DETAILED ACTION
This is the first Office action drafted on the merits of the subject application. Claims 1-20 are pending. Claims 1-20 are rejected as cited below.
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 title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed. The following title is suggested: “APPARATUS, METHOD, AND NON-TRANSITORY COMPUTER-READABLE MEDIUM FOR DETERMINING VEHICLE CHARACTERISTICS BASED ON VIBRATIONS SENSED USING OPTICAL FIBER.” test
Claim Objections
Claim 15 is objected to because of the following informalities: Improper grammar. Will interpret as being dependent upon claim 8. Appropriate correction is required.
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:
a measurement unit (claim 1)
a detection unit (claim 1, 4)
a determination unit (claim 1, 5, 7)
Because these claim limitations are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. However, the specification does not define the corresponding structure of any of the above limitations. Please refer to the 35 USC 112(a) and 112(b) rejections below.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-7 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant references a “measurement unit” (claim 1), a “detection unit” (claims 1 and 4) and a “determination unit” (claims 1, 5, and 7) however, the specification is devoid of structure detailing a “unit” for any of the above listed functions. For the purpose of examination, Examiner will interpret the above “units” as generic sub-processors.
Claims 2, 3, and 6 are rejected by virtue of their dependency on claim 1, and not fixing the deficiencies stated above.
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 1-7 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.
Claim 1 limitations “measurement unit”, “detection unit”, and “determination unit” invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The disclosure is devoid of any structure that performs the function(s) in the claim. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claims 2-7 are rejected by virtue of their dependency on claim 1, and not fixing the
deficiencies stated above.
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.
101 Analysis – Step 1
Claim 8 is directed to a method for detecting a vehicle (i.e., a process). Therefore, claim 8 is within at least one of the four statutory categories.
101 Analysis – Step 2A, Prong I
Regarding Prong I of the Step 2A analysis in the 2019 PEG, the claims are to be analyzed to determine whether they recite subject matter that falls within one of the following groups of abstract ideas: a) mathematical concepts, b) certain methods of organizing human activity, and/or c) mental processes.
Independent claim 8 includes limitations that recite an abstract idea (emphasized in bold below) and will be used as a representative claim for the remainder of the 101 rejection. Claim 8 recites:
A travelling vehicle detection method comprising:
measuring a continuous physical quantity at a predetermined place using an optical fiber sensor laid along a road;
detecting a temporal change pattern of the physical quantity from a measurement result of the measurement; and
determining whether there is a travelling vehicle based on the change pattern of the physical quantity.
The examiner submits that the foregoing bolded limitations constitute a “mental process” because under its broadest reasonable interpretation, the claim covers performance of the limitation in the human mind.
“detecting a temporal change pattern of the physical quantity from a measurement result of the measurement” in the context of this claim may encompass a person viewing a sensor feed and noticing an abnormal reading.
“determining whether there is a travelling vehicle based on the change pattern of the physical quantity” in the context of this claim may encompass a person cross referencing the abnormal reading with a chart and forming a simple judgement (e.g. the amplitude greater than .2 dB indicates the presence of a vehicle).
Accordingly, the claim recites at least one abstract idea.
101 Analysis – Step 2A, Prong II
Regarding Prong II of the Step 2A analysis in the 2019 PEG, the claims are to be analyzed to determine whether the claim, as a whole, integrates the abstract into a practical application. As noted in the 2019 PEG, 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 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.”
In the present case, the additional limitations beyond the above-noted abstract idea are as follows (where the underlined portions are the “additional limitations” while the bolded portions continue to represent the “abstract idea”):
A travelling vehicle detection method comprising:
measuring a continuous physical quantity at a predetermined place using an optical fiber sensor laid along a road;
detecting a temporal change pattern of the physical quantity from a measurement result of the measurement; and
determining whether there is a travelling vehicle based on the change pattern of the physical quantity
For the following reason, the examiner submits that the above identified additional limitations do not integrate the above-noted abstract idea into a practical application.
Regarding the additional limitation of “…measuring a continuous physical quantity at a predetermined place using an optical fiber sensor laid along a road …,” the examiner submits that this limitation is insignificant extra-solution activity which merely uses a computer to perform the process. This step, which acquires data from external sources (optical fiber sensor), is recited at a high level of generality, and amounts to mere data gathering, which is a form of insignificant extra-solution activity.
Thus, taken alone, the additional elements do not integrate the abstract idea into a practical application. Further, looking at the additional limitation(s) as an ordered combination or as a whole, the limitation(s) add nothing that is not already present when looking at the elements taken individually. For instance, there is no indication that the additional elements, when considered as a whole, reflect an improvement in the functioning of a computer or an improvement to another technology or technical field, apply or use the above-noted judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, implement/use the above-noted judicial exception with a particular machine or manufacture that is integral to the claim, effect a transformation or reduction of a particular article to a different state or thing, or apply or use 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 not more than a drafting effort designed to monopolize the exception (MPEP § 2106.05).
101 Analysis – Step 2B
Regarding Step 2B of the 2019 PEG, representative independent claim 1 does 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 claim does not integrate the abstract idea into a practical application. As discussed above, the additional limitation of “…measuring a continuous physical quantity at a predetermined place using an optical fiber sensor laid along a road …,” the examiner submits that this limitation is insignificant extra-solution activity.
Dependent claims 9, and 11-15 do not recite any further limitations that cause claim 8 to be patent eligible. Rather, the limitations of dependent claims are directed toward additional aspects of the judicial exception and/or well-understood, routine and conventional additional elements that do not integrate the judicial exception into a practical application. These claims merely further narrow down the mental process, which does not integrate the judicial exception into a practical application. Therefore, dependent claims 9, and 11-15 are not patent eligible under the same rationale as provided for in the rejection of claim 8.
Therefore, claims 9, and 11-15 are ineligible under 35 USC §101.
Claim 1 recites an apparatus used to perform the method detailed in claim 8, therefore it is rejected for the same reason. Additionally, claim 1 further recites computer hardware components yet does not integrate the judicial exception in a practical application.
Dependent claims 2-7 do not recite any further limitations that cause claim 1 to be patent eligible. Rather, the limitations of dependent claims are directed toward additional aspects of the judicial exception and/or well-understood, routine and conventional additional elements that do not integrate the judicial exception into a practical application. These claims merely further narrow down the mental process, which does not integrate the judicial exception into a practical application. Therefore, dependent claims 2-7 are not patent eligible under the same rationale as provided for in the rejection of claim 1.
Therefore, claims 2-7 are ineligible under 35 USC §101.
Claim 10 recites a non-transitory computer-readable medium storing a program which is used to perform the method detailed in claim 8, therefore it is rejected for the same reason. Additionally, claim 10 further recites computer hardware components yet does not integrate the judicial exception in a practical application.
Dependent claims 16-20 do not recite any further limitations that cause claim 10 to be patent eligible. Rather, the limitations of dependent claims are directed toward additional aspects of the judicial exception and/or well-understood, routine and conventional additional elements that do not integrate the judicial exception into a practical application. These claims merely further narrow down the mental process, which does not integrate the judicial exception into a practical application. Therefore, dependent claims 16-20 are not patent eligible under the same rationale as provided for in the rejection of claim 10.
Therefore, claims 16-20 are ineligible under 35 USC §101.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 5-11, 13-17, and 19-20 are rejected under 35 U.S.C. 102(a)2 as being anticipated by Lindsey (US Pub. 2024/0302229 A1; hereafter Lindsey).
Regarding claim 1, Lindsey teaches:
A travelling vehicle detection apparatus (DFOS instrument 100) comprising:
a measurement unit configured to measure a continuous physical quantity at a predetermined place using an optical fiber sensor laid along a road (At least ¶ [0018] “Referring to FIG. 1, A DFOS instrument 100 shines a light into an optical fiber 150 and records the energy 110 returning as a function of time.” and [0019] “As shown in FIG. 1, fiber 150 may be buried under or near a roadway 140.” and [0032] “At S216, DFOS measurements begin and DFOS data is recorded …” );
a detection unit configured to detect a temporal change pattern of the physical quantity from a measurement result of the measurement unit (At least ¶ [0033] “Detection and Location processes S220 operate on DFOS measurement data, outputting the best fitting solution for road occupation (and other information) representing the locations and properties of forces in the road mesh.” and ¶ [0035] “When a vehicle is in the vicinity of an optical fiber embedded within a road, for example, the vehicle disturbance perturbs the media surrounding the optical fiber in various ways …”. A perturbation is an example of a temporal change pattern. Lastly, see ¶ [0039] “In embodiments, a classical thresholding algorithm is used and it sends an alert when, for example, the DFOS power spectral density or a different statistical measure of signal energy, perhaps filtered in a certain signal frequency range, and/or averaged in some manner over a specified time or range of sensor positions, rises above a specified threshold.”); and
a determination unit configured to determine whether there is a travelling vehicle based on the change pattern of the physical quantity (At least ¶ [0034] “DFOS data are used to determine whether or not a vehicle is present on the road and then an alert can be sent that a road is occupied or not occupied.”).
Regarding claim 2, Lindsey teaches The travelling vehicle detection apparatus according to claim 1, wherein there are a plurality of predetermined places arranged along the road (At least ¶ [0064] “DFOS data is represented as black circles recorded at consecutive optical fiber sensor positions for time indicated in FIG. 4A.”).
Regarding claim 3, Lindsey teaches The travelling vehicle detection apparatus according to claim 1, wherein the physical quantity is a vibration intensity (At least ¶ [0035] “When a vehicle is in the vicinity of an optical fiber embedded within a road, for example, the vehicle disturbance perturbs the media surrounding the optical fiber…” and ¶ [0037] “the vehicle itself can produce vibrations which propagate through the ground and air as acoustic and elastic waves.” and ¶ [0038] “Either of the above types of vehicle disturbance can be used in a detection process S220 to send an alert about vehicle presence or characteristics whenever the vehicle is within the vicinity of the DFOS sensor.”), and the change pattern is a change in absolute value, a change in difference, a change in ratio, or a change in graph shape (See FIG. 4B which shows the DFOS data changing graph shape between -10 and 10 m.).
Regarding claim 5, Lindsey teaches The travelling vehicle detection apparatus according to claim 1, wherein the determination unit compares the change pattern of the physical quantity with a feature amount model of the physical quantity created using machine learning (At least ¶ [0041] “At S221, the method trains the model that is used to later make predictions of the force distribution, road occupancy and/or auxiliary properties. One way this is accomplished is to use a supervised encoder or autoencoder architecture familiar to those practiced in machine learning or artificial intelligence with labeled DFOS data.”).
Regarding claim 6, Lindsey teaches The travelling vehicle detection apparatus according to claim 5, wherein the machine learning is supervised machine learning (At least ¶ [0041] “At S221, the method trains the model that is used to later make predictions of the force distribution, road occupancy and/or auxiliary properties. One way this is accomplished is to use a supervised encoder or autoencoder architecture familiar to those practiced in machine learning or artificial intelligence with labeled DFOS data.”).
Regarding claim 7, Lindsey teaches The travelling vehicle detection apparatus according to claim 1, wherein the determination unit determines a vehicle type (At least ¶ [0033] “a unique vehicle identity is established, thereby enabling tracking of discrete vehicles based on their unique identities at S240.” and ¶ [0041] “In this case, the labels may be vehicle positions, vehicle sizes, vehicle weights, number of vehicles passing a location per unit of time, or similar.” A vehicle size is a type of vehicle (e.g. small, large, etc.).) and a travelling lane of the travelling vehicle (At least ¶ [0048] “A vehicle's exact position in the Y direction will vary due to the vehicle's wheel spacing and the specific path taken by the vehicle, but a threshold or a range of Y positions can be selected that will indicate which specific lane, on a multi-lane road, is occupied by the vehicle.”).
Claims 8, 9, 11, and 13-15 recite a method performed by the apparatus detailed in claims 1, 2, 3, and 5-7, respectively, thus are rejected on the same basis.
Claims 10, 16, 17, and 19-20 recite a non-transitory computer-readable medium storing a program which carries out the process detailed in claims 1, 2, 3, and 5-6, respectively, thus are rejected on the same basis. Additionally, Lindsey teaches a non-transitory computer-readable medium (A DFOS instrument 100).
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.
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 4, 12, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Lindsey in view of Yokota et al. (US Pub. 2005/0085987 A1; hereafter Yokota).
Regarding claim 4, Lindsey teaches The travelling vehicle detection apparatus according to claim 3.
Lindsey does not teach:
wherein the detection unit detects the vibration intensity for each predetermined frequency band using fast Fourier transform.
However, Yokota, within the same field of endeavor, teaches:
wherein the detection unit detects the vibration intensity for each predetermined frequency band using fast Fourier transform (At least ¶ [0285] “an FFT analyzer 85 for restoring the received compressed signal to its original state and detecting the vibration level at a predetermined frequency band of a vibration spectrum obtained by analyzing the frequency of the signal …”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Lindsey with Yokota. This modification would have been obvious as both the Lindsey and Yokota contain subject matter within the same field of endeavor (road surface sensing) and Lindsey ¶ [0003] notes that “There are several barriers to development of a discrete vehicle detection/analysis/tracking system, including … (5) the level of resources required if discrete sensors were to be used to achieve gapless coverage over a practical sensing area.”. Introducing the Yokota FFT analyzer to the Lindsey system may help over come this barrier. One or ordinary skill in the art would recognize that FFT calculations may require fewer computational resources than other types of calculations. This may limit the number of computational resources required for the Lindsey system, and thus increase system efficiency while reducing cost.
Claim 12 recites a method performed by the apparatus in claim 4, thus is rejected on the same basis.
Claim 18 recites a non-transitory computer-readable medium storing a program which carries out the process detailed in claim 4, thus is rejected on the same basis.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jonathan E Reinert whose telephone number is (571)272-1260. The examiner can normally be reached Mon - Thurs 7AM - 5PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, James J Lee can be reached at (571) 270-5965. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.E.R./Examiner, Art Unit 3668
/JAMES J LEE/Supervisory Patent Examiner, Art Unit 3668