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 Objections
Claim 9 is objected to because of the following informalities: “…wherein the driving safety of the driver is mapped…” should read – …wherein the driving safety value is mapped… – . Appropriate correction is required.
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 9-16 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
In January, 2019 (updated October 2019), the USPTO released new examination guidelines setting forth a two-step inquiry for determining whether a claim is directed to non-statutory subject matter. According to the guidelines, a claim is directed to non-statutory subject matter if:
STEP 1: the claim does not fall within one of the four statutory categories of invention (process, machine, manufacture or composition of matter), or
STEP 2: the claim recites a judicial exception, e.g., an abstract idea, without reciting additional elements that amount to significantly more than the judicial exception, as determined using the following analysis:
STEP 2A (PRONG 1): Does the claim recite an abstract idea, law of nature, or natural phenomenon?
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application?
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
Regarding claim 9, using the two-step inquiry, it is clear that the claim is directed toward non-statutory subject matter, as shown below:
STEP 1: Does the claim fall within one of the statutory categories? Yes. The claim is directed toward a method which falls within one of the statutory categories.
STEP 2A (PRONG 1): Is the claim directed to a law of nature, a natural phenomenon or an abstract idea? Yes, the claim is directed to an abstract idea.
With regard to STEP 2A (PRONG 1), the guidelines provide three groupings of subject matter that are considered abstract ideas:
Mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations;
Certain methods of organizing human activity – fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions); and
Mental processes – concepts that are practicably performed in the human mind (including an observation, evaluation, judgment, opinion).
The method in claim 9 includes limitations that may be practicably performed in the human mind and, therefore, recites an abstract idea. The determining step of the method merely consists of determining a driving safety value based on the individual physiological and driving-specific characteristic values of the driver and media usage characteristic values of the driver. This is equivalent to a person mentally determining or calculating a driving safety value in the human mind. The Examiner notes that under MPEP 2106.04(a)(2)(III), the courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 ("‘[Mental processes] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same). As such, if one was presented with information regarding the individual physiological and driving-specific characteristic values of the driver and media usage characteristic values of the drive, one could mentally determine a driving safety value of the driver.
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application? No, the claim does not recite additional elements that integrate the judicial exception into a practical application.
With regard to STEP 2A (prong 2), whether the claim recites additional elements that integrate the judicial exception into a practical application, the guidelines provide the following exemplary considerations that are indicative that an additional element (or combination of elements) may have integrated the judicial exception into a practical application:
an additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
While the guidelines further state that the exemplary considerations are not an exhaustive list and that there may be other examples of integrating the exception into a practical application, the guidelines also list examples in which a judicial exception has not been integrated into a practical application:
an additional element merely recites the words “apply it” (or an equivalent) with the judicial exception, or merely includes instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea;
an additional element adds insignificant extra-solution activity to the judicial exception; and
an additional element does no more than generally link the use of a judicial exception to a particular technological environment or field of use.
Claim 9 does not recite any of the exemplary considerations that are indicative of an abstract idea having been integrated into a practical application. The claim further recites recording, processing, and storing individual physiological and driving-specific characteristic values of the driver and media usage characteristic values of the driver over a predetermined period of time during a driving operation of the vehicle. This is equivalent to mere data gathering which, when recited at a high level of generality as in the instant case, is a form of insignificant extra-solution activity and does not constitute a practical application of the recited abstract idea. The claim also recites issuing, depending on the determined driving safety value, a recommendation or a warning in the vehicle. The broadest reasonable interpretation of this limitation would include merely displaying the driving safety value. Merely displaying the result of a mental process, when recited at a high level of generality as in the instant case, is a form of insignificant extra-solution activity and does not constitute a practical application of the recited abstract idea.
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception? No, the claim does not recite additional elements that amount to significantly more than the judicial exception.
With regard to STEP 2B, whether the claims recite additional elements that provide significantly more than the recited judicial exception, the guidelines specify that the pre-guideline procedure is still in effect. Specifically, that examiners should continue to consider whether an additional element or combination of elements:
adds a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present; or
simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present.
Claim 9 does not recite any specific limitation or combination of limitations that are not merely insignificant extra-solution activities. As discussed above, the recording step is equivalent to an insignificant extra-solution activity. Further, MPEP 2106.05(d)(II), and the cases cited therein, including Intellectual Ventures I, LLC v. Symantec Corp., 838 F.3d 1307, 1321 (Fed. Cir. 2016), TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610 (Fed. Cir. 2016), and OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015), indicate that mere performance of a data gathering is a well‐understood, routine, and conventional function when it is claimed in a merely generic manner. Also, as set forth below in the rejections related to prior art, using a recording, processing, and storing individual physiological and driving-specific characteristic values of the driver and media usage characteristic values of the driver over a predetermined period of time during a driving operation of the vehicle is a function that is known in the art of vehicle navigation and control.
CONCLUSION
Thus, since claim 9 is: (a) directed toward an abstract idea, (b) does not recite additional elements that integrate the judicial exception into a practical application, and (c) does not recite additional elements that amount to significantly more than the judicial exception, it is clear that claim 9 is directed towards non-statutory subject matter.
Dependent claims 10-16 further limit the abstract idea of the independent claim without adding significantly more or integrating the abstract idea into a practical application. For example, claims 10-12 limit how the individual physiological characteristic values, driving-specific characteristic values, and media usage characteristic values are determined. However, these limitations merely add more detail as to what data is collected, and the limitations still amount to mere data gathering which, when recited at a high level of generality as in the instant case, is a form of insignificant extra-solution activity and does not constitute a practical application of the recited abstract idea. As a further example, claim 14 recites determining emotions of the driver based on recorded facial, speech, or physiological signals of the driver. This is a further mental process which can be performed in the human mind. If one were presented with recorded facial, speech, or physiological signals of the driver, one could mentally determine emotions which correspond to the driver.
Claim Rejections - 35 USC § 102
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.
Claim(s) 9, 11-14, and 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sicconi (U.S. Patent Application Publication 2019/0213429).
Regarding claim 9, Sicconi teaches a method for assessing driving safety of a driver of a vehicle, the method comprising: identifying the driver of the vehicle as a person in the vehicle (Paragraph 0054 Still referring to FIG. 3 monitors a driver 305 and the driver's behavior 307. The invention observes the face and eyes orientation using a camera 308 pointed at the driver.); recording, processing, and storing individual physiological and driving-specific characteristic values of the driver (Paragraph 0056 FIG. 5 shows how the driver facing camera extracts face contours, identifying eyes, nose, mouth to evaluate yaw, pitch, roll of the face, eye gaze direction and eye lid closing patterns.) and media usage characteristic values of the driver over a predetermined period of time during a driving operation of the vehicle ('Paragraph 0072 The phone 1155 returns information about relative motion of the phone 1155 in the vehicle, to determine potential distraction conditions if the phone is held by the driver.); determining a driving safety value based on the individual physiological and driving-specific characteristic values of the driver and media usage characteristic values of the driver (Paragraph 0073 The main decision engine 1233 collects information about distraction 1221 and drowsiness 1219 levels, risk level 1225, leveraging mandated behavior guidelines 1237, 1239, taking into account user preferences 1241 and relying on decision models 1243 and Machine Learning to determine what messages to convey to the user.); and issuing, depending on the determined driving safety value, a recommendation or a warning in the vehicle (Paragraph 0073 A dialog interaction engine 1235 triggered by the decision engine 1233 generates prompts to the driver using sound and speech synthesis 1231 to drive a speaker array 1215.), wherein the driving safety of the driver is mapped as a function of vehicle and media usage characteristic values (Paragraph 0073 The main decision engine 1233 collects information about distraction 1221 and drowsiness 1219 levels, risk level 1225, leveraging mandated behavior guidelines 1237, 1239, taking into account user preferences 1241 and relying on decision models 1243 and Machine Learning to determine what messages to convey to the user.), wherein based on a function approximation, the individual physiological and driving-specific characteristic values of the driver and media usage characteristic values of the driver influencing the driving safety value are identified (Paragraph 0073 Long-term driving data 1250 and statistics about dialog interactions 1235 are used to evaluate driver performance effectiveness (ability to take right corrective actions, timely), responsiveness of the driver to system generated guidance 1252, and to compile driving risk profiles and driver performance trends 1255.).
Regarding claim 11, Sicconi teaches the method of claim 9 as set forth above. Sicconi further teaches wherein the driving-specific characteristic values of the driver are determined based on accelerations of the vehicle, wheel speeds of the vehicle, engine speeds of the vehicle, driver assistance interventions of the vehicle, lateral positions of the vehicle in the vehicle's lane, or distances to vehicles driving in front of the vehicle (Paragraph 0043 Driving data includes a multitude of parameters such as driver id, location, speed, acceleration, braking, cornering, throttle aperture, steering wheel motion, time of day, weather conditions, traffic information, proximity to surrounding cars (ahead, behind, on the side), positioning in lane, driver face/eye gaze direction, eyelids closing patterns, hands position and gestures, spoken utterances and their transcnpt10n, acoustic noises in the cabin, video recording of key events (e.g. crashes).).
Regarding claim 12, Sicconi teaches the method of claim 9 as set forth above. Sicconi further teaches wherein the media usage characteristic values of the driver are determined based on user operations of a mobile device, user operations of an infotainment system of the vehicle, or volumes set for media playback in the vehicle (Paragraph 0072 The phone 1155 returns information about relative motion of the phone 1155 in the vehicle, to determine potential distraction conditions if the phone is held by the driver.).
Regarding claim 13, Sicconi teaches the method of claim 9 as set forth above. Sicconi further teaches wherein a media usage of the driver is analyzed using computer-assisted speech analysis (Paragraph 0058 An optional WiFi-connected smartphone 711 provides telemetry data, map/routing info, cloud services (weather, traffic), audio/video recording capabilities and speech recognition and synthesis for dialog interaction with the driver.).
Regarding claim 14, Sicconi teaches the method of claim 9 as set forth above. Sicconi further teaches wherein emotions of the driver are determined based on recorded facial, speech, or physiological signals of the driver (Paragraph 0014 According to one aspect of the present invention, a method includes a computing device a computer device receiving extracted features from a driver-facing camera and from a road as viewed by a road-facing camera; the computer device further receiving extracted features reflecting the driver's behavior including head and eyes movement, speech and gestures; the computer device further receiving extracted telemetry features from a vehicle; the computer device still further receiving extracted features reflecting the driver's biometrics; and a decision engine receiving information from the computer device representing each of the extracted features of the driver, wherein a driver's attention and emotional state is determined to evaluate risks associated to moving vehicles and the driver's ability to deal with any projected risks.).
Regarding claim 16, Sicconi teaches the method of claim 9 as set forth above. Sicconi further teaches wherein the individual physiological and driving-specific characteristic values of the driver and the media usage characteristic values of the driver recorded over the predetermined period of time during the driving operation are transmitted to a central processing unit coupled via a data link to the vehicle (Paragraph 0044 All driving data is stored in an Electronic Driving Record (EDR), in the form of live and historic data, later to be processed, analyzed and distributed accordingly. The invention also relates to data protection, privacy and security. It addresses the ultimate question of who gets access to what EDR information, when, at what time and under what conditions, as defined and legally released by the driver. EDR data is stored on secure cloud storage and data access is managed as part of the service, to drivers and other users authorized by the driver (e.g. Insurance Carriers, Healthcare providers, Car Manufacturers).).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sicconi in view of Zheng (U.S. Patent Application Publication 2023/0391366).
Regarding claim 10, Sicconi teaches the method of claim 9 as set forth above. However, Sicconi does not teach wherein the individual physiological characteristic values of the driver are determined based on a heart rate of the driver, a respiratory rate of the driver, and a skin conductance value of the driver.
Zheng, in the same field of endeavor, teaches a system for analyzing driver safety behavior. The system determines physiological characteristics of the driver based on a heart rate of the driver, a respiratory rate of the driver, and a skin conductance value of the driver (Paragraph 0081 In one configuration, various types of physiological data that may be sensed by the physiological sensors 120 may include, but may not be limited to, skin conduction measurements that are based on the measurement of skin conductance from two or more points of the driver's skin, heart information, such as, heart rate, blood pressure, blood flow, oxygen content, respiration rate information, as well as other kinds of information related to the autonomic nervous system or other biological systems of the driver 108.).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention and with a reasonable expectation of success, to have modified Sicconi with the teachings of Zheng which teaches determining physiological characteristics of the driver based on a heart rate of the driver, a respiratory rate of the driver, and a skin conductance value of the driver in order to determine a level of driver discomfort (See Zheng Paragraph 0085 In some embodiments, the extracted features 302-310 may be analyzed with respect to respective subjective time windows to determine an aggregation of feature values that may be compared to one or more threshold values to detect a perceived level of driver discomfort.).
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sicconi in view of Petuchowski (U.S. Patent Application Publication 2023/0271623).
Regarding claim 10, Sicconi teaches the method of claim 13 as set forth above. However, Sicconi does not teach wherein the driver is recommended an alternative media usage in the vehicle based on a driving safety value predicted at least based on the media usage.
Petuchowski, in the same field of endeavor, teaches a system for monitoring safe driving behavior. The system recommends that a driver put their phone down when the system detects unsafe phone use while driving (Paragraph 0050 When the Application positively identifies manual phone use by the driver, the Application may replace the currently active phone screen with a Warning Screen and emits a Warning Alarm that is intended to prompt the user to put down die phone.).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention and with a reasonable expectation of success, to have modified Sicconi with the teachings of Petuchowski which teaches recommending that a driver put their phone down when the system detects unsafe phone use while driving in order to encourage safer driving behavior (See Petuchowski Paragraph 0052 From the point of view of the driver of a vehicle, the mere existence and preinstalled aspect of the Application will naturally deter dangerous manual use of a phone while driving, even if the operation of the Application is latent in the background and invisible to the user unless the user is caught handling the phone while driving. The in-terrorem jeopardy of having one's illicit behavior detected and documented would seem to be the strongest argument in favor of adopting such a technology. It deters illegal behavior without requiring the intervention of law enforcement officials.).
Conclusion
The prior art made of the record and not relied upon is considered pertinent to
applicant’s disclosure.
Ricci – U.S. Patent Application Publication 2018/0127001
TISSEUR – U.S. Patent Application Publication 2022/0337698
GRIVEL – U.S. Patent Application Publication 2022/0383421
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/PATRICK DANIEL MOHL/Examiner, Art Unit 3666
/ANNE MARIE ANTONUCCI/Supervisory Patent Examiner, Art Unit 3666
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