DETAILED CORRESPONDENCE
This Office action is in response to the application filed on 12/02/2024, with claims 1-10 pending.
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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 12/02/2024 and 12/01/2025 complies with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 is: Such claim limitation is:
“a control device including circuitry, the circuitry being configured to” (see claim 1; [0039] of the specification teaches that “the controller 30 is configured by a computer including circuitry, or a CPU, a RAM, a ROM, and the like. The various functions of the controller 30 are implemented by the CPU executing programs stored in the ROM, for example.”);
“a control device comprising: circuitry configured to perform” (see claim 9; [0067] teaches that “the machine guidance device 50 is incorporated in the controller 30, but may be a control device provided separately from the controller 30. In this case, the machine guidance device 50 is configured by a computer including circuitry, or a CPU and an internal memory, for example, as in the controller 30. Various functions of the machine guidance device 50 are implemented by the CPU executing the program stored in the internal memory.” Emphasis added;
Because these claim limitation(s) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they 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 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.
Claims 5 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.
The term “a mutually distinguishable manner” in claim 5 is a relative term which renders the claim indefinite. The term “a mutually distinguishable manner” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. In other words, to quantify how to a mutually distinguishable manner as being claimed is unclear.
Therefore, for the purpose of compact prosecution the claims are rejected below as best understood by the Examiner in view of the above 35 USC § 112 rejection.
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 1-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claim 1 recites:
An excavator comprising:
a lower traveling body;
an upper turning body turnably mounted on the lower traveling body; and
a control device including circuitry, the circuitry being configured to perform notification of whether or not the upper turning body directly faces a target construction surface based on information about the target construction surface and information about an orientation of the upper turning body.
Step 1: Statutory category- Yes
The claim recites an apparatus. The claim falls within one of the four statutory categories. See MPEP 2106.03
Step 2A Prong one evaluation: Judicial Exception - Yes - Mental processes.
In Step 2A, Prong one of the 2019 Patent Eligibility Guidance (PEG), a claim is to be analyzed to determine whether it recites subject matter that falls within one of the following groups of abstract ideas: a) mathematical concepts, b) mental processes, and/ or c) certain methods of organizing human activity.
The Office submits that the foregoing bolded limitation(s) constitutes judicial exceptions in terms of “mental processes” because under its broadest reasonable interpretation, the limitations can be “performed in the human mind, or by a human using a pen and paper”. See MPEP 2106.04(a)(2)(III).
The claim recites:
a control device including circuitry, the circuitry being configured to perform notification of whether or not the upper turning body directly faces a target construction surface based on information about the target construction surface and information about an orientation of the upper turning body
The “to perform notification” limitation, as drafted, under their broadest reasonable interpretation, cover performance of the limitation in the mind. For example, but for the “a control device”, “circuitry being configured to”, “configured to” and/or “an upper turning body turnably mounted on the lower traveling body” language, the claim encompasses that a user performs a notification when the excavator faces the target construction surface and recognizing the information about an orientation of the upper turning body through visual observation. The mere recitation of to perform does not take this claim limitation out of the mental processing grouping because the claim language does not positively recite controlling the excavator (emphasis added).
Thus, claim 1 recites a mental process.
Step 2A Prong two evaluation: Practical Application – No
In Step 2A, Prong two of the 2019 PEG, a claim is to be evaluated whether, as a whole, it integrates the recited judicial exception into a practical application. As noted in MPEP 2106.04( d), 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, such that the claim is more than a drafting effort designed to monopolize the judicial exception. The courts have indicated that additional elements such as: 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.”
The Office submits that the foregoing underlined limitation(s) recite additional elements that do not integrate the recited judicial exception into a practical application.
The claim recites the additional elements of:
an upper turning body turnably mounted on the lower traveling body [a pre-solution activity];
These additional elements are merely insignificant extra solution activities. These claims does not use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception. These additional limitations are no more than mere data gathering.
Accordingly, even in combination, this additional elements does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea.
Respectively, dependent claims 2-8 and 10, as a whole, do not integrate the recited judicial exception into a practical application.
Regarding claim 9. Claim 9 is similar to claim 1; therefore, claim 9 is rejected under the same rationale of claim 1.
Step 2B evaluation: Inventive Concept: - No
In Step 2B of the 2019 PEG, the claim(s) is to be evaluated as to whether the claim, as a whole, amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim. See MPEP 2106.05.
As discussed with respect to Step 2A Prong Two, the additional elements in claims 2-8 and 10 amount to no more than mere data gathering step, data manipulation, insignificant extra solution activity and/or data output. The same analysis applies here in 2B, i.e., data manipulation and/or data output to apply an exception on a generic computer cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B, MPEP 2106.0S(f).
Thus, these claims are ineligible.0
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 1-10 are rejected under rejected under 35 U.S.C. 102(a)(1) as being anticipated by Narikawa, US 2020/0141091.
Claims 1 and 9. Narikawa teaches an excavator comprising:
a lower traveling body ([0034]—“lower travel structure” which is item 11 in fig. 1);
an upper turning body turnably mounted on the lower traveling body ([0034]—“upper swing structure” which is item 12 in fig. 1); and
a control device including circuitry, the circuitry being configured to perform notification of whether or not the upper turning body directly faces a target construction surface based on information about the target construction surface and information about an orientation of the upper turning body ([0063] reads on this element as such—“The notification control section 374 is a part that controls content of the operation support information (hereinafter, often referred to as “notification content”) of which an operator is notified by the notification device 53 on the basis of information output from the MG/MC control section 43 (for example, information about a work implement posture and the target surface, and the like). The notification control section 374 is configured with a display ROM that stores a great deal of display-associated data containing images and icons of the work implement 1A, and the notification control section 374 reads a predetermined program on the basis of flags (for example, a notification content change flag depicted in FIG. 18 and an MG target surface change flag depicted in FIG. 19) contained in the input information and exercises display control over the notification device (display device) 53.”).
Claim 2. Narikawa teaches the excavator according to claim 1 and further teaches wherein the circuitry performs the notification when a first switch is operated ([0007] along with [0044] along with [0037] and [0051] reads on this element as such—“a notification device that notifies an operator of operation support information….The system of FIG. 5 supports an operator's operation by executing, as MG, a process for notifying the operator of a position relationship between the bucket 10 and a discretionally set target surface 700 via a notification device 53.” Here the operator’s operation implies an input mechanism such as switch. Also, fig. 16 illustrates a “switching device”).
Claim 3. Narikawa teaches the excavator according to claim 1 and further teaches, wherein the circuitry is configured to execute directly-facing control for causing the upper turning body to turn so that the upper turning body directly faces the target construction surface, based on the information about the target construction surface and the information about the orientation of the upper turning body ([0037]-[0038] and [0041]-[0045] read on this element as such—“teach a swing hydraulic motor 4 for the upper swing structure 12…. Furthermore, the swing hydraulic motor 4 rotates by the supplied pressurized fluid, whereby the upper swing structure 12 swings with respect to the lower travel structure 11….the swing hydraulic motor 4 rotates by the supplied pressurized fluid, whereby the upper swing structure 12 swings with respect to the lower travel structure 11….The system of FIG. 5 supports an operator's operation by executing, as MG, a process for notifying the operator of a position relationship between the bucket 10 and a discretionally set target surface 700 via a notification device 53.” Here the operator’s operation implies an input mechanism such as switch. Also, fig. 16 illustrates a “switching device”), and
to perform notification that the directly-facing control is being executed in a case where the directly-facing control is being executed ([0045] reads on this element as such—“As the MG of the front work implement 1A, the notification device 53 notifies the operator of the position relationship between the target surface 700 (refer to FIG. 4) and a tip end of the work implement 1A. The notification device 53 in the present embodiment is a display device (for example, liquid crystal display) and an audio output device (for example, speaker), and the notification device 53 notifies the operator of operation support information associated with a distance between a claw tip of the bucket 10 and the target surface 700 via these devices.”).
Claim 4. Narikawa teaches the excavator according to claim 3 and further teaches, wherein the circuitry is configured to perform notification of completion of the directly-facing control in a case where the upper turning body directly faces the target construction surface due to execution of the directly-facing control ([0160]-[0163] reads on this element as such—“Furthermore, a warning sound (warning) in response to the target surface distance is possibly output from the notification device 53 as the operation support information. In other words, there is a probability that the bucket 10 enters the area below the target surface and the current terrain profile is excessively excavated by an excavating motion at the time of performing the excavation work as in this case; thus, the operator is notified of the warning (warning sound and light bar) in response to the target surface distance from the notification device 53. It is thereby possible to prevent excessive excavation of the current terrain profile.”).
Claim 5. Narikawa teaches the excavator according to claim 4 and further teaches, wherein the circuitry is configured to perform notification of a case where the upper turning body directly faces the target construction surface, a case where the upper turning body does not directly face the target construction surface, a case where the directly-facing control is being executed (fig. 18 along with fig. 19 best describes this element), and
a case where the directly-facing control is completed, in a mutually distinguishable manner ([0113] read on this element as such—“Specifically, as depicted in FIG. 20, in a case of conventional MG, the MG is carried out in response to the distance between the bucket 10 and the target surface”).
Claim 6. Narikawa teaches the excavator according to claim 3 and further teaches, wherein the circuitry is configured to execute the directly-facing control in a case where an operation of turning the upper turning body is performed while a second switch is operated ([0007] along with [0044]-[0045] reads on this element as such—“a notification device that notifies an operator of operation support information….The system of FIG. 5 supports an operator's operation by executing, as MG, a process for notifying the operator of a position relationship between the bucket 10 and a discretionally set target surface 700 via a notification device 53….As the MG of the front work implement 1A, the notification device 53 notifies the operator of the position relationship between the target surface 700 (refer to FIG. 4) and a tip end of the work implement 1A. The notification device 53 in the present embodiment is a display device (for example, liquid crystal display) and an audio output device (for example, speaker), and the notification device 53 notifies the operator of operation support information associated with a distance between a claw tip of the bucket 10 and the target surface 700 via these devices.” Also, fig. 16 illustrates a “switching device”).
Claim 7. Narikawa teaches the excavator according to claim 1 and further teaches, further comprising:
an attachment attached to the upper turning body (best illustrated in fig. 1); and
an operation device configured to operate the attachment ([0034] along with [0041]—“In FIG. 1, a hydraulic excavator 1 is configured with a multijoint type front work implement 1A and a machine body 1B. The machine body 1B is configured with a lower travel structure 11 that travels by left and right travel hydraulic motors 3a and 3b (refer to FIG. 2 for the hydraulic motor 3a), and an upper swing structure 12 that is attached onto the lower travel structure 11 and swings by a swing hydraulic motor 4. The boom cylinder 5, the arm cylinder 6, and the bucket cylinder 7 expand and contract by the supplied pressurized fluid, whereby the boom 8, the arm 9, and the bucket 10 rotate and a position and a posture of the bucket 10 change.”),
wherein when an operation is performed on the operation device in a state where a third switch is operated ([0007] along with [0037] and [0044] reads on this element as such—“a notification device that notifies an operator of operation support information….Within a cabin provided in the upper swing structure 12, there are provided an operation device 47a (FIG. 2) The system of FIG. 5 supports an operator's operation by executing, as MG, a process for notifying the operator of a position relationship between the bucket 10 and a discretionally set target surface 700 via a notification device 53….”,
the circuitry operates the attachment based on the operation performed on the operation device ([0143] reads on this element as such—“In S420, the actuator control section 81 computes a velocity vector B of the bucket tip end (claw tip) by an operator's operation on the basis of the motion velocities of the hydraulic cylinders 5, 6, and 7 computed in S410 and the posture of the work implement 1A computed by the posture computing section 43b.”),
information acquired about a position and an orientation of the excavator ([0042] The posture of the work implement 1A can be defined on the basis of excavator reference coordinates of FIG. 4. The excavator reference coordinates of FIG. 4 are coordinates set for the upper swing structure 12, a base of the boom 8 is assumed as an origin, and Z-axis is set in a vertical direction of the upper swing structure 12 and an X-axis is set in a horizontal direction thereof.), and information registered in advance ([0144] teaches a scenario that read on this element—“In S430, the actuator control section 81 calculates a distance D (refer to FIG. 4) from the bucket tip end to the target surface 700 to be controlled (which corresponds to the closest target surface in many cases) from the position (coordinates) of the claw tip of the bucket 10 computed by the posture computing section 43b and a distance of a straight line containing the target surface 700 and stored in the ROM 93. Next, the actuator control section 81 determines whether the notification content change flag is raised on the basis of an input signal from the target surface comparison section 62.”).
Claim 8. Narikawa teaches the excavator according to claim 1 and further teaches, wherein the circuitry performs the notification by sound or display ([0063] reads on this element as such—“The notification control section 374 further determines whether to display a light bar or to notify the operator of a warning sound as a warning (operation support information) associated with the distance between a predetermined target surface out of a plurality of preset target surfaces and the bucket 10 on the basis of the distance between the predetermined target surface and the bucket 10.”).
Claim 10. Narikawa teaches the excavator according to claim 1 and further teaches, further comprising:
an attachment attached to the upper turning body (best illustrated in fig. 1); and
an operation device configured to operate the attachment ([0034] along with [0041]—“In FIG. 1, a hydraulic excavator 1 is configured with a multijoint type front work implement 1A and a machine body 1B. The machine body 1B is configured with a lower travel structure 11 that travels by left and right travel hydraulic motors 3a and 3b (refer to FIG. 2 for the hydraulic motor 3a), and an upper swing structure 12 that is attached onto the lower travel structure 11 and swings by a swing hydraulic motor 4. The boom cylinder 5, the arm cylinder 6, and the bucket cylinder 7 expand and contract by the supplied pressurized fluid, whereby the boom 8, the arm 9, and the bucket 10 rotate and a position and a posture of the bucket 10 change.”),
wherein the circuitry is configured to execute directly-facing control for causing the upper turning body to turn so that the upper turning body directly faces the target construction surface ([0037]-[0038] and [0041]-[0045] read on this element as such—“teach a swing hydraulic motor 4 for the upper swing structure 12…. Furthermore, the swing hydraulic motor 4 rotates by the supplied pressurized fluid, whereby the upper swing structure 12 swings with respect to the lower travel structure 11….the swing hydraulic motor 4 rotates by the supplied pressurized fluid, whereby the upper swing structure 12 swings with respect to the lower travel structure 11….The system of FIG. 5 supports an operator's operation by executing, as MG, a process for notifying the operator of a position relationship between the bucket 10 and a discretionally set target surface 700 via a notification device 53.” Here the operator’s operation implies an input mechanism such as switch. Also, fig. 16 illustrates a “switching device”),
based on the information about the target construction surface and the information about the orientation of the upper turning body, perform the notification in a case where a first switch is operated, execute the directly-facing control in a case where an operation of turning the upper turning body is performed while a second switch is operated, and when an operation is performed on the operation device in a state where a third switch is operated, activate the attachment based on the operation performed on the operation device, information acquired about a position and an orientation of the excavator, and information registered in advance, and wherein the first switch, the second switch, and the third switch are the same switch (Taken together the following cited section reads on the features in this element: [0073] teaches that “The notification control section 374 exercises control as to how to notify the operator of posture information computed by the posture computing section 43b and target surface information computed by the target surface computing section 43c on the basis of a result of comparison by the target surface comparison section 62. [0007] along with [0044] along with [0037] and [0051] reads on this element as such—“a notification device that notifies an operator of operation support information….The system of FIG. 5 supports an operator's operation by executing, as MG, a process for notifying the operator of a position relationship between the bucket 10 and a discretionally set target surface 700 via a notification device 53.” Here the operator’s operation implies an input mechanism such as switch. Also, fig. 16 illustrates a “switching device” Also, fig. 16 illustrates a “switching device. [0042] teaches that “[t]he posture of the work implement 1A can be defined on the basis of excavator reference coordinates of FIG. 4. The excavator reference coordinates of FIG. 4 are coordinates set for the upper swing structure 12, a base of the boom 8 is assumed as an origin, and Z-axis is set in a vertical direction of the upper swing structure 12 and an X-axis is set in a horizontal direction thereof.” [0144]—“In S430, the actuator control section 81 calculates a distance D (refer to FIG. 4) from the bucket tip end to the target surface 700 to be controlled (which corresponds to the closest target surface in many cases) from the position (coordinates) of the claw tip of the bucket 10 computed by the posture computing section 43b and a distance of a straight line containing the target surface 700 and stored in the ROM 93.”).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Moriki et al., US 11,414,841—This reference teaches the relative position of a work point set on a bucket with respect to an upper swing structure on the basis of posture information, a target surface setting section configured to set a target surface as a target of excavation work on the basis of design surface information.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANA D THOMAS whose telephone number is (571)272-8549. The examiner can normally be reached Monday - Friday 8 - 5.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ramya 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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/A.D.T/Examiner, Art Unit 3661
/RUSSELL FREJD/Primary Examiner, Art Unit 3661