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(s) Status
Claims 1-20 are currently pending.
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(s) 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. In particular, claim 1 recites “wherein the distraction level represents whether the first vehicle operator is distracted from operating the first vehicle in a manner that is appropriate for being in active control of the operation of the first vehicle”, however it is unclear because the limitation does not clarify what corresponds to a manner that is appropriate for being in active control of the operation of the first vehicle, which makes it unclear. Further, details are required. To further prosecution the examiner will interpret the limitation to mean that the first vehicle operator current distraction level is being evaluated to determine if the first vehicle operator current driving distraction level is determined to be unsafe operator driving control of the first vehicle. Claims 2-10 have the same issue due to dependency. In particular, claim 11 has similar issues as addressed in base claim 1, and is therefore indefinite. Claims 12-20 have the same issue due to dependency.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim(s) 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-20 of U.S. Patent No. 10807527. Although the claims at issue are not identical, they are not patentably distinct from each other because the patent and instant application inventive scope both comprise determining alertness/distracted level of a driver and fatigue level of the driver, and performing modification of an alertness threshold based on a current speed of a vehicle being operated by the driver to enable a notification to be provided to the driver and remote computing server of a breach of the alert level has been met.
Claim(s) 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-20 of U.S. Patent No. 11364844. Although the claims at issue are not identical, they are not patentably distinct from each other because the patent and instant application inventive scope both comprise determining alertness/distractive level of a driver and fatigue level of the driver, and performing modification of an alertness threshold based on a current speed of a vehicle being operated by the driver to enable a notification to be provided to the driver and remote computing server of a breach of the alert level has been met.
Claim(s) 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-20 of U.S. Patent No. 12122294. Although the claims at issue are not identical, they are not patentably distinct from each other because the patent and instant application inventive scope both comprise determining alertness/distractive level of a driver and fatigue level of the driver, and performing modification of an alertness threshold based on a current speed of a vehicle being operated by the driver to enable a notification to be provided to the driver and remote computing server of a breach of the alert level has been met.
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) 1-6, 9, 11-17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Meng et al. (“Meng”, US 20190370577 A1, IDS) in view of Grube et al. (“Grube”, US 20160090097 A1, IDS) and Roca et al. (“Roca”, US 20190019412 A1). 1) Regarding claims 1 and 11, a system configured for verifying whether vehicle operators are distracted during driving (¶0083; ¶0124; Fig. 12), the system comprising: as per the limitation a set of sensors configured to generate output signals conveying information related to a first vehicle operator during a period of operation of a first vehicle. While, Meng does not specifically state the use of a set of sensors configured to output signals conveying information related a first vehicle operator during a period of operation of a first vehicle. Meng does disclose the use of at least one sensing device, see abstract; ¶0005; ¶0035; ¶0056; ¶0080-81; ¶0090; ¶0140, with regard to the camera assembly obtaining driver image information to enable determination of fatigue and attention of the driver status. Grube discloses, in ¶0017, the concept of performing continuous fatigue level monitoring of a vehicle driver via the use of a set of sensors, see ¶0010. At the filing of invention, it would have been obvious to a person of ordinary skill in the art to incorporate the concept of performing continuous fatigue level monitoring of a vehicle driver via the use of a set of sensors, with the motivation to enhance the driver’s alertness and fatigue state monitoring features of the system to assist in proper alert notification of the driver’s vehicle operational state. As per the limitation one or more hardware processors configured by machine-readable instructions (Meng: ¶0082-83; ¶0124-125; Fig. 12) to: make a first type of determination regarding a distraction level of the first vehicle operator during the operation of the first vehicle (Meng: ¶0120-122; ¶0140), wherein the distraction level represents whether the first vehicle operator is distracted from operating the first vehicle in a manner that is appropriate for being in active control of the operation of the first vehicle (Meng discloses, in ¶0120, determining if the driver’s eyes are opened), wherein the first type of determination is based on the generated output signals (Meng: Figs. 4-5). As per the limitation modify a distraction threshold, wherein a modification is based on a current speed of the first vehicle. Roca discloses, in ¶0008-11; ¶0026; ¶0033-34; ¶0044-47 with reference to Figs. 4A-6D, the concept of modifying an alert threshold based of vehicle speed analysis. At the filing of invention, it would have been obvious to a person of ordinary skill in the art to incorporate the concept of modifying an alert threshold based of vehicle speed analysis, with the motivation to enhance the alertness evaluation features of the system. As per the limitation responsive to the distraction level breaching the distraction threshold, effectuate a notification to at least one of the first vehicle operator and a remote computing server (Meng: ¶0044; ¶0123; ¶0131; Roca: ¶0026). 2) Regarding claims 2 and 12, wherein the set of sensors include one or more cameras (Meng: Figs. 2-5). 3) Regarding claims 3 and 13, wherein the distraction level is based on a direction in which attention of the first vehicle operator is focused during the operation of the first vehicle (Meng: ¶¶125-143; Fig. 3). 4) Regarding claims 4 and 14, wherein the distraction level is further based on a duration during which the attention of the first vehicle operator is not focused on operating the first vehicle (Meng: ¶¶125-132). 5) Regarding claims 5 and 15, wherein the one or more hardware processors are further configured by machine-readable instructions to: make a second type of determination regarding a fatigue level of the first vehicle operator during the operation of the first vehicle (Meng: ¶0120-121; Grube: abstract; ¶0012), wherein the second type of determination is based on the generated output signals (Meng: ¶0111-121; ¶Grube: ¶0010); wherein the notification is further responsive to the fatigue level breaching a fatigue threshold (Meng: ¶0123; Grube: ¶0010-12; Figs. 1-2). 6) Regarding claims 6 and 16, wherein the fatigue level is based on at least one of head movement of the first vehicle operator and/or a duration of the eyes of the first vehicle operator closing (Meng: ¶12-13). 7) Regarding claims 9 and 19, wherein the notification is effectuated during the period of operation of the first vehicle (Meng: ¶¶11, 26, 41, 43, 101, 106, 123, 159, 168, 174-178, 206, 224).
Claim(s) 8 & 18 are rejected under 35 U.S.C. 103 as being unpatentable over Meng in view of Grube and Roca, and in further view of Deng et al. (“Deng”, US 20200346658 A1). 1) Regarding claims 8 and 18, wherein the operation of the first vehicle is actively and primarily controlled by an autonomous driving algorithm. Roca discloses, in ¶¶27, 32 & claim 18, the known concept of integrating a driving assistance system with an autonomous driving system. Deng discloses, in ¶37-38; Fig. 2, the concept of using an autonomous driving system in the form of a processing chip (element 47) to evaluate input signals concerning safe driving and enable the processing chip to activate a warning device. At the time of filing, it would have been obvious to a person of ordinary skill in the art to incorporate the concept of using an autonomous driving system in the form of a processing chip to evaluate input signals concerning safe driving and enable the processing chip to activate a warning device, with the motivation to enhance the driving assist features of the system.
Claim(s) 10 & 20 are rejected under 35 U.S.C. 103 as being unpatentable over Meng in view of Grube and Roca, and in further view of Kawakami et al. (“Kawakami”, US 5574641). 1) Regarding claims 10 and 20, wherein the first type of determination is made multiple times in an ongoing manner spanning at least 50 percent of the period of operation of the first vehicle. Kawakami discloses, in Col. 6, the concept of analyzing driver awareness during the duration of a trip of a driver. . Grube discloses, in ¶0017, the concept of performing continuous fatigue level monitoring. Thus, the system would function in manner to at least evaluate the driver’s awareness for at 50 percent of a period a trip operation. At the filing of invention, it would have been obvious to a person of ordinary skill in the art to incorporate the concept of analyzing driver awareness during the duration of a trip of a driver, with the motivation to enhance the driver driving operation monitoring features of the system.
Allowable Subject Matter
Claim(s) 7 & 17 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 11813060 B2; US 5574641 A; US 20200148220 A1; US 20170053513 A1; US 20200198465 A1;US 20190366844 A1, system analyzing the attentiveness of a driving during driving operation of a vehicle.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHICO A FOXX whose telephone number is (571)272-5530. The examiner can normally be reached 9:00 - 6:00 M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Quan-Zhen Wang can be reached at 571-272-3114. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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CHICO A. FOXX
Primary Examiner
Art Unit 2684
/CHICO A FOXX/Examiner, Art Unit 2685