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 .
Status of Claims
The amendment of 07/22/2025 has been entered. Claims 28-53 are currently pending in the application. Claims 1-27 have been canceled.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Germany on 05/29/2024. It is noted, however, that applicant has not filed a certified copy of the DE 10 2024 205 018.0 application as required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 05/27/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
The Examiner notes that WIENS (US 12,209,550), which is assigned to Applicant, is highly relevant to the instant disclosure (see rejections under Double Patenting below) and was not provided to the Office on an IDS.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description:
56 in Fig. 1
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) 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. 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.
Specification
The disclosure is objected to because of the following informalities:
At pg. 8 line 22 “exampe” should read --example--.
At pg. 15 line 12 “uniformly y” should read --uniformly--.
Appropriate correction is required.
Claim Objections
Claims 32, 38-39, 43-44, and 52 are objected to because of the following informalities:
At claim 32 line 3 “threee” should read --three--.
At claim 38 line 12 “functions f the” should read --functions of the--.
At claim 39 lines 1-2 “performing the step” should read --performing the step that is at least equivalent to an integer division--.
At claim 43 line 2 “the number of subpatterns” should read --the number of allocations of a subpattern--.
At claim 44 line 1 “whherein” should read --wherein--.
At claim 44 line 2 “the number of subpatterns” should read --the number of allocations of a subpattern--.
At claim 52 line 2 “is stored” should be omitted.
Appropriate correction is required.
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 37 and 40 are 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 pre-AIA the applicant regards as the invention.
Claim 37 recites the limitations “the function that is terminated after incomplete processing is a last allocated function of the basic pattern” in lines 1-2 and “the function that is terminated after incomplete processing is followed in the basic pattern by at least one further function” in claim 36 lines 1-3. The limitations are mutually exclusive as a function cannot be both the last allocated function of the basic pattern and be followed in the basic pattern by at least one further function. For examination purposes claim 37 has been considered as dependent upon claim 35.
Claim 40 recites the limitation “the subpatterns” in line 2. There is insufficient antecedent basis for the limitation in the claim. For examination purposes the limitation has been considered as --subpatterns--.
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 28-53 are rejected under 35 U.S.C. 101 because the claimed invention is directed to mental processes and mathematical concepts without significantly more.
Claim 28 recites a method for operating (judicial exceptions in bold and additional elements underlined)
a device, the device having one operating phase and another operating phase, the method comprising the following:
during the other operating phase of the device, allocating a function for an execution;
wherein an allocation of at least three different functions is carried out according to an allocation plan.
The analysis of claim 9 continues as:
Step 2A prong 1: The claim recites:
The mental processes of limitations (b) and (c).
Step 2A prong 2: The claim recites:
The additional elements of limitation (a).
The judicial exceptions are not integrated into a practical application because the additional element (a) only generally links the use of the judicial exceptions to a particular technological environment or field of use (see MPEP §2106.05(h)).
Step 2B: The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the device of limitation (a) is considered well-understood, routine, and conventional activity as evidenced by the high-level generality of the device in Applicant’s disclosure.
Claims 29-51 do not recite any further additional elements, and therefore do not recite any additional elements capable of integrating the judicial exceptions into a practical application or of providing an inventive concept.
Claims 52-53 are rejected for the same reasons as claim 28, reciting only the further additional elements of generic computer components which cannot integrate a judicial exception into a practical application at step 2A or provide an inventive concept at step 2B.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 28-29, 31-37, and 45-53 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-6, and 15-22, of U.S. Patent No. US 12,209,550. Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claim 28, the Patent claims a method for operating a device (e.g., a motor vehicle, claim 1), the device having one operating phase (drive phase, claim 1) and another operating phase (overrun phase, claim 1), the method comprising the following:
during the other operating phase of the device (only during overrun phases, claim 1), allocating a function for an execution (initiating executions of a particular plurality of functions, claim 1; n.b. execution includes allocating in the context of the claimed invention);
wherein an allocation of at least three different functions (the range claimed in the Patent claim 1, i.e, the particular plurality of functions, includes the range claimed in the instant application) is carried out according to an allocation plan (predefined pattern in claim 1).
Regarding claim 29, the Patent claims the method according to claim 28.
The Patent further claims wherein the allocation plan has at least one basic pattern (predefined pattern, claim 1; c.f. basic pattern 100 in instant application i.a. Fig. 4 and pg. 14 line 9), which is formed from a plurality of sub-plans (core sequence, claim 1; c.f. subgroup 110 in instant application i.a. Fig. 4 and pg. 14 line 10).
Regarding claim 31, the Patent claims the method according to claim 28.
The Patent further claims wherein the allocation plan has at least one basic pattern of a sequence of allocations of the at least three different functions (predefined pattern that defines core sequence of the plurality of functions, claim 1; the range claimed in the Patent claim 1, i.e, the particular plurality of functions, includes the range claimed in the instant application), and the allocation is performed in the sequence (executions are initiated in an order, claim 1).
Regarding claim 32, the Patent claims the method according to claim 31.
The Patent further claims wherein the allocation of the at least three different functions according to the basic pattern is carried out by repeating the basic pattern during the allocation of the at least three different functions (repeatedly instantiating the predefined pattern, claim 1; the range claimed in the Patent claim 1, i.e, the particular plurality of functions, includes the range claimed in the instant application).
Regarding claim 33, the Patent claims the method according to claim 31.
The Patent further claims wherein a function is allocated only within a framework of the basic pattern (claim 2).
Regarding claim 34, the Patent claims the method according to claim 31.
The Patent further claims wherein the basic pattern has a specifiable ratio of allocations of the at least three different functions (claim 3; one of the plurality of functions, another [of the plurality of functions], and the plurality of other functions, are c; the range claimed in the Patent claim 1, i.e., the particular plurality of functions, includes the range claimed in the instant application).
Regarding claim 35, the Patent claims the method according to claim 31.
The Patent further claims wherein a function of the basic pattern is terminated after incomplete processing (claim 5, after termination of a function due to phase transition the next function in the pattern is executed upon next overrun phase).
Regarding claim 36, the Patent claims the method according to claim 35.
The Patent further claims wherein the function that is terminated after incomplete processing is followed in the basic pattern by at least one further function, wherein a next function to be allocated of the basic pattern is allocated according to the basic pattern (claim 5).
Regarding claim 37, the Patent claims the method according to claim 36.
The Patent further claims wherein the function that is terminated after incomplete processing is a last allocated function of the basic pattern, and the next function to be allocated of the basic pattern is allocated according to a next basic pattern (claim 6).
Regarding claim 45, the Patent claims the method according to claim 28.
The Patent further claims wherein the allocation plan is stored in a memory (claim 15).
Regarding claim 46, the Patent claims the method according to claim 45.
The Patent further claims wherein the allocation plan is read from the memory (claim 15).
Regarding claim 47, the Patent claims the method according to claim 31.
The Patent further claims wherein, in connection with allocating the at least three different functions, a feature is stored that makes it possible to determine a next function to be allocated of the basic pattern (claim 16).
Regarding claim 48, the Patent claims the method according to claim 47.
The Patent further claims, wherein, in connection with allocating the at least three functions, a current position in the allocation plan is stored, the current position including a last allocated position or a next position to be allocated (claim 17).
Regarding claim 49, the Patent claims the method according to claim 28.
The Patent further claims wherein the allocation plan is generated in a control unit in a motor vehicle (claim 18).
Regarding claim 50, the Patent claims the method according to claim 28.
The Patent further claims wherein the allocation plan is generated outside a control unit and is then stored in a memory (claim 19).
Regarding claim 51, the Patent claims the method according to claim 28.
The Patent further claims wherein the at least three different functions include a function for monitoring a quantity of injected fuel and a function for adapting a small quantity of injected fuel (claim 20).
Regarding claim 52, the Patent claims a non-transitory machine-readable memory (claim 21) in which is stored a computer program (instructions, claim 21) is stored for operating a device (implied, motor vehicle, claim 21), the device having one operating phase (drive phases, claim 21) and another operating phase (overrun phases, claim 21), the computer program, when executed by a computer, causing the computer to perform the following:
during the other operating phase of the device (only during the overrun phases, claim 21), allocating a function for an execution (initiating executions of a particular plurality of functions, claim 21);
wherein an allocation of at least three different functions (the range claimed in the Patent claim 1, i.e., the particular plurality of functions, includes the range claimed in the instant application) is carried out according to an allocation plan (predefined pattern, claim 21).
Regarding claim 53, the Patent claims a control unit (claim 22) configured to operate a device (implied, motor vehicle), the device having one operating phase (drive phase, claim 22) and another operating phase (overrun phase, claim 22), the control unit configured to:
during the other operating phase of the device (only during the overrun phases, claim 22), allocate a function for an execution (initiate executions of a particular plurality of functions, claim 22);
wherein an allocation of at least three different functions (the range claimed in the Patent claim 1, i.e., the particular plurality of functions, includes the range claimed in the instant application) is carried out according to an allocation plan (predefined pattern, claim 22).
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 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)(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.
(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 28, 49, and 53 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by WILD (US 6,539,915).
Regarding claim 28, WILD discloses a method for operating a device (engine, Fig. 1), the device having one operating phase (a different of the plurality of operating modes, i.a. col. 1 ll. 34-35 and 42, col. 3 lines 3-5, col. 5 lines 24-26, etc.) and another operating phase (the actual operating mode which is defined to these functions, col. 5 ll. 61-63), the method comprising the following:
during the other operating phase of the device (when the actual operating mode set for these functions is set, col. 5 ll. 61-63), allocating a function for an execution (functions of F-list 2 are activated, col. 5 ll. 61-62);
wherein an allocation of at least three different functions (col. 1 of Fig. 5 shows allocation of 5 different functions) is carried out according to an allocation plan (col. 2-7 of Fig. 5 set forth permission structure for which functions can be run simultaneously and under which operating conditions, col. 7, i.e., a plan for allocation).
A review of the specification has not returned a special definition given for the claim term “phase.” Therefore, the common definition has been used. OED defines “phase” as “a definite or distinct state in a process of change or development.” The operating modes of WILD are operating phases because operating modes are defined by the parameters that bound them in the ongoing development of an engine’s operation.
Regarding claim 49, WILD discloses the method according to claim 28.
WILD further discloses wherein the allocation plan is generated (at least partially, col. 5 lines 22-23) in a control unit (11, col. 2 lines 36-37, col. 10 line 8, Fig. 1) in a motor vehicle (col. 10 line 9).
Regarding claim 53, WILD discloses a control unit (11, Fig. 1, col. 2 lines 36-37) configured to operate a device (engine, Fig. 1), the device having one operating phase (a different of the plurality of operating modes, i.a. col. 1 ll. 34-35 and 42, col. 3 lines 3-5, col. 5 lines 24-26, etc.) and another operating phase (the actual operating mode which is defined to these functions, col. 5 ll. 61-63), the control unit configured to:
during the other operating phase of the device (when the actual operating mode set for these functions is set, col. 5 ll. 61-63), allocate a function for an execution (functions of F-list 2 are activated, col. 5 ll. 61-62);
wherein an allocation of at least three different functions (col. 1 of Fig. 5 shows allocation of 5 different functions) is carried out according to an allocation plan (col. 2-7 of Fig. 5 set forth permission structure for which functions can be run simultaneously and under which operating conditions, col. 7, i.e., a plan for allocation).
A review of the specification has not returned a special definition given for the claim term “phase.” Therefore, the common definition has been used. OED defines “phase” as “a definite or distinct state in a process of change or development.” The operating modes of WILD are operating phases because operating modes are defined by the parameters that bound them in the ongoing development of an engine’s operation.
Claims 28, 45-46, and 50 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by YAMADA (US 2025/0334629).
Regarding claim 28, YAMADA discloses a method for operating a device, the device having one operating phase (e.g., i=1, 0045 lines 3-5) and another operating phase (e.g., i=2, 0045 lines 3-5)(the claim does not recite there are only two operating phases), the method comprising the following:
during the other operating phase of the device (i.e., i=2, 0045 lines 3-5), allocating a function for an execution (i.e., 2nd diagnostic process, 0045 lines 1-2);
wherein an allocation of at least three different functions is carried out (0045 lines 1-2) according to an allocation plan (i.e., the ordering of the diagnostic processes from 1st to nth; the claim does not recite the at least three functions are carried out during the other operating phase).
A review of the specification has not returned a special definition given for the claim term “phase.” Therefore, the common definition has been used. OED defines “phase” as “a definite or distinct state in a process of change or development.” The operating conditions of YAMADA are operating phases because operating conditions are distinct states in the ongoing development of a device’s operation.
Regarding claim 45, YAMADA discloses the method according to claim 28.
YAMADA further discloses wherein the allocation plan (i.e., the ordering of the diagnostic processes from 1st to nth, 0045 lines 1-2) is stored in a memory (implied/inherent, 0040 lines 4-7)(one of ordinary skill would understand if the test pattern data is held in advance then the order of the test pattern data is also held in advance, 0040 lines 2-7).
Regarding claim 46, YAMADA discloses the method according to claim 45.
YAMADA further discloses wherein the allocation plan is read from the memory (implied/inherent, 0040 lines 2-7).
Regarding claim 50, YAMADA discloses the method according to claim 28.
YAMADA further discloses wherein the allocation plan is generated outside a control unit (120)(implied, if the test pattern data is held in advance then the order must have been created elsewhere, 0040 lines 2-7; YAMADA does not disclose the order being generated or altered by the diagnostic circuit 120 as the test pattern data, and order, is held in advance) and is then stored in a memory (implied/inherent, 0040 lines 4-7)(one of ordinary skill would understand if the test pattern data is held in advance then the order of the test pattern data is also held in advance, 0040 lines 2-7).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 52 is rejected under 35 U.S.C. 103 as being unpatentable over WILD (US 6,539,915) in view of THOMPSON (US 10,824,765).
Regarding claim 52, WILD discloses a vehicle control apparatus (11, Fig. 1, col. 2 lines 36-37) for operating a device (engine, Fig. 1), the device having one operating phase (a different of the plurality of operating modes, i.a. col. 1 ll. 34-35 and 42, col. 3 lines 3-5, col. 5 lines 24-26, etc.) and another operating phase (the actual operating mode which is defined to these functions, col. 5 ll. 61-63), the vehicle control apparatus to perform the following:
during the other operating phase of the device (when the actual operating mode set for these functions is set, col. 5 ll. 61-63), allocating a function for an execution (functions of F-list 2 are activated, col. 5 ll. 61-62);
wherein an allocation of at least three different functions (col. 1 of Fig. 5 shows allocation of 5 different functions) is carried out according to an allocation plan (col. 2-7 of Fig. 5 set forth permission structure for which functions can be run simultaneously and under which operating conditions, col. 7, i.e., a plan for allocation).
WILD is silent regarding the vehicle control apparatus comprising a non-transitory machine-readable memory in which is stored a computer program for performing the steps as claimed.
THOMPSON teaches a vehicle control apparatus (electronic control unit for a vehicle, abstract line 1) comprising non-transitory machine-readable memory (storage, abstract line 3) in which is stored a computer program (instructions, abstract lines 3-4) for operating a device (vehicle, abstract line 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the vehicle control apparatus of WILD in the manner taught by THOMPSON to provide an electronic control unit of standard form in the art.
WILD as modified teaches a non-transitory machine-readable memory in which is stored a computer program for operating a device, the device having one operating phase and another operating phase, the computer program, when executed by a computer, causing the computer to perform the claimed steps.
A review of the specification has not returned a special definition given for the claim term “phase.” Therefore, the common definition has been used. OED defines “phase” as “a definite or distinct state in a process of change or development.” The operating modes of WILD are operating phases because operating modes are defined by the parameters that bound them in the ongoing development of an engine’s operation.
Not Rejected Over Prior Art
Claims 29-44, 47-48, and 51 are not rejected over prior art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARK L. GREENE whose telephone number is (571)270-7555. The examiner can normally be reached M-F 8:30-4:30 PM.
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, Logan Kraft can be reached at (571) 270-5065. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MARK L. GREENE/Primary Examiner, Art Unit 3747
Prosecution Insights