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 .
DETAILED ACTION
Claims 1-20 have been examined.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-6,8-14,16,18-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5,7-8,13-14 of U.S. Patent No. 12,243,424. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims 1-5,7-8,13-14 of U.S. Patent No. 12,243,424 would encompass the broader claims 1-6,8-14,16,18-20 of the current application.
Claims 17 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,3,4,5 of U.S. Patent No. 12,243,424 in view of claim 1 of U.S. Patent No. 11,488,475. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims 11,3,4,5 of U.S. Patent No. 12,243,424 in view of claim 1 of U.S. Patent No. 11,488,475 would encompass the broader claims 17 of the current application. It would have been obvious at the time the invention before the effective filing date of the claim invention was made to include the second sensor at second location by U.S. Patent No. 11,488,475 to the invention of U.S. Patent No. 12,243,424 because it would provide distally-spaced sensor placement as known in the family, thereby increasing the effectiveness of the invention.
Current application
U.S. 12,243,424
U.S. 11,488,475
1
5+1+3+4
2
5+1+3+4+2
3
5+1+3+4+7
4
5+1+3+4+7+8
5
5+1+3+4+13
6
5+1+3+4+14
7
8
5+1+3+4
9
5+1+3+4+6
10
5+1+3+4+2
11
5+1+3+4+7
12
5+1+3+4+7+8
13
5+1+3+4+13
14
5+1+3+4+14
15
16
5+1+3+4
17
5+1+3+4
1
18
5+1+3+4+13
19
5+1+3+4+14
20
5+1+3+4+2
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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more.
Claims 1-8 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) collecting distance measurements, defining unobstructed distances, defining threshold values, comparing measurements to threshold values, determining whether an obstruction exists, and applying decision rules for vehicle counting, which constitute mental processes and mathematical concepts, both of which are enumerated groupings of abstract ideas.
Specifically, independent claim 1 recites:
- defining a first unobstructed distance based on a plurality of first measurements;
- defining a first distance threshold value;
- determining that a first measurement outside the threshold value indicates obstruction;
- defining a second unobstructed distance based on a plurality of second measurements;
- defining a second distance threshold value; and
- determining that a second measurement outside the threshold value indicates obstruction.
These limitations recite observation, evaluation, comparison, and classification of measurement data. Such operations can be performed mentally or through mathematical analysis and therefore fall within the abstract idea groupings of mental processes and mathematical concepts.
Dependent claim 2 further recites that the sensors comprise LIDAR sensors.
Dependent claims 3 and 4 further recite threshold values beyond noise levels.
Dependent claims 5 and 6 further recite vertical and angular sensor orientations.
Dependent claims 7 and 8 further recite logical rules governing when a vehicle count is increased or not increased based upon threshold comparisons.
This judicial exception is not integrated into a practical application because the additional elements merely recite first and second distance sensors operating in their ordinary capacity to obtain measurement data and a vehicle counting environment in which the abstract analysis is performed. The claims do not improve the operation of the sensors, improve measurement acquisition, improve LIDAR technology, improve signal processing, improve computer functionality, or otherwise effect a technological improvement. The additional elements merely gather data for use in the abstract analysis and apply the results of the analysis.
The claim(s) do/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the recited distance sensors, including the LIDAR sensors of claim 2, merely perform well-understood, routine, and conventional measurement functions. The threshold calculations of claims 3 and 4 merely define numerical criteria derived from collected data. The orientation limitations of claims 5 and 6 represent conventional placement choices. The counting rules of claims 7 and 8 merely apply logical decision-making to analyzed data. Considered individually and in combination, these additional elements do not add an inventive concept sufficient to transform the abstract idea into patent-eligible subject matter.
Limitations identified as the judicial exception:
- defining unobstructed distances;
- defining threshold values;
- determining obstruction based upon threshold comparisons;
- applying counting decisions based upon comparison results.
Additional elements not sufficient to amount to significantly more:
- first distance sensor;
- second distance sensor;
- LIDAR implementation;
- vertical orientation;
- angular orientation;
- vehicle counting environment.
Claims 9-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) collecting measurements, defining unobstructed distances, defining threshold values, repeatedly recalculating threshold values during operation, comparing measurements to thresholds, determining obstruction status, and applying vehicle-counting rules, which constitute mental processes and mathematical concepts.
Independent claim 9 recites:
- defining first and second unobstructed distances;
- defining first and second threshold values;
- determining obstruction based upon threshold comparisons; and
- repeatedly executing threshold-definition operations during operation for dynamic calibration.
The repeated recalibration process remains an exercise in collecting information, evaluating information, calculating threshold values, and updating those values based upon newly obtained data.
Dependent claim 10 further recites LIDAR sensors.
Dependent claims 11 and 12 further recite threshold values beyond noise levels.
Dependent claims 13 and 14 further recite vertical and angular sensor orientation.
Dependent claims 15 and 16 further recite logical rules for increasing or not increasing a vehicle count.
This judicial exception is not integrated into a practical application because the recited sensors merely obtain measurement information that is subsequently analyzed using threshold calculations and decision rules. The repeated execution of calibration calculations does not improve sensor functionality or computer technology but instead merely repeats the abstract analysis over time. The claims therefore merely automate an abstract evaluation process.
The claim(s) do/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the recited sensors perform conventional measurement functions, the recalibration operations merely repeat mathematical analysis, the noise-level limitations merely define numerical parameters, and the orientation limitations represent conventional installation choices. The vehicle-counting rules merely apply logical conditions to analyzed information. When considered individually and as an ordered combination, the additional elements amount only to implementing the abstract idea using conventional technology.
Limitations identified as the judicial exception:
- defining unobstructed distances;
- defining threshold values;
- repeated recalculation of threshold values;
- comparing measurements to thresholds;
- applying counting decisions.
Additional elements not sufficient to amount to significantly more:
- first distance sensor;
- second distance sensor;
- LIDAR implementation;
- vertical orientation;
- angular orientation;
- dynamic calibration environment.
Claims 17-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) collecting measurement data, defining unobstructed distances, defining threshold values, determining obstruction status, and repeatedly recalculating calibration parameters, which constitute mental processes and mathematical concepts.
Independent claim 17 recites:
- mounting a first distance sensor;
- mounting a second distance sensor;
- orienting the sensors toward a position of interest;
- defining first and second unobstructed distances;
- defining first and second threshold values; and
- repeatedly executing threshold-definition operations for dynamic calibration.
The focus of the claim remains the evaluation of measurement data and generation of threshold values used to classify obstruction conditions.
Dependent claims 18 and 19 further recite vertical and angular orientations.
Dependent claim 20 further recites LIDAR sensors.
This judicial exception is not integrated into a practical application because mounting sensors and orienting sensors merely establish a physical environment in which the abstract calibration and evaluation process is performed. The claims do not improve the structure or operation of the sensors, do not improve data acquisition technology, and do not improve computer functionality. The mounting and orientation limitations merely provide a field of use for the abstract analysis.
The claim(s) do/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the recited sensor mounting and orientation operations are conventional installation activities, the LIDAR sensors of claim 20 perform ordinary ranging functions, and the remaining limitations merely analyze collected information and generate threshold values. Viewed separately and as an ordered combination, the additional elements fail to provide an inventive concept beyond the abstract idea itself.
Limitations identified as the judicial exception:
- defining unobstructed distances;
- defining threshold values;
- determining obstruction from threshold analysis;
- repeated recalibration operations.
Additional elements not sufficient to amount to significantly more:
- mounting sensors;
- orienting sensors;
- vertical orientation;
- angular orientation;
- LIDAR implementation;
- vehicle counting system environment.
Accordingly, claims 1-20 are rejected under 35 U.S.C. § 101.
Allowable Subject Matter
Claims 1-20 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 101 and the nonstatutory double patenting rejection, set forth in this Office action.
Conclusion
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Davetta Goins can be reached on (571)272-2957. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HOI C LAU/Primary Examiner, Art Unit 2689
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