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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/12/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Status of Claims
This Office action is in reply to filing by applicant on 06/12/2025.
Claims 1 – 13 are currently pending and have been examined.
This action is made non-final.
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.
Claim 12 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Examiner notes that claim 12 sets forth
A computer-readable recording medium on which a program for executing the method of claim 1 on a computer is recorded.
The same could, broadly interpreted, easily be pure signals (e.g., a magnetic disc / streamed pure data file packet), both of which may consist of transitory code / instructions designed to be uploaded into a generic computer. While the Specification herein sets forth the above “computer-readable recording medium” as optional, it fails to mandate that the same must be non-transitory.
The United States Patent and Trademark Office (USPTO) is obliged to give claims their broadest reasonable interpretation consistent with the specification during proceedings before the USPTO. See In re Zletz, 893 F.2d 319 (Fed. Cir. 1989) (during patent examination the pending claims must be interpreted as broadly as their terms reasonably allow). The broadest reasonable interpretation of a claim drawn to a computer readable medium (also called machine readable medium and other such variations) typically covers forms of non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer readable media, particularly when the specification is silent. See MPEP 2111.01. When the broadest reasonable interpretation of a claim covers a signal per se, the claim must be rejected under 35 U.S.C. § 101 as covering non-statutory subject matter. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007) (transitory embodiments are not directed to statutory subject matter) and Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. §101, Aug. 24, 2009; p. 2.
The USPTO recognizes that applicants may have claims directed to computer readable media that cover signals per se, which the USPTO must reject under 35 U.S.C. § 101 as covering both non-statutory subject matter and statutory subject matter. In an effort to assist the patent community in overcoming a rejection or potential rejection under 35 U.S.C. § 101 in this situation, the USPTO suggests the following approach. A claim drawn to such a computer readable medium that covers both transitory and non-transitory embodiments may be amended to narrow the claim to cover only statutory embodiments to avoid a rejection under 35 U.S.C. § 101 by adding the limitation “non-transitory” to the claim. Cf. Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (suggesting that applicants add the limitation “non-human” to a claim covering a multi-cellular organism to avoid a rejection under 35 U.S.C. § 101). Such an amendment would typically not raise the issue of new matter, even when the specification is silent because the broadest reasonable interpretation relies on the ordinary and customary meaning that includes signals per se. The limited situations in which such an amendment could raise issues of new matter occur, for example, when the specification does not support a non-transitory embodiment because a signal per se is the only viable embodiment such that the amended claim is impermissibly broadened beyond the supporting disclosure. See, e.g., Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473 (Fed. Cir. 1998).
Appropriate correction is required.
Claim 13 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Examiner notes that claim 13 sets forth:
A computer program saved on a recording medium, the computer program including a program code for implementing the method of claim 1.
The above bulleted claim constitutes software per se, i.e., a computer program which consists of code / executable instructions designed to be uploaded into a generic computer.
When a claim covers software per se, the claim must be rejected under 35 U.S.C. § 101 as covering non-statutory subject matter. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007) (transitory embodiments are not directed to statutory subject matter) and Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. §101, Aug. 24, 2009; p. 2.
Appropriate correction is required.
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 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 paragraph of 35 U.S.C. 102 that forms the basis for the rejections under this section made in this Office Action:
(a) NOVELTY; PRIOR ART.— A person shall be entitled to a patent unless—
(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;
Claims 1, 2, 8, and 11 are rejected under 35 USC 102 (a)(1) as being anticipated by Sugano (US20050253542A1).
Regarding claims 1 and 11:
Sugano teaches:
controlling an excavator using a standby torque value, comprising: Examiner notes that “A person skilled in the art related to the present embodiment will understand that the above-described description can be implemented in a modified form without departing from the essential characteristics thereof.”, Specification herein at last paragraph, and examiner further notes that the claimed “standby torque” herein is equivalent to Sugano’s “on the spot holding torque”, (reproduced below for clarity), that said, … (“The present invention relates to a rotation control device for a working machine, such as an excavator, a crane, or the like, for rotatably driving a rotating body by an electric motor.”, [001]) and (“On-the-spot holding torque generated when the position holding control is performed is stored. The higher of the on-the-spot holding torque stored and accelerating torque according to an operation amount of the body at a rotation starting time is set as electric motor torque for acceleration. When performing a pressing work including pressing a bucket against an object for work, torque control is carried out according to the operation amount.”, [Abstract, published 11/17/2005]) and (“the control means performing speed control according to an operation amount of the operation means and imposing a limitation on a maximum value of accelerating torque according to the operation amount, wherein, when the operation means is positioned within a preset neutral range, the control means is adapted to perform position holding control of the rotating body, to store torque generated in the electric motor at this time as on-the-spot holding torque, and to set, in accelerating the rotation, the higher of the on-the-spot holding torque stored and the accelerating torque produced according to the operating amount of the operation means, as electric motor torque for accelerating.”, [025]);
obtaining, by a receiving unit, apparatus status information including at least one of weight information, position information, and torque value information according to movement for one or more working apparatuses (“According to another aspect of the present invention, there is provided a rotation control device for a working machine that comprises an electric motor for rotatably driving a rotating body, operation means for issuing a rotation command for rotation, control means for controlling the electric motor based on the rotation command issued from the operation means, and rotating speed detecting means for detecting a rotating speed of the rotating body, the control means performing speed control according to an operation amount of the operation means and imposing a limitation on a maximum value of accelerating torque according to the operation amount, wherein, when the operation means is positioned within a preset neutral range, the control means is adapted to perform position holding control of the rotating body, to store torque generated in the electric motor at this time as on-the-spot holding torque,”, [025]);
including at least one of a boom, an arm, and a bucket included in an excavator; (“As shown in FIG. 1, on a crawler type lower traveling body 1 is rotatably mounted on an upper traveling body 2, which is equipped with an excavating attachment 3. The excavating attachment 3 includes a boom 4, an arm 5, a bucket 6, a boom cylinder 7, an arm cylinder 8, and a bucket cylinder 9.”, [043]);
indicating, by a processor, a torque value corresponding to a time when a brake is applied to the one or more working apparatuses, and (“In a neutral range preset, there are set a zone for stopping and holding a rotating body only by a mechanical brake, a zone for holding the body only by performing position holding control, and a zone for simultaneously exerting both effects, i.e., the effect of the mechanical brake and the effect of the holding control. On-the-spot holding torque generated when the position holding control is performed is stored. The higher of the on-the-spot holding torque stored and accelerating torque according to an operation amount of the body at a rotation starting time is set as electric motor torque for acceleration.”, [Abstract, published 11/17/2005]) and (“In torque control, as shown in FIGS. 10 and 11, a target value torque r ref as target value of torque is calculated from an operation amount-torque map 49 which sets a relationship between the lever operation amount S and the target torque value τ ref. This torque value calculated is converted into a target current value ωref as a target value of current, so that the torque PID feedback control is carried out.”, [0104]);
determining whether a final saved torque value obtained based on torque value information according to movement is valid; According to the Specification herein, “valid” as it were includes the meaning of saving the torque value to memory, a time elapsed, and/or the updating of said torque value, … (“Starting of the position holding control restores the on-the-spot holding torque stored upon starting the rotation, to an initial value so as to prepare for update thereof to a next value to be stored.”, [086]);
determining, by the processor, if the final saved torque value is valid, the final saved torque value as a standby torque value required for the one or more working apparatuses to maintain the current position state; and Examiner again notes as above that the “standby torque” herein is equivalent to Sugano’s “on the spot holding torque”, and that a torque is “valid” according to the Specification herein when inter alia a torque value is saved to memory, …that said, … (“On-the-spot holding torque generated when the position holding control is performed is stored.”, [Abstract, published 11/17/2005]);
controlling, by a control unit, the one or more working apparatuses based on the standby torque value at a time when the brake is released, which is a time after the time when the brake is applied. (“A mechanical brake 27 serving as a negative brake for generating mechanical braking force is provided in the rotation electric motor 17. With this mechanical brake 27 released, rotational force of the rotation electric motor 17 is transmitted to the upper rotating body 2 via the rotation decelerating mechanism 18 to rotate the upper rotating body 2 leftward or rightward.”, [048]).
Regarding claim 2:
Sugano has the limitations of claim 1:
Sugano further teaches:
wherein the determining whether the final saved torque value is valid is determining whether the final saved torque value is valid based on at least one of whether the final saved torque value is saved in a memory, the time elapsed since the final saved torque value was saved in the memory, or whether positions of the one or more working apparatuses have been updated since the final saved torque value was saved in the memory. (“Starting of the position holding control restores the on-the-spot holding torque stored upon starting the rotation, to an initial value so as to prepare for update thereof to a next value to be stored.”, [086]);
Regarding claim 8:
Sugano has the limitations of claim 1:
Sugano further teaches:
further comprising, if the final saved torque value is invalid, determining a maximum torque value of an electric motor included in the one or more working apparatuses as the standby torque value. (“A mechanical brake 27 serving as a negative brake for generating mechanical braking force is provided in the rotation electric motor 17. With this mechanical brake 27 released, rotational force of the rotation electric motor 17 is transmitted to the upper rotating body 2 via the rotation decelerating mechanism 18 to rotate the upper rotating body 2 leftward or rightward.”, [048
Claim Rejections – 35 USC 103
In the event the determination of the status of the application as subject to AIA 35 USC 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 35 USC 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 USC 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 12 and 13 are rejected pursuant to 35 USC 103 as being unpatentable over Sugano (US20050253542A1) in view of Jagoda (US20210285187A1).
Regarding claim 12:
Sugano has the limitations of claim 1:
Sugano does not expressly contain but Jagoda teaches:
A computer-readable recording medium on which a program for executing the method of claim 1 on a computer is recorded. (“Computer readable storage media includes volatile and nonvolatile, removable and non-removable media implemented in any device configured to store information such as computer readable instructions, data structures, program modules or other data. Computer readable storage media includes, but is not limited to, random access memory, read only memory, electrically erasable programmable read only memory, flash memory or other memory technology, compact disc read only memory, digital versatile disks or other optical storage, magnetic cassettes, magnetic tape, magnetic disk storage or other magnetic storage devices, or any other medium that can be used to store the desired information and that can be accessed by the processor 500A.”, [037]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of this application to have modified Sugano to incorporate the teachings of Jagoda because Sugano would be more efficient and versatile should it employ a CRM as done in Jagoda (“The electronic controller 500 typically includes at least some form of memory 500B. Examples of memory 500B include computer readable media. Computer readable media includes any available media that can be accessed by the processor 500A. By way of example, computer readable media include computer readable storage media and computer readable communication media.”, See Jagoda at [036]).
Regarding claim 13:
Sugano has the limitations of claim 1:
Sugano does not expressly contain but Jagoda teaches:
A computer program saved on a recording medium, the computer program including a program code for implementing the method of claim 1. (“Computer readable storage media includes volatile and nonvolatile, removable and non-removable media implemented in any device configured to store information such as computer readable instructions, data structures, program modules or other data. Computer readable storage media includes, but is not limited to, random access memory, read only memory, electrically erasable programmable read only memory, flash memory or other memory technology, compact disc read only memory, digital versatile disks or other optical storage, magnetic cassettes, magnetic tape, magnetic disk storage or other magnetic storage devices, or any other medium that can be used to store the desired information and that can be accessed by the processor 500A.”, [037]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of this application to have modified Sugano to incorporate the teachings of Jagoda because Sugano would be more efficient and versatile should it employ a CRM as done in Jagoda (“The electronic controller 500 typically includes at least some form of memory 500B. Examples of memory 500B include computer readable media. Computer readable media includes any available media that can be accessed by the processor 500A. By way of example, computer readable media include computer readable storage media and computer readable communication media.”, See Jagoda at [036]).
Allowable Subject Matter
Claims 3 – 7, 9, and 10 would be allowable if rewritten in independent claim form. The following is a statement of reasons for the indication of allowable subject matter: Independently, while the claims' limitations most recently set forth herein may individually be disclosed by the prior art, the claims as a whole are not obvious because the examiner would have to improperly use their separate limitations as a road map to combine them.
CONCLUSION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW COBB whose telephone number is (571) 272-3850. The examiner can normally be reached 9 - 5, M - F.
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 call examiner Cobb as above, or 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, Peter Nolan, can be reached at (571) 270-7016. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/MATTHEW COBB/Examiner, Art Unit 3661
/PETER D NOLAN/Supervisory Patent Examiner, Art Unit 3661
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