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 .
Priority
This application is a divisional application of pending United States Patent Application 18/531,900, filed December 7, 2023, which is a divisional application of United States Patent Application 17/082,763, filed October 28, 2020. Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in the parent application (17/082,763).
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:
Input unit (the corresponding structure can be found in ¶ [0128] “…said person holding a mouthpiece at their face and blowing in the breath sample or by said person blowing the breath sample into the input unit in a contactless manner.”).
Testing unit (the corresponding structure can be found in ¶ [0129] “In one configuration, the testing unit comprises a plurality of sensors for pressure, humidity and/or temperature, which measure the breath sample given.”).
Data transmission unit (the corresponding structure can be found in FIG. 7 element 76”).
Image recording device (the corresponding structure can be found in ¶ [0041] “…the image recording device of a Smartphone or a special digital camera”).
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 § 103
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 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.
Claim(s) 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over Wojcik et al. (US 2015/0084774 A1, hereinafter “Wojcik”) in view of Grohman et al. (US 2016/0086021 A1, hereinafter “Grohman”).
Regarding claim 1:
Wojcik teaches: a drug-measuring system for testing a user for drugs (Wojcik teaches a remote breath alcohol monitoring system including an RBAM 200 assigned to and used by an offender 202 (¶¶0052–0057, 0095–0097)), wherein the drug-measuring system comprises:
a drug measuring device, wherein the drug measuring device comprises: an input unit configured to receive from a person a user sample given into the drug measuring device; a testing unit configured to detecting an event that the content of a predefined substance in a received user sample is above a predefined limit (Wojcik teaches RBAM 200 includes Breath Tube 14 for receiving the offender's breath and a fuel cell assembly that measures the alcohol content of the breath sample (¶¶0079–0080). Wojcik further compares the measured breath alcohol content (BrAC) with a predetermined lower limit of detection (LLOD) to determine whether the test is passed or failed (¶¶0063–0065)); and
an image recording device configured to take at least one image of the person who is giving the user sample into the drug measuring device (Wojcik further teaches a camera 18 takes an image of offender 202 while the offender is delivering the breath sample (¶0084; see also claim 20));
a use data bank (Wojcik teaches a Monitor Network 206 includes server/database server functionality and maintains offender specific stored data and test results (¶¶0052–0056, 0060, 0106, 0110; claims 21 and 23). Each supervising agency has a data storage area on the database server from which secure data can be retrieved, and test results transmitted from the RBAM are permanently stored and made available for review), wherein the use data bank comprises:
a device code of the drug measuring device (Wojcik further teaches an RBAM 200 is assigned to offender 202 and “the serial number of the RBAM 200 is associated with the name of Offender 202” (¶0096). Claim 26 similarly recites receiving, at the monitor network, setup information including identification indicia for the remote breath alcohol monitor assigned to the offender); and
a use data set for the user to be tested for drugs, the use data set comprising at least one image of the user (Wojcik teaches that during enrollment, an enrollment image is taken of offender 202 and uploaded to Monitor Network 206, which stores the enrollment image in association with offender 202 (¶0097; see also claims 28 and 30)); and
a data processing unit located at a distant location in space from the drug measuring device, wherein the data processing unit has read access at least at times and write access at least at times to the use data bank (Wojcik further teaches a data processing unit located remotely from the drug measuring device and having access to the stored user data. In one embodiment, the facial matching software is stored on a server at Monitor Network 206, and the image acquired by the RBAM is uploaded to the remote network for facial matching (¶0081; claim 10). The Monitor Network retrieves stored offender information, performs analysis, stores incoming test results, and provides access to stored offender specific data, thereby teaching read and write access to the remote data bank);
wherein the drug measuring device is configured to transmit the image of the person, who has given the user sample into the drug measuring device, to the data processing unit (Wojcik teaches transmitting the image of the person who gave the sample from the RBAM to the remotely located processing system. Wojcik's claim 2 recites sending both the measured breath alcohol content and facial image to the monitor network, while claim 10 expressly provides that the facial match may be performed by the monitor network after receiving the facial image. ¶0081 likewise teaches uploading the image to Monitoring Network 206 for remote facial matching.), and wherein the data processing unit is configured:
to compare the transmitted image or each transmitted image of the person, who has given the user sample, with the at least one image, which is comprised by the use data set for the user in the use data bank, to automatically decide and/or to prompt a decision, depending on the result of the comparison, on whether the user sample was given by the user or by another person (Wojcik further teaches comparing the transmitted image of the sample giver with a stored enrollment image and determining whether the sample was given by the enrolled user or by another person. During a test, a template generated from the test image is compared with the enrollment template, and a match score is generated (¶¶0097, 0099–0101). Wojcik expressly teaches that a positive facial match indicates that the person delivering the sample is the enrolled offender, whereas a negative facial match may indicate that a different person delivered the sample (¶0101), Wojcik further teaches transmitting the testing result and image to Monitor Network 206 and storing the test results there (¶¶0064, 0100–0101, 0106, 0110)), and
Wojcik does not explicitly state that the stored user data set is completed after determining that the sample giver is the enrolled user.
However, in the same field of endeavor, Grohman teaches to complete, after a decision that the sample was given by the user, the use data set for the user by the transmitted result of the testing and/or by the transmitted image or by a transmitted image (Grohman stores reference facial images in database 302, receives an image of a person undergoing substance testing, and compares the received image against the stored images (¶¶0049–0055). Upon determining a match, Grohman teaches that the individual's identifier, picture of the test subject, and/or test results are logged (¶0055)).
Therefore, It would have been obvious to one of ordinary skill in the art before the effective filing date to configure Wojcik's remote monitoring system to log the transmitted facial image and test result in the user's stored record following a successful identity determination, as taught by Grohman. Both references address remote substance testing and employ facial recognition to prevent circumvention by having another individual provide the sample. Applying Grohman's identity conditioned logging technique to Wojcik's existing remote facial recognition and test record system would have predictably ensured that test information attributed to an enrolled user is associated with that user after verifying the identity of the sample giver. Grohman expressly identifies prevention of substitute person testing as a purpose of its facial recognition architecture.
Regarding claim 2:
Wojcik in view of Grohman teaches the common limitations for the reasons set forth above with respect to claim 1.
Claim 2 further requires the data processing unit to provide as output a determination signal to release or not release the drug measuring device based on whether the user sample was given by the user or by another user.
Grohman further teaches to provide as output a determination signal to release or not release the drug measuring device (Grohman teaches conditioning operation of the test apparatus itself on the facial identity determination. Grohman claim 7 and ¶0039 and 0057 recite a facial recognition processing system operable to enable the test apparatus in response to identification of the test subject. Claims 8–9 and ¶¶0065 and 0067 teach comparing a facial image against stored facial images and, in response to a sufficiently certain match, selectively activating the test device, with claim 9 expressly providing that the processing system may be remote from the testing system. Grohman claims 15–17 likewise recite a remotely located processing system that selectively activates a breath testing device based upon the facial image match. Also see FIGS. 5A and 5B).
Regarding the remaining portion of claim 2 “whether the user sample was given by the user or by another user”. Wojcik further teaches this by determining from the timing of facial image testing whether the individual who actually supplied the breath sample is the enrolled offender or a different person (¶¶0099–0101). Wojcik additionally teaches bidirectional communication between Monitor Network 206 and RBAM 200: the monitor network downloads settings and testing schedules to the assigned RBAM (¶0096), and may transmit an on demand test order that causes the RBAM to wake and prompt the offender to take the test (¶0109). Thus, Wojcik already provides a remote processor capable of controlling operation of the drug measuring device through the communications link);
Therefore, It would have been obvious to one of ordinary skill in the art before the effective filing date to configure Wojcik's remote Monitor Network 206 to transmit a determination signal that enables the assigned RBAM when Wojcik's facial comparison determines that the sample giver is the enrolled offender and withholds such enablement when the sample giver is not the enrolled offender, as taught by Grohman. Such modification constitutes application of Grohman's known identity dependent test device enablement technique to Wojcik's analogous remote substance testing system and would have predictably furthered the shared anti-circumvention objective by preventing continued or released use of the assigned testing device by an unauthorized substitute. Although Grohman describes identity dependent activation before testing in the expressly claimed embodiment, Wojcik already determines the identity of the person actually providing the current sample. Applying Grohman's known enable/disable control to that already available identity determination would have required only the predictable use of existing control logic and Wojcik's existing bidirectional communication path, rather than a change in the principle of operation of either reference.
Regarding claim 3:
Wojcik in view of Grohman teaches the common limitations for the reasons set forth above with respect to claim 1.
Claim 3 further requires the data processing unit to provide a signal as output, the signal comprising instructions to release or not release the drug measuring device based on the comparison of the transmitted image or each transmitted image of the person, who has given the user sample, with the at least one image, which is comprised by the use data set for the user in the use data bank.
Grohman further teaches to provide a signal as output, the signal comprising instructions to release or not release the drug measuring device based on the comparison of the transmitted image or each transmitted image of the person (Grohman teaches conditioning operation of the test apparatus itself on the facial identity determination. Grohman claim 7 and ¶0039 and 0057 recite a facial recognition processing system operable to enable the test apparatus in response to identification of the test subject. Claims 8–9 and ¶¶0065 and 0067 teach comparing a facial image against stored facial images and, in response to a sufficiently certain match, selectively activating the test device, with claim 9 expressly providing that the processing system may be remote from the testing system. Grohman claims 15–17 likewise recite a remotely located processing system that selectively activates a breath testing device based upon the facial image match. Also see FIGS. 5A and 5B).
Regarding the remaining portion of claim 3 “the person who has given the user sample, with the at least one image, which is comprised by the use data set for the user in the use data bank “. Wojcik further teaches this by providing the corresponding timing in which the facial image is obtained while the person is giving the sample, transmitted to the remote network, and compared with the stored enrollment image to determine whether the actual sample giver is the enrolled offender (¶¶0081, 0084, 0097, 0099–0101).
Therefore, It would have been obvious to one of ordinary skill in the art before the effective filing date to utilize the result of Wojcik's timing of image comparison to cause its remotely located Monitor Network 206 to transmit instructions enabling the RBAM when the images match and withholding enablement when they do not, consistent with Grohman's express teaching of selectively activating a substance testing device in response to the facial image comparison. The modification would predictably prevent an unauthorized substitute from obtaining released use of the assigned testing apparatus and thus further the anti-circumvention purpose expressly recognized by both references.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Grigaliunas (WO-2019111044) teaches: determining the human alcohol intoxication level, where the said solution has technical features that protect against fraud and falsification during the measurement when the person who is testing for alcohol intoxication is not controlled by other persons concerned. The technical solution includes the method for measuring and equipment that implements this method. The equipment consists of at least two main devices - a smart device (1) and an alcohol testing apparatus (2), where both of these devices have technical means for intercommunication. In the case of the present invention, there are used two types of communication between the alcohol testing apparatus (2) and the smart device (1): optical and data transfer. The optical communication is intended to eliminate the possibility of fraud by replacing the alcohol testing apparatus (2) with another, similar object; data transfer communication is intended for data transfer between the alcohol testing apparatus (2) and the smart device (l).The method for measuring the alcohol intoxication level consists of at least the following main stages: the tested person positions the smart device (1) in the way that the face of the person will appear in the camera capture field of the device (1), necessarily the lips together with the alcohol testing apparatus (2); when measuring, the alcohol testing apparatus (2) transfers the signal of the alcohol testing apparatus (2) used, which confirms that the smart device (1) captures (and at the same the tested person uses) the specific alcohol testing apparatus (2) via optical communication. This description provides a new technical solution for determining the human alcohol intoxication level, where the said solution has technical features that protect against fraud and falsification during the measurement when the person who is testing for alcohol intoxication is not controlled by other persons concerned.
Morley (US PG-Pub. 20110292209) teaches: a device for recognizing correct use of an alcohol-measuring device by a driver in a vehicle has at least the alcohol-measuring device, an analyzing and control unit and a camera unit. At least an area of the face of the driver can be detected by the image field of the camera unit. The analyzing and control unit is connected to a driving control unit for detecting motion of the vehicle, to the camera unit and to the alcohol-measuring device. The camera unit can be activated by the analyzing and control unit as a function of the driving control unit in such a way that at least the area of the face of the driver is detected.
Okamoto (PG-Pub. US 20090169068) teaches: a detecting device for detecting a fake test of Blood Alcohol Concentration (BAC) that another testee different from an actual driver takes on behalf of the actual driver of a vehicle using an alcohol measurement device, the face image of the testee taking the BAC test is shot during measurement of the BAC and the face image of the driver of the vehicle is shot within a predetermined period of time before or after the measurement of the BAC. The testee and the driver are checked whether they are the same person based on the face images of the testee and the driver.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WASSIM MAHROUKA whose telephone number is (571)272-2945. The examiner can normally be reached Monday-Thursday 8:00-5:00 EST.
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/WASSIM MAHROUKA/Primary Examiner, Art Unit 2665
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