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 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:
A vehicle mounted sensor in claim 1 which is being interpreted as any one of elements 21, 22, or 23 in figure 1 as described in paragraphs 26-30.
A first process in claim 2 which is being interpreted as activating element 30 in figure 1 as described in paragraph 31.
A notification device in claim 2 which is being interpreted as element 30 in figure 1 or a display device and an audio device as defined in paragraph 31.
A second process in claim 2 which is being interpreted as defined in paragraphs 32-35.
A braking device in claim 2 which is being interpreted as defined in paragraph 32 or element 40 in figure 1.
A third process in claim 2 which is being interpreted as defined in paragraphs 36-39.
A steering device in claim 2 which is being interpreted as defined in paragraph 36 or element 50 in figure 1.
An information acquisition step in claims 7 and 8 which is being interpreted as the step performed by step 101 in figure 5, as defined in paragraph 58.
A risk reduction step in claims 7 and 8 which is being interpreted as the process defined in paragraph 40.
A start step in claims 7 and 8 which is being defined as described in paragraphs 56-57.
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.
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 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 1-8 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.
Claims 1, 7, and 8 recite the limitations "the first specific condition” and “the second specific condition”. There is insufficient antecedent basis for this limitation in the claim which renders the claims indefinite because it is not possible to define the first and second specific conditions in the claims without reading in significant limitations from the specification. From the interpretation of the claims, both of these conditions must be satisfied for the step they are included in is performed and it is not clear from reading the claims and specification that both can be satisfied at the same time. Therefore, claims 1, 7, and 8 are all rejected under 35 U.S.C. 112(b) based on lack of antecedent basis and because they are indefinite such that the metes and bounds of the claim cannot be determined because of the lack of antecedent basis.
Claims 2-6 are rejected based on their dependence on a rejected claim.
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 and 6-9 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to a judicial exception (i.e., an abstract idea) without significantly more.
In sum, claims 1, 6-8 are rejected under 35 U.S.C. §101 because the claimed invention is directed to a judicial exception to patentability (i.e., a law of nature, a natural phenomenon, or an abstract idea) and do not include an inventive concept that is something “significantly more” than the judicial exception under the January 2019 patentable subject matter eligibility guidance (2019 PEG) analysis which follows.
Step 1 - Revised Subject Matter Eligibility Guidance:
Under the 2019 PEG step 1 analysis, it must first be determined whether the claims are directed to one of the four statutory categories of invention (i.e., process, machine, manufacture, or composition of matter). Applying step 1 of the analysis for patentable subject matter to the claims, it is determined that the claims are directed to the statutory category of a machine or a process. Therefore, we proceed to step 2A, Prong 1.
Step 2A, Prong One - Revised Subject Matter Eligibility Guidance:
Under the 2019 PEG step 2A, Prong 1 analysis, it must be determined whether the claims recite an abstract idea that falls within one or more designated categories of patent ineligible subject matter (i.e., organizing human activity, mathematical concepts, and mental processes) that amount to a judicial exception to patentability.
Here, with respect to independent claims 1, 7, and 8, the claims recite the abstract idea of
(A) obtaining information about objects around an own vehicle
(B) executing risk reduction processing to control the own vehicle so that the contact risk between the own vehicle and the object is reduced based on the information
(C) in a specific scene where a blind spot area exists because a preceding vehicle traveling in the same direction as the own vehicle is present in front of the own vehicle and within the field of view of the vehicle-mounted sensor, making the vehicle-mounted sensor unable to detect objects, start the risk reduction processing when the first specific condition, which determines that the preceding vehicle is decelerating rapidly, is satisfied, and the second specific condition, which determines that the cause of the preceding vehicle's deceleration cannot be detected, is satisfied
(D) determines that the second specific condition is satisfied when at least one of the following situations applies: a situation where no moving object is present in a predetermined area in front of the preceding vehicle; a situation where no sign regulating the preceding vehicle's travel is present in the predetermined area; and a situation where the turn signal of the preceding vehicle is not activated.
Mental Process:
Steps A and D falls within one or more of the three enumerated 2019 PEG categories of patent ineligible subject matter, specifically, a mental process, that can be performed in the human mind since each of the above steps could alternatively be performed in the human mind or with the aid of pen and paper. This conclusion follows from CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011) where our reviewing court held that section 101 did not embrace a process defined simply as using a computer to perform a series of mental steps that people, aware of each step, can and regularly do perform in their heads. see also In re Grams, 888 F.2d 835, 840–41 (Fed. Cir. 1989); In re Meyer, 688 F.2d 789, 794–95 (CCPA 1982); Elec. Power Group, LLC v. Alstom S.A., 830 F. 3d 1350, 1354–1354 (Fed. Cir. 2016) (“we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category”).
For example, a human could perform steps A and D entirely mentally when observing the situation around a vehicle with their senses. These limitations exemplify abstract idea of a mental process since details include concepts performed in the human mind including an observation, evaluation, judgment, and/or opinion.
Furthermore, mental processes remain unpatentable even when automated to reduce the burden on the user of what once could have been done with pen and paper. See CyberSource, 654 F.3d at 1375 (“That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson.”).
Mathematical Concepts: (Mathematical Relationships, Mathematical Formulas or Equations, Mathematical Calculations)
In addition, limitations B and C recite(s) the abstract idea of a mathematical concept in addition to being a mental process since the limitations invoke the functions of starting and executing a risk reduction processing so that the contact risk is reduced. The instant Specification fails to attribute special definitions to the language used in limitations B and C. Consequently, the words and phrases of the limitation(s) have been given the plain meaning to a person of ordinary skill in the art. (See MPEP §§ 2173.01, 2173.05(a), and 2111.01). These steps are common computer processing functions that a person having ordinary skill in the art would have known generic computers were capable of performing and would have associated with generic computers. (See MPEP § 2106.05(d)II). See October 2019 Update: Subject Matter eligibility p. 3-4 “Mathematical Relationships” and “Mathematical Calculations” (“A mathematical relationship may be expressed in words or using mathematical symbols . . . [t]here is no particular word or set of words that indicates a claim recites a mathematical calculation. That is, a claim does not have to recite the word “calculating” in order to be considered a mathematical calculation. For example, a step of “determining” a variable or number using mathematical methods or “performing” a mathematical operation may also be considered mathematical calculations when the broadest reasonable interpretation of the claim in light of the specification encompasses a mathematical calculation.”) citing Diamond v. Diehr, 450 U.S. 175, 188-89, 209 USPQ 1, 9 (1981), Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972), Parker v. Flook, 437 U.S. 584, 198 USPQ 193 (1978), and Burnett v. Panasonic Corp., 741 Fed. Appx. 777, 780 (Fed. Cir. 2018) (“using a formula to convert geospatial coordinates into natural numbers”).
Step 2A, Prong Two - Revised Subject Matter Eligibility Guidance:
Under the 2019 PEG step 2A, Prong 2 analysis, the identified abstract idea to which the claim is directed does not include limitations that integrate the abstract idea into a practical application, since the recited features of the abstract idea are being applied on a computer or computing device or via software programming that is simply being used as a tool (“apply it”) to implement the abstract idea. (See, e.g., MPEP §2106.05(f)). This follows conclusion follows from the claim limitations which only recite a generic “non-transitory computer readable medium” outside of the abstract idea.
In addition, merely “[u]sing a computer to accelerate an ineligible mental process does not make that process patent-eligible.” Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d 1266, 1279 (Fed. Cir. 2012); see also CLS Bank Int’l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1286 (Fed. Cir. 2013) (en banc) (“simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility.”), aff’d, 573 U.S. 208 (2014). Accordingly, the additional elements of a processor, a control device, or a vehicle-mounted sensor does not transform the abstract idea into a practical application of the abstract idea.
Extra-solution activity – See MPEP §2106.05(g)
In addition, the limitation of obtaining information about objects around the vehicle constitute(s) insignificant pre-solution activity that merely gathers data and, therefore, do not integrate the exception into a practical application. See In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en banc), aff’d on other grounds, 561 U.S. 593 (2010) (characterizing data gathering steps as insignificant extra-solution activity); see also CyberSource, 654 F.3d at 1371–72 (noting that even if some physical steps are required to obtain information from a database (e.g., entering a query via a keyboard, clicking a mouse), such data-gathering steps cannot alone confer patentability); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (presenting offers and gathering statistics amounted to mere data gathering). Accord Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(g)).
Furthermore, limitation that discuss the scene when the processing is performed constitute(s) insignificant post-solution activity. The Supreme Court guides that the “prohibition against patenting abstract ideas ‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment’ or [by] adding ‘insignificant postsolution activity.’” Bilski, 561 U.S. at 610–11 (quoting Diehr, 450 U.S. at 191–92).
Step 2B - Revised Guidance:
Under the 2019 PEG step 2B analysis, the additional elements are evaluated to determine whether they amount to something “significantly more” than the recited abstract idea. (i.e., an innovative concept). Here, the additional elements, such as a processor or a sensor does/do not amount to an innovative concept since, as stated above in the step 2A, Prong 2 analysis, the claims are simply using the additional elements as a tool to carry out the abstract idea (i.e., “apply it”) on a computer or computing device and/or via software programming (See, e.g., MPEP §2106.05(f)). The additional elements are specified at a high level of generality to simply implement the abstract idea and are not themselves being technologically improved. See, e.g., MPEP §2106.05 I.A; Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.”). Thus, these elements, taken individually or together, do not amount to “significantly more” than the abstract ideas themselves.
The additional elements of the dependent claims merely refine and further limit the abstract idea of the independent claims and do not add any feature that is an “inventive concept” which cures the deficiencies of their respective parent claim under the 2019 PEG analysis. None of the dependent claims considered individually, including their respective limitations, include an “inventive concept” of some additional element or combination of elements sufficient to ensure that the claims in practice amount to something “significantly more” than patent-ineligible subject matter to which the claims are directed.
The elements of the instant process steps when taken in combination do not offer substantially more than the sum of the functions of the elements when each is taken alone. The claims as a whole, do not amount to significantly more than the abstract idea itself because the claims do not effect an improvement to another technology or technical field; the claims do not amount to an improvement to the functioning of an electronic device itself which implements the abstract idea (e.g., the general purpose computer and/or the computer system which implements the process are not made more efficient or technologically improved); the claims do not perform a transformation or reduction of a particular article to a different state or thing (i.e., the claims do not use the abstract idea in the claimed process to bring about a physical change. See, e.g., Diamond v. Diehr, 450 U.S. 175 (1981), where a physical change, and thus patentability, was imparted by the claimed process; contrast, Parker v. Flook, 437 U.S. 584 (1978), where a physical change, and thus patentability, was not imparted by the claimed process); and the claims do not move beyond a general link of the use of the abstract idea to a particular technological environment (e.g., a vehicle or an own vehicle in Claims 1 and 6-8).
Regarding Claims 2-5: These claims depend from Claim 1 and add further details to the steps in that independent claim that perform controls in the braking and steering systems of the vehicle. Therefore, they are not rejected on the same grounds as Claim 1 and are not rejected under 35 U.S.C. 101.
Allowable Subject Matter
Claims 1, 7, and 8 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) and 35 U.S.C. 101 set forth in this Office action.
Claims 2-5 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Claim 6 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) and 35 U.S.C. 101 set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: the prior art of record fails to teach or render obvious all of a vehicle control device comprising a processor capable of executing risk reduction processing to control the own vehicle so that the contact risk between the own vehicle and the object is reduced based on the information; wherein the processor is configured to: in a specific scene where a blind spot area exists because a preceding vehicle traveling in the same direction as the own vehicle is present in front of the own vehicle and within the field of view of the vehicle-mounted sensor, making the vehicle-mounted sensor unable to detect objects, start the risk reduction processing when the first specific condition, which determines that the preceding vehicle is decelerating rapidly, is satisfied, and the second specific condition, which determines that the cause of the preceding vehicle's deceleration cannot be detected, is satisfied.
Conclusion
The prior art made of record on PTO-892 and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUSAN E SCHARPF whose telephone number is (571)270-5304. The examiner can normally be reached Monday - Friday 7:30am-4:30pm.
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/Susan E Scharpf/Examiner, Art Unit 3747
/LINDSAY M LOW/Supervisory Patent Examiner, Art Unit 3747
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