DETAILED ACTION
Notices to Applicant
This communication is a final rejection. Claims 1-6, 8-15, and 17, as filed 06/11/2026, are currently pending and have been considered below.
Foreign priority is generally acknowledged to FRANCE 2403806 which was filed 04/12/2024.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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 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.
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 1-6, 8-15, and 17 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) do not fall within at least one of the four categories of patent eligible subject matter because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 1
The claim(s) recite(s) subject matter within a statutory category as a process, machine, and/or article of manufacture which recite:
1. A method of evaluating a level of fatigue of an operator, implemented by a transportable evaluation device, the method being implemented when the operator pre-briefs a future mission or carries out a usual activity relating to usual tasks that are distinct from the mission, the method comprising: (additional element – applying the abstract idea with a computer)
identifying an operator; (abstract idea – mental process)
acquiring or determining contextual data relating to the context in which the evaluation is implemented;
acquiring physiological data of the operator during an activity of the operator other than interacting with the transportable evaluation device; (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, necessary data-gathering)
analyzing both the contextual data and the physiological data to determine a level of fatigue of the operator; and (abstract idea – mental process)
communicating the determined level of fatigue. (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, outputting a result)
2. The method according to claim 1, wherein said identifying comprises at least one of:
entering a unique personal code,
reading an external physical or digital medium,
entering a username or a password, and
recognizing a biometric fingerprint. (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, necessary data-gathering)
3. The method according to claim 1, wherein the contextual data comprises at least one type of data selected from:
data relating to the operator's environment; and
operational data relating to activities carried out by the operator. (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, necessary data-gathering)
4. The method according to claim 1, wherein the contextual data are entered by the operator and/or acquired from an external device and/or generated by the transportable evaluation device. (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, necessary data-gathering)
5. The method according to claim 1, wherein said acquiring physiological data is implemented from measurements provided by a plurality of sensors integrated with the transportable evaluation device. (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, necessary data-gathering)
6. The method according to claim 5, wherein said acquiring physiological data comprises at least one of:
checking a state of operation of the sensors;
synchronizing the sensors;
monitoring quality of a measured signal; and
alerting in the event of failure of one or a plurality of sensors. (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, necessary data-gathering)
8. The method according to claim 1, wherein said acquiring physiological data is implemented during an activity of the operator other than interaction with the transportable evaluation device according to a predetermined minimum duration. (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, necessary data-gathering)
9. The method according to claim 1, wherein said analyzing determines the level of fatigue of the operator by one or a plurality of algorithms for processing physiological data. (abstract idea – mental process)
10. The method according to claim 1, wherein said analyzing determines the level of fatigue of the operator by one or a plurality of algorithms for processing physiological data and contextual data. (abstract idea – mental process)
11. The method according to claim 1, wherein said communicating comprises displaying the level of fatigue to the operator and/or transferring the level of fatigue to an external device. (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, outputting a result)
12. The method according to claim 1, further comprising securely transferring the contextual data to at least one of:
an external storage device;
a mobile device with storage capacity;
a central server; and
another transportable evaluation device. (additional element – applying the abstract idea with a computer and insignificant extra-solution activity, namely, transmitting data over a network)
13. The method according to claim 1, further comprising analyzing functioning of the transportable evaluation device comprising verifying at least one of:
available storage space;
computing performance;
state of an internal battery;
connectivity with a central server and/or other transportable evaluation device; and
operating status of hardware or software components implemented when a malfunction is detected. (abstract idea – mental process; to the extent that this goes beyond an abstract idea, it amounts to merely applying the abstract idea with a computer)
14. The method according to claim 1, further comprising updating at least part of the transportable evaluation device selected from:
software implemented by the transportable evaluation device;
data processing algorithms for determining the level of fatigue; and
the nature of the contextual data. (abstract idea – mental process; to the extent that this goes beyond an abstract idea, it amounts to merely applying the abstract idea with a computer)
15. The method according to claim 1, wherein the operator is assigned to a mission and wherein the method is carried out before the mission of the operator. (abstract idea – mental process)
Claim 17 implemented is analogous to claim 1.
Step 2A Prong One
The broadest reasonable interpretation of these steps includes mental processes because the italicized portions are analogous to thought processes that a driver supervisor could perform such as reviewing data about a driver and making a decision that the driver is fatigued. Other than reciting generic computer terms like “a transportable evaluation device”, analyzing contextual data could be practically being performed in the mind.
Additionally, the claims recite certain methods of organizing human activity because the claims generally refer to a process of gathering data about a person, evaluating the data to determine fatigue, and reporting a result. This process could be followed by a supervisor asking questions before a shift, reviewing a logbook, and telling the driver whether he may proceed to work.
Dependent claims recite additional subject matter which further narrows or defines the abstract idea embodied in the claims as analyzed above.
Step 2A Prong Two
This judicial exception is not integrated into a practical application. In particular, the additional elements do not integrate the abstract idea into a practical application, other than the abstract idea per se, because the additional elements:
amount to mere instructions to apply an exception. For example, “transportable evaluation device” is the only structural limitation, and it amounts to invoking computers as a tool to perform the abstract idea, see MPEP 2106.05(f))
add insignificant extra-solution activity to the abstract idea. For example, acquiring contextual and physiological data amounts to mere data gathering and communicating the determined fatigue level mounts to applying the abstract idea with a computer and mere data output, see MPEP 2106.05(g))
Dependent claims recite additional subject matter which amount to limitations consistent with the additional elements in the independent claims as described above. For example, claim 12 recites additional limitations which amount to invoking computers as a tool to perform the abstract idea such as transferring data to another device and insignificant extra-solution activity, namely, transmitting data over a network. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation and do not impose a meaningful limit to integrate the abstract idea into a practical application.
Step 2B
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to discussion of integration of the abstract idea into a practical application, the additional elements amount to no more than mere instructions to apply an exception, add insignificant extra-solution activity to the abstract idea, and generally link the abstract idea to a particular technological environment or field of use. Additionally, the additional limitations, other than the abstract idea per se amount to elements that have been recognized as well-understood, routine, and conventional activity in particular fields. For example, the portable evaluation device as described based on its functions, namely collecting data and communicating results. These steps can be performed by a general-purpose computer so the device does not amount to significantly more than the abstract idea(s). Other aspects amount to receiving or transmitting data over a network, Symantec, MPEP 2106.05(d)(II)(i), performing repetitive calculations, Flook, MPEP 2106.05(d)(II)(ii), electronic recordkeeping, Alice Corp., MPEP 2106.05(d)(II)(iii), and/or storing and retrieving information in memory, Versata Dev. Group, MPEP 2106.05(d)(II)(iv).
The ordered combination of these steps (i.e., gather contextual and physiological data, analyze data, output a result) does not produce an unconventional result or achieve an unexpected technical improvement. Instead, this combination merely automates with a generic computer pre-shift fatigue assessments.
Dependent claims recite additional subject matter which, as discussed above with respect to integration of the abstract idea into a practical application, amount to invoking computers as a tool to perform the abstract idea. Dependent claims recite additional subject matter which amount to limitations consistent with the additional elements in the independent claims. For example, transferring data to various devices in claim 12 amounts to receiving or transmitting data over a network, Symantec, MPEP 2106.05(d)(II)(i). Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-6, 8-11, 14, 15, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Kenyon (US20170238868A1) in view of Siah (FR3119479A1 – previously cited in PTO-892 on 3/26/2026).
Regarding claim 1, Siah discloses: A method of evaluating a level of fatigue of an operator, implemented by a transportable evaluation device, the method being implemented when the operator pre-briefs a future mission or carries out a usual activity relating to usual tasks that are distinct from the mission (“FIG. 1 depicts a wearable device 100 for monitoring an individual's fatigue and providing a prediction of the individual's alertness levels, e.g., to the individual wearing the device 100 and/or another entity,” [0023]; “The testing period may have a duration of two or more days,” [0045]; “Because the distal skin temperature and/or heart rate are affected by other outside “masking” events (such as walking, sleeping, etc.), the processor 108 may have to apply additional signal processing techniques to separate, or “demask,” the skin temperature or heart rate data from these “masking” non-circadian rhythm events,” [0047]; “jogging” [0048]), the method comprising:
--acquiring or determining contextual data relating to the context in which the evaluation is implemented (“Additionally, the sensor data may include environmental conditions, for example, ambient light levels and/or temperature,” [0077]);
--acquiring physiological data of the operator during an activity of the operator other than interacting with the transportable evaluation device (“The biometric sensor module 105 may be used for continual and/or periodic passive measurements of various biomarkers of a user, e.g., at a rate of one measurement per minute,” [0027]; [0029]; “Ambulatory skin temperatures may be measured by the temperature sensor 105 a at a frequency of once per minute for the span of the at least two days. Based on the data derived from the distal skin temperature measurements, the processor 108 may estimate a user's personal circadian rhythm,” [0045]);
--analyzing both the contextual data and the physiological data to determine a level of fatigue of the operator (“combine the sleep-wake homeostasis assessments with the estimated circadian rhythm with the bio-mathematical model to predict an individual's level of alertness or to generate a fatigue prediction,” [0065]; FIG. 5; “The processor may also refine the sleep-wake homeostasis assessments of the individual by incorporating the ambient light data,” [0060]; claim 11); and
--communicating the determined level of fatigue (“The prediction of alertness may thereafter be communicated by the wearable device 100 to an external computing device 460 and/or a smart device 450 for display, storage, and/or further processing,” [0065]; “a third party, such as a manager or dispatcher, may be able to view information regarding the individual's fatigue or alertness via the smart device 450 and/or the computing device 460,” [0054]).
Kenyon does not expressly disclose but Siah teaches:
--identifying an operator (“At a step 201, the driver of the vehicle is identified with the vehicle 100. For example, the driver is identified when he enters the vehicle, before starting the vehicle 100. No restriction is attached to the way in which the driver of the vehicle is identified. For example, the identification may comprise the selection of an identifier by the driver, for example via the HMI 119, the acquisition of biometric data from the driver,” p. 4);
One of ordinary skill in the art before the effective filing date would have been motivated to expand Kenyon’s alertness prediction to include identifying the drive as taught by Siah because this would allow the dispatcher (e.g., in Kenyon [0054]) to “follow the driver during his professional mission and to possibly switch him to a reset period or an alternative mission” (Siah p. 2) and thus improve road safety (see Kenyon [0002).
Additionally, it can be seen that each element is taught by either Kenyon or Siah. Siah’s driver identification does not affect the normal functioning of the elements of the claim which are taught by Kenyon. Because the elements do not affect the normal functioning of each other, the results of their combination would have been predictable. Therefore, before the effective filing date of the claimed invention, it would have been obvious to combine the teachings of Kenyon with the teachings of Siah since the result is merely a combination of old elements, and, since the elements do not affect the normal functioning of each other, the results of the combination would have been predictable.
Regarding claim 2, Kenyon does not expressly disclose but Siah teaches: wherein said identifying comprises at least one of: entering a unique personal code, reading an external physical or digital medium, entering a username or a password, and recognizing a biometric fingerprint (“No restriction is attached to the way in which the driver of the vehicle is identified. For example, the identification may comprise the selection of an identifier by the driver, for example via the HMI 119, the acquisition of biometric data from the driver, or any other method allowing the driver to be identified,” page 3).
The motivation to combine is the same as in claim 1.
Regarding claim 3, Kenyon discloses: wherein the contextual data comprises at least one type of data selected from: data relating to the operator's environment; and operational data relating to activities carried out by the operator (jogging in [0048]; walking and sleeping in [0049]).
Regarding claim 4, Kenyon discloses: wherein the contextual data are entered by the operator and/or acquired from an external device and/or generated by the transportable evaluation device (“Device 100 additionally may include an ambient light detector 107,” [0036).
Regarding claim 5, Kenyon discloses: wherein said acquiring physiological data is implemented from measurements provided by a plurality of sensors integrated with the transportable evaluation device (“The band 102 supports at least one motion sensor 104 and at least one biometric sensor module 105 for monitoring the individual's biometrics,” [0023]; “skin temperature sensor” in [0028]).
Regarding claim 6, Kenyon discloses: wherein said acquiring physiological data comprises at least one of: checking a state of operation of the sensors; synchronizing the sensors; monitoring quality of a measured signal; and alerting in the event of failure of one or a plurality of sensors (“the processor may allocate a quality factor to the skin temperature data and/or the heart rate data based on at least one of the data on the individual's body position and the types of movements performed by the individual in accordance with the bio-mathematical model,” [0057]; “Such processing/filtering removes “noise” from the distal skin temperature data signal and/or the heart rate data signal to produce a cleaner, more accurate signal,” [0056]).
Regarding claim 8, Kenyon discloses: wherein said acquiring physiological data is implemented during an activity of the operator other than interaction with the transportable evaluation device according to a predetermined minimum duration (“Ambulatory skin temperatures may be measured by the temperature sensor 105 a at a frequency of once per minute for the span of the at least two days,” [0045]).
Regarding claim 9, Kenyon discloses: wherein said analyzing determines the level of fatigue of the operator by one or a plurality of algorithms for processing physiological data ([0085]; FIG. 8).
Regarding claim 10, Kenyon discloses: wherein said analyzing determines the level of fatigue of the operator by one or a plurality of algorithms for processing physiological data and contextual data (FIG. 5).
Regarding claim 11, Kenyon discloses: wherein said communicating comprises displaying the level of fatigue to the operator and/or transferring the level of fatigue to an external device (“combine the sleep-wake homeostasis assessments with the estimated circadian rhythm with the bio-mathematical model to predict an individual's level of alertness or to generate a fatigue prediction,” [0065]; FIG. 5; “The processor may also refine the sleep-wake homeostasis assessments of the individual by incorporating the ambient light data,” [0060]; claim 11).
Regarding claim 14, Kenyon discloses: updating at least part of the transportable evaluation device selected from: software implemented by the transportable evaluation device; data processing algorithms for determining the level of fatigue; and a nature of the contextual data (“The bio-mathematical model enables improvements due to closed loop feedback and through continuous learning and monitoring,” [0022]; “the device 100 adjusts the generalized default estimation to reflect the individual's actual circadian rhythm via applying the stored bio-mathematical model, based on various continual and passive measurements of the individual in a closed-loop system,” [0032]).
Regarding claim 15, Kenyon does not expressly disclose but Siah teaches: wherein the operator is assigned to a mission and wherein the method is carried out before the mission of the operator (“The present invention belongs to the field of the control of motor vehicle drivers, in particular professional drivers. It relates in particular to a method and a device for monitoring the state of fatigue of a driver. It is particularly advantageous in the case where the control is prior to starting the vehicle… Such a self-assessment is then transmitted to a centralized server of a control center, so as to follow the driver during his professional mission and possibly switch him to a rest period or an alternative mission,” page 2).
The motivation to combine is the same as in claim 1.
Regarding claim 17, the claim is rejected with the same reasoning as claim 1. The Examiner further notes that Kenyon discloses a processor and memory in [0033].
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Kenyon in view of Siah and Teller (US20060031102A1).
Regarding claim 12, Kenyon does not expressly disclose but Teller teaches: securely transferring the contextual data to at least one of: an external storage device; a mobile device with storage capacity; a central server; and another transportable evaluation device (“Once the data is received by personal computer 35, it is optionally compressed and encrypted by any one of a variety of well known methods and then sent out over a local or global electronic network, preferably the Internet, to central monitoring unit 30,” [0034]).
One of ordinary skill in the art before the effective filing date would have been motivated to expand Kenyon and Siah’s alertness prediction system to include security storing data as taught by Teller because this would enabled drivers to share their data while maintaining confidentiality (Teller [0050]).
Additionally, it can be seen that each element is taught by either Kenyon, Siah, or Teller. The normal functioning of Kenyon and Siah’s alertness detection is not affected by storing the data securely as taught by Teller. Because the elements do not affect the normal functioning of each other, the results of their combination would have been predictable. Therefore, before the effective filing date of the claimed invention, it would have been obvious to combine the teachings of Kenyon, Siah, and Teller since the result is merely a combination of old elements, and, since the elements do not affect the normal functioning of each other, the results of the combination would have been predictable.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Kenyon in view of Siah and Kundu (WO2021262166A1 - previously cited in PTO-892 on 3/26/2026).
Regarding claim 13, Kenyon does not expressly disclose but Kundu teaches: analyzing functioning of the transportable evaluation device comprising verifying at least one of: available storage space; computing performance; state of an internal battery; connectivity with a central server and/or other transportable evaluation device; and operating status of hardware or software components implemented when a malfunction is detected (“should the system be unable to obtain images or other data from the smart eyewear 106, such as due to any technical issues (e.g., communication, sensor, etc.), the system may send an error message or other signal to the smart eyewear to alert the operator 114 of the failure… take into account a situation in which all communication with the smart eyewear 106 has failed” [0045]).
One of ordinary skill in the art before the effective filing date would have been motivated to expand Kenyon and Siah’s alertness prediction system to include verifying the operating status of devices as taught by Kundu because this would reduce the likelihood that the device malfunction causes a problem at an inconvenient time.
Additionally, it can be seen that each element is taught by either Kenyon, Siah, or Kundu. The normal functioning of Kenyon and Siah’s alertness detection is not affected by checking the device status as taught by Kundu. Because the elements do not affect the normal functioning of each other, the results of their combination would have been predictable. Therefore, before the effective filing date of the claimed invention, it would have been obvious to combine the teachings of Kenyon, Siah, and Kundu since the result is merely a combination of old elements, and, since the elements do not affect the normal functioning of each other, the results of the combination would have been predictable.
Response to arguments
Applicant's arguments filed 06/11/2026 have been fully considered and are discussed below.
Regarding the subject matter ineligibility rejections, Applicant argues that the claimed invention is not directed to a mental process (Step 2A Prong One) because the claims “require operations led by the transportable evaluation device.” Remarks p. 8. This is not persuasive because no particular device is required. Instead the claims merely use generic computing tools to effectuate the mental process (i.e., determining a level of fatigue).
Applicant argues that the claimed invention integrates any abstract idea into a practical application (Step 2A Prong Two) by improving technology. Remarks pp. 9-10. This is not persuasive because no technical details that result in a particular technical improvement are present. “[L]everaging a transportable evaluation device to automate and objectify fatigue assessment” simply describes a process of using a computer as a tool to “automate and objectify” an assessment that could otherwise be made mentally rather than setting forth any particular technical solutions. The “non-generic technical features” set forth on p. 9 are simply gathering two particular type of data and outputting a result. These are insignificant extra-solution activity that amount to merely using computers as tools and mere data-gathering/output.
Applicant argues that the claimed invention amounts to significantly more than any abstract idea (Step 2B). Remarks pp. 10-11. Applicant generally asserts that combining physiological and contextual data “into a single analytical process represents a non-conventional technical solution.” Remarks p. 10. This is not persuasive because Applicant has not identified any technical problem or solution inherent in this feature. What specialized technology is required to combine these two types of data? What would a human not be able to analyze these data mentally or with pen and paper? Rather than improving a technology, these data analysis limitations merely automate what a human could do mentally or with pen and paper, so the rejections are maintained.
Regarding the prior art rejections, Applicant’s arguments are moot in light of the new combinations applied above including the Kenyon reference.
Conclusion
Applicant’s amendment necessitated the new ground(s) of rejection presented in this Office Action (See MPEP 706.07(a)). Accordingly, THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA BLANCHETTE whose telephone number is (571)272-2299. The examiner can normally be reached on Monday - Thursday 7:30AM - 6:00PM, EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shahid Merchant, can be reached on (571) 270-1360. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSHUA B BLANCHETTE/ Primary Examiner, Art Unit 3624
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