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
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in France on 4/12/24. It is noted, however, that applicant has not filed a certified copy of the FR2403800 application as required by 37 CFR 1.55.
Drawings
The drawings are objected to because they lack descriptive labels as required by 37 CFR 1.84(o). 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 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 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 is: “calculating modules configured to implement the method” in claim 14.
Because this claim limitation is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it is being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation:
Claim 14 limitation “calculating modules”: Paragraph 59: processor.
If applicant wishes to provide further explanation or dispute the Examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have this limitation 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 to avoid it 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 recites sufficient structure to perform the claimed function so as to avoid it being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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)(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.
Claims 1-11, 13, and 14 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Grube et al [US 2016/0090097] (supplied by applicant).
For claim 1, the evaluation method of the fatigue level of an operator during a mission (Abstract: method…for detecting…a fatigue level of a vehicle operator) taught by Grube comprises the following claimed steps implemented by one or more portable evaluation devices (Paragraph 9: the system 100 can be personal to a particular vehicle operator), as noted, 1) the claimed initial collection phase is achieved using the detection of biometric data (No. 202a) at operation #1 (Fig. 2) before the mission and comprising acquiring personal (Paragraph 23: groupings may comprise different age ranges…Other exemplary groupings could include gender, height, weight, and the like) and physiological data (biometric data) of the operator, 2) the claimed final collection phase is achieved using the detection of biometric data (No. 202n) at operation #N (Fig. 2; Paragraph 15: The pilot may be monitored for a period of time that is equal to or exceeds his maximum duty time) related to the mission, and 3) the claimed analysis phase is achieved using 4) analyzing all the acquired data (No. 206: statistical analysis of collected biometric data and determined fatigue levels) and 5) determining the operator’s fatigue level before or after their mission through this analysis (No. 208; Paragraph 16: the method 200 can output the resulting statistical model for the vehicle operator to the vehicle operator profile 104).
For claim 2, Figure 2 of Grube depicts the statistical model being produced from data gathered at every operation instance (#1 through #N). Furthermore, Figure 3B depicts a calculated fatigue level during the entire operation time of the operator’s mission.
For claim 3, the Grube reference also comprises an intermediate collection phase implemented during the mission (Fig. 2, operation #2 and thereafter; Paragraph 13: the various biometric sensors 108 can be read at different times; Paragraph 14: additional data points can be gathered periodically to update the vehicle operator’s statistical model) and comprising acquiring data related to the operator and/or the mission by a mobile device other than the portable evaluation device (Paragraph 10: A heart rate sensor may be included in a wrist watch, chest strap, or the like) and/or by an onboard device (Paragraph 10: The heart rate sensor may also be incorporated into vehicle controls, such as a steering wheel and/or yoke).
For claim 4, one type of data gathered in the intermediate phase in Grube is subjective evaluation of fatigue by the operator (Paragraph 14: the fatigue level of the vehicle operator may be determined by querying the vehicle operator to rate his fatigue…he may rate his fatigue level…a “six out of ten” in the second instance).
For claim 5, Figure 1 of Grube plainly depicts the biometric sensors (No. 108) transmitting the data to the processor (No. 110).
For claim 6, one type of data gathered in the initial phase in Grube is subjective evaluation of fatigue by the operator (Paragraph 14: the fatigue level of the vehicle operator may be determined by querying the vehicle operator to rate his fatigue…he may rate his fatigue level as a “four out of ten” in the first instance).
For claim 7, one type of data gathered in the final phase in Grube is subjective evaluation of fatigue by the operator (Paragraph 14: the fatigue level of the vehicle operator may be determined by querying the vehicle operator to rate his fatigue…he may rate his fatigue level…a “five out of ten” in the third instance).
For claim 8, the method of Grube further comprises displaying a recommendation to the operator determined based on their fatigue level (Paragraph 17: The output indication of fatigue level can be displayed to the vehicle operator on a computer display screen; Paragraph 18: The warning may also include a suggested action to mitigate and/or reduce fatigue).
For claim 9, the Grube reference details several different mobile devices through which to collect data during the mission (Paragraph 10: The biometric sensors 108 can also include one or more gyroscopes, solid state position sensors, and the like…a wrist watch, chest strap, or the like…The biometric sensors 108 can include a chest strap and/or a head band with various contact sensors in contact with the vehicle operator’s skin). Furthermore, the reference mentions a remote server (No. 114) that can gather and track fatigue levels of vehicle operators for an entire fleet (Paragraph 12: an airline dispatcher may monitor the fatigue levels of various pilots in real time). Also, the warnings in Grube can be output to other vehicle operators or responsible parties (Paragraph 18).
For claim 10, one embodiment of Grube teaches comparing data points collected during a mission (Paragraph 14: As additional instances are gathered for the statistical model for a particular level of fatigue, the vehicle operator’s cumulative subject ratings of fatigue level for the particular level of fatigue may average to a number that is approximately correct). Furthermore, many statistical models can be used in the Grube reference (Paragraph 14: Data points can be gathered in an initial step to create a statistical model and additional data points can be gathered periodically to update the vehicle operator’s statistical model).
For claim 11, Figure 1 of Grube depicts statistical analysis (No. 206) performed at every phase of the mission (Operation #1 through #N).
For claim 13, the fatigue levels mentioned in Grube may be the result of causes not related to the mission (Paragraph 14: a pilot flying his first mission after several days of rest may be considered to be fully rested; Paragraph 21: suppose that a vehicle operator is fully refreshed…and is operating his vehicle such that he is facing the rising sun…the squinting vehicle operator may be falsely flagged as being fatigued).
For claim 14, the system (Title: system) taught by Grube comprises a calculating module (No. 110, processor) configured to implement the method.
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 12 is rejected under 35 U.S.C. 103 as being unpatentable over Grube et al in view of Heneghan et al [U.S. 11,191,466].
For claim 12, the Grube reference does teach a number of mobile devices other than the portable evaluation device to acquire data during the mission such as a wrist watch, head band, and chest strap (Paragraph 14). However, there is no mention of the mobile device configured to store the data acquired for transmission to the portable evaluation device.
Mobile devices have been used to detect the cognitive state of a person in the prior art, and they have also included memory to store data. The wearable device taught by Heneghan uses a wrist-worn device (No. 102) that can collect physiological data such as heart beat and activity level as well as text messages and email data in order to track mental state including cognitive ability in an automated and non-invasive fashion (Col. 2, Lns. 23-25). Furthermore, an example system (Fig. 5) can be used in various embodiments. In addition to the detectors (No. 516) used to measure data for one or more metrics of a human body, the system also includes a memory (No. 504) that can not only store instructions, but also store images and data and removable memory for sharing information with other devices (Col. 18, Lns. 61-65). Indeed, data detected by the device may be transmitted using a wireless networking interface over at least one network (No. 518) to a host computer (No. 520).
The Grube reference presents an ideal platform onto which the system of Heneghan may be applied. Like Grube, the Heneghan device can gather its data using a hand-held, portable device and transfer this data over to its host device or processor. The Heneghan reference also provides more data storage in order to gather necessary data to process and possibly lighten the storage load of the host processor. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a mobile device to store data acquired by the device for the purpose of providing additional storage to assist in processing the user’s mental state.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Sultan et al [U.S. 7,468,673] determines whether an operator of a vehicle has an impaired cognitive state.
Wang et al [U.S. 7,839,292] captures driving physiological data and driver behavior.
Grube et al [U.S. 9,771,081] detects a fatigue level of a vehicle operator.
Schwindt et al [U.S. 11,810,400] assesses an operator emotional state.
Marche et al [U.S. 11,938,947] monitors a fatigue level of a vehicle operator.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN A. TWEEL JR whose telephone number is (571)272-2969. The examiner can normally be reached M-F 8-4.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Davetta W Goins can be reached at 571-272-2957. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JAT
7/12/2026
/JOHN A TWEEL JR/Primary Examiner, Art Unit 2689
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