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 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 1-12 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
Independent claim 1 is directed to a method (i.e., a process), independent claim 10 is directed to an apparatus (i.e., a machine), independent claim 11 is directed to a computer program, and independent claim 12 is directed to a machine-readable storage medium. Therefore, claims 1 and 10 are each within at least one of the four statutory categories, and claims 11 and 12 are not 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 follow groups of abstract ideas: a) mathematical concepts, b) certain methods of organizing human activity, and/or c) mental processes.
Independent claim 1 includes limitations that recite an abstract idea (emphasized below) and will be used as a representative claim for the remainder of the 101 rejection. The apparatus of claim 10 mirrors claim 1, and is analyzed similarly. Claim 1 recites:
A method for creating a measuring system having at least two measuring devices, comprising:
identifying at least one ambient condition affecting a function of the at least two measuring devices of the measuring system;
determining the failure probability of the measuring system for the presence of the at least one identified ambient condition, taking into account a positive and/or a negative error dependency between the at least two measuring devices;
adjusting at least one of the at least two measuring devices such that the negative error dependence is increased between the at least two measuring devices; and
creating the measuring system having the at least two measuring devices.
The examiner submits that the foregoing bolded limitation(s) constitute a “mental process” because under its broadest reasonable interpretation, the claim covers performance of the limitation in the human mind. For example, “determining the failure probability of the measuring system for the presence of the at least one identified ambient condition, taking into account a positive and/or a negative error dependency between the at least two measuring devices”, in the context of this claim, encompasses a person observing at least one ambient condition and forming a simple judgement regarding an associated failure probability based at least in part on an error dependency between the at least two measuring devices, and “adjusting at least one of the at least two measuring devices such that the negative error dependence is increased between the at least two measuring devices”, in the context of this claim, encompasses a person adjusting an algorithm or similar computer model to increase a negative error dependence between the at least two measuring devices. 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 method for creating a measuring system having at least two measuring devices, comprising:
identifying at least one ambient condition affecting a function of the at least two measuring devices of the measuring system;
determining the failure probability of the measuring system for the presence of the at least one identified ambient condition, taking into account a positive and/or a negative error dependency between the at least two measuring devices;
adjusting at least one of the at least two measuring devices such that the negative error dependence is increased between the at least two measuring devices; and
creating the measuring system having the at least two measuring devices.
For the following reason(s), the examiner submits that the above identified additional limitations do not integrate the above-noted abstract idea into a practical application.
Regarding the additional limitations of “identifying at least one ambient condition affecting a function of the at least two measuring devices of the measuring system” and “creating the measuring system having the at least two measuring devices” the examiner submits that these limitations are insignificant extra-solution activities that merely use a computer (circuitry) to perform the process. In particular, the identifying step is recited at a high level of generality (i.e. as a general means of gathering ambient condition information affecting the at least two measuring devices of the measuring system. The creating the measuring system step is also recited at a high level of generality (i.e. as a general means of providing the claimed measuring system), and amounts to insignificant extra-solution activity. Lastly, the “circuitry” merely describes how to generally “apply” the otherwise mental judgements in a generic or general-purpose computing environment.
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). Accordingly, the additional limitation(s) do/does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea.
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 with respect to integration of the abstract idea into a practical application, the additional element of using circuitry to perform the “determining…” and “adjusting…” amounts to nothing more than applying the exception using a generic computer component. Generally applying an exception using a generic computer component cannot provide an inventive concept. And as discussed above, the additional limitations of “identifying at least one ambient condition affecting a function of the at least two measuring devices of the measuring system” and “creating the measuring system having the at least two measuring devices”, the examiner submits that these limitations are insignificant extra-solution activities.
Further, a conclusion that an additional element is insignificant extra-solution activity in Step 2A should be re-evaluated in Step 2B to determine if they are more than what is well-understood, routine, conventional activity in the field. The additional limitations of “identifying at least one ambient condition affecting a function of the at least two measuring devices of the measuring system” and “creating the measuring system having the at least two measuring devices” are well-understood, routine, and conventional activities because Applicant’s specification describes these concepts in the Background portion of the specification (Applicant’s specification ¶0002-0003). MPEP 2106.05(d)(II), and the cases cited therein, including Intellectual Ventures I, LLC v. Symantec Corp., 838 F.3d 1307, 1321 (Fed. Cir. 2016), TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610 (Fed. Cir. 2016), and OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015), indicate that mere collection or receipt of data over a network is a well‐understood, routine, and conventional function when it is claimed in a merely generic manner. Hence, the claim is not patent eligible.
Dependent claim(s) 2-9 do not recite any further limitations that cause the claim(s) 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. Said claims as a whole recite a mental process because the claims recite, under their broadest reasonable interpretation as drafted,
Using a first and second measuring device of the measuring system to influence the negative error dependence therebetween; installing an interface for external sensor signals to increase the negative error dependence; adjusting an evaluation algorithm to increase the negative error dependence; adjusting a parameter or type of evaluation algorithm to increase the negative error dependence; using a probabilistic directed model for determining the probability of failure; using a marginal total failure probability and conditional total failure probability for determining the probability of failure; adjusting at least one measuring device when the failure probability exceeds a predetermined value; and creating the measuring system when the probability of failure is below the predetermined value. Therefore, dependent claims 2-9 are not patent eligible under the same rationale as provided for in the rejection of claim 1.
Therefore, claim(s) 1-12 is/are ineligible under 35 USC §101.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim(s) 1, Examiner deems a method for creating a measuring system having at least two measuring devices, comprising: identifying at least one ambient condition affecting a function of the at least two measuring devices of the measuring system; determining the failure probability of the measuring system for the presence of the at least one identified ambient condition, taking into account a positive and/or a negative error dependency between the at least two measuring devices; adjusting at least one of the at least two measuring devices such that the negative error dependence is increased between the at least two measuring devices; and creating the measuring system having the at least two measuring devices to be novel and non-obvious over the prior art of record. Specifically, the prior art of record provides no teaching, suggestion, or motivation for modifying the prior art of record to include such a method for creating a measuring system having at least two measuring devices, specifically including determining the failure probability of the measuring system for the presence of the at least one identified ambient condition, taking into account a positive and/or a negative error dependency between the at least two measuring devices, [and] adjusting at least one of the at least two measuring devices such that the negative error dependence is increased between the at least two measuring devices.
Solyom et al. (US PGPub. No. 2015/0266488) is deemed the closest prior art of record and teaches a method determines a blockage of a sensor of a plurality of sensors of an ego vehicle. The method determines a prior blockage probability of the sensor of the plurality of sensors; receives sensor data of the sensor of the plurality of sensors; determines a performance of the sensor based on the received sensor data; calculates a posterior blockage probability based on the prior blockage probability of the sensor and the performance of the sensor; and determines the blockage of the sensors using the calculated posterior blockage probability (Solyom Abstract). Solyom further teaches determining a probability of a sensor failure based at least in part on surrounding conditions around a vehicle (i.e. ambient conditions, such as weather or sunlight conditions) and activating a countermeasure based thereon (Solyom ¶0085-0087, ¶0092, ¶0096-0097). Solyom appears to be silent, however, on the countermeasures including adjusting at least one of the at least two measuring devices such that the negative error dependence is increased between the at least two measuring devices.
Abt et al. (US PGPub. No. 2020/0353942) is also deemed relevant prior art and teaches a method that determines a blockage of a sensor of a plurality of sensors of an ego vehicle. The method determines a prior blockage probability of the sensor of the plurality of sensors; receives sensor data of the sensor of the plurality of sensors; determines a performance of the sensor based on the received sensor data; calculates a posterior blockage probability based on the prior blockage probability of the sensor and the performance of the sensor; and determines the blockage of the sensors using the calculated posterior blockage probability (Abt Abstract). Abt further teaches how different sensor types are affected by various ambient conditions (Abt Figure 2; ¶0027-0033), determining a probability of failure for various sensors (Abt ¶0034-0035), but appears to be silent on the method further including adjusting at least one of the at least two measuring devices such that the negative error dependence is increased between the at least two measuring devices.
Claim(s) 2-12 depend(s) from claim(s) 1, (respectively,) and is/are deemed allowable at least by virtue of their dependence on allowable claims.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL V KERRIGAN whose telephone number is (571)272-8552. The examiner can normally be reached Monday-Friday 9:30am-8:00pm.
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/MICHAEL V KERRIGAN/Primary Examiner, Art Unit 3664