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 8:
A system comprising:
one or more processors to:
determine, using one or more neural networks and based at least on image data representative of an occupant of a machine, an activity associated with the occupant;
determine a state of the occupant based at least on the activity; and
causing the machine to perform one or more operations based at least on the state of the occupant.
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.
Claim 8 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
The determination of whether a claim recites patent ineligible subject matter is a 2 step inquiry.
STEP 1: the claim does not fall within one of the four statutory categories of invention (process, machine, manufacture or composition of matter), see MPEP 2106.03, or
STEP 2: the claim recites a judicial exception, e.g. an abstract idea, without reciting additional elements that amount to significantly more than the judicial exception, as determined using the following analysis: see MPEP 2106.04
STEP 2A (PRONG 1): Does the claim recite an abstract idea, law of nature, or natural phenomenon? see MPEP 2106.04(II)(A)(1)
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application? see MPEP 2106.04(II)(A)(2)
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception? see MPEP 2106.05
101 Analysis – Step 1
Claim 8 is directed to a system (i.e., a machine). Therefore, claim 8 is within at least one of the four statutory categories.
Claim 1 is directed to a method (i.e., a process). Therefore, claim 1 is within at least one of the four statutory categories.
Claim 15 is directed to a processor (i.e., a machine). 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, 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. see MPEP 2106(A)(II)(1) and MPEP 2106.04(a)-(c)
Independent claim 8 includes limitations that recite an abstract idea (emphasized below [with the category of abstract idea in brackets]) and will be used as a representative claim for the remainder of the 101 rejection. Claim 8 recites:
A system comprising:
one or more processors to:
determine, using one or more neural networks and based at least on image data representative of an occupant of a machine, an activity associated with the occupant;
determine a state of the occupant based at least on the activity; [mental process/step] and
causing the machine to perform one or more operations based at least on the state of the occupant.
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, “determine a state of the occupant…” in the context of this claim encompasses a person (driver) looking at data collected and forming a simple judgement. Accordingly, the claim recites at least one abstract idea.
101 Analysis – Step 2A, Prong II
Regarding Prong II of the Step 2A analysis, the claims are to be analyzed to determine whether the claim, as a whole, integrates the abstract into a practical application. see MPEP 2106.04(II)(A)(2) and MPEP 2106.04(d)(2). 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” [with a description of the additional limitations in brackets], while the bolded portions continue to represent the “abstract idea”.):
A system comprising:
one or more processors to:
determine, using one or more neural networks and based at least on image data representative of an occupant of a machine, an activity associated with the occupant [pre-solution activity (data gathering];
determine a state of the occupant based at least on the activity; [mental process/step] and
causing the machine to perform one or more operations based at least on the state of the occupant [insignificant post-solution activity using the mental process].
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 “determine an activity..,” “causing the machine,…, ” the examiner submits that these limitations are insignificant extra-solution activities that merely use a computer (processor) to perform the process. In particular, the determine step from the neural networks and from the external source are recited at a high level of generality (i.e. as a general means of gathering activity associated with the occupant for use in the next determine step), and amounts to mere data gathering, which is a form of insignificant extra-solution activity. The causing results step is also recited at a high level of generality (i.e. as a general means of performing an operation as a result from determine step), and amounts to mere post solution causing the machine to perform…., which is a form of insignificant extra-solution activity. Lastly, the “processor” is recited at a high-level of generality (i.e., as a generic processor performing a generic computer function of ranking information based on a determined amount of use) such that it amounts no more than mere instructions to apply the exception using a generic computer component.
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. see 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 Revised Guidance, representative independent claim 8 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 a processor to perform the determine… amounts to nothing more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. And as discussed above, the additional limitations of “determine an activity associated with the occupant…,” “determine a state,…,” and “causing…,” the examiner submits that these limitations are insignificant extra-solution activities. In addition, these additional limitations (and the combination, thereof) amount to no more than what is well-understood, routine and conventional activity. Hence, the claim is not patent eligible.
Dependent claim(s) [2-7, 9-14, 16-20] 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 [the further limitations such as determining a location of the first hand of the occupant; determine activity associated the occupant are abstract idea invoking mental process]. Therefore, dependent claims [2-7, 9-14, 16-20] are not patent eligible under the same rationale as provided for in the rejection of [8].
Therefore, claim(s) [1-20] is/are ineligible under 35 USC §101.
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.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12162418. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 8 of the present application recites:
A system comprising:
one or more processors to:
determine, using one or more neural networks and based at least on image data representative of an occupant of a machine, an activity associated with the occupant;
determine a state of the occupant based at least on the activity; and
causing the machine to perform one or more operations based at least on the state of the occupant.
Claim 9 of application patent No. 12162418 discloses:
A system comprising:
one or more processing units to:
determine, based at least on image data representative of a first image and a second image, one or more first key points associated with an occupant as depicted by the first image and one or more second key points associated with the occupant as depicted by the second image;
determine, using one or more neural networks and based at least on the one or more first key points and the one or more second key points, an activity associated with the occupant; and
perform, based at least on the activity, one or more operations of an autonomous or semi-autonomous machine.
Though the claims are not identical, they are not patentably distinct because for example the step of causing the machine to perform one or more operations based on the state of the occupant as claimed in the present application is no different as the step in patent no 12,162,418 of perform, based at least on the activity, one or more operations of an autonomous or semi-autonomous machine. The machine is the autonomous or semi-autonomous machine and the activity is associated with the state of the occupant. Therefore, it would have been obvious to one of ordinary skill in the art with a reasonable expectation of success to perform or causing operations of an autonomous machine based on the activity and state of the occupant for achieving a practical result for performing actions.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Croxford et al. (U.S. Patent No. 10,922,833) disclose a method of processing image data representative of an image using a multi-stage system comprising a first neural network (NN) for identifying a first image characteristic and a second NN for identifying a second image characteristic. The method comprises processing the image data using t a first at least one layer of the first NN to generate feature data representative of at least one feature of the image and processing the feature data using a second at least one layer of the first NN to generate first image characteristic data indicative of whether the image includes the first image characteristic. The feature data is transferred from the first NN to the second NN. The feature data is processed using the second NN to generate second image characteristic data representative of whether the image includes the second image characteristic.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GERTRUDE ARTHUR JEANGLAUDE whose telephone number is (571)272-6954. The examiner can normally be reached Monday-Thursday, 7:30-8:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ramya P Burgess can be reached at 571-272-6011. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GERTRUDE ARTHUR JEANGLAUDE/Primary Examiner, Art Unit 3661