DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-24 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 11,631,493 and claims 1-20 of U.S. Patent 12,057,220. The only difference between the claimed invention and the patents is the feature of the independent claims wherein the determining is done, at least in part, by a machine-learning model trained on wellness parameters and corresponding values for the wellness index. Byrne discloses wherein the determining is done, at least in part, by a machine-learning model trained on wellness parameters and corresponding values for the wellness index (Byrne column 19 lines 25-67 and column 20 lines 1-6). It would have been obvious to one of ordinary skill in the art before the effective filing of the invention to utilize machine learning as in Byrne in the system of Pillai to improve accuracy and remediation recommendations.
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.
Step 1
Claims 1-24 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claims 1-12 are directed to a method, and, claims 13-24 are directed towards an apparatus; thus, each of the pending claims are directed to a statutory category of invention.
Step 2A Prong One
Claim 1, representative of the claimed invention, recites the steps of collecting, by the computer system from a plurality of sensors disposed in and/or around the building and communicatively coupled with the computer system, data related to wellness of the building comprising two or more of: body temperature building, the plurality of sensors, scanners, air quality sensors, security cameras, occupancy sensors, social distancing badges; determining, by the computer system based on aggregating and processing the collected data, a current wellness index for the building, the current wellness index providing an indication of a risk of being exposed to a pathogen inside the building; and based on the determined current wellness index, identifying by the computer system one or more remediation actions, the one or more remediation actions comprising instructing some or all of the one or more occupants to do at least one of: vacate the building, move to a specific portion of the building, use personal protective equipment inside the building, or clean one or more areas of the building and communicating the identified one or more remediation actions to a user of the computer system and/or to at least one of the one or more occupants: wherein the determining is done, at least in part by a machine learning model trained on wellness parameters and corresponding values for the wellness index.
The limitations above, as drafted, recite a process that, under its broadest reasonable interpretation, encompass mental processes and also certain methods of organizing human activity. The claimed steps recite several steps that include observations, evaluations, judgments and opinions, and “can be performed in the human mind, or by a human using a pen and paper” which have been considered by the courts to be a mental process. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). The courts do not distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer. Versata Dev. Group v. SAP Am., Inc., 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015). See also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318, 120 USPQ2d 1353, 1360 (Fed. Cir. 2016) (‘‘[W]ith the exception of generic computer-implemented steps, there is nothing in the claims themselves that foreclose them from being performed by a human, mentally or with pen and paper.’’); Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324, 117 USPQ2d 1693, 1699 (Fed. Cir. 2016) (holding that computer-implemented method for "anonymous loan shopping" was an abstract idea because it could be "performed by humans without a computer"). The claimed steps also are directed towards managing personal behavior (e.g., determining remediation actions based on observed environmental quality)
Apart from the use of generic technology (discussed further below), each of the limitations recited above describes activities that would encompass actions performed in collecting information regarding a building and providing remediation recommendations.
Based on the broadest reasonable interpretation in light of the specification, these activities describe concepts relating to managing personal behavior and mental processes in that the activities relate to collecting and performing analysis of data to providing activity recommendations based on data collected. If a claim limitation, under its broadest reasonable interpretation, covers managing personal behavior or relationships or interactions between people, commercial interactions, or fundamental economic practices, then it falls within the “Method of Organizing Human Activity” grouping of abstract ideas. The recited steps also are considered to be a mental process as methods that can be performed mentally, or which are the equivalent of human mental work. Accordingly, the claim recites an abstract idea.
Step 2A Prong 2
This judicial exception is not integrated into a practical application. In particular, claims 1 and 13 recites the additional elements of sensors communicatively coupled with a computer system and a machine learning model. The sensors and computer system are recited at a high-level of generality (i.e., as a generic processor performing a generic computer function of receiving information, performing calculations, and providing/transmitting information) such that it amounts to no more than mere instructions to apply the exception using a generic computer component. The sensors perform insignificant extra solution data gathering. Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
This judicial exception is not integrated into a practical application because the generically recited computer elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional elements of using a processor to perform the steps of “collecting, from a plurality of sensors disposed in and/or around the building and communicatively coupled with the computer system, data related to wellness of the building comprising two or more of: body temperature building, the plurality of sensors, scanners, air quality sensors, security cameras, occupancy sensors, social distancing badges; determining, based on aggregating and processing the collected data, a current wellness index for the building, the current wellness index providing an indication of a risk of being exposed to a pathogen inside the building; and based on the determined current wellness index, identifying one or more remediation actions, the one or more remediation actions comprising instructing some or all of the one or more occupants to do at least one of: vacate the building, move to a specific portion of the building, use personal protective equipment inside the building, or clean one or more areas of the building and communicating the identified one or more remediation actions to a user of the computer system and/or to at least one of the one or more occupants” amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept.
Similarly, use of a computer performing a machine learning model is a tool to perform the abstract idea. See MPEP 2106.05(f): “[u]se of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more.” An example where the courts have found the additional elements to be mere instruction to apply an exception, because they do no more than merely invoke computers or machinery as a tool to perform an existing process includes a commonplace business method or mathematical algorithm being applied on a general purpose computer, Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 223 (MPEP 2106.05(f)(2)). The use of a machine learning model emulates what the buiding technician does in reading data and determining remediation actions.. Thus, even considering the additional elements in combination, the claims do not include elements that are significantly more than the judicial exception.
Step 2B
Limitations that the courts have found to qualify as “significantly more” when recited in a claim with a judicial exception include:
i. Improvements to the functioning of a computer, e.g., a modification of conventional Internet hyperlink protocol to dynamically produce a dual-source hybrid webpage, as discussed in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258-59, 113 USPQ2d 1097, 1106-07 (Fed. Cir. 2014) (see MPEP § 2106.05(a));
ii. Improvements to any other technology or technical field, e.g., a modification of conventional rubber-molding processes to utilize a thermocouple inside the mold to constantly monitor the temperature and thus reduce under- and over-curing problems common in the art, as discussed in Diamond v. Diehr, 450 U.S. 175, 191-92, 209 USPQ 1, 10 (1981) (see MPEP § 2106.05(a));
iii. Applying the judicial exception with, or by use of, a particular machine, e.g., a Fourdrinier machine (which is understood in the art to have a specific structure comprising a headbox, a paper-making wire, and a series of rolls) that is arranged in a particular way to optimize the speed of the machine while maintaining quality of the formed paper web, as discussed in Eibel Process Co. v. Minn. & Ont. Paper Co., 261 U.S. 45, 64-65 (1923) (see MPEP § 2106.05(b));
iv. Effecting a transformation or reduction of a particular article to a different state or thing, e.g., a process that transforms raw, uncured synthetic rubber into precision-molded synthetic rubber products, as discussed in Diehr, 450 U.S. at 184, 209 USPQ at 21 (see MPEP § 2106.05(c));
v. Adding a specific limitation other than what is well-understood, routine, conventional activity in the field, or adding unconventional steps that confine the claim to a particular useful application, e.g., a non-conventional and non-generic arrangement of various computer components for filtering Internet content, as discussed in BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350-51, 119 USPQ2d 1236, 1243 (Fed. Cir. 2016) (see MPEP § 2106.05(d)); or
vi. Other meaningful limitations beyond generally linking the use of the judicial exception to a particular technological environment, e.g., an immunization step that integrates an abstract idea of data comparison into a specific process of immunizing that lowers the risk that immunized patients will later develop chronic immune-mediated diseases, as discussed in Classen Immunotherapies Inc. v. Biogen IDEC, 659 F.3d 1057, 1066-68, 100 USPQ2d 1492, 1499-1502 (Fed. Cir. 2011) (see MPEP § 2106.05(e)).
Claims 1 and 13 are not similar to any of these limitations.
Limitations that the courts have found not to be enough to qualify as “significantly more” when recited in a claim with a judicial exception include:
i. Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, e.g., a limitation indicating that a particular function such as creating and maintaining electronic records is performed by a computer, as discussed in Alice Corp., 573 U.S. at 225-26, 110 USPQ2d at 1984 (see MPEP § 2106.05(f));
ii. Simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry, as discussed in Alice Corp., 573 U.S. at 225, 110 USPQ2d at 1984 (see MPEP § 2106.05(d));
iii. Adding insignificant extra-solution activity to the judicial exception, e.g., mere data gathering in conjunction with a law of nature or abstract idea such as a step of obtaining information about credit card transactions so that the information can be analyzed by an abstract mental process, as discussed in CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011) (see MPEP § 2106.05(g)); or
iv. Generally linking the use of the judicial exception to a particular technological environment or field of use, e.g., a claim describing how the abstract idea of hedging could be used in the commodities and energy markets, as discussed in Bilski v. Kappos, 561 U.S. 593, 595, 95 USPQ2d 1001, 1010 (2010) or a claim limiting the use of a mathematical formula to the petrochemical and oil-refining fields, as discussed in Parker v. Flook, 437 U.S. 584, 588-90, 198 USPQ 193, 197-98 (1978) (MPEP § 2106.05(h)).
Claims 1 and 13 recite additional elements that are regarded as “apply it” as seen in the Step 2A Prong 2 discussion above. The claims do not set forth a solution to a problem rooted in technology (e.g., technical solution), as collecting and analyzing user data to identify deficiencies and recommendations to correct or remedy said deficiencies predate the use of computers.
Looking at the limitations of claims 1 and 13 as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology, effects a transformation of subject matter to a different state or thing, applies the use of a particular machine, integrate the abstract idea into a practical application or provide any meaningful limitations beyond generally linking the use of the judicial exception to a particular technological environment.
Therefore, claims 1 and 13 are not patent eligible.
The dependent claims further describe the abstract idea and do not recite a practical application or significantly more than the judicial exception. None of dependent claims 2-12 or 14-24 recite any further additional elements.
Dependent claims 2-12 and 14-24 further narrow the scope of the abstract idea in claims 1 and 13 by providing additional information or considerations used in the analysis.
Thus, claims 1-24 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-2, 6-8, 11-14, 18-20, and 23-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 9,715,242 to Pillai et al. in further view of U.S. Patent 11,961,614 to Byrne et al.
As to claims 1 and 13, Pillai discloses a method, implemented by a computer system associated with a building having one or more occupants, the method comprising the computer system:
collecting, from a plurality of sensors disposed in and/or around the building and communicatively coupled with the computer system, data related to wellness of the building comprising two or more of: the plurality of sensors, scanners, air quality sensors (Pillai column 40 lines 48-67 and column 41 lines 1-5 and column 21 lines 1-10);
determining, based on aggregating and processing the collected data, a current wellness index for the building, the current wellness index providing an indication of a risk of being exposed to a pathogen inside the building (Pillai column 40 lines 48-67 and column 41 lines 1-5 and column 21 lines 1-10); and
based on the determined current wellness index, identifying one or more remediation actions, the one or more remediation actions and communicating the identified one or more remediation actions to a user of the computer system and/or to at least one of the one or more occupants (Pillai column 41 lines 29-47 see interventions).
However, Pillai does not explicitly teach the remediation actions are to vacate the building, move to a specific portion of the building, use personal protective equipment inside the building, or clean one or more areas of the building wherein the determining is done, at least in part, by a machine-learning model trained on wellness parameters and corresponding values for the wellness index. Byrne discloses the remediation actions are to clean one or more areas of the building (Byrne claims 5 and 6) and wherein the determining is done, at least in part, by a machine-learning model trained on wellness parameters and corresponding values for the wellness index (Byrne column 19 lines 25-67 and column 20 lines 1-6).
It would have been obvious to one of ordinary skill in the art before the effective filing of the invention to utilize machine learning as in Byrne in the system of Pillai to improve accuracy and remediation recommendations.
As to claims 2 and 14, see the discussion of claim 1, additionally, Pillai discloses the method, wherein the determined current wellness index is based on aggregating a plurality of parameters that are each assigned a respective weight of a plurality of weights (Pillai column 40 lines 48-67 and column 41 lines 1-16).
As to claims 6 and 18, see the discussion of claim 2, additionally, Pillai discloses the method wherein the plurality of parameters further includes an occupancy parameter based on occupancy related data; and the occupancy parameter is assigned a sixth respective weight (Pillai figure 4).
As to claims 7 and 19, see the discussion of claim 6, additionally, Pillai discloses the method wherein the occupancy related data comprises a number of occupants in the building (Pillai figure 4)
As to claims 8 and 20, see the discussion of claim 2, additionally, Pillai discloses the method wherein:
the plurality of parameters further includes a historical data parameter based on a rate of change and/or a trend of the health index (Pillai column 41 lines 6-28); and
the historical data parameter is assigned a seventh respective weight (Pillai column 41 lines 6-28).
As to claims 11 and 23, see the discussion of claim 2, additionally, Pillai discloses the method wherein: the plurality of parameters further includes an energy usage parameter based on energy related data; and the energy usage parameter is assigned an eleventh respective weight (Pillai column 34 lines 46-67, column 35 lines 1-9, and column 41 lines 6-29).
As to claims 12 and 24, see the discussion of claim 2, additionally, Pillai discloses the method wherein the energy related data comprises data from a utility meter (Pillai column 34 lines 46-67 and column 35 lines 1-9)
Claim(s) 3-5, 9-10, 15-17, 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 9,715,242 to Pillai et al. in further view of U.S. Patent 11,961,614 to Byrne et al. in further view of OFFICAL NOTICE.
As to claims 3-5 and 15-17 see the discussion of claim 2, additionally, Pillai discloses wherein the collected data includes, humidity levels, levels and an air temperature levels and considering these levels as parameters assigned and assigned weights (Pillai column 27 lines 35-53)
However Pillai does not teach measuring levels of carbon dioxide levels, volatile organic compound (VOC) or particulate matter levels, however, these elements are routine Air Quality considerations (see Pillai at column 23 lines 53-67 and column 24 lines 1-34). Examiner therefore takes OFFICIAL NOTICE that measuring these air quality levels is exceedingly well known in the art and one of ordinary skill in the art at the time of the effective filing of the invention by applicant would have been motivated to measure air quality components including carbon dioxide levels, volatile organic compound (VOC) or particulate matter levels in the system of Pillai to make the occupant better apprised of air quality to manage health risks.
As to claims 9-10 and 21-22 see the discussion of claim 2,
However Pillai does not teach measuring levels of ozone, formaldehyde, and carbon monoxide, however, these elements are routine Air Quality considerations (see Pillai at column 23 lines 53-67 and column 24 lines 1-34). Examiner therefore takes OFFICIAL NOTICE that measuring these air quality levels is exceedingly well known in the art and one of ordinary skill in the art at the time of the effective filing of the invention by applicant would have been motivated to measure air quality components including ozone, formaldehyde, and carbon monoxide, and weight and consider the measures in the wellness score in the system of Pillai to make the occupant better apprised of air quality to manage health risks.
Response to Arguments
Applicant's arguments filed 12/9/25 have been fully considered but they are not persuasive. Applicant argues with respect to the 101 rejection that the claims recite a practical application similar to BASCOM. As it improves the quality of information extracted from a suite of sensors. The machine learning model is broadly claimed as any machine learning model with particular inputs and a desired output. The machine learning is merely used as a tool to perform the abstract idea. It therefore does not provide a practical application of the abstract idea.
With respect to the 103 rejection, applicants arguments are moot in view of new grounds of rejection.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Eliza Lam whose telephone number is (571)270-7052. The examiner can normally be reached Monday-Friday 8-4:30PST.
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/ELIZA A LAM/Primary Examiner, Art Unit 3681