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 .
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
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.
Under the broadest reasonable interpretation standard, the “or” language, the condition would also not occur and the step or function claimed would never be realized, hence the claim does not require to perform the step or function. See Ex parte Katz, 2011 WL 514314, at 4-5 (BPAI Jan. 27, 2011, 2011 WL 1211248 at 2 (BPAI Mar. 25, 2011); see also In re Johnston, 435 f.3d 1381, 1384 (Fed. Cir. 2006)( "optional elements do not narrow the claim because they can always be omitted”). “Or” conditions are not limitations against which prior art must be found. Under the broadest scenario, the steps or functions dependent on the “or” condition would not be invoked, and such, the Examiner is not required to find these limitations in the prior art in order to render the claim anticipated. In re Am. Acad. Of Sci. Tech Ctr., 367 f.3d 1359, 1359 (Fed. Cir. 2004).
It has been held that to be entitled to weight in method claims, the recited structure limitations therein must affect the method in a manipulative sense, and not to amount to the mere claiming of a use or not the use of a particular structure. Ex parte Pfeiffer, 1962 C.D. 408 (1961).
A statement of intended use, as the name suggests, describes a manner in which a claimed invention may be used, but does not limit the claim and need not be practiced. If the applicant wishes to limit the claims to an intended use, the claims should positively recite those features and make clear that they are limiting. Claims that use this sort of language do not clearly indicate which meaning is intended. C.R. Bard, Inc. v. M3 Systems, Inc. 157 F.3d 1340, 1348-49 (Fed. Cir. 1998), Ex parte Kearney, 2012 Pat. App. LEXIS 2675 at 1 (BPAI 2012), Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1349 (Fed. Cir. 2012).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The independent claims are confusing. If the initial set of proximity relationships are “modified” then the modified set of proximity relationships cannot be the initial set of proximity relationships as claimed. Does the modified set of proximity relationships have both the initial set of proximity relationships and e modified set of proximity relationships?
The term “high score” in claim 11 is a relative term which renders the claim indefinite. The term “high score” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. What a high score for one, maybe low score for another.
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.
Claim(s) 1-9 and 12-20, as understood, is/are rejected under 35 U.S.C. 102(a) as being anticipated by United States Patent Application Publication 2006/0046709 (Krumm, et al).
The claims are very confusing and not fully understood. For compact prosecution, the Examiner will try to apply prior art to these perplexing claims.
Krumm, et al discloses over two decades old method of enabling proximity detection among a plurality of transceivers (Abstract, ¶9-17, 35, 87, claims 1, 18, 26). The method comprising determining an initial set of proximity relationships between at least a subset of the plurality of transceivers (¶11, 14, 29, 36, 39 60). Each transceiver of the plurality of transceivers is located at a different respective position within a volume or venue (¶36, 39) and the proximity relationships are indicative of a spatial relationship between at least a portion of the plurality of transceivers (figure 2, #206, ¶14, 41-42, 45, 56-60, etc.). Obtaining a plurality of measurements of radio frequency (RF) signals transmitted by the plurality of transceivers, wherein the measurements are performed by a first mobile device at different locations in the volume or venue in which the plurality of transceivers are located (¶41 and 52) and determining a modified set of proximity relationships between the at least the subset of the plurality of transceivers, the modified set of proximity relationships comprising the initial set of proximity relationships, modified based on information from the plurality of measurements (#206, ¶14, 59, 60).
Regarding claims 2, 14, ¶10, 37, 44, etc. shows determining the initial set of proximity relationships is based on data indicative of a semantic location of each transceiver of the plurality of transceivers, proximity measurements made by the plurality of transceivers using RF signals.
Claims 3, 15, are optional.
Regarding claims 4, 16, ¶44, 52, 53, 75, etc. disclose the proximity measurements made by the plurality of transceivers comprise Received Signal Strength Indicator (RSSI) measurements.
Regarding claims 5, 17, “using” the modified set of proximity relationships to determine a proximity of a second mobile device to a point of interest (POI), note ¶55 and 65.
Regarding claims 6, 18 “using” the modified set of proximity relationships to determine the proximity of a second mobile device to the POI comprises measuring a signal strength of one or more transceivers of the plurality of transceivers; determining a nearest transceiver of the one or more transceivers to the second mobile device based on the signal strength of the one or more transceivers; and determining the proximity of a second mobile device to the POI based on a proximity of the nearest transceiver to a transceiver corresponding to the POI, note (Title, Abstract, ¶9-16, figures 2-10).
Regarding claims 7, 19, the modified set of proximity relationships comprises a proximity graph in which proximity relationships between the at least the subset of the plurality of transceivers are represented by edges between vertices corresponding to the at least the subset of the plurality of transceivers, and wherein the method further comprises determining the second mobile device to be proximate to the POI when a number of edges between a vertex corresponding to the nearest transceiver and a vertex corresponding to a transceiver of the POI is below a threshold number of edges (#206, figure 8, ¶60-64).
Claims 8 and 9, these claims are non-limiting since no further steps or functions of the method are claimed. Also note the above paragraphs under Claim Interpretation.
Regarding claim 12, note ¶74.
Regarding claim 13, this is the inherent apparatus version of the above method claims and is rejected for the same reasons stated above. Also, note figure 1 #170, SYSTEM MEMEORY, 121, 120.
Regarding claim 20, this is the inherent apparatus means plus function version of the above method claims and is rejected for the same reasons stated above.
The Examiner has cited particular columns and/or line/paragraphs numbers in the reference(s) applied to the claims above for the convenience of the applicant. Although the specified citations are representative of the teachings of the art and are applied to specific limitations within the individual claim, other passages and figures may apply as well. IN RE JUNG, No. 10-1019 (Fed. Cir. 2011).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 10 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over by United States Patent Application Publication 2006/0046709 (Krumm, et al) in view of United States Patent Application Publication 2012/0290254 (Thron, et al).
Krumm, et al discloses all subject matter, note the above paragraphs, except for determining the modified set of proximity relationships between the at least the subset of the plurality of transceivers comprises determining a shared walkway between aisles in the retail environment. Thron, et al teaches the use of determining the modified set of proximity relationships between the at least the subset of the plurality of transceivers comprises determining a shared walkway between aisles in the retail environment for the purpose for identify the orientation of a client device to identify a current location of the client device with respect to a map including a plurality of constraints, note Abstract, ¶2, 4, 6, 18, 62, 64, 76, etc., figure 10. Hence, it 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 to incorporate the use of determining the modified set of proximity relationships between the at least the subset of the plurality of transceivers comprises determining a shared walkway between aisles in the retail environment for the purpose for identify the orientation of a client device to identify a current location of the client device with respect to a map including a plurality of constraints, as taught by Thron, et al, in the method of enabling proximity detection among a plurality of transceivers of Krumm, et al in order to make a map may be based upon a series of rails representing locations where a user may walk within a building.
Regarding claim 11, note ¶69, 71, 80, 82, 99, 100, etc. in Thron, et al.
The Examiner has cited particular columns and/or line/paragraphs numbers in the reference(s) applied to the claims above for the convenience of the applicant. Although the specified citations are representative of the teachings of the art and are applied to specific limitations within the individual claim, other passages and figures may apply as well. IN RE JUNG, No. 10-1019 (Fed. Cir. 2011).
Conclusion
If applicants wish to request for an interview, an "Applicant Initiated Interview Request" form (PTOL-413A) should be submitted to the examiner prior to the interview in order to permit the examiner to prepare in advance for the interview and to focus on the issues to be discussed. This form should identify the participants of the interview, the proposed date of the interview, whether the interview will be personal, telephonic, or video conference, and should include a brief description of the issues to be discussed. A copy of the completed "Applicant Initiated Interview Request" form should be attached to the Interview Summary form, PTOL-413 at the completion of the interview and a copy should be given to applicant or applicant's representative.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM D CUMMING whose telephone number is (571)272-7861. The examiner can normally be reached Monday - Friday 12 noon to 6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony S. Addy can be reached at (571) 272-7795. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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WILLIAM D. CUMMING
Primary Examiner
Art Unit 2645
/WILLIAM D CUMMING/ Primary Examiner, Art Unit 2645
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