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 are pending in the present application with claims 1, 7, and 15 being independent.
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 § 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 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 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; 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 (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, 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, 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). 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;
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; and
an intoxication assessment module configured to assess potential intoxication of the occupant of the vehicle using electromagnetic signals received by the electromagnetic sensor during the intoxication text sequence.
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), providing a series of prompts to the occupant as part of administering an intoxication test to the occupant, and assessing potential intoxication of the occupant using electromagnetic signals (e.g., via watching the occupant's eyes and other movements) during the intoxication text sequence 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). 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; and
display a status indication to the driver as to the status 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, 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, 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). 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).
Furthermore, dependent claims 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 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 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; 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;
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; and
an intoxication assessment module configured to assess potential intoxication of the occupant of the vehicle using electromagnetic signals received by the electromagnetic sensor during the intoxication text sequence.
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; and
display a status indication to the driver as to the status 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 user interface 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.
As discussed above, the additional limitation of the user interface in the vehicle, the electromagnetic sensor, display, assessment module, and computing device amount to merely using a computer as a tool to perform 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)(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.
(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 7-9, 12, and 13 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by U.S. Patent App. Pub. No. 2023/0286379 to Steel ("Steel"):
Regarding claim 7, Steel discloses a system for intoxication testing within a vehicle (system 10 in Figures 1, 2, 4, 5), comprising:
an electromagnetic sensor configured to receive electromagnetic signals from an occupant of the vehicle (image sensor 26 which captures images of the driver's eyes per [0026]);
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 (display 32 which displays marker/patterns (prompts) to the driver 122 as part of an intoxication validation test per [0037]); and
an intoxication assessment module configured to assess potential intoxication of the occupant of the vehicle using electromagnetic signals received by the electromagnetic sensor during the intoxication text sequence (controller 50 which analyzes the images of the driver's eyes (the electromagnetic signals received by the electromagnetic sensor during the test sequence) to determine if the driver has passed the intoxication validation test per [0037]).
Regarding claim 8, Steel discloses the system of claim 7, further including wherein the graphical display comprises a graphical user interface ([0049] discloses how the system 10 can be incorporated into an infotainment display which is a GUI).
Regarding claim 9, Steel discloses the system of claim 7, further including wherein the intoxication assessment module comprises a nystagmus detection module, and wherein the intoxication test sequence comprises a nystagmus test sequence ([0040] and [0047] disclose how the controller 50 analyzes eye motion, target tracking, pupil dilation, etc. (a nystagmus test sequence) to determine driver intoxication status which would be performed by a set of computer-readable instructions (nystagmus detection module)).
Regarding claim 12, Steel 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 (vapor sensor 28/34 in Figure 2 which captures vapors blown from the driver to determine intoxication per [0027]).
Regarding claim 13, Steel discloses the system of claim 7, further including wherein the intoxication test sequence comprises a nystagmus test sequence ([0040] and [0047] disclose how the controller 50 analyzes eye motion, target tracking, pupil dilation, etc. (a nystagmus test sequence) to determine driver intoxication status).
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 1, 6, 10, 11, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2023/0286379 to Steel ("Steel") in view of U.S. Patent App. Pub. No. 2019/0200862 to Krueger ("Krueger"):
Regarding claim 1, Steel discloses a method for administration of an intoxication test sequence to a driver within a user interface of a vehicle ([0037], [0040], [0047] disclose administering an intoxication validation test to a driver within a display which can be a GUI per [0049]), the method comprising the steps of:
displaying [an] eye target (marker/patterns/eye target per [0037]) on a graphical user interface of the vehicle (on the display 32 which can be part of an infotainment system/GUI per [0049]);
displaying a first prompt on the graphical user interface inducing the driver to perform a first movement sequence ([0047] discloses displaying a text message/first prompt on the display 32 for the driver to follow marker such as in a vertical direction ("first movement sequence")) …;
receiving one or more images of the driver’s eyes during the first movement sequence ([0037], [0040], [0047] disclose capturing images of the driver's eyes during the intoxication validation test which includes the "first movement sequence");
displaying a second prompt on the graphical user interface inducing the driver to perform a second movement sequence ([0047] discloses displaying a text message/first prompt on the display 32 for the driver to follow marker such as in a horizontal direction ("second movement sequence"))…;
receiving one or more images of the driver’s eyes during the second movement sequence ([0037], [0040], [0047] disclose capturing images of the driver's eyes during the intoxication validation test which includes the "second movement sequence");
processing received images of the driver’s eyes to perform a nystagmus test ([0037], [0040], [0047] disclose how the controller 50 analyzes eye motion, target tracking, pupil dilation, etc. (a nystagmus test sequence) to determine driver intoxication status); and
using the nystagmus test to assess whether the driver is intoxicated ([0037], [0040], [0047] disclose how the controller 50 analyzes eye motion, target tracking, pupil dilation, etc. (a nystagmus test sequence) to determine driver intoxication status).
While Steel discloses ([0037], [0043, [0047]) how the eye target/marker 150 moves across the display 32 and how the driver is to follow the eye target/marker 150, Steel appears to be silent regarding the eye target being a fixed eye target, where the first movement sequence is one in which the driver is to stare at the fixed eye target while moving the driver’s head in a first direction, and where the second movement sequence is one in which the driver is to stare at the fixed eye target while moving the driver’s head in a 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, record (with a camera) changes in eye orientation relative to head orientation, and analyze the recordings to measure the subject's ocular performance for purposes of assessing alcohol/drug use ([0309]). Such static/fixed visual target method is an alternative to a method ([0113]-[0123]) in which the subject's eyes are recorded while following a moving target on the display and analyzed to measure the subject's ocular performance (similar to as disclosed in Steel).
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 eye target of Steel to be a fixed eye target, where the first movement sequence is one in which the driver is to stare at the fixed eye target while moving the driver’s head in a first direction, and where the second movement sequence is one in which the driver is to stare at the fixed eye target while moving the driver’s head in a second direction, as taught by Krueger to advantageously provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use, 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).
Regarding claim 6, the Steel/Krueger combination discloses the method of claim 1, further including wherein the first prompt further comprises text prompting the user to perform the first movement sequence ([0047] of Steel discloses displaying a text message/first prompt on the display 32 for the driver to follow marker such as in a vertical direction ("first movement sequence"); per the combination with Krueger, the first movement sequence is one in which the driver is to stare at the fixed eye target while moving the driver’s head in a first direction as noted above per the combination with Krueger).
Regarding claim 10, Steel 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 ([0047] discloses displaying a text message/first prompt on the display 32 for the driver to follow marker such as in a vertical direction ("first movement sequence")) …;
However, Steel appears to be silent regarding the first movement sequence being one 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.
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, record (with a camera) changes in eye orientation relative to head orientation, and analyze the recordings to measure the subject's ocular performance for purposes of assessing alcohol/drug use ([0309]). Such static/fixed visual target method is an alternative to a method ([0113]-[0123]) in which the subject's eyes are recorded while following a moving target on the display and analyzed to measure the subject's ocular performance (similar to as disclosed in Steel).
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 first movement sequence of Steel to be one 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 as taught by Krueger to advantageously provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use, 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).
Regarding claim 11, Steel 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 ([0047] discloses displaying a text message/first prompt on the display 32 for the driver to follow marker such as in a horizontal direction ("second movement sequence")) …;
However, Steel appears to be silent regarding the second movement sequence being one in which the occupant is to stare at the fixed eye target while moving the occupant’s head in a 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, record (with a camera) changes in eye orientation relative to head orientation, and analyze the recordings to measure the subject's ocular performance for purposes of assessing alcohol/drug use ([0309]). Such static/fixed visual target method is an alternative to a method ([0113]-[0123]) in which the subject's eyes are recorded while following a moving target on the display and analyzed to measure the subject's ocular performance (similar to as disclosed in Steel).
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 second movement sequence of Steel to be one in which the occupant is to stare at the fixed eye target displayed on the graphical display while moving the occupant’s head in a second direction as taught by Krueger to advantageously provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use, 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).
Regarding claim 14, Steel discloses the system of claim 13, but appears to be silent regarding 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.
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, record (with a camera) changes in eye orientation relative to head orientation, and analyze the recordings to measure the subject's ocular performance for purposes of assessing alcohol/drug use ([0309]). Such static/fixed visual target method is an alternative to a method ([0113]-[0123]) in which the subject's eyes are recorded while following a moving target on the display and analyzed to measure the subject's ocular performance (similar to as disclosed in Steel).
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 series of prompts to the occupant of Steel to include at least one prompt instructing the occupant to stare at an object displayed on the graphical display while moving the occupant’s head similar to as taught by Krueger to advantageously provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use, 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).
Claims 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2023/0286379 to Steel ("Steel") in view of U.S. Patent App. Pub. No. 2019/0200862 to Krueger ("Krueger"), and further in view of Int'l Pub. No. WO 2025/050938 to Wang et al. ("Wang"):
Regarding claim 2, the Steel/Krueger combination discloses the method of claim 1, further including wherein the first prompt and the second prompt each comprises a dynamic graphical element [for] the driver is to move the driver’s head during the first and second movement sequences (visual cues in [0129]-[0135] of Krueger tell/instruct the subject when to move the subject's head in the first and second directions (i.e., during the first and second "movement sequences"); 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 first and second prompts of Steel to be respective dynamic graphical elements for telling/prompting/instructing the driver to move the driver's head during the first and second movement sequences similar to as taught by Krueger to advantageously provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use, 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)).
However, the dynamic graphical elements of the Steel/Kruger combination might not specifically 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 dynamic graphical elements of the Steel/Kruger combination to 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 3, the Steel/Krueger/Wang combination discloses the method of claim 2, further including 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 ([0131] of Krueger discloses how the testing method includes instructing the subject to hold the position of the subject's head between the "first and second movement sequences" while keeping the eyes fixed on the target visual element per [0128] of Krueger (where the target visual element is static/fixed per [0126] of Krueger). 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 eye target of Steel to be a fixed eye target and for the driver to be prompted/instructed to hold the driver's head steady while staring at the fixed eye target similar to as disclosed by Krueger to advantageously provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use. Furthermore, the combination of the Steel/Krueger combination with Wang 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. Accordingly, in the case where the subject/driver is to hold his or her head steady (i.e., not move his or her head for some period of time), then the dynamic graphical elements would necessarily pause between the first and second movement sequences to convey a corresponding indication to the subject/driver to hold his or her head steady. 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)).
Regarding claim 4, the Steel/Krueger/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 Steel/Kruger 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 5 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2023/0286379 to Steel ("Steel") in view of U.S. Patent App. Pub. No. 2019/0200862 to Krueger ("Krueger") and 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 Steel/Krueger/Wang combination discloses the method of claim 2, 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 Steel/Krueger/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. 2023/0286379 to Steel ("Steel") in view of U.S. Patent App. Pub. No. 2019/0200862 to Krueger ("Krueger") and U.S. Patent App. Pub. No. 2025/0319880 to Salman et al. ("Salman"):
Regarding claim 15, Steel discloses a computing device (system 10 in Figures 1, 2, 4, 5) comprising a display (display 32) within a vehicle (vehicle at beginning of [0019]), 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 32 which displays marker/patterns (first prompt) to the driver 122 for the user to follow with his/her eyes part of an intoxication validation test per [0037], [0041]);
display a second prompt to the driver ([0047] discloses displaying a text message/second prompt on the display 32 for the driver to follow marker in a first direction)…
display a third prompt to the driver ([0047] discloses displaying a text message/third prompt on the display 32 for the driver to follow marker in a second direction)…; and
However, Steel appears to be silent regarding the second prompt being to turn the driver’s head in a first direction with the driver’s eyes fixed on the visual eye target and the third prompt being to turn the driver’s head in a second direction with the driver’s eyes fixed on the visual eye target.
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 (prompts) to tell the subject when to move his/her head in first and second different directions, record (with a camera) changes in eye orientation relative to head orientation, and analyze the recordings to measure the subject's ocular performance for purposes of assessing alcohol/drug use ([0309]). Such static/fixed visual target method is an alternative to a method ([0113]-[0123]) in which the subject's eyes are recorded while following a moving target on the display and analyzed to measure the subject's ocular performance (similar to as disclosed in Steel).
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 second prompt of Steel being to turn the driver’s head in a first direction with the driver’s eyes fixed on the visual eye target and the third prompt of Steel being to turn the driver’s head in a second direction with the driver’s eyes fixed on the visual eye target as taught by Krueger to advantageously provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use, 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, while the Steel/Krueger combination discloses sending a signal to prevent the vehicle from starting or allowing the vehicle to start based on the status of the intoxication test (Figure 3 of Steel), the Steel/Krueger combination 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 Steel/Krueger combination similar to as taught by Salman to 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 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 Steel/Krueger/Salman combination discloses the computing device of claim 15, further including wherein the visual eye target does not move during the intoxication test ([0124]-[0136] of Krueger disclose how the subject is to keep his/her eyes on the fixed/static eye target during testing; 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 eye target of Steel to not move during the intoxication test similar to as taught by Krueger to advantageously provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use, 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)).
Regarding claim 17, the Steel/Krueger/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 ([0047] of Steel discloses displaying a text message/first prompt on the display 32 for the driver to follow marker (visual eye target) which is a fixed/static eye target per the combination with Krueger as discussed above).
Claims 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent App. Pub. No. 2023/0286379 to Steel ("Steel") in view of U.S. Patent App. Pub. No. 2019/0200862 to Krueger ("Krueger") and 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 Steel/Krueger/Salman combination discloses the computing device of claim 15, further including wherein the second prompt comprises a dynamic graphical element that … [provides] 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 dynamic graphical element that … [provides] a visual cue to the driver to prompt movement of the driver’s head in the second direction (visual cues in [0129]-[0135] of Krueger tell/instruct the subject when to move the subject's head in the first and second directions (i.e., during the first and second "movement sequences"); 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 second prompt of Steel to include a dynamic graphical element that provides a visual cue to the driver to prompt movement of the driver’s head in the first direction, and for the third prompt of Steel to include a dynamic graphical element that provides a visual cue to the driver to prompt movement of the driver’s head in the second direction similar to as taught by Krueger to provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use, 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).).
However, the dynamic graphical elements of the Steel/Kruger/Salman combination might not specifically 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 dynamic graphical elements of the Steel/Kruger/Salman combination to 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 Steel/Kruger/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 Steel/Kruger/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. 2023/0286379 to Steel ("Steel") in view of U.S. Patent App. Pub. No. 2019/0200862 to Krueger ("Krueger") and U.S. Patent App. Pub. No. 2025/0319880 to Salman et al. ("Salman"), and further in view of U.S. Patent App. Pub. No. 2012/0229248 to Parshionikar et al. ("Parshionikar"):
Regarding claim 20, the Steel/Krueger/Salman combination discloses the computing device of claim 15, further including wherein the subject is instructed to hold his/her head after moving in the first direction ([0131] of Krueger). Krueger also discloses how the test can be repeated multiple times ([0134]) and can be conducted in horizontal and vertical directions. Accordingly, when conducted in the other of horizontal or vertical direction, the subject would be instructed to hold his/her head after moving in the second direction ([0131] of Krueger). 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 subject of the Steel/Krueger/Salman combination to be instructed to hold his/her head after moving in the first direction and after moving in the second direction to advantageously provide an alternative effective manner of measuring a person's ocular performance for purposes of assessing alcohol/drug use, 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).
However, the Steel/Krueger/Salman combination might be silent specifically 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, 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 Steel/Krueger/Salman combination similar to as taught by Parshionikar to advantageously facilitate obtaining readings from the user (e.g., the images of Steel) 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
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/JONATHON A. SZUMNY/Primary Examiner, Art Unit 3686