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 .
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:
“means designed to receive” in claim 1.
“means designed in such a way that the position of the beacon can be determined” in claim 2.
“means designed to control” in claim 3.
“means designed to display” in claim 3.
“means designed to use the position of the antenna to…” in claim 6.
“means designed to synchronize” in claim 7.
“means designed to receive” in claim 9.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 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.
Claim 7, 9, 17-18, 19 is 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 7 recites synchronizing the beacon and/or the transmitter of the beacon with other beacons and/or transmitters of beacons. It is unclear if the claimed “other beacons” are the “further beacons” recited in claim 1, or some arbitrary and previously undisclosed additional beacon.
Claim 9 recites a sampling rate “greater than 10 kHz”. The scope of “greater than 10 kHz” cannot be ascertained as such a limitation would include any value over 10 kHz approaching infinity.
Claim 17 recites a computer program to perform method steps. However, no method steps are recited, and instead the claim recites the apparatus limitations of claim 1. A method claim must recite method steps.
Claim 18 is rejected at least for its dependence upon rejected claim 17.
Claim 19 recites the invention being embodied as a radio-based and/or wave-based system. Insufficient disclosure is found in the specification to support radio-based AND wave-based operation in combination. Nor is it clear what would differentiate radio from wave, as radio is an electromagnetic wave.
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 17 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
A "computer program" does not fall into one of the four categories of patent eligible subject matter recited in 35 U.S.C. 101 (process, machine, manufacture, or composition of matter). Software, programming, instructions or code not claimed as embodied in computer-readable media are descriptive material per se and are not statutory because they are not capable of causing functional change in a computer. When such descriptive material is recorded on some computer-readable medium it becomes structurally and functionally interrelated to the medium and will be statutory in most cases. Furthermore, software, programming, instructions or code not claimed as being computer executable are not statutory because they are not capable of causing functional change in a computer. In contrast, when a claimed computer-readable medium encoded with a computer program defines structural and functional interrelationships between the computer and the program, and the computer is capable of executing the program, allowing the program's functionality to be realized, the program will be statutory.
Further, the broadest reasonable interpretation of a claim drawn to a computer readable medium (also called machine readable medium and other such variations) typically covers forms of non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer readable media, particularly when the specification is silent. See MPEP 2111.01. When the broadest reasonable interpretation of a claim covers a signal per se, the claim must be rejected under 35 U.S.C. 101 as covering non-statutory subject matter.
A claim drawn to such a computer readable medium that covers both transitory and non-transitory embodiments may be amended to narrow the claim to cover only the statutory embodiments to avoid a rejection under 35 U.S.C. 101 by adding the limitation "non-transitory" to the claim.
Claims 18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The broadest reasonable interpretation of a claim drawn to a computer readable medium (also called machine readable medium and other such variations) typically covers forms of non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer readable media, particularly when the specification is silent. See MPEP 2111.01. When the broadest reasonable interpretation of a claim covers a signal per se, the claim must be rejected under 35 U.S.C. 101 as covering non-statutory subject matter.
A claim drawn to such a computer readable medium that covers both transitory and non-transitory embodiments may be amended to narrow the claim to cover only the statutory embodiments to avoid a rejection under 35 U.S.C. 101 by adding the limitation "non-transitory" to the claim.
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) 1-3, 5-7, 9-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Menache (US 2004/0178955).
Claim 1: Menache discloses System for determining the position, the orientation and/or the movement of a beacon, said system having at least one receiver (fig 1 elements 42) and one beacon (fig 1 elements 52), wherein the beacon comprises a transmitter, wherein the transmitter of the beacon is designed to emit electromagnetic waves in a frequency band (para 0020, 0022) and the receiver has means designed to receive the waves and to determine a position, orientation and/or movement of the beacon therefrom (para 0059), wherein the system has at least one further beacon (fig 1 elements 52), wherein the frequency band of the transmitter of the further beacon or the frequency bands of the transmitters of the further beacons differ(s) from the frequency band of the transmitter of the beacon (para 0022, 0059)
Claim 2: Menache discloses the beacon can be arranged on an object or a living being or on an envelope of an object or a living being and the system has means designed in such a way that the position of the beacon can be determined in relation to the living being or the body envelope (fig 1 element 54, para 0058)
Claim 3: Menache discloses the system has means designed to control the sensor system and/or the imaging measurement arrangement in such a way that the sensor system and/or the imaging measurement arrangement can detect a position and/or movement of the beacon and/or the system has means designed to display the position of the beacon correctly in an image of the object or living being or the envelope of an object or living being (para 0022, 0058, 0059 disclosing detection, para 0320, 0328, 0331, 0333 disclosing display)
Claim 5: Menache discloses the frequency bands are in a range between 61 and 61.5 Ghz and/or in that the carrier frequencies used have a frequency spacing of 4 MHz in the frequency bands used (para 0131 “This range includes the UHF (0.3 GHz-3 GHz), SHF (3 GHz-30 GHz), and EHF (30 GHz to 300 GHz) bands.”)
Claim 6: Menache discloses the transmitter has an antenna, wherein the system has means designed to use the position of the antenna to determine the position and/or movement and to image the beacon (fig 11 element 1134, para 0022, 0058, 0059)
Claim 7: Menache discloses means designed to synchronize the beacon and/or the transmitter of the beacon with other beacons and/or transmitters of beacons. (para 0022 “The code sequences include a synchronization code, which is common to all tags”)
Claim 9: Menache discloses the receiver has means designed to receive the waves with a sampling rate greater than 10 kHz (para 0131 disclosing operating frequencies, para 0133 disclosing sampling, para 0138 disclosing 67 microsecond sampling, para 0227 disclosing 10 million samples per second)
Claim 10: Menache discloses the system is a component of a sports, training, fitness tracking or fitness information system or is used for a diagnostic or therapeutic purpose in medicine, psychology or the health sector (para 0326-0331)
Claim 11: Menache discloses the system comprises more than two beacons and/or more than one receiver (fig 1 elements 42, 52, para 0104, 0105)
Claim 12: Menache discloses a method having a system according to claim 1 having the following steps: a) providing a beacon ;b) detecting the position and/or movement of the beacon, wherein a further beacon is provided, wherein the frequency band of the transmitter of the further beacon differs from the frequency band of the transmitter of the beacon (para 0022, 0058, 0059)
Claim 13: Menache discloses the method further comprises the following steps: c) generating an image of an object or living being or the envelope of the object or living being; d) displaying the position of the beacon, in the correct location, in the image of the living being or the body envelope (para 0320, 0328, 0331, 0333)
Claim 14: Menache discloses the method further comprises the following step:e) transmitting data from the transmitter to the receiver (para 0149)
Claim 15: Menache discloses determining the orientation of the beacon in space (para 0022, 0058, 0059)
Claim 16: Menache discloses the method is used in a sports, training, fitness tracking or fitness information system or is used for a diagnostic or therapeutic purpose in medicine, psychology or the health sector para 0326-0331)
Claim 17: Menache discloses a computer program comprising instructions that cause a system to perform the method steps of (para 0228, 0318, 0337) wherein the system is for determining the position, the orientation and/or the movement of a beacon, said system having at least one receiver and one beacon, wherein the beacon comprises a transmitter, wherein the transmitter of the beacon is designed to emit electromagnetic waves in a frequencv band and the receiver has means designed to receive the waves and to determine a position, orientation and/or movement of the beacon therefrom, wherein the system has at least one further beacon, wherein the frequency band of the transmitter of the further beacon or the frequency bands of the transmitters of the further beacons differ(s) from the frequency band of the transmitter of the beacon (para 0022, 0058, 0059)
Claim 18: Menache discloses computer readable medium on which the computer program according to claim 17 is stored (para 0228, 0318, 0337)
Claim 19: Menache discloses the sensor system is radio-based and/or wave based (para 0058, 0131)
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.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Menache (US 2004/0178955) as applied to claim 1 above, and further in view of Ozguz (US 2005/0096513)
Claim 4: Menache discloses the transmitter and the receiver are further designed to transmit data from the beacon to the receiver via waves (para 0149)
Menache does not specifically disclose discloses the beacon further comprises a sensor, wherein the transmitter and the receiver are further designed to transmit data from the sensor to the receiver via waves.
Ozguz discloses a sensor system for monitoring an individual comprising a plurality of beacon devices situated on said individual for transmitting signals to a base station receiver (fig 2A, para 0006, 0007), wherein the beacon further comprises a sensor, wherein the transmitter and the receiver are further designed to transmit data from the sensor to the receiver via waves (para 0006, 0007, 0017, 0044, 0058)
It would have been obvious to modify the invention of Menache such that it comprised the above limitations, as taught by Ozguz, in order to monitor the health conditions of a monitored individual (Ozguz para 0006, 0007, 0017, 0044, 0058)
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Menache (US 2004/0178955) as applied to claim 1 above, and further in view of Lipka (US 2021/0389411).
Claim 8: Menache discloses embodiments in which the system includes additional sensors including an inertial sensor system (para 0029)
Menache does not specifically disclose the beacon has an inertial sensor system designed to determine the orientation of the beacon in space.
Lipka discloses an object localization system in which a becon transmits a signal which is received by plural receivers which are configured to determine the location of the beacon from the received transmission (fig 1, para 0013) wherein the beacon has an inertial sensor system designed to determine the orientation of the beacon in space (para 0027, 0145, claim 14)
It would have been obvious to modify the invention of Menache such that it comprised the above limitations, as taught by Lipka, in order to further improve measurement accuracy from plural sensors (Lipka para 0027, 0145, claim 14)
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additionally cited prior art comprises embodiments of object tracking using plural transmitting beacons.
Grau Besoli (US 8892125)(col 5 lines 15-46 “In operation, the locating device 12 may determine its environment as previously discussed and determines the position of each the objects 18 & 24 via the signal transmitted by its respective transmitter. Note that each transmitter 20 & 26 may have a unique identification code that is associated with an identification of the object. In this instance, each transmitter 20 & 26 transmits its respective signal in a time, frequency, and/or code division multiplexed manner using approximately the same carrier frequency or frequencies. In another instance, each transmitter 20 & 26 may be assigned a unique frequency of a plurality of frequencies, which it uses to transmit its signal.”)
Kane (US 2002/0145563) (para 0075 “each marker antenna 14 transmits the same carrier frequency modulated with a different orthogonal signature waveform or code sequence. The receiving apparatus 42-51 uses the orthogonality of these signature codes to separate the signals from each marker antenna 14. The receiving apparatus 42-51 then uses the procedures described above to estimate the position of each marker antenna 14.”)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER M BYTHROW whose telephone number is (571)270-1468. The examiner can normally be reached on Monday-Friday 830am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Resha Desai can be reached at (571) 270-7792. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PETER M BYTHROW/Primary Examiner, Art Unit 3648
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