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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “acquisition portion” as recited in claims 13-22 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 23 objected to because of the following informalities:
There is no colon (:) following the preamble. Appropriate correction is required.
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:
Acquisition portion: (no specific element labeled such in drawings, the spec says the recognition portion may acquire, driver recognition portion may acquire
Process portion: (130 Fig 2)
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.
As noted above the acquisition portion is not explicitly labeled in the drawings, or recited in the disclosure. For claim analysis/rejection purposes the acquiring portion, will be the drive assist device which may be a processor as disclosed.
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 13-22 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.
As noted above the applicant claims an “acquisition portion”, although originally claimed, however, the disclosure/specification does not identify/include such portion. Unlike the process portion which is claimed and disclosed/shown (element 130 Fig 2), there is no showing specifically of an “acquisition portion”.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 13, 19-21 and 23-24 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Esaki, US 20240029454.
In considering claim 13,
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The claimed acquisition portion….is met where camera 2 acquires images of the driver (Fig 2) which is acquired by line of sight estimating device 11, which includes line of sight estimating unit 232, along with determining unit 233 and correcting unit 235 (and units 231, 234) as shown which captures images at predetermined cycles (interval) (para 39)
The claimed process portion which estimates…. Is met by line of sight estimating device 11 (Fig 2) which estimates the line of sight of the driver even when the driver’s face is directed toward the right or left (para 15, 35, 54, 80, 84, 88), where the determination used a predetermined period of time for estimation (para 8, 13, 14, 34, 57,86). Regarding the impossible as noted (para 06) when the drivers face is facing left or right with respect to the front of the vehicle and angle of monitoring camera it is impossible to precisely detect facial feature point in the captured image. Esaki discloses the reliability (between 0.0 to 1.0) based upon detected facial features (para 50-58, Fig 3), where if the threshold is below a predetermined value, the system determines whether the user is in a gazing state, based upon the first line of sight and multiple other line of sight within a predetermined period of time including (Fig 5) the detection of objects in the direction of the line of sight (Fig 6), which may include pedestrians 501, 502 or crosswalk 503. (para 69, 73. 78)
In considering claim 19.
The claimed driver…is met (para 2-8, 10-15, 29-35, 38-42, 45, 54-55, 57, 59-62, 72-77, 79-80 and 84-89).
The claimed on a condition….the examiner notes they system detects objects in the field of view of the driver outside the vehicle using camera 3 (Fig 2), where as noted in claim 1, when the reliability (impossible) of the first line of sight is low (s104) the system determines a gazing state (step 105, para 57, 59 and 66) which includes the detection of those objects when performing gaze detection (Fig 5-6).
In considering claim 20,
Esaki disclose the objects may be a pedestrian (Fig 5, 501-502).
In considering claim 21,
The claimed reference direction….is met where the forward direction using camera 3 (Fig 2).
The claimed process portion..is met where the system can precisely estimate the line of sight and direction of orientation of the drivers face (para 10-13, 31-40, 42, 47-55, 61, 65, 70, 76, 79-84 and 89-90) when it may be impossible to capture the face of the driver (para 6).
In considering claim 23,
Refer to claim 13. Esaki disclose the use of a computer/processor to execute the invention (para 13, 43-44 and 85).
In considering claim 24,
Refer to claim 13. Esaki discloses the use of a non-transitory computer-readable medium…(para 13, 43-44 and 85).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 14, 17 and 22 and is/are rejected under 35 U.S.C. 103 as being unpatentable over Esaki, US 20240029454.
In considering claim 14,
As noted Esaki discloses the left/right directions, with respect to a reference direction) (forward) which uses the center of the imaging surface as the original (para 52, 53, 54, 58, 70. 88), which is base upon the vehicle and the monitoring system shown which is based upon the position/orientation (centering) of the vehicle.
Regarding the second region being further away, the examiner notes this would depend upon the placement of the monitoring camera(s) with respect to the driver position, where Esaki discloses the use of one or more cameras (88), where if the camera was installed off center to the driver, the area of coverage which include regions that were off center (being further away when head turned), which would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, the motivation to install a camera off center would depend upon the vehicle spacing/resources and system/design specification to not block the drivers field of view, thus being an obvious modification to one of ordinary skill in the art before the effective filing date of the claimed invention.
In considering claim 17,
The claimed imaging portion…as noted camera 2 (Fig 2) is directed to the driver.
The claimed first region is met where the system is able to determine reliability of a captured image, based upon the head position/turning in the horizontal direction.
The claimed range…as noted in claim 14, based upon the position of the camera, if the camera is not centered directly at the driver, but angled from a position, there will be a greater range in a respective direction based upon such angle. For example if the camera is mounted towards the door, the left side of the face/head would have a greater angle of detection then the right side.
Regarding the predetermined direction, as noted in claim 14, the placement of the camera(s) would be a design choice based upon resources/vehicle accessibility, which allow the driver to be monitored but also to ensure the drivers field of view was not obstructed via any devices, where any camera placement off center from the driver would provide a greater range in one direction then the other for capturing the face as would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
In considering claim 22,
a-b) the claimed notification…is met where UI 4/display device includes a notification unit (para 41, 45, 53, 64-65 (Fig 2), which gives the driver a warning.
Regarding the direction and estimation see claim 1.
Regarding the intensity the examiner notes Esaki does not explicitly recite a 1st and 2nd intensity level although such warnings/notification are notoriously well-known in the field of vehicles, to provide the driver information which can notify the driver of events which may require immediate (higher level) attention (pedestrian in the crosswalk) vs (crosswalk present, pedestrian on side of road), thus being an obvious modification to one or ordinary skill in the art before the effective filing date of the claimed invention, for the benefit of ensuring the driver was aware of the surroundings which vary in their intensity (pedestrian in the road, pedestrian on the side of the road), thus raising to different levels of notification(s).
Allowable Subject Matter
Claims 15-16 and 18 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The prior art of record does not appear to disclose the additional limitations of the claims as explicitly recited.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure—see newly cited references on attached form PTO-892.
Some notable prior arts, which disclose driver detection:
US 20200254876 (para 69-70, 73);
US 20210357670 (para 41-43);
US 20140204193 (para 24).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian Yenke whose telephone number is (571)272-7359. The examiner work schedule is Monday-Thursday, 0730-1830 hrs.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s Supervisor, John Miller, can be reached at (571)272-7353.
Any response to this action should be mailed to:
Commissioner of Patents and Trademarks
Washington, D.C. 20231
or faxed to:
(571)-273-8300
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/BRIAN P YENKE/Primary Examiner, Art Unit 2422
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