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 .
DETAILED ACTION
Status of the Claims
This action is in response to the applicant’s filing on September 16, 2020. Claims 1-20 are pending.
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 1-20 are rejected under 35 U.S.C. 101 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. Claims 1-20 are directed to the abstract idea of forming a platoon, as explained in detail below. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional computer elements, which are recited at a high level of generality, provide conventional computer functions that do not add meaningful limits to practicing the abstract idea. The claims recite the judicial exception of a mental process. This judicial exception is not integrated into a practical application. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
When considering subject matter eligibility under 35 U.S.C. 101, it must be determined whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter (Step 1). If the claim does fall within one of the statutory categories, the second step in the analysis is to determine whether the claim is directed to a judicial exception (Step 2A). The Step 2A analysis is broken into two prongs. In the first prong (Step 2A, Prong 1), it is determined whether or not the claims recite a judicial exception (e.g., mathematical concepts, mental processes, certain methods of organizing human activity). If it is determined in Step 2A, Prong 1 that the claims recite a judicial exception, the analysis proceeds to the second prong (Step 2A, Prong 2), where it is determined whether or not the claims integrate the judicial exception into a practical application. If it is determined at step 2A, Prong 2 that the claims do not integrate the judicial exception into a practical application, the analysis proceeds to determining whether the claim is a patent-eligible application of the exception (Step 2B). If an abstract idea is present in the claim, any element or combination of elements in the claim must be sufficient to ensure that the claim integrates the judicial exception into a practical application, or else amounts to significantly more than the abstract idea itself. Applicant is advised to consult the 2019 Revised Patent Subject Matter Eligibility Guidance for more details of the analysis.
Step 1
According to the first part of the analysis, in the instant case, claims 1-14 are directed to a method, and claims 15-20 to a system. These are a “process” or “machine”. Thus, each of these claims falls within one of the four statutory categories.
Step 2A, Prong 1
Following the determination of whether or not the claims fall within one of the four categories (Step 1), it must be determined if the claims recite a judicial exception (e.g. mathematical concepts, mental processes, certain methods of organizing human activity) (Step 2A, Prong 1). In this case, the claims are determined to recite a judicial exception as explained below.
Claim 1 recites:
A method of forming a platoon between a first vehicle and a second vehicle out of a plurality of vehicles, wherein one of the first and second vehicles will be a lead vehicle in the platoon and one will be a following vehicle in the platoon, the method comprising:
analyzing, at a network operations center (NOC), external conditions in a vicinity of two or more of the plurality of vehicles, the external conditions being selected from a group consisting of location, time of day, road conditions, weather, and traffic;
analyzing, at the NOC, internal conditions relating to two or more of the plurality of vehicles, the internal conditions being selected from a group consisting of vehicle characteristics, vehicle position, vehicle route, vehicle destination, heading, and platooning availability;
responsive to the analyzing of the external and internal conditions, authorizing, at the NOC, formation of the platoon, wherein authorizing formation of the platoon includes:
specifying a first location at which the platoon may begin; and
specifying a second location, beyond the first location, beyond which platooning is not authorized; and
transmitting one or more signals to the first vehicle and the second vehicle to enable forming the platoon based on the authorizing.
The basic elements of claim 1 are analyzing conditions, analyzing internal conditions, specifying a start, specifying an end, and transmitting the signals, as claimed. These steps describe the concept of generating vehicle ride demand data, which corresponds to concepts identified as abstract ideas by the courts in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 112 U.S.P.Q.2d 1750 (Fed. Cir. 2014), Affinity Labs of Texas, LLC v. Amazon.com, 838 F.3d 1266, 120 U.S.P.Q.2d 1210 (Fed. Cir. 2016) or Affinity Labs of Texas, LLC v. DirectTV, LLC, 838 F.3d 1253, 120 U.S.P.Q.2d 1201 (Fed. Cir. 2016). The concept described in claim 1 is not meaningfully different than those concepts found by the courts to be abstract ideas. As such, the description in claim 1 of generating a platoon is an abstract idea.
Claim 1 does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered both individually and as an ordered combination do not amount to significantly more than the abstract idea. The claim recites the additional limitations of a “NOC”. The NOC is merely claimed as a location, not a device. At [0062] the NOC could be, for example, a fleet management center. The claims could be performed by the human mind at a fleet management center.
All of the claimed elements are recited at a high level of generality and are recited as performing generic computer functions routinely used in computer applications. Generic computer components recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system.
Save for the recitation of generic computer components (“service device or a user device”), these steps appear to be practically implementable in the human mind and are understood to be a recitation of a mental process. The courts have found claims requiring a generic computer or nominally reciting a generic computer may still recite a mental process even though the claim limitations are not performed entirely in the human mind. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1630, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas-the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v, Benson, 409 U.S. 63, 175 USPQ 673 (1972)). "Courts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind." Versata Bev. Group v, SAP Am., Inc., 793 F.3d 1306, 1335, 115 USPG2d 1681, 1702 (Fed. Cir. 2015)
The specifying data and transmitting signals is extra-solution activity (See MPEP 2106.05(g)) and instructions to apply an exception (See MPEP 2106.05(f)). These limitations do not make the judicial exception patentable.
Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). 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.
Dependent claims 2-14 define additional details on the processing of the data.
This adds additional detail to the abstract idea but does not improve functioning of a computer or any other technology. It merely provides conventional computer implementation.
Accordingly, claims 1-4 are not drawn to eligible subject matter as they are directed to recite the same abstract idea without significantly more.
Claim 15 is comparable to claim 1 with the same elements recited as a system claim.
Claim 15 is rejected under 35 U.S.C. 101 under the same reasoning as the rejection of claim 1.
Dependent claims 16-20 are similar to claims 2-14 and are rejected for the same reasoning as the rejection of claims 2-14.
Step 2A, Prong 2
Following the determination that the claims recite a judicial exception, it must be determined if the claims recite additional elements that integrate the exception into a practical application of the exception (Step 2A, Prong 2). In this case, after considering all claim elements individually and as an ordered combination, it is determined that the claims do not include additional elements that integrate the judicial exception into a practical application of the judicial exception.
Claim 1 recites limitations for analyzing conditions, analyzing internal conditions, specifying a start, specifying an end, and transmitting the signals, as claimed. Claim 1 does not include additional elements that are sufficient to amount to integration of the judicial exception into a practical application because the additional elements when considered both individually and as an ordered combination do not amount to significantly more than the abstract idea. The claim recites the additional limitations of a “NOC”.
In the Specification, the “NOC” is merely defined as a center [0062]. All of the claimed elements are recited at a high level of generality and are recited as performing generic computer functions routinely used in computer applications. Generic computer components recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system.
The data is not utilized by the vehicle or incorporated into operation of a vehicle or a vehicle control system.
Claims 2-20 do not recite additional elements to incorporate the judicial exception into a practical application beyond those addressed above.
Step 2B
Based on the determination in Step 2A of the analysis that the claims are directed to a judicial exception, it must be determined if the claims contain any element or combination of elements sufficient to ensure that the claim amounts to significantly more than the judicial exception (Step 2B). In this case, after considering all claim elements individually and as an ordered combination, it is determined that the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception for the same reasons given above in the Step 2A, Prong 2 analysis.
As discussed above, the claims do not recite significantly more than the judicial exception. The recitation of a “NOC” does not add significantly more than the judicial exception.
There are no improvements to the functioning of a computer, improvements to other technology, use of a particular machine, transformation of a particular article to a different state or thing, non-conventional arrangement of computer components, or other meaningful limitations beyond linking the use of the judicial exception to a particular technological environment. See MPEP 2106.05.
Claim Rejections - 35 USC § 103
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,346,427 in view of U.S. Patent 11,100,211.
The claims are minor variations of the priority applications and would have been obvious to one having ordinary skill in the relevant art before the effective filing date of the claimed invention, with a reasonable expectation of success, performing the platoon establishment with the prior claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Priority documents are cited from the Applicant’s earlier filings. The published application, U.S. Patent Application Publication 2026/0119637, of this application is cited.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL BERNS whose telephone number is (313)446-4892. The examiner can normally be reached Monday - Friday 9:00 - 5:00.
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MICHAEL BERNS
Primary Examiner
Art Unit 3667
/MICHAEL A BERNS/Primary Examiner, Art Unit 3667
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