DETAILED ACTION
This action is in response to the application filed 5 September 2024, claiming benefit back to 13 September 2019.
Claims 19 – 32 are pending and have been examined.
This action is Non-Final.
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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 31 October 2024 has been considered by the examiner.
Continuation
This application is a continuation application of U.S. application no. 17/636,102 filed on 17 February 2022, now U.S. Patent 12,118,491 (“Parent Application”). See MPEP §201.07. In accordance with MPEP §609.02 A. 2 and MPEP §2001.06(b) (last paragraph), the Examiner has reviewed and considered the prior art cited in the Parent Application. Also in accordance with MPEP §2001.06(b) (last paragraph), all documents cited or considered ‘of record’ in the Parent Application are now considered cited or ‘of record’ in this application. Additionally, Applicant(s) are reminded that a listing of the information cited or ‘of record’ in the Parent Application need not be resubmitted in this application unless Applicants desire the information to be printed on a patent issuing from this application. See MPEP §609.02 A. 2. Finally, Applicants are reminded that the prosecution history of the Parent Application is relevant in this application. See e.g., Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1350, 69 USPQ2d 1815, 1823 (Fed. Cir. 2004) (holding that statements made in prosecution of one patent are relevant to the scope of all sibling patents).
Claim Objections
Applicant is advised that should claim 30 be found allowable, claim 31 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 24 – 32 are rejected on the ground of nonstatutory double patenting as being unpatentable over corresponding claims of U.S. Patent No. 12,118,491.
Claim 24 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,118,491 (‘491 patent). Although the claims at issue are not identical, they are not patentably distinct from each other because, as shown in the comparison of claims below, claim 1 of the ‘491 patent would anticipate claim 24 of the instant application.
U.S. 12,118,491
1. An improved industrial process comprising:
receiving in a processor a plurality of data items related to an industrial process, each data item being time stamped so that each data item includes time stamp and industrial process data regarding an industrial process occurring at a time;
analyzing the plurality of data items in a processor via a plurality of rules, the analyzing identifying deviations of at least one variable of the plurality of data items from a mean value of the variable, the at least one variable representing manufactured parts having defects, the analyzing including identifying duplicates, null values, negative values and/or outliers;
setting a statistical control parameter as an achievable quantity for the at least one variable;
identifying the plurality of data items where the at least one variable exceeds the statistical control parameter to define at least one excess of defective manufactured parts; and
eliminating the at least one excess of defective manufactured parts by shifting resources for manufacturing the parts related to the at least one quantity, the shifting being a function of the analyzing of the plurality of data items.
Instant Application
Claim 24. An improved industrial process comprising:
receiving in a processor a plurality of data items related to an industrial process utilizing parts, each data item being time stamped so that each data item includes time stamp and industrial process data regarding an industrial process occurring at a time;
analyzing the plurality of data items in a processor via a plurality of rules, the analyzing identifying deviations of at least one variable of the plurality of data items from a mean value of the variable, the at least one variable being a number of defects of the parts;
setting a statistical control parameter as an achievable quantity for the at least one variable;
identifying the plurality of data items where the at least one variable exceeds the statistical control parameter to define at least one excess
eliminating the at least one excess to reduce the number of defects of the parts by shifting resources or altering the process related to the at least one quantity, the shifting or altering being a function of the analyzing of the plurality of data items.
Claim 25 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,118,491 (‘491 patent). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of the ‘491 patent would anticipate claim 25 of the instant application.
Claim 26 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 8 of U.S. Patent No. 12,118,491 (‘491 patent). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 8 of the ‘491 patent would anticipate claim 26 of the instant application.
Claim 27 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 9 of U.S. Patent No. 12,118,491 (‘491 patent). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 9 of the ‘491 patent would anticipate claim 27 of the instant application.
Claim 28 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 10 of U.S. Patent No. 12,118,491 (‘491 patent). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 10 of the ‘491 patent would anticipate claim 28 of the instant application.
Claim 29 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,118,491 (‘491 patent). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 11 of the ‘491 patent would anticipate claim 29 of the instant application.
Claim 30 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 12,118,491 (‘491 patent). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 12 of the ‘491 patent would anticipate claim 30 of the instant application.
Claim 31 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 12,118,491 (‘491 patent). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 12 of the ‘491 patent would anticipate claim 31 of the instant application.
Claim 32 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of U.S. Patent No. 12,118,491 (‘491 patent). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 16 of the ‘491 patent would anticipate claim 32 of the instant application.
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 19 – 23 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claimed invention, when the claims are taken as a whole, is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 2A – 1: The claims recite a Judicial Exception. Independent claim 19 recites the limitations of:
receiving in a processor a plurality of data items related to an industrial process utilizing parts, each data item being time stamped so that each data item includes time stamp and industrial process data regarding an industrial process occurring at a time [i.e., data collection];
analyzing the plurality of data items in a processor via a plurality of rules, the analyzing identifying deviations of at least one variable of the plurality of data items from a mean value of the variable, the at least one variable being a number of defects of the parts [i.e., performing analysis on collected data];
setting a statistical control parameter as an achievable quantity for the at least one variable [i.e., choosing a control number];
identifying the plurality of data items where the at least one variable exceeds the statistical control parameter to define an excess [i.e., performing analysis on collected data]; and
adding the excesses so as to define an achievable excess reduction amount for the number of defects of the parts of the industrial process [i.e., result of the data collection and analysis].
These limitations, as drafted, is / are a process that, under its broadest reasonable interpretation, covers collecting and analyzing collected business / industrial process data and eliminating excess resources. The claims are directed to finding cost savings or finding bottlenecks in processes, which is a fundamental economic practice or principle, which is a certain method of organizing human activity1.
Step 2A – 2: This judicial exception is not integrated into a practical application, and the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Independent claim 19 recites the additional element of receiving in a processor a plurality of data items related to an industrial process utilizing parts, each data item being time stamped so that each data item includes time stamp and industrial process data regarding an industrial process occurring at a time, however this amounts to mere data gathering, which is a form of insignificant extra-solution activity, as discussed in MPEP 2106.05(g); and a processor, however this is also recited at a high level of generality, and merely automates the steps, and amounts to mere instructions to apply the exception using a generic computer component, as discussed in MPEP 2106.05(f).
Further, the claims do not provide for or recite any improvements to the functioning of a computer, or to any other technology or technical field; applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition; applying the judicial exception with, or by use of, a particular machine; effecting a transformation or reduction of a particular article to a different state or thing; or applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
The claim is directed to the abstract idea.
The dependent claims have the same deficiencies as their parent claims as being directed towards an abstract idea, as the dependent claims merely narrow the scope of their parent claims, and it has been held that “[i]n defining the excluded categories, the Court has ruled that the exclusion applies if a claim involves a natural law or phenomenon or abstract idea, even if the particular natural law or phenomenon or abstract idea at issue is narrow.” (buySAFE, Inc. v. Google, Inc., 765 F.3d 1350. )
Turning to the dependent claims, none of the claimed features of the dependent claims further limit the claimed invention in such a way to direct the claimed invention to statutory subject matter (e.g. change the scope of the claimed invention as to no longer be directed towards an abstract idea, or include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements or combination of elements in the claims other than the abstract idea per se), nor do they add limitations that, when taken as a combination, result in the claim as a whole amounting to significantly more than the judicial exception. In respect to dependent claims 20 – 23:
Claim 20 merely further defines the variable;
Claims 21 – 23 merely further define the statistical control parameter;
Step 2B: The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, explained with respect to Step 2A, Prong Two, the additional elements or combination of elements in the claims other than the abstract idea per se amount to no more than mere instructions to implement the idea on a computer, or the recitation of generic computer structure that serves to perform generic computer functions previously known to the industry2 [e.g. performing repetitive calculations; receiving, processing, and storing data; electronically scanning or extracting data from a physical document; electronic recordkeeping; automating mental tasks; receiving or transmitting data over a network, e.g., using the Internet to gather data] .
Applicant’s specification, at, e.g., FIG. 2, paragraphs [0008], [0028]3, provides evidence of generic computer hardware performing generic, well-known, computer functions.
Viewed as a whole, these additional claim elements, both individually and in combination, do not provide meaningful limitations to transform the above identified abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more (e.g. improvements to another technology or technical fields, improvements to the functioning of the computer itself, or meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment) than the abstract idea itself. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Looking at the limitations 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. Their collective functions merely provide conventional computer implementation4.
Therefore, the claims are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter. See Alice Corporation Pty. Ltd. v. CLS Bank International, 573 U.S. No. 13–298.
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 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.
Claims 19 – 23 are rejected under 35 U.S.C. 102(a)(1)as being taught by Markham et al. (U.S. 2006/0149407, hereinafter Markham).
In respect to claim 19, Markham discloses a method for improving an industrial process data comprising:
receiving in a processor a plurality of data items related to an industrial process utilizing parts, each data item being time stamped so that each data item includes time stamp and industrial process data regarding an industrial process occurring at a time ([0221] … Process sensors 46 associated with a process (not shown} provide data that allow the system to monitor events 86 related to productivity … [i.e. receiving in a processor a plurality of data items related to an industrial process utilizing parts]; see further [0206] … Events from the first process 36 are received and handled by a PIPE Event Logger 58, which may also timestamp the events based on clock 62 information);;
analyzing the plurality of data items in a processor via a plurality of rules ([0129]-[0130]Though fuzzy logic and neural networks may be powerful tools in data mining a PIPE database, it is to be understood that any known statistical or mathematical technique may be applied to determine correlations, find optimum process conditions, predict instabilities or runnability problems. and the like. Such methods include statistical analysis ... The expert system may be an intelligent agent to automatically check data integrity as it is recorded in the database. adapted to tag the record for human intervention if the data was suspect. If a data record violated a set of particular rules or was determined to be a statistical anomaly, the agent may flag the record…), the analyzing identifying deviations of at least one variable of the plurality of data items from a mean value of the variable, ([0275] Examples of financial reports automatically obtainable by a PIPE system for a hypothetical manufacturing operation are shown in FIG. 15 to FIG. 18. FIG. 15 shows the yield in a plant over a ten-week period, showing weekly averages, and a moving three-week average as well as the average from the previous quarter ... FIG. 16 shows a related report from the same mill, but reporting uptime results instead of yield"; see further Figs 15-16, see further [0235], [0240]), the at least one variable being a number of defects of the parts ([0140] The problem that is anticipated need not be an absolutely verified problem, such as an observed defect, but may be one that is only probable or possible based on a detected event that is known to be associated with a quality problem (i.e., a deviation in the properties of the raw material; [0254] The records in the PIPE database 70 may include delay records 306 for each event comprising data fields such as a delay code 316A, a delay duration 316B, a time stamp 316C indicating when the event occurred, and a product count 316D (e.g., the number of articles that had been produced in the shift or production run prior to the event). The PIPE database 70 may also include waste records 308 for waste events. A waste record 308 may include data fields such as a waste code 318A, a defect count 318B (e.g., the number of articles lost), a time stamp 318C, a product count 318D, and so forth. Other fields (not shown) may indicate where in the machine a defect occurred (if this information is not already uniquely indicated by the waste code 318A or delay code 316A), which operators were active, etc., and may provide links to the current recipe 280 and current process variables 284 that were in use when the event occurred. ).;
setting a statistical control parameter as an achievable quantity for the at least one variable [0264] In order to achieve an accurate and unbiased assessment of the total financial impact of the material change, the PIPE database was searched for 28 different categories of machine interruption events known to be caused by the raw material change. The number of events and downtime caused by each event was tallied for each machine on a day-to-day basis for a baseline period before the conversion and for a period after the conversion);
identifying the plurality of data items where the at least one variable exceeds the statistical control parameter to define an excess [0272] During the review of PIPE summary data of machine stops and delay on the consumer products machine, a particular machine section was identified as contributing an excessively large percent of the total number of daily machine stops…); and
adding the excesses so as to define an achievable excess reduction amount for the number of defects of the parts of the industrial process ([0264] … The number of events and downtime caused by each event was tallied for each machine on a day-to-day basis for a baseline period before the conversion and for a period after the conversion. All machines were then placed on a normalized time scale where the conversion day was marked by 0. This method allowed the assessment of the average relative impact of the raw material change. A financial-based formula calculated the combined cost of machine stops and downtime minutes).
In respect to claim 20, Markham discloses the method as recited in claim 19 wherein the at least one variable is the number of defects within a time period ([0214] … a corporate-wide reporting system that allows remote users to track production, waste, delay, and/or profitability of a process, mill, sector, or other grouping of production operations, and to do so for any period of time or preset time interval; see further [0264], [0272]).
In respect to claim 21, Markham discloses the method as recited in claim 19 wherein the statistical control parameter is based on standard deviations from the mean value ([0240] The Data Integrity Agent 180 examines data and looks for anomalies, discrepancies, errors, including conditions that are a specified number of standard deviations away from the expected value or outside the normal extremes for the process 36).
In respect to claim 22, Markham discloses the method as recited in claim 19 wherein the statistical control parameter is a function of past performance of the industrial process ([0122] PIPE data may also provide a continuous time series of machine state information to show machine status and history before an alarm event occurs, or to allow tracking of the long-term effects of a process modification on machine efficiency and modes of operation).
In respect to claim 23, Markham discloses the method as recited in claim 19 wherein the statistical control parameter is dynamic ([0214] For delay and waste reporting, reports may be provided for the top several (e.g., the top 5 or top 10) most frequent or most costly (in terms of time and production) events or event categories).
Conclusion
The prior art made of record and not relied upon considered pertinent to Applicant’s disclosure.
Nixon; Mark J. et al. US 10877465 B2 Process device condition and performance monitoring
Cocco; Dennis P. US 7379782 B1 System and method of monitoring and quantifying performance of an automated manufacturing facility
Asenjo; Juan L. et al. US 9438648 B2 Industrial data analytics in a cloud platform
Palusamy; Sam S. et al. US 5311562 A Plant maintenance with predictive diagnostics
Kisin; Roman et al. US 8484069 B2 Forecasting discovery costs based on complex and incomplete facts
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALAN S MILLER whose telephone number is (571)270-5288. The examiner can normally be reached on M-F 10am-6pm. Examiner’s fax phone number is (571) 270-6288.
Examiner interviews are available via telephone 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, Beth Boswell can be reached at (571) 272-6737. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ALAN S MILLER/Primary Examiner, Art Unit 3625
1 See MPEP 2106.04(a)(2) II.
2 “It is well-settled that mere recitation of concrete, tangible components is insufficient to confer patent eligibility to an otherwise abstract idea. Rather, the components must involve more than performance of “‘well understood, routine, conventional activit[ies]’ previously known to the industry.” Alice, 134 S. Ct. at 2359 (quoting Mayo, 132 S.Ct. at 1294)”. Id, pages 10-11. “Likewise, the server fails to add an inventive concept because it is simply a generic computer that “administer[ s]” digital images using a known “arbitrary data bank system.” Id. at col. 5 ll. 45–46. But “[f]or the role of a computer in a computer-implemented invention to be deemed meaningful in the context of this analysis, it must involve more than performance of ‘well-understood, routine, [and] conventional activities previously known to the industry.’” Content Extraction, 776 F.3d at 1347–48 (quoting Alice, 134 S. Ct at 2359). “These steps fall squarely within our precedent finding generic computer components insufficient to add an inventive concept to an otherwise abstract idea. Alice, 134 S. Ct. at 2360 (“Nearly every computer will include a ‘communications controller’ and a ‘data storage unit’ capable of performing the basic calculation, storage, and transmission functions required by the method claims.”); Content Extraction, 776 F.3d at 1345, 1348 (“storing information” into memory, and using a computer to “translate the shapes on a physical page into typeface characters,” insufficient confer patent eligibility); Mortg. Grader, 811 F.3d at 1324–25 (generic computer components such as an “interface,” “network,” and “database,” fail to satisfy the inventive concept requirement); Intellectual Ventures I, 792 F.3d at 1368 (a “database” and “a communication medium” “are all generic computer elements”); BuySAFE v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (“That a computer receives and sends the information over a network—with no further specification—is not even arguably inventive.”)”. TLI Communications LLC v. AV Automotive L.L.C., (No. 15-1372, (Fed. Cir. May 17, 2016)), at *12-13.
See additionally MPEP 2106.05(d).
3 Noting Applicant’s disclosure provides only a nominal description of the computer hardware.
4 “Nor, in addressing the second step of Alice, does claiming the improved speed or efficiency inherent with applying the abstract idea on a computer provide a sufficient inventive concept. See Bancorp Servs., LLC v. Sun Life Assurance Co. of Can., 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter.”); CLS Bank, Int’l v. Alice Corp., 717 F.3d 1269, 1286 (Fed. Cir. 2013) (en banc) aff’d, 134 S. Ct. 2347 (2014) (“[S]imply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility.” (citations omitted))”. Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 115 U.S.P.Q.2d 1636 (Fed. Cir. 2015).