eyes of the second person during such process, the first person processing/thinking about the second person's eyes to assess nystagmus in the second person, and the first person assessing whether the second person is intoxicated based on the nystagmus assessment).
Applicant's various assertions on page 11 of the Amendment that the present claims do not organize/regulate/manage/govern behavior/conduct/interactions between people are erroneous because the present claims in contrast literally describe a sequence of instructions/rules for managing interactions between two people (e.g., a first person prompting a second person to stare at a fixed eye target while moving their head in various directions, the first person observing the second person's eyes during such movements, and the first person assessing nystagmus/intoxication of the second person based on the eye observations).
Furthermore, Applicant's specific assertion that any effect on the driver's behavior from the intoxication testing is incidental or mere "downstream" effects is also clearly erroneous as the primary purpose of the present invention is to provide methods/systems for driver intoxication testing that involve instructing the driver to turn/rotate their head in different directions while his/her eyes remain fixed on a target (which is managing the driver's behavior) to distinguish from existing methods/systems that require the user to move his/her eyes across a large arc while his/her head remains steady and the attendant problems associated therewith ([0001]-[0005] of the present specification).
The Examiner also disagrees with Applicant's assertion that claims acquiring and analyzing physiological data necessarily cannot manage human behavior because such management of human behavior via following rules/instructions in the present claims is a necessary part of such acquiring and analyzing of physiological data (the driver's eye movements). Furthermore, these recitations, under their broadest reasonable interpretation, are similar to the concept of a mental process that a neurologist should follow when testing a patient for nervous system malfunctions, In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193, 194-96 (CCPA 1982). MPEP 2106.04(a)(2)(II)(C).
The various additional limitations of the GUI in the vehicle that "structures interaction with the driver," the electromagnetic sensor, display, assessment module, the processing of the electromagnetic signals, and computing device do not take the claims out of the "certain methods of organizing human activities" abstract idea category because these limitations just amount to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
2) The present claims recite "mental processes":
On the top half of page 12 of the Amendment, Applicant takes the position that a person cannot practically in their mind receive images of a driver's eyes during defined movement sequences and process the images to detect eye movement indicative of nystagmus. The Examiner disagrees because such steps are literally describing thought processes similar to those in a police officer's mind when conducting an intoxication test on a subject. That such images are received "at an electromagnetic sensor within the vehicle" just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)). Furthermore, to the extent that "processing" the received images to perform the nystagmus test necessarily connotes use of a computer processor, use of such computer processor also just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
On the bottom half of page 12 of the Amendment, it appears Applicant's position is that a claim can only recite "mental processes" if the entirety of the claim can be practically performed in the human mind. This is untrue because it would necessarily preclude the consideration of any "additional limitations." As set forth in MPEP 2106.04(II)(A)(1), Step 2A-Prong One asks whether the claim recites an abstract idea but does not ask whether the entirety of the claim recites an abstract idea. In fact, MPEP 2106.04(d)(III) states how the limitations containing the judicial exception as well as the additional elements in the claim besides the judicial exception need to be evaluated together to determine whether the claim integrates the judicial exception into a practical application in Step 2A-Prong Two, thus supporting the Examiner's assertion that some limitations in a claim can recite an abstract idea while the remaining limitations in the claims are the "additional limitations." In this regard, a person can practically receive/assess images of a person's eyes while an intoxication test is conducted and mentally analyze the images to detect eye movement indicative of nystagmus.
On page 13 of the Amendment in relation to independent claim 7, Applicant takes the position that has described this claim at an impermissibly high level of abstraction in asserting the claim recites mental processes and that the claim defines a "coordinated system in which sensing, user interaction, and analysis are tied together within a structured test protocol that cannot be performed in the human mind." The Examiner disagrees that claim 7 does not recite an abstract idea.
For reference, claim 7 is reproduced below with the limitations reciting an abstract idea being underlined and those reciting "additional limitations" being bolded.
A system for intoxication testing within a vehicle, comprising:
an electromagnetic sensor configured to receive electromagnetic signals from an occupant of the vehicle corresponding to eye movement of at least one eye of the occupant;
a graphical display configured to administer an intoxication test sequence to the occupant of the vehicle, wherein the intoxication test sequence comprises a series of prompts to the occupant comprising at least one prompt to maintain fixation on a fixed eye target; and
an intoxication assessment module configured to assess potential intoxication of the occupant of the vehicle by processing electromagnetic signals received by the electromagnetic sensor during the intoxication test sequence to detect eye movement indicative of nystagmus and to assess potential intoxication based thereon.
A person can practically in their mind receive electromagnetic signals from an occupant of a vehicle corresponding to eye movement of at least one eye of the occupant (e.g., via watching the occupant's eyes) and then assess potential intoxication of the occupant of the vehicle by processing electromagnetic signals during the intoxication test sequence to detect eye movement indicative of nystagmus and to assess potential intoxication based thereon (e.g., observe and determine eye jerking, etc.). While a person cannot practically in their mind administer an intoxication test sequence including a series of prompts to the occupant comprising at least one prompt to maintain fixation on a fixed eye target, such limitation recites certain methods of organizing human activities because it relates to following rules/instructions for managing human behavior. Furthermore, the limitations reciting "mental processes" and those reciting "certain methods of organizing human behavior" should be considered as a single abstract idea for purposes of Step 2A-Prong Two and Step 2B. MPEP 2106.04(II)(B). In this regard, the remaining "additional limitations" (e.g., the broadly claimed electromagnetic sensor, GUI, intoxication assessment module, etc.) just amount to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
On pages 13-14 of the Amendment, Applicant asserts how claim 15 presents prompts to the driver to perform head movements while maintaining fixation on a visual eye target as part of an intoxication test sequence that structures interaction with the driver to carry out the test which "defines a structured interaction paradigm through which the system guides the user through a specific testing protocol." However, such interaction paradigm through which the system guides the user through a specific testing protocol is exactly describing rules/instructions for managing interactions between people ("certain methods of organizing human activity").
Furthermore, the Examiner disagrees with Applicant's analogization of claim 15 to the eligible claims in Example 37 of the USPTO Eligibility Examples. In Example 37, the USPTO described how the additional elements of receiving, via a GUI, a user selection to organize each icon based on the amount of use of each icon, a processor for performing the determining step, and automatically moving the most used icons to a position on the GUI closest to the start icon of the computer system based on the determined amount of use integrate the mental process of determining the amount of use of each icon over a predetermined period of time into a practical application because they recite a specific manner of automatically displaying icons to the user based on usage which provides a specific improvement over prior systems, resulting in an improved user interface for electronic devices. In contrast, there are no details in claim 15 regarding any positioning/orientation/movement of the various generically recited "prompts" that provides a specific improvement over prior systems.
3) The present claims do not include "additional limitations" that integrate the abstract idea into a "practical application":
On pages 15-16 of the Amendment, Applicant makes reference to the GUI, electromagnetic sensor, and processing (assuming such requires a physical "processor") of independent claim 1 and asserts that such limitations, along with the limitations directed to presenting/displaying a fixed eye target and head movement sequence prompts, driver eye image capture, and image data processing to assess nystagmus "define a particular manner of performing a physiological test under controlled conditions, not a generalized concept" and "confine the claim to a specific technological implementation rather than allowing them to preempt the alleged abstract idea in general." However, the Examiner is unaware of any authority supporting Applicant's alleged position that "[defining] a particular manner of performing a physiological test under controlled conditions, not a generalized concept" supports patent eligibility as it appears Applicant believes. Furthermore, while preemption is the concern underlying the judicial exceptions, it is not a standalone test for determining eligibility. Rapid Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d 1042, 1052, 119 USPQ2d 1370, 1376 (Fed. Cir. 2016). It is necessary to evaluate eligibility using the Alice/Mayo test, because while a preemptive claim may be ineligible, the absence of complete preemption does not demonstrate that a claim is eligible. Diamond v. Diehr, 450 U.S. 175, 191-92 n.14, 209 USPQ 1, 10-11 n.14 (1981) ("We rejected in Flook the argument that because all possible uses of the mathematical formula were not pre-empted, the claim should be eligible for patent protection"). See also Synopsys v. Mentor Graphics, 839 F.3d at 1150, 120 USPQ2d at 1483; FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1098, 120 USPQ2d 1293, 1299 (Fed. Cir. 2016); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1320-21, 120 USPQ2d 1353, 1362 (Fed. Cir. 2016); Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). MPEP 2106.04(I). “Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). In other words, “preemption may signal patent ineligible subject matter, [but] the absence of complete preemption does not demonstrate patent eligibility.” Id.
In the present case, the Examiner asserts that the additional limitations in the claims do not provide a practical application at Step 2A-Prong Two as set forth in the rejection below.
Regarding claim 15, the additional limitations of the generically recited computing device including a display within a vehicle just amount to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
4) The present claims do not include "additional limitations" that provide "significantly more" than the abstract idea:
On pages 16-17 of the Amendment, Applicant takes the position that the present claims include additional limitations that amount to "significantly more" than the abstract idea because are not merely well-understood, routine, or conventional activities. However, the additional limitations do not amount to "significantly more" than the abstract idea at least for the same reasons supporting the Examiner's position that they do not provide a "practical application" of the abstract idea as set forth in the rejection below (e.g., merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the abstract idea (see MPEP § 2106.05(f)).
The 35 USC 101 rejection is maintained.
Response to Applicant’s Arguments Regarding Claim Rejections Under 35 USC §102/103
Applicant's arguments are moot in view of the new grounds of rejection set forth herein as necessitated by the Amendment.
Furthermore, Applicant's repeated argument that Krueger does not disclose processing images of a subject's eyes while maintaining fixation on a fixed eye target to perform a nystagmus test for purposes of intoxication testing is false. Specifically, Krueger teaches ([0124]-[0136]) instructing a subject to keep his/her eyes focused on a static/fixed visual target on a display, using visual cues to tell the subject when to move his/her head in first and second different directions (e.g., horizontal/vertical), recording (with a camera) changes in eye orientation relative to head orientation, and analyzing the recordings to measure the subject's ocular performance (e.g., in relation to nystagmus per [0002], [0057], etc.) for purposes of assessing alcohol/drug use ([0309]).
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: "intoxication assessment module" in claim 7.
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 § 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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 14-20 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.
It is unclear if the "object" that the occupant is to start at in claim 14 is the same as the fixed eye target recited in claim 7. The Examiner will assume they are the same for purposes of examination.
Claim 15 recites the limitation "the graphical user interface" in lines 10-11. There is insufficient antecedent basis for this limitation in the claim.
Claims 16-20 are rejected based on their dependency from claim 15.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. §101 because the claimed invention is directed to an abstract idea without significantly more:
Subject Matter Eligibility Criteria - Step 1:
Claims 1-6 are directed to a method (i.e., a process), claims 7-14 are directed to a system (i.e., a machine), and claims 15-20 are directed to a computing device (i.e., a machine). Accordingly, claims 1-20 are all within at least one of the four statutory categories. 35 USC §101.
Subject Matter Eligibility Criteria - Alice/Mayo Test: Step 2A - Prong One:
Regarding Prong One of Step 2A of the Alice/Mayo test (which collectively includes the guidance in the January 7, 2019 Federal Register notice and the October 2019 and July 2024 updates issued by the USPTO as incorporated into the MPEP, as supported by relevant case law), the claim limitations are to be analyzed to determine whether, under their broadest reasonable interpretation, they “recite” a judicial exception or in other words whether a judicial exception is “set forth” or “described” in the claims. MPEP 2106.04(II)(A)(1). An “abstract idea” judicial exception is subject matter that falls within at least one of the following groupings: a) certain methods of organizing human activity, b) mental processes, and/or c) mathematical concepts. MPEP 2106.04(a).
Independent claim 1 includes limitations that recite at least one abstract idea. Specifically, independent claim 1 recites:
A method for administration of an intoxication test sequence to a driver within a user interface of a vehicle, the method comprising the steps of:
displaying a fixed eye target on a graphical user interface of the vehicle;
displaying a first prompt on the graphical user interface inducing the driver to perform a first movement sequence in which the driver is to stare at the fixed eye target while moving the driver’s head in a first direction;
receiving, at an electromagnetic sensor within the vehicle, one or more images of the driver’s eyes during the first movement sequence;
displaying a second prompt on the graphical user interface inducing the driver to perform a second movement sequence in which the driver is to stare at the fixed eye target while moving the driver’s head in a second direction;
receiving, at the electromagnetic sensor within the vehicle, one or more images of the driver’s eyes during the second movement sequence;
processing received images of the driver’s eyes to perform a nystagmus test by detecting eye movement indicative of nystagmus while the driver stares at the fixed eye target; and
using the nystagmus test to assess whether the driver is intoxicated.
The Examiner submits that the foregoing underlined limitations recite “certain methods of organizing human activity” because they relate to managing personal behavior or relationships or interactions between people (e.g., social activities, teaching, and following rules or instructions). Specifically, displaying a fixed eye target (e.g., a finger on one hand), displaying a prompt (e.g., pointing to the left with a finger on the other hand) inducing a driver to move their head one direction while staring at the fixed target, receiving images of the driver's eyes during the first movement sequence (e.g., by visually observing the driver's eyes), displaying a second prompt (e.g., pointing to the right with the finger on the other hand) inducing a driver to move their head in an opposite direction while staring at the fixed target, receiving images of the driver's eyes during the second movement sequence (e.g., by observing the driver's eyes), "processing" (e.g., thinking about) the received images of the driver's eyes to perform a nystagmus test by detecting eye movement indicative of nystagmus while the driver stares at the fixed eye target (e.g., via determining whether the driver's eyes could remain fixed on the target while the head was moving, whether the pupils change by more than a predetermined amount during the head movement, whether the eyes move smoothly or in contrast including jerking movements, etc.), and using the test to determine whether the driver is intoxicated is similar to a series of rules/instructions that police officers administer to suspected drunk drivers to assess intoxication. These recitations, under their broadest reasonable interpretation, are similar to the concept of a mental process that a neurologist should follow when testing a patient for nervous system malfunctions, In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193, 194-96 (CCPA 1982). MPEP 2106.04(a)(2)(II)(C).
Furthermore, many of the foregoing underlined limitations recite (b) “mental processes” because they are observations/evaluations/judgments/analyses that can, at the currently claimed high level of generality, be practically performed in the human mind (e.g., with pen and paper)(e.g., receiving images of the eyes during the movement sequences and processing/thinking about the images to detect eye movement indicative of nystagmus). These recitations, under their broadest reasonable interpretation, are similar to the concepts of collecting information, analyzing it and displaying certain results of the collection and analysis found to be "mental processes" in Electric Power Group, LLC, v. Alstom (830 F.3d 1350, 119 USPQe2d 1739 (Fed. Cir. 2016)). MPEP 2106.04(a)(2)(III).
Accordingly, the claim recites at least one abstract idea.
Independent claim 7 includes limitations that recite at least one abstract idea. Specifically, independent claim 7 recites:
A system for intoxication testing within a vehicle, comprising:
an electromagnetic sensor configured to receive electromagnetic signals from an occupant of the vehicle corresponding to eye movement of at least one eye of the occupant;
a graphical display configured to administer an intoxication test sequence to the occupant of the vehicle, wherein the intoxication test sequence comprises a series of prompts to the occupant comprising at least one prompt to maintain fixation on a fixed eye target; and
an intoxication assessment module configured to assess potential intoxication of the occupant of the vehicle by processing electromagnetic signals received by the electromagnetic sensor during the intoxication test sequence to detect eye movement indicative of nystagmus and to assess potential intoxication based thereon.
The Examiner submits that the foregoing underlined limitations recite “certain methods of organizing human activity” because they relate to managing personal behavior or relationships or interactions between people (e.g., social activities, teaching, and following rules or instructions). Specifically, receiving (e.g., observing) electromagnetic signals (e.g., visible light) from an occupant of a vehicle (e.g., reflected off the occupant) corresponding to eye movement of at least one eye of the occupant, providing a series of prompts to the occupant including a prompt to maintain fixation on a fixed eye target as part of administering an intoxication test to the occupant, and assessing potential intoxication of the occupant using electromagnetic signals to detect eye movement indicative of nystagmus and to assess potential intoxication based thereon during the intoxication text sequence (e.g., via watching the occupant's eyes and other movements) are similar to a series of rules/instructions that police officers administer to suspected drunk drivers to assess intoxication. These recitations, under their broadest reasonable interpretation, are similar to the concept of a mental process that a neurologist should follow when testing a patient for nervous system malfunctions, In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193, 194-96 (CCPA 1982). MPEP 2106.04(a)(2)(II)(C).
Furthermore, the foregoing underlined limitations recite (b) “mental processes” because many of the limitations are observations/evaluations/judgments/analyses that can, at the currently claimed high level of generality, be practically performed in the human mind (e.g., with pen and paper)(e.g., receiving images of eye movements and assessing potential intoxication by processing/thinking about the images to detect eye movement indicative of nystagmus). These recitations, under their broadest reasonable interpretation, are similar to the concepts of collecting information, analyzing it and displaying certain results of the collection and analysis found to be "mental processes" in Electric Power Group, LLC, v. Alstom (830 F.3d 1350, 119 USPQe2d 1739 (Fed. Cir. 2016)). MPEP 2106.04(a)(2)(III).
Accordingly, the claim recites at least one abstract idea.
Independent claim 15 includes limitations that recite at least one abstract idea. Specifically, independent claim 15 recites:
A computing device comprising a display within a vehicle, the computing device being configured to:
display a first prompt to a driver of the vehicle indicating an initiation of an intoxication test, wherein the first prompt comprises a visual eye target for the driver;
display a second prompt to the driver to turn the driver’s head in a first direction with the driver’s eyes fixed on the visual eye target;
display a third prompt to the driver to turn the driver’s head in a second direction with the driver’s eyes fixed on the visual eye target, wherein the first, second, and third prompts are presented to the driver via the graphical user interface as part of an intoxication test sequence that structures interaction with the driver to perform head movements while maintaining fixation on the visual eye target; and
display a status indication to the driver indicating a result of the intoxication test.
The Examiner submits that the foregoing underlined limitations recite “certain methods of organizing human activity” because they relate to managing personal behavior or relationships or interactions between people (e.g., social activities, teaching, and following rules or instructions). Specifically, displaying a "first prompt" including a visual eye target (e.g., a finger on one hand) to a vehicle driver, displaying a "second prompt" (e.g., pointing to the left with a finger on the other hand) inducing the driver to turn their head one direction while staring at the fixed target, displaying a "third prompt" (e.g., pointing to the right with the finger on the other hand) inducing a driver to move their head in an opposite direction while staring at the fixed target, all as part of an intoxication/nystagmus test to perform head movements while maintaining fixation on the fixed target, and displaying a status indication regarding the status of the test (e.g., pointing for the driver to turn around so handcuffs can be applied) is similar to a series of rules/instructions that police officers administer to suspected drunk drivers to assess intoxication. These recitations, under their broadest reasonable interpretation, are similar to the concept of a mental process that a neurologist should follow when testing a patient for nervous system malfunctions, In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193, 194-96 (CCPA 1982). MPEP 2106.04(a)(2)(II)(C).
Furthermore, dependent claims 2, 3, 9-11, 13, 14, 16, and 18-20 further define the at least one abstract idea (and thus fail to make the abstract idea any less abstract) as set forth below:
-Claim 2 recites how the first and second prompts move in a direction and speed at which the driver is to move the driver’s head during the first and second movement sequences which just further defines the at least one abstract idea.
-Claim 3 calls for pausing between the first and second movement sequences for a predetermined time period to indicate that the driver should hold the driver’s head steady while staring at the fixed eye target for the predetermined time period which just further defines the at least one abstract idea.
-Claim 9 recites how the intoxication test sequence includes a nystagmus test sequence which just further defines the at least one abstract idea.
-Claim 10 recites how the nystagmus test sequence includes displaying a first prompt inducing the occupant to perform a first movement sequence in which the occupant is to stare at a fixed eye target while moving the occupant’s head in a first direction which just further defines the at least one abstract idea.
-Claim 11 recites how the nystagmus test sequence includes displaying a second prompt inducing the occupant to perform a second movement sequence in which the occupant is to stare at a fixed eye target while moving the occupant’s head in a second direction which just further defines the at least one abstract idea.
-Claim 13 recites how intoxication test sequence includes a nystagmus test sequence which just further defines the at least one abstract idea.
-Claim 14 recites how the series of prompts to the occupant includes at least one prompt instructing the occupant to stare at an object while moving the occupant’s head which just further defines the at least one abstract idea.
-Claim 16 recites how the visual eye target does not move during the intoxication test which just further defines the at least one abstract idea.
-Claim 18 recites how the second prompt moves in the first direction to provide a visual cue to the driver to prompt movement of the driver’s head in the first direction and the third prompt moves in the second direction to provide a visual cue to the driver to prompt movement of the driver’s head in the second direction which just further defines the at least one abstract idea.
-Claim 19 recites how the second and third prompts move relative to the visual eye target in a direction/speed indicative of how the driver should move the driver's head during the test which just further defines the at least one abstract idea.
-Claim 20 calls for displaying a first hold prompt in between the second prompt and the third prompt indicating a first time period during which the driver’s head should be held steady before moving in the second direction and displaying a second hold prompt following the third prompt indicating a second time period during which the driver’s head should be held steady following movement in the second direction which just further defines the at least one abstract idea.
Subject Matter Eligibility Criteria - Alice/Mayo Test: Step 2A - Prong Two:
Regarding Prong Two of Step 2A of the Alice/Mayo test, it must be determined whether the claim as a whole integrates the abstract idea into a practical application. As noted at MPEP §2106.04(II)(A)(2), it must be determined whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception. The courts have indicated that additional elements such as merely using a computer to implement an abstract idea, adding insignificant extra solution activity, or generally linking use of a judicial exception to a particular technological environment or field of use do not integrate a judicial exception into a “practical application.” MPEP §2106.05(I)(A).
In the present case, the additional limitations beyond the above-noted at least one abstract idea recited in the claim are as follows (where the bolded portions are the “additional limitations” while the underlined portions continue to represent the at least one “abstract idea”):
Independent Claim 1:
A method for administration of an intoxication test sequence to a driver within a user interface of a vehicle, the method comprising the steps of:
displaying a fixed eye target on a graphical user interface of the vehicle;
displaying a first prompt on the graphical user interface inducing the driver to perform a first movement sequence in which the driver is to stare at the fixed eye target while moving the driver’s head in a first direction;
receiving, at an electromagnetic sensor within the vehicle, one or more images of the driver’s eyes during the first movement sequence;
displaying a second prompt on the graphical user interface inducing the driver to perform a second movement sequence in which the driver is to stare at the fixed eye target while moving the driver’s head in a second direction;
receiving, at the electromagnetic sensor within the vehicle, one or more images of the driver’s eyes during the second movement sequence;
processing received images of the driver’s eyes to perform a nystagmus test by detecting eye movement indicative of nystagmus while the driver stares at the fixed eye target; and
using the nystagmus test to assess whether the driver is intoxicated.
Independent Claim 7:
A system for intoxication testing within a vehicle, comprising:
an electromagnetic sensor configured to receive electromagnetic signals from an occupant of the vehicle corresponding to eye movement of at least one eye of the occupant;
a graphical display configured to administer an intoxication test sequence to the occupant of the vehicle, wherein the intoxication test sequence comprises a series of prompts to the occupant comprising at least one prompt to maintain fixation on a fixed eye target; and
an intoxication assessment module configured to assess potential intoxication of the occupant of the vehicle by processing electromagnetic signals received by the electromagnetic sensor during the intoxication test sequence to detect eye movement indicative of nystagmus and to assess potential intoxication based thereon.
Independent Claim 15:
A computing device comprising a display within a vehicle, the computing device being configured to:
display a first prompt to a driver of the vehicle indicating an initiation of an intoxication test, wherein the first prompt comprises a visual eye target for the driver;
display a second prompt to the driver to turn the driver’s head in a first direction with the driver’s eyes fixed on the visual eye target;
display a third prompt to the driver to turn the driver’s head in a second direction with the driver’s eyes fixed on the visual eye target, wherein the first, second, and third prompts are presented to the driver via the graphical user interface as part of an intoxication test sequence that structures interaction with the driver to perform head movements while maintaining fixation on the visual eye target; and
display a status indication to the driver indicating a result of the intoxication test.
For the following reasons, the Examiner submits that the above-identified additional limitations, when considered as a whole with the limitations reciting the at least one abstract idea, do not integrate the above-noted at least one abstract idea into a practical application.
Regarding the additional limitations of the GUI in the vehicle, the electromagnetic sensor, display, assessment module, and computing device, the Examiner submits that these limitations amount to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
Thus, taken alone, the additional elements do not integrate the at least one abstract idea into a practical application. Furthermore, looking at the additional limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. MPEP §2106.05(I)(A) and §2106.04(II)(A)(2).
For these reasons, independent claim 1, 7, and 15 do not recite additional elements that integrate the judicial exception into a practical application. Accordingly, independent claims 1, 7, and 15 are directed to at least one abstract idea.
The remaining dependent claim limitations not addressed above fail to integrate the abstract idea into a practical application as set forth below:
-Claims 2 and 3 recite how the first and second prompts are "dynamic graphical elements" that move at the direction/speed at which the driver's head is to move and pause when the driver's head is to pause which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claims 4 and 5 recite how the dynamic graphical element is overlaid on the fixed eye target and includes a spherical element which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 6 recites how the first prompt includes text that prompts the user to perform the movement sequence which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 8 recites how the graphical display is a GUI which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 9 recites how the intoxication assessment module includes a nystagmus detection module (e.g., computer code) which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claims 10 and 11 call for displaying prompts on the display which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 12 calls for a breath sensor configured to detect an intoxicant level from breath of an occupant of a vehicle which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 17 recites how the first prompt includes a textual instruction indicating that the driver should stare directly at the visual eye target during the intoxication test which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 18 recites how the prompts are "dynamic graphical elements" that move at the direction/speed at which the driver's head is to move which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 19 recites how the dynamic graphical elements are overlaid over the eye target and moves relative to the eye target in a direction/speed indicative of a preferred head direction of the driver's head during the test which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 20 calls for displaying hold prompts indicating times for the driver to hold the driver's head steady which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
When the above additional limitations are considered as a whole along with the limitations directed to the at least one abstract idea, the at least one abstract idea is not integrated into a practical application. Therefore, the claims are directed to at least one abstract idea.
Subject Matter Eligibility Criteria - Alice/Mayo Test: Step 2B:
Regarding Step 2B of the Alice/Mayo test, independent claims 1, 7, and 15 do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for reasons the same as those discussed above with respect to determining that the claim does not integrate the abstract idea into a practical application.
Regarding the additional limitations of the GUI in the vehicle, the electromagnetic sensor, display, assessment module, and computing device, the Examiner submits that these limitations amount to merely using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
The dependent claims also do not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for the same reasons to those discussed above with respect to determining that the dependent claims do not integrate the at least one abstract idea into a practical application.
-Claims 2 and 3 recite how the first and second prompts are "dynamic graphical elements" that move at the direction/speed at which the driver's head is to move and pause when the driver's head is to pause which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claims 4 and 5 recite how the dynamic graphical element is overlaid on the fixed eye target and includes a spherical element which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 6 recites how the first prompt includes text that prompts the user to perform the movement sequence which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 8 recites how the graphical display is a GUI which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 9 recites how the intoxication assessment module includes a nystagmus detection module (e.g., computer code) which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claims 10 and 11 call for displaying prompts on the display which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 12 calls for a breath sensor configured to detect an intoxicant level from breath of an occupant of a vehicle which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 17 recites how the first prompt includes a textual instruction indicating that the driver should stare directly at the visual eye target during the intoxication test which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 18 recites how the prompts are "dynamic graphical elements" that move at the direction/speed at which the driver's head is to move which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 19 recites how the dynamic graphical elements are overlaid over the eye target and moves relative to the eye target in a direction/speed indicative of a preferred head direction of the driver's head during the test which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
-Claim 20 calls for displaying hold prompts indicating times for the driver to hold the driver's head steady which just amounts to using a computer or other machinery as tools performing their typical functionality in conjunction with performing the above-noted at least one abstract idea (see MPEP § 2106.05(f)).
Therefore, claims 1-20 are ineligible under 35 USC §101.
Claim Rejections - 35 USC § 102
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 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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 6-14 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by U.S. Patent App. Pub. No. 2025/0121830 to Glaser et al. ("Glaser"):
Regarding claim 1, Glaser discloses a method for administration of an intoxication test sequence to a driver within a user interface of a vehicle (Figure 3 discloses a method of detecting impairment/intoxication of a vehicle operator which utilizes a display/UI per Figures 1-2B and [0045]-[0047]), the method comprising the steps of:
displaying a fixed eye target on a graphical user interface of the vehicle (fixed points 52, 54 on display 18 in Figures 2A-2B);
displaying a first prompt on the graphical user interface inducing the driver to perform a first movement sequence in which the driver is to stare at the fixed eye target while moving the driver's head in a first direction (the end of [0047] discloses how the operator 14 may be instructed via visual prompts (which would include some "first prompt" on the display 18) to keep their gaze fixed on a point (which, in the context of [0047], would be e.g., one of the fixed points 52, 54) and to rotate their head away from the point (first movement sequence in first direction which would be in a horizontal direction as the system is testing for horizontal gaze nystagmus per [0046]-[0047]));
receiving, at an electromagnetic sensor within the vehicle, one or more images of the driver's eyes during the first movement sequence (the camera (electromagnetic sensor) 20 captures eye images/gaze samples per [0039], [0047]);
displaying a second prompt on the graphical user interface inducing the driver to perform a second movement sequence in which the driver is to stare at the fixed eye target while moving the driver's head in a second direction ([0045] discloses how vertical gaze nystagmus can also be assessed which, in the context of the end of [0047], would be via the operator being instructed via some "second prompt" on the display 18 to keep their gaze fixed on a point (e.g., one of the fixed points 52, 54) and to rotate their head away from the point (second movement sequence in second direction which would be in a vertical direction as the system is testing for vertical gaze nystagmus per [0045]);
receiving, at the electromagnetic sensor within the vehicle, one or more images of the driver's eyes during the second movement sequence (the camera (electromagnetic sensor) 20 captures eye images/gaze samples per [0039], [0047]);
processing received images of the driver's eyes to perform a nystagmus test by detecting eye movement indicative of nystagmus while the driver stares at the fixed eye target ([0066] discusses analyzing the gaze samples/received images to assess eye movements indicative of nystagmus (which is while the person stares at the fixed target per the end of [0047])); and
using the nystagmus test to assess whether the driver is intoxicated ([0067] discusses how the controller determines whether the presence and intensity of the determined nystagmus indicates the operator 14 is impaired ("intoxicated" as the system is directed to detected alcohol impairment per [0001])).
Regarding claim 6, Glaser discloses the method of claim 1, further including wherein the first prompt further comprises text prompting the user to perform the first movement sequence (the end of [0047] discloses visual prompts which, per the upper portion of [0047], can be word/text instructions).
Regarding claim 7, Glaser discloses a system for intoxication testing (system 10 in Figure 1) within a vehicle (vehicle 12), comprising:
an electromagnetic sensor configured to receive electromagnetic signals from an occupant of the vehicle corresponding to eye movement of at least one eye of the occupant (camera 20 captures images/electromagnetic signals from the eyes of operator/occupant 14 per [0039] including horizontal/vertical eye movements per [0045]-[0047]);
a graphical display (display 18 in Figures 1-2B) configured to administer an intoxication test sequence to the occupant of the vehicle, wherein the intoxication test sequence comprises a series of prompts to the occupant ([0046]-[0047] discusses using display 18 to assess horizontal gaze nystagmus (HGN) of the operator 14 of the vehicle including projecting graphics/prompts (e.g., dots, arrows, word instructions) on the display 18 for the operator 14) comprising at least one prompt to maintain fixation on a fixed eye target (the end of [0047] discloses how the operator 14 may be instructed to keep their gaze fixed on a point (which, in the context of [0047], would be e.g., one of the fixed points 52, 54) and to rotate their head away from the point using visual prompts); and
an intoxication assessment module configured to assess potential intoxication of the occupant of the vehicle by processing electromagnetic signals received by the electromagnetic sensor during the intoxication test sequence to detect eye movement indicative of nystagmus (controller analyzes the gaze samples (the electromagnetic signals collected by camera 20) to determine whether there is HGN per [0050], [0066]) and to assess potential intoxication based thereon ([0067] discusses how the controller determines whether the presence and intensity of the determined nystagmus indicates the operator 14 is impaired ("intoxicated" as the system is directed to detected alcohol impairment per [0001])).
Regarding claim 8, Glaser discloses the system of claim 7, further including wherein the graphical display comprises a graphical user interface (display 18 in Figures 1-2B is a GUI because it displays graphics per [0047]).
Regarding claim 9, Glaser discloses the system of claim 7, further including wherein the intoxication assessment module comprises a nystagmus detection module ([0050] discloses how the controller 16 utilizes a nystagmus detection module), and wherein the intoxication test sequence comprises a nystagmus test sequence (as the administered test sequence prompts/graphics in [0047] are for the purposes of collecting gaze images/samples to assess nystagmus, then the test sequence includes a nystagmus test sequence).
Regarding claim 10, Glaser discloses the system of claim 9, further including wherein the nystagmus test sequence comprises displaying a first prompt on the graphical display inducing the occupant to perform a first movement sequence in which the occupant is to stare at a fixed eye target displayed on the graphical display while moving the occupant’s head in a first direction (the end of [0047] discloses how the operator 14 may be instructed via visual prompts (which would include some "first prompt" on the display 18) to keep their gaze fixed on a point (which, in the context of [0047], would be e.g., one of the fixed points 52, 54) and to rotate their head away from the point (first movement sequence in first direction which would be in a horizontal direction as the system is testing for horizontal gaze nystagmus per [0046]-[0047])).
Regarding claim 11, Glaser discloses the system of claim 10, further including wherein the nystagmus test sequence further comprises displaying a second prompt on the graphical display inducing the occupant to perform a second movement sequence in which the occupant is to stare at the fixed eye target while moving the occupant's head in a second direction ([0045] discloses how vertical gaze nystagmus can also be assessed which, in the context of the end of [0047], would be via the operator being instructed via some "second prompt" on the display 18 to keep their gaze fixed on a point (e.g., one of the fixed points 52, 54) and to rotate their head away from the point (second movement sequence in second direction which would be in a vertical direction as the system is testing for vertical gaze nystagmus per [0045]).
Regarding claim 12, Glaser discloses the system of claim 7, further including a breath sensor configured to detect an intoxicant level from breath of an occupant of a vehicle (alcohol breath sensor 22 per [0040]).
Regarding claim 13, Glaser discloses the system of claim 7, further including wherein the intoxication test sequence comprises a nystagmus test sequence (as the administered test sequence prompts/graphics in [0047] are for the purposes of collecting gaze images/samples to assess nystagmus, then the test sequence includes a nystagmus test sequence).
Regarding claim 14, Glaser discloses the system of claim 13, further including wherein the series of prompts to the occupant comprises at least one prompt instructing the occupant to stare at an object displayed on the graphical display while moving the occupant's head (the end of [0047] discloses how the operator 14 may be instructed via visual prompts (which would include at least one prompt on the display 18) to keep their gaze fixed on a point (which, in the context of [0047], would be e.g., one of the fixed points/objects 52, 54) and to rotate/move their head away from the point/object).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2025/0121830 to Glaser et al. ("Glaser") in view of Int'l Pub. No. WO 2025/050938 to Wang et al. ("Wang"):
Regarding claim 2, Glaser discloses the method of claim 1, further including wherein the first prompt and the second prompt each comprises a … graphical element [for] the driver is to move the driver’s head during the first and second movement sequences (the visual/graphical prompts in [0047] are visual cues to the driver to prompt movement of their head in the first and second directions).
However, the graphical elements Glaser might not specifically be dynamic graphical elements that move in a direction in which and a speed at which the driver is to move the driver's head during the first and second movement sequences.
Nevertheless, Wang teaches (end of "Background art" on page 2 of the translation, "First display example" at bottom of page 16 through page 17 of translation, and Figures 4-5) that it was known in the vestibular tracking art for a second information mark (dynamic graphical element) to move in a direction and speed in which a user is to move their head while staring at a fixed target to advantageously facilitate conveyance of an appropriate direction and speed at which a user is to move his or her head to improve accuracy of vestibular tracking tests and the like.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the graphical elements of Glaser to be dynamic graphical elements that move in a direction in which and a speed at which the driver is to move the driver's head during the first and second movement sequences similar to as taught by Wang to advantageously facilitate conveyance of an appropriate direction and speed at which a user is to move his or her head thereby improving accuracy of the driver intoxication test. A person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention and there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. Id.
Regarding claim 4, the Glaser/Wang combination discloses the method of claim 2, further including wherein the dynamic graphical element is overlayed on the fixed eye target (Figures 4-5 of Wang illustrate how the grey rectangle (dynamic graphical element) is overlayed on the black rectangle/main visual target (fixed eye target); similar to as discussed above, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the dynamic graphical element of the Glaser/Wang combination to be overlayed on the fixed eye target similar to as taught by Wang to advantageously facilitate conveyance of an appropriate direction and speed at which a user is to move his or her head while staring at the fixed eye target thereby improving accuracy of the driver intoxication test. A person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention and there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. Id.).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2025/0121830 to Glaser et al. ("Glaser") in view of Int'l Pub. No. WO 2025/050938 to Wang et al. ("Wang"), and further in view of U.S. Patent App. Pub. No. 2019/0200862 to Krueger ("Krueger"):
Regarding claim 3, the Glaser/Wang combination discloses the method of claim 2, but appears to be silent regarding wherein the dynamic graphical element pauses between the first and second movement sequences for a predetermined time period to indicate that the driver should hold the driver’s head steady while staring at the fixed eye target for the predetermined time period.
Nevertheless, Krueger teaches ([0124]-[0136]) that it was known in the healthcare informatics art to instruct a subject to keep his/her eyes focused on a static/fixed visual target on a display, use visual cues to tell the subject when to move his/her head in first and second different directions (e.g., horizontal/vertical), instruct the subject to hold his/her head after moving in each direction, record (with a camera) changes in eye orientation relative to head orientation, and analyze the recordings to measure the subject's ocular performance (e.g., in relation to nystagmus per [0002]) for purposes of assessing alcohol/drug use ([0309]). Instructing the subject to hold his/her head steady between the first and second movement sequences would advantageously allow the system to capture further images of the eyes in the steady state thereby improving the ocular performance/nystagmus analysis.
Furthermore, the Glaser/Wang combination already discloses how the dynamic graphical elements move at a direction/speed in which the user is to move his or her head as discussed above.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the dynamic graphical element of the Glaser/Wang combination to pause between the first and second movement sequences for a predetermined time period to indicate that the driver should hold the driver’s head steady (corresponding to a speed of zero) while staring at the fixed point for the predetermined time period to advantageously allow the system to capture further images of the eyes in the steady state thereby improving the ocular performance/nystagmus analysis, because a person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention, and because there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). The courts have made clear that the teaching, suggestion, or motivation test is flexible and an explicit suggestion to combine the prior art is not necessary. The motivation to combine may be implicit and may be found in the knowledge of one of ordinary skill in the art, or, in some cases, from the nature of the problem to be solved. DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1360, 80 USPQ2d 1641, 1645 (Fed. Cir. 2006). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007)).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2025/0121830 to Glaser et al. ("Glaser") in view of Int'l Pub. No. WO 2025/050938 to Wang et al. ("Wang"), and further in view of U.S. Patent App. Pub. No. 2014/0009424 to Nagata ("Nagata"):
Regarding claim 5, the Glaser/Wang combination discloses the method of claim 4, but appears to be silent regarding wherein the dynamic graphical element comprises an at least substantially spherical graphical element.
Nevertheless, Nagate teaches ([0049] and Figure 8) that it was known in the GUI art to display interactive objects in the form of spherical graphical elements which advantageously conveys existence and location of graphical objects/elements in a user-intuitive manner.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the dynamic graphical element of the Glaser/Wang combination to include an at least substantially spherical graphical element similar to as taught by Nagate to advantageously conveys existence and location of graphical objects/elements in a user-intuitive manner, because a person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention, and because and there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). The courts have made clear that the teaching, suggestion, or motivation test is flexible and an explicit suggestion to combine the prior art is not necessary. The motivation to combine may be implicit and may be found in the knowledge of one of ordinary skill in the art, or, in some cases, from the nature of the problem to be solved. DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1360, 80 USPQ2d 1641, 1645 (Fed. Cir. 2006). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007).
Claims 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2025/0121830 to Glaser et al. ("Glaser") in view of U.S. Patent App. Pub. No. 2025/0319880 to Salman et al. ("Salman"):
Regarding claim 15, Glaser discloses a computing device (controller 16, camera 20, display 18, etc. collectively amount to a computing device) comprising a display (display 18) within a vehicle (vehicle 12), the computing device being configured to:
display a first prompt to a driver of the vehicle indicating an initiation of an intoxication test, wherein the first prompt comprises a visual eye target for the driver (fixed point/target 52 is a prompt indicating initiation of an intoxication/impairment test per [0045]-[0047]; also, the end of [0047] prompts the operator to keep their gaze fixed on the point);
display a second prompt to the driver to turn the driver's head in a first direction with the driver's eyes fixed on the visual eye target (the end of [0047] discloses how the operator 14 may be instructed via visual prompts (which would include some "second prompt" on the display 18) and to rotate their head away from the point (first/horizontal direction as the system is testing for horizontal gaze nystagmus per [0046]-[0047]));
display a third prompt to the driver to turn the driver's head in a second direction with the driver's eyes fixed on the visual eye target ([0045] discloses how vertical gaze nystagmus can also be assessed which, in the context of the end of [0047], would be via the operator being instructed via some "third prompt" on the display 18 to rotate their head away from the point (second/vertical direction as the system is testing for vertical gaze nystagmus per [0045]), wherein the first, second, and third prompts are presented to the driver via the graphical user interface (the first, second, and third prompts are presented to the driver via the display 18 per [0047] and Figures 2A-2B) as part of an intoxication test sequence that structures interaction with the driver to perform head movements while maintaining fixation on the visual eye target (again, [0045]-[0047] disclose instructing the driver to perform certain movements (head movements while maintaining fixation on visual eye target per the end of [0047]) as part of an impairment/intoxication test sequence that "structures interaction" with the driver); and
…
However, Glaser appears to be silent regarding the computing device being configured to display a status indication to the driver as to the status of the intoxication test.
Nevertheless, Salman teaches that it was known in the vehicle driver intoxication testing art to conduct a nystagmus eye movement test of a subject (driver per Figure 2) to determine an impaired state (Steps 130-140 in Figure 1) and to indicate an impaired state of the subject (step 150 in Figure 1) via displaying a message on a GUI indicative of the failed/impaired nystagmus test ([0076] and Figure 10C) which advantageously conveys the impaired/intoxicated status to the driver to allow the driver to make a more informed decision regarding driving or not driving the vehicle.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have displayed a status indication to the driver as to the status of the intoxication test in the system of the Glaser similar to as taught by Salman to advantageously convey the impaired/intoxicated status to the driver to allow the driver to make a more informed decision regarding driving or not driving the vehicle and/or to more fully understand their intoxication/non-intoxication status. A person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention and there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. Id.
Regarding claim 16, the Glaser/Salman combination discloses the computing device of claim 15, further including wherein the visual eye target does not move during the intoxication test (the end of [0047] disclosing how the operator being instructed to keep their gaze fixed on a point and rotate their head away from the point is an alternate embodiment in response to the operator not being able to keep their head steady; stated differently, instead of the user keeping their head steady and moving their eyes, the alternate embodiment includes the operator moving their head but keeping their eyes fixed on one of the points which would thus not move during the test).
Regarding claim 17, the Glaser/Salman combination discloses the computing device of claim 15, further including wherein the first prompt further comprises a textual instruction indicating that the driver should stare directly at the visual eye target during the intoxication test (the end of [0047] discloses how the operator is visually instructed to keep their gaze fixed on a point (first prompt), where the visual instructions can be word/text instructions per the first half of [0047]).
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2025/0121830 to Glaser et al. ("Glaser") in view of U.S. Patent App. Pub. No. 2025/0319880 to Salman et al. ("Salman"), and further in view of Int'l Pub. No. WO 2025/050938 to Wang et al. ("Wang"):
Regarding claim 18, the Glaser/Salman combination discloses the computing device of claim 15, further including wherein the second prompt comprises a … graphical element …to provide a visual cue to the driver to prompt movement of the driver's head in the first direction, and wherein the third prompt comprises a … graphical element …to provide a visual cue to the driver to prompt movement of the driver's head in the second direction (the above noted visual/graphical prompts in [0047] are visual cues to the driver to prompt movement of their head in the first and second directions).
However, the Glaser/Salman combination might be silent regarding the graphical elements being dynamic graphical elements that move in the first and second directions to provide the visual cues to the driver to move the driver's head in the first and second directions.
Nevertheless, Wang teaches (end of "Background art" on page 2 of the translation, "First display example" at bottom of page 16 through page 17 of translation, and Figures 4-5) that it was known in the vestibular tracking art for a second information mark (dynamic graphical element) to move in a direction and speed in which a user is to move their head while staring at a fixed target to advantageously facilitate conveyance of an appropriate direction and speed at which a user is to move his or her head to improve accuracy of vestibular tracking tests and the like.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the graphical elements of the Glaser/Salman combination to be dynamic graphical elements that move in the first and second directions similar to as taught by Wang to advantageously facilitate conveyance of an appropriate direction and speed at which a user is to move his or her head thereby improving accuracy of the driver intoxication test. A person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention and there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. Id.
Regarding claim 19, the Glaser/Salman/Wang combination discloses the computing device of claim 18, further including wherein the dynamic graphical element of the second prompt and the dynamic graphical element of the third prompt each comprises a graphical element overlayed on the visual eye target (Figures 4-5 of Wang illustrate how the grey rectangle (dynamic graphical element) is overlayed on the black rectangle/main visual target (fixed eye target)) that moves relative to the visual eye target in a direction and speed indicative of a preferred direction and speed of movement of the driver’s head during the intoxication test ("First display example" at bottom of page 16 through page 17 of translation, and Figures 4-5 of Wang discloses a second information mark (dynamic graphical element) that moves in a direction and speed in which a user is to move their head while staring at a fixed target to advantageously facilitate conveyance of an appropriate direction and speed at which a user is to move his or her head to improve accuracy of vestibular tracking tests and the like (end of "Background art" on page 2 of the translation of Wang); similar to as discussed above, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the dynamic graphical element of the second prompt and the dynamic graphical element of the third prompt of the Glaser/Salman/Wang combination to each comprise a graphical element overlayed on the visual eye target that moves relative to the visual eye target in a direction and speed indicative of a preferred direction and speed of movement of the driver’s head during the intoxication test similar to as taught by Wang to advantageously facilitate conveyance of an appropriate direction and speed at which a user is to move his or her head thereby improving accuracy of the driver intoxication test. A person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention and there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. Id.).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2025/0121830 to Glaser et al. ("Glaser") in view of U.S. Patent App. Pub. No. 2025/0319880 to Salman et al. ("Salman"), and further in view of U.S. Patent App. Pub. No. 2019/0200862 to Krueger ("Krueger") and U.S. Patent App. Pub. No. 2012/0229248 to Parshionikar et al. ("Parshionikar"):
Regarding claim 20, the Glaser/Salman combination discloses the computing device of claim 15, further including wherein the test can be conducted in horizontal and vertical directions multiple times ([0045]-[0047] of Glaser).
However, the Glaser/Salman combination appears to be silent regarding the computing device being further configured to:
display a first hold prompt in between the second prompt and the third prompt indicating a first time period during which the driver’s head should be held steady before moving in the second direction; and
display a second hold prompt following the third prompt indicating a second time period during which the driver’s head should be held steady following movement in the second direction.
Nevertheless, Krueger teaches ([0124]-[0136]) that it was known in the healthcare informatics art to instruct a subject to keep his/her eyes focused on a static/fixed visual target on a display, use visual cues to tell the subject when to move his/her head in first and second different directions (e.g., horizontal/vertical), instruct the subject to hold his/her head after moving in each direction, record (with a camera) changes in eye orientation relative to head orientation, and analyze the recordings to measure the subject's ocular performance (e.g., in relation to nystagmus per [0002]) for purposes of assessing alcohol/drug use ([0309]). Instructing the subject to hold his/her head steady between the first and second movement sequences would advantageously allow the system to capture further images of the eyes in the steady state thereby improving the ocular performance/nystagmus analysis.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for the subject of the Glaser/Salman combination to be instructed to hold his/her head after moving in the first direction and after moving in the second direction as taught by Krueger to advantageously allow the system to capture further images of the eyes in the steady state thereby improving the subsequent ocular performance/nystagmus analysis, because a person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention, and because there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). The courts have made clear that the teaching, suggestion, or motivation test is flexible and an explicit suggestion to combine the prior art is not necessary. The motivation to combine may be implicit and may be found in the knowledge of one of ordinary skill in the art, or, in some cases, from the nature of the problem to be solved. DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1360, 80 USPQ2d 1641, 1645 (Fed. Cir. 2006). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007).
Furthermore, Parshionikar teaches ([0102]-[0104]) that it was known in the user facial/head monitoring art to prompt a user to hold their head steady for a certain amount of time to obtain readings from the user useful in determining state changes for purposes of facial expression management, user drowsiness detection, and the like.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have displayed a first hold prompt in between the second prompt and the third prompt indicating a first time period during which the driver’s head should be held steady before moving in the second direction and a second hold prompt following the third prompt indicating a second time period during which the driver’s head should be held steady following movement in the second direction in the system of the Glaser/Salman/Krueger combination similar to as taught by Parshionikar to advantageously facilitate obtaining readings from the user (e.g., the images of Glaser) useful in determining state changes for purposes of facilitating the intoxication determinations as well as facial expression management, user drowsiness detection, and the like. A person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention and there would have been a reasonable expectation of success in doing so. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Furthermore, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. Id.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JONATHON A. SZUMNY/Primary Examiner, Art Unit 3686
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