DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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: “converting, by the computing system, ...” in claims 1 and 2.
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.
The computing system is defined, in para. [0022, 0046], as an AI algorithm or any computation or communications device that is capable of communicating with a network.
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.
Claim 4 is 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. Claim 4 recites that “the computing device is artificial intelligence (AI)”. However, the specification does not provide details as to which kinds of artificial intelligence is used. Para. [0022-0023, 0028, 0031, 0036] of the specification recites that the AI model may make determinations using graph neural networks (GNNs), machine learning techniques and machine learning classification. However, these paragraphs are not clear as to whether or not any specific kind of artificial intelligence is used and do not have support for all kinds of artificial intelligence models. Furthermore, it is unclear how the AI models are used to convert the olfactory information to auditory information. Although, para. [0022-0023, 0028, 0031, 0036] of the specification mention the use of AI models along with analyzing chemical structures of each fragrance note, the specification does not provide details as to what the AI models are, how the AI models are trained, and how the AI models perform the analysis.
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 2 and 4 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 2 lines 2 & 3 and claim 4 line 1 recites the limitation "the computing device". There is insufficient antecedent basis for this limitation in the claim. The limitation is suggested to recite “the computing system”.
Claim 4 line 1 recites the limitation “wherein the computing device is artificial intelligence (AI)”. It is unclear how the computing device is artificial intelligence (AI) because artificial intelligence (AI) is not a structural component. The limitation is suggested to recite “wherein the computing system comprises artificial intelligence (AI)” or is suggested to recite “wherein the computing system includes artificial intelligence (AI)”.
Claim Rejections - 35 USC § 101
Claims 1-4 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. A streamlined analysis of claim 1 follows.
STEP 1
Regarding claim 1, the claim recites a series of steps or acts. Thus, the claim is directed to a machine, which is one of the statutory categories of invention.
STEP 2A, PRONG ONE
The claim is then analyzed to determine whether it is directed to any judicial exception. The steps of:
converting, by the computing system, the olfactory information to auditory information
set forth a judicial exception. These steps describe a concept performed in the human mind (including an observation, evaluation, judgment, opinion). Thus, the claim is drawn to a Mental Process, which is an Abstract Idea.
STEP 2A, PRONG TWO
Next, the claim as a whole is analyzed to determine whether the claim recites additional elements that integrate the judicial exception into a practical application. The claim fails to recite an additional element or a combination of additional elements to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limitation on the judicial exception. Claim 1 recites receiving, by a computing system, olfactory information, which is merely adding insignificant extra-solution activity to the judicial exception (MPEP 2106.05(g)). The receiving of olfactory information does not provide an improvement to the technological field, the method does not effect a particular treatment or effect a particular change based on the received olfactory information, nor does the method use a particular machine to perform the Abstract Idea.
Regarding claim 1, the computing system recited in the claim is a generic device comprising generic components configured to perform the abstract idea. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application.
STEP 2B
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception. Besides the Abstract Idea, the claim recites additional steps of:
receiving, by a computing system, olfactory information
The receiving step and computing system are well-understood, routine and conventional activities for those in the field of medical diagnostics. Further, the receiving step is recited at a high level of generality such that it amounts to insignificant pre-solution activity, e.g., mere data gathering step necessary to perform the Abstract Idea. When recited at this high level of generality, there is no meaningful limitation, such as a particular or unconventional step that distinguishes it from well-understood, routine, and conventional data gathering and comparing activity engaged in by medical professionals prior to Applicant's invention. Furthermore, it is well established that the mere physical or tangible nature of additional elements such as the obtaining and comparing steps do not automatically confer eligibility on a claim directed to an abstract idea (see, e.g., Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347, 2358-59 (2014)).
Consideration of the additional elements as a combination also adds no other meaningful limitations to the exception not already present when the elements are considered separately. Unlike the eligible claim in Diehr in which the elements limiting the exception are individually conventional, but taken together act in concert to improve a technical field, the claim here does not provide an improvement to the technical field. Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claim as a whole does not amount to significantly more than the exception itself. The claim is therefore drawn to non-statutory subject matter.
Regarding claim 1, the computing system recited in the claim is a generic device comprising generic components configured to perform the abstract idea. According to section 2106.05(f) of the MPEP, merely using a computer as a tool to perform an abstract idea does not integrate the Abstract Idea into a practical application.
The dependent claims also fail to add something more to the abstract independent claims. Claims 2-4 are directed to more abstract ideas, which does not add anything significantly more. The steps recited in the independent claims maintain a high level of generality even when considered in combination with the dependent claims.
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.
Claims 1 and 3-4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Maggioni (GB 2600214 A).
Regarding claim 1, Maggioni discloses a method (“method”, page 1 lines 4-10) comprising: receiving, by a computing system (computing device 106, page 67 lines 10-31, Abstract), olfactory information (“smell sensing device 102 ... sensor information 114 to the computing device 106”, page 66 line 29 -page 67 line 15, Abstract); and converting, by the computing system (“computing device 106, page 68 line 15 – page 69 line 25), the olfactory information to auditory information (“identification comprises a representation of the smell ... select an identification of the olfactory output ... identification may comprise an audio clip associated with the smell, music”; “computing device 106 has identified the smell ... representation of the olfactory output 110”, page 14 line 23 – page 16 line 31 & page 69 lines 18-25, Abstract).
Regarding claim 3, Maggioni discloses the method of claim 1, wherein the converting the olfactory information to the auditory information includes: analyzing the olfactory information based on a database of fragrance-sound mappings (“identify the smell ... database storing ... representations of the smell ... audio clip associated with the smell”, page 15 line 1 – page 16 line 24).
Regarding claim 4, Maggioni discloses wherein the computing device is artificial intelligence (AI) (“processor ... artificial intelligence platforms ... employed”; “neural networks”, page 15 lines 1-13 & page 68 line 30 – page 69 line 25).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Maggioni (GB 2600214 A) in view of Park (US 10551050 B1).
Regarding claim 2, Maggioni discloses the method of claim 1. Maggioni further discloses that the smell aiding system can be used for an immersive experience, such as in virtual reality (VR) or augmented reality (VR) entertainment (page 16 lines 4-10).
Maggioni does not disclose the method further comprising: receiving, by the computing device, additional auditory information; converting, by the computing device, the additional auditory information to other olfactory information.
However, Park directed to providing a virtual augmented reality using a scent projector discloses receiving, by the computing device (“processor”, col. 7 lines 43-56), additional auditory information (“input sound”, col. 10 line 25 - col. 11 line 11, fig. 4); converting, by the computing device (“processor”, col. 7 lines 43-56), the additional auditory information to other olfactory information (“analysis of ... magnitude of the sound, is converted into an odor concentration”, col. 10 line 25 - col. 11 line 11, fig. 4). Park further discloses a multimodal virtual augmented reality apparatus that increases the sensibility of the user by generating an odor output control signal according to the frequency and amplitude of a sound by maximizing the influence by a cross-modal effect of a sound and an odor (col. 9 line 65 – col. 10 line 14).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Maggioni such that the method comprises receiving, by the computing device, additional auditory information; converting, by the computing device, the additional auditory information to other olfactory information, in view of the teachings of Park, as this would aid in increasing the sensibility of the user in an immersive experience/multimodal virtual augmented reality.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Maggioni (US 20240000368 A1) directed to a smell sensing system; Chang (US 20190019033 A1) directed to an apparatus for generating olfactory information related to multimedia content; Ando (US 20090104072 A1) directed to an aroma dispensing method and generating a sound when a smell is generated to thereby enjoy cooperation between the smell and the sound (para. [0097, 0128]); Kim (US 20190087425 A1) directed to apparatus for recognizing olfactory information related to multimedia content, see also para. [0037, 0113-0115].
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW ELI HOFFPAUIR whose telephone number is (571)272-4522. The examiner can normally be reached Monday-Friday 8:00-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Marmor II can be reached at (571) 272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.E.H./Examiner, Art Unit 3791
/AURELIE H TU/Primary Examiner, Art Unit 3791
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