DETAILED ACTION
Contents
I. Notice of Pre-AIA or AIA Status 5
II. Priority 5
III. Pertinent Prosecution History 5
IV. Claim Status 6
V. Reissue Requirements 7
VI. Drawings Objections 8
VII. Claim Objections 10
VIII. Claim Interpretation 10
A. Lexicographic Definitions 11
B. 35 U.S.C § 112 6th Paragraph 11
(1) Functional Phrase – “Receiving Instructions” 12
(2) Functional Phrase – “Deriving Instructions I” 13
(3) Functional Phrase – “Generating Instructions” 19
(4) Functional Phrase – “Deriving Instructions II” 24
(5) Functional Phrase – “Combining Instructions” 29
IX. Claim Rejections – 35 U.S.C. § 112 34
A. 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph 34
(1) Written Description 34
(2) New Matter 37
B. 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph 38
X. Broadening of Examined Claims 42
A. Broadening of Examined Claims’ Limitations 42
(1) Claims 1 and 12 42
(2) Claim 25 44
XI. Claim Rejections - 35 USC § 251 46
A. New Matter 46
B. Broadening/Recapture 47
C. Original Patent Requirement 57
XII. Claim Rejections – 35 USC § 103 59
A. Claims 1, 2, 11, 12, 14, 15 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Priest (U.S. Publication No. 2017/0024929) in view of Ohhashi (U.S. Patent No. 11,428,527). 60
B. Claims 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Priest (U.S. Publication No. 2017/0024929) in view of Ohhashi (U.S. Patent No. 11,428,527) as applied to claims 1, 2, 11, 12, 14, 15 and 17-19 above, and in further view of Engstrom (U.S. Publication No. 2011/01910213). 75
C. Claims 3-6, 8, 10 and 20-26 is rejected under 35 U.S.C. 103 as being unpatentable over Priest (U.S. Publication No. 2017/0024929) in view of Ohhashi (U.S. Patent No. 11,428,527) as applied to claims 1, 2, 11, 12, 14, 15 and 17-19 above, and in further view of Robert et al. (U.S. Publication No. 2017/0193693)(“Robert”). 76
XIII. Response to Arguments 96
A. Oath/Declaration Objection(s) 96
B. Claim Objection(s) 97
C. Claim Interpretation - 35 U.S.C. § 112, Sixth Paragraph, Invocation 97
(1) Deriving Instructions I, Generating Instructions, Deriving Instructions II and Combining Instructions 97
D. 35 U.S.C. § 112, First Paragraph, Rejections 101
(1) Written Description 101
(a) Claims 12, 14-16, 18, 19, 21, 22 and 24 101
(b) Claims 21, 23 and 24 102
(c) Claim 25 103
E. 35 U.S.C. § 112, Second Paragraph, Rejections 104
(1) Claims 12, 14-16, 18, 19, 21, 22 and 24 104
(2) Claims 1-8, 10-12 and 14-24 106
(3) Claims 10 and 15 106
(4) Claim 22 107
(5) Claims 21, 23 and 24 107
F. 35 U.S.C. § 251 Rejections 108
(1) Oath/Declaration 108
(2) New Matter 109
(3) Broadening/Recapture 109
G. 35 U.S.C. § 102 Rejections 112
H. 35 U.S.C. § 103 Rejections 112
(1) Combination of Priest and Ohhashi 112
XIV. Conclusion 117
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 . 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.
Priority
Applicant filed the instant reissue application 17/675,811 (“‘811 Reissue Application”) on 18 February 2022 for U.S. Application No. 15/881,073 (“‘073 Application"), filed 26 January 2018, now U.S. Patent No. 10,565,787 (“‘787 Patent”), issued 18 February 2020, which claims domestic priority to Provisional Application No. 62/451,295 (“‘295 Prov Application”), filed 27 January 2017.
Thus, the Examiner concludes that for examination purposes the instant ‘811 Reissue Application claims a priority date of 27 January 2017.
Pertinent Prosecution History
As set forth supra, Applicant filed the application for the instant ‘811 Reissue Application on 18 February 2022. The Examiner finds that the instant ‘811 Reissue Application included a preliminary amendment (“Feb 2022 Preliminary Amendment”) to the claims (“Feb 2022 Claim Amendment”), and the specification (“Feb 2022 Spec Amendment”). The Feb 2022 Claim Amendment includes an amendment: providing amended original claims 1, 3, 10, 11, 12 and 14, original claims 2, 4-8 and 15-19; canceled original claims 9 and 13; and adding new claims 20-26.
The Office issued a non-Final Office action on 03 April 2024 (“April 2024 Non-Final Office Action”). In particular, the April 2024 Non-Final Office Action provided rejections for claim 1-8, 10-12 and 14-26 (“Rejected Claims”) under 35 U.S.C. §§ 112, 102(a)(1)/(a)(2), 103 and 251.1
On 23 September 2024, Applicant filed a response to the April 2024 Non-Final Office Action (“Sept 2024 Applicant Response”). The Sept 2024 Applicant Response contained: “Remarks,” “Amendments to the Specification” (“Sept 2024 Spec Amendment”), a new Oath/Declaration (“Sept 2024 Oath/Declaration”) and “Amendments to the Claims” (“Sept 2024 Claim Amendment”) including: currently twice amended2 original claims 1, 10, 11 and 12; once amended3 original claims 3, 14 and 15; original claims 2, 4-8 and 16-19; canceled4 original claims 9 and 13; once amended5 new claims 20-25; and previously presented6 new claim 26
Claim Status
The Examiner finds that the claim status in the instant ‘811 Reissue Application is as follows:
Claim(s) 1, 10, 11 and 12 (Original and twice amended)
Claim(s) 3, 14 and 15 (Original and once amended)
Claim(s) 2, 4-8 and 16-19 (Original)
Claim(s) 9 and 13 (Original and canceled)
Claim(s) 20-25 (New and once amended)
Claim(s) 26 (New)
Thus, the Examiner concludes that claims 1-8, 10-12 and 14-26 are pending in the instant ‘668 Reissue Application. Claims 1-8, 10-12 and 14-26 are examined (“Examined Claims”).
Reissue Requirements
For reissue applications filed before September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the law and rules in effect on September 15, 2012. Where specifically designated, these are “pre-AIA ” provisions.
For reissue applications filed on or after September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the current provisions.
Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceed-ing in which the ‘343 Patent is or was involved. These proceedings would include interferences, reissues, reexaminations, post-grant proceedings and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is mate-rial to patentability of the claims under consideration in this reissue appli-cation.
These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
The Examiner notes that Amendment practice for Reissue Applications is NOT the same as for non-provisional applications. See MPEP §§ 1413 and 1453. Reissue application amendments must comply with 37 CFR 1.173, while non-provisional application amendments must comply with 37 CFR 1.121. Particularly,
Manner of making amendments under 37 CFR 1.173:
All markings (underlining and bracketing) are made relative to the original patent text, 37 CFR 1.173(g) (and not relative to the prior amendment).
For amendments to the abstract, specification and claims, the deleted matter must be enclosed in brackets, and the added matter must be underlined. See 37 CFR 1.173(d).
For amendments to the drawings, any changes to a patent drawing must be submitted as a replacement sheet of drawings which shall be an attachment to the amendment document. Any replacement sheet of drawings must be in compliance with § 1.84 and shall include all of the figures appearing on the original version of the sheet, even if only one figure is amended. Amended figures must be identified as "Amended," and any added figure must be identified as "New." In the event that a figure is canceled, the figure must be surrounded by brackets and identified as "Canceled." All changes to the drawing(s) shall be explained, in detail, beginning on a separate sheet accompanying the papers including the amendment to the drawings. See 37 CFR 1.173(d)(3).
The Examiner further notes that all amendments to the instant ‘668 Reissue Application must comply with 37 CFR 1.173(b)-(g).
Drawings Objections
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “generating the 3D model” step further including comprising deriving 3D point clouds for laser scan data obtained from the one or more LiDAR scanners at respective locations near a complex object; combining the first 3D point cloud with derived 3D point clouds into a single 3D point cloud; and then generating again the 3D point model from the newly combined single 3D point cloud, as recited in claims 21, 23 and 24, must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.173(b)(3), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.173(b)(1) 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 of an amended drawing should be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be surrounded by brackets and identified as "Canceled," 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 1.173(b)(3). 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 Objections
Claim 11 is objected to because of the following informalities: “the plurality of images is captured from the perspective of the UAV in flight.” in lines 1-2, respectively, should read – the plurality of overlapping images are captured from the perspective of the UAV in flight –. [Emphasis added]. The claim will be examined as such.7
Moreover, to expedite prosecution, the Examiner recommends Applicant provide a complete set and listing of claims (i.e., original, original/amended, original/canceled, new, and new/amended) to better facilitate the examination, and any future printing, processes.
Claim Interpretation
During examination, claims are given the broadest reasonable interpretation consistent with the specification and limitations in the specification are not read into the claims. See MPEP § 2111, MPEP § 2111.01 and In re Yamamoto et al., 222 USPQ 934 (Fed. Cir. 1984). Under a broadest reasonable interpretation, words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification. See MPEP § 2111.01(I). It is further noted it is improper to import claim limitations from the specification, i.e., a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment. See MPEP § 2111.01(II). Therefore, unless one of the exceptions applies below, Examiners will interpret the limitations of the pending and examined claims using the broadest reasonable interpretation.
Lexicographic Definitions
A first exception to the prohibition of reading limitations from the specification into the claims is when the Applicant for patent has provided a lexicographic definition for the term. See MPEP § 2111.01(IV). Following an independent review of the claims in view of the specification herein, Examiners find that Applicant has not provided any lexicographic definitions related to claim terms with any reasonable clarity, deliberateness and precision.
35 U.S.C § 112 6th Paragraph
A second exception to the prohibition of reading limitations from the specification into the claims is when the claimed feature is written as a means-plus-function or a step-plus-function. See 35 U.S.C. § 112(6th ¶) and MPEP §§ 2181-2183. As noted in MPEP § 2181, a three prong test is used to determine the scope of a means-plus-function or step-plus-function limitation in a claim:
(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"
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
The Examiner finds herein that claims 10-17 and 26-29 include one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. §112 (6th ¶) because the claim limitations 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. Each such limitation will be discussed in turn as follows:
Functional Phrase – “Receiving Instructions”
A first means-plus-function phrase is recited in claim 12 (and included in each of dependent claims 14-16, 18, 19, 21, 22 and 24) which recites “instructions …” or hereinafter “Functional Phrase 1” or “FP1.” The Examiner determines herein that FP1 does not meet the three prong test and thus will not interpreted as a means-plus-function limitation under 35 U.S.C. §112(6th ¶).
The Examiner finds that claim 12 expressly recites:
instructions executable by the one or more processors, wherein the instructions comprise:
receiving a plurality of overlapping images of a complex object from one or more cameras mounted to an unmanned aerial vehicle (UAV), wherein each image of the plurality of overlapping images overlaps one or more respective other images in the plurality of overlapping images by more than 90%
[emphasis added];
i. 3-Prong Analysis: Prong (A)
FP1 meets invocation prong (A) because "means ... for" type language is recited. The Examiner first finds that “instructions” is a generic placeholder or nonce term equivalent to “means” because the term “instructions” does nothing more than simply define a generic structure, i.e., means. The Examiner further notes that the specification of the ‘787 Patent does not specifically define “instructions” and thus the specification of the ‘787 Patent does not impart or disclose any structure for the phrase.
However, the Examiner has reviewed the prosecution history and the relevant prior art of record herein and finds that “instructions” as used in the claims does provide an art-recognized structure to perform the claimed function. The Examiner finds that “instructions” would be simply software that simply receives a plurality of overlapping images captured by an unmanned aerial vehicle (“UAV”) having a certain percentage of overlap. (‘787 Patent at c.1, ll.64-66; c.2, ll.8-10, 25-27, 37-39; c.3, ll.9-13; c.5, l.66 – c.6, l.11; also see Priest (U.S. Publication No. 2017/0024929) at ¶¶ 0213-0215, 0236-0238, 0241-0242; see Figures 48, 49).
In light of the above, the Examiner finds that the instructions in association with the specific function associated therewith implies sufficient/known structure. Thus, the Examiner concludes that FP1 does not meet invocation Prong (A).
Because Functional Phrase 1 does not meet Prong (A) of the 3-prong analysis as set forth in MPEP § 2181 I., the Examiner concludes that Functional Phrase 1 does not invoke 35 U.S.C § 112 6th paragraph.
Functional Phrase – “Deriving Instructions I”
A second means-plus-function phrase is recited in claim 12 (and included in each of dependent claims 14-16, 18, 19, 21, 22 and 24) which recites “instructions …” or hereinafter “Functional Phrase 2” or “FP2.” The Examiner determines herein that FP2 does meet the three prong test and thus will be interpreted as a means-plus-function limitation under 35 U.S.C. §112(6th ¶).
The Examiner finds that claim 12 expressly recite:
instructions executable by the one or more processors, wherein the instructions comprise:
deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded
[emphasis added];
i. 3-Prong Analysis: Prong (A)
FP2 meets invocation prong (A) because "means ... for" type language is recited. The Examiner first finds that “instructions” is a generic placeholder or nonce term equivalent to “means” because the term “instructions” does nothing more than simply define a generic structure, i.e., means. The Examiner further notes that the specification of the ‘787 Patent does not specifically define “instructions” and thus the specification of the ‘787 Patent does not impart or disclose any structure for the phrase. Rather, the Examiner finds that the ‘787 Patent uses this same phrase to describe several instructions.
Furthermore, the Examiner finds there is no disclosure or suggestion from the prior art that instructions is a sufficient and definite structure to perform the functions recited in FP2. For example, U.S. Publication No. 2017/0024929 illustrates instructions for: utilizing a plurality of overlapping image to derive a first 3D point cloud of a first portion of a complex object; and utilizing the derived first 3D point cloud to generate a 3D model having different instructions (i.e., implemented blocks) and distinct operation from any of the instructions of the ‘787 Patent. Similarly, U.S. Patent No. 11,428,527 illustrates instructions for: utilizing a plurality of overlapping image to derive a first 3D point cloud of a first portion of a complex object; utilizing a plurality of 3D measurement devices to derive corresponding 3D point clouds at corresponding locations near the complex object; combine the derived 3D point clouds into a single 3D point cloud; and utilizing the combined single 3D point cloud to generate a 3D model having different instructions (i.e., implemented blocks) and distinct operation from any of the instructions of the ‘787 Patent.
Accordingly, the Examiner finds nothing in the specification, prosecution history or the prior art to construe “instructions …” in FP2 as the name of a sufficiently definite structure for performing the functions recited in FP2 so as to take the overall claim limitation out of the ambit of §112(6th ¶). See Williamson v. Citrix Online, L.L.C., 115 USPQ2d 1105, 1112 (Fed. Cir. 2015).
In light of the above, the Examiner concludes that the term “instructions …” is a generic placeholder having no specific structure associated therewith. Because “instructions …” is merely a generic placeholder having no specific structure associated therewith, the Examiner concludes that FP2 meets invocation Prong (A).
ii. 3-Prong Analysis: Prong (B)
Based upon a review of FP2, the Examiner finds that claimed function(s) is:
[D]eriv[ing]a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded
Because FP2 recites the above recited functions, the Examiner concludes that FP2 meets Invocation Prong (B).
iii. 3-Prong Analysis: Prong (C)
Based upon a review of the entire Functional Phrase 2, while one of ordinary skill in the art would recognize that “instructions” or “logic” implies some structures, it is not alone a sufficient structures for performing the claimed function.8 Thus, the Examiner finds that Functional Phrase 2 does not contain sufficient structure for performing the entire claimed function that is set forth within Functional Phrase 2.
Because Functional Phrase 2 does not contain sufficient structure for performing the entire claimed function, the Examiner concludes that Functional Phrase 2 meets invocation Prong (C).
Because Functional Phrase 2 meets the 3-prong analysis as set forth in MPEP § 2181 I, the Examiner concludes that Functional Phrase 2 does invokes 35 U.S.C § 112 6th paragraph.
Corresponding structure for Functional Phrase 2
Once a claimed phrase invokes 35 U.S.C. § 112 6th paragraph, the next step is to determine the corresponding structure. (MPEP § 2181 II). In order to satisfy the requirements of 35 U.S.C. § 112, second paragraph, there must be identified in the applications’ disclosure a single structure and/or algorithm which performs the function of FP2.
The Examiner has carefully reviewed the original disclosure to determine the corresponding structure for FP2. In reviewing the original disclosure, the Examiner finds that the ‘787 Patent discloses:
Method 400 may be implemented on one or more computing devices. The one or more computing devices may, for example, contain one or more processors, memories, and other components typically present in general purpose computing devices. The one or more processors may be any conventional processors, such as, for example, commercially available CPUs. The processors may also be dedicated devices such as, for example, ASICs or other hardware-based processors. The one or more memories may be of any type capable of storing information accessible by the one or more processors. For example, one or more memories may include a computing device-readable medium, or other medium that stores data that may be read with the aid of an electronic device, such as, for example, a hard-drive, memory card, ROM, RAM, DVD or other optical disks, as well as other write-capable and read-only memories. The information stored in the one or more memories may include instructions and data that may be executed or otherwise used by the one or more processors. The instructions may be stored in object code format for direct processing by the processor, or in any other computing device language including scripts or collections of independent source code modules that are interpreted on demand or compiled in advance.
(‘787 Patent at c.10, ll.31-45- emphasis added). In lieu of above, the Examiner finds that the ‘787 Patent discloses instructions as being stored code, language, scripts etc. for direct processing by a processor. (Id.) From this perspective, one of ordinary skill in the art would look to the rest of the ‘787 Patent for specific disclosure of the specific instructions (i.e., algorithms) required to satisfy the function of Functional Phrase 2. In examination of the ‘787 Patent, the Examiner finds that the instructions 440, occurring in the method 400 of Figure 4 of the ‘787 Patent, to derive a 3D point cloud from a plurality of images as being essentially a “black box.” As noted in the MPEP, “merely referencing [] a black box designed to perform their cited function, will not be sufficient because there must be some explanation of how the computer or the computer component performs the claimed function. [Emphasis added.] ” (MPEP § 2181 II. B citing Blackboard). In lieu of the black box, the Examiner finds that the ‘787 Patent discloses instructions as being “photogrammetry software, such as, for example, Pix4Dmapper Pro [can be used] to derive a 3D point cloud from a plurality of images.” (‘787 Patent at c.5, ll.35-38; c.6, ll.47-50; c.9, ll.30-50; see Figure 4). One of ordinary skill in the art would recognize that the ‘787 Patent provides disclosure to 1) broad and undefined photogrammetry software; and 2) an example of specific software.
With respect to 1), the Examiner finds that to derive a 3D point cloud from a plurality of overlapping images requires more than generic image processing photogrammetry software, as evidenced by Applicant’s own ‘787 Patent’s disclosure. (Id.; emphasis at c.9, ll.30-50). From this perspective, the Examiner finds that the ‘787 Patent fails to disclose or discuss any exact, unique and separate specific algorithms to derive a 3D point cloud from a plurality of overlapping images. (See Id.)
With respect to 2), the Examiner finds that the ‘787 Patent discloses a known technique(s) to provide the photogrammetry processing to derive a 3D point cloud from a plurality of overlapping images. (‘787 Patent at c.5, ll.35-38; c.6, ll.47-50; c.9, ll.30-50; see Figure 4). However, the MPEP states,
the corresponding structure, material, or acts cannot include any structure, material, or acts disclosed only in the material incorporated by reference or a prior art reference. See Pressure Prods. Med. Supplies, Inc. v. Greatbatch Ltd., 599 F.3d 1308, 1317, 94 USPQ2d 1261, 1267 (Fed. Cir. 2010) (stating, "[s]imply mentioning prior art references in a patent does not suffice as a specification description to give the patentee outright claim to all of the structures disclosed in those references."); Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1381, 53 USPQ2d 1225, 1230 (Fed. Cir. 1999).
(MPEP § 2181 III; emphasis). In this light, the Examiner finds that “[a] bare statement that known techniques or methods can be used would not be a sufficient disclosure to support a means-plus-function limitation.” (Id.) Thus, the Examiner concludes that the functions and ‘787 Patent fails to clearly link and associate corresponding structure to FP2.9
In light of the finding that Functional Phrase 2 invokes 35 U.S.C. § 112 6th paragraph, Functional Phrase 2 is construed to cover the corresponding structure described in the specification and equivalents thereof. In light of the examination of the ‘787 Patent above, the Examiner finds that the ‘787 Patent provides insufficient corresponding structures and thus this phrase is nothing more than “instructions.” From this perspective, and to advance prosecution by providing art rejections infra, the Examiner construes the structure for performing the claimed function as instructions, that can be executed by a computer/processing device, comprising: some type of photogrammetry software which accepts a plurality of overlapping images and produces 3D point cloud data, or its equivalent.
Functional Phrase – “Generating Instructions”
A third means-plus-function phrase is recited in claims 12, 21 and 24 (and included in each of dependent claims 14-16, 18, 19, 21, 22 and 24) which recites “instructions …” or hereinafter “Functional Phrase 3” or “FP3.” The Examiner determines herein that FP3 does meet the three prong test and thus will be interpreted as a means-plus-function limitation under 35 U.S.C. §112(6th ¶).
The Examiner finds that claim 12 expressly recites:
instructions executable by the one or more processors, wherein the instructions comprise:
generating a 3D model of the complex object from the single 3D point cloud
[emphasis added]; claim 21 expressly recites:
[instructions executable by the one or more processors, wherein the instructions comprise:]
generating the 3D model from the single 3D point cloud
[emphasis added]; and claim 24 expressly recites:
[instructions executable by the one or more processors, wherein the instructions comprise:]
generating the 3D model of the complex object from the single 3D point cloud
[emphasis added].
3-Prong Analysis: Prong (A)
FP3 meets invocation prong (A) because "means ... for" type language is recited. The Examiner first finds that “instructions” is a generic placeholder or nonce term equivalent to “means” because the term “instructions” does nothing more than simply define a generic structure, i.e., means. The Examiner further notes that the specification of the ‘787 Patent does not specifically define “instructions” and thus the specification of the ‘787 Patent does not impart or disclose any structure for the phrase, for the same reasons as set forth above. (See § VIII.B.(2).i, supra).
In light of the above, the Examiner concludes that the term “instructions …” is a generic placeholder having no specific structure associated therewith. Because “instructions …” is merely a generic placeholder having no specific structure associated therewith, the Examiner concludes that FP3 meets invocation Prong (A).
ii. 3-Prong Analysis: Prong (B)
Based upon a review of FP3, the Examiner finds that claimed functions are:
[G]enerat[ing] a 3D model of the complex object from the single 3D point cloud;
[G]enerat[ing] the 3D model from the single 3D point cloud;
[G]enerat[ing] the 3D model of the complex object from the single 3D point cloud
Because FP3 recites the above recited functions, the Examiner concludes that FP3 meets Invocation Prong (B).
3-Prong Analysis: Prong (C)
Based upon a review of the entire Functional Phrase 3, while one of ordinary skill in the art would recognize that “instructions” or “logic” implies some structures, it is not alone a sufficient structures for performing the claimed function.10 Thus, the Examiner finds that Functional Phrase 3 does not contain sufficient structure for performing the entire claimed function that is set forth within Functional Phrase 3.
Because Functional Phrase 3 does not contain sufficient structure for performing the entire claimed function, the Examiner concludes that Functional Phrase 3 meets invocation Prong (C).
Because Functional Phrase 3 meets the 3-prong analysis as set forth in MPEP § 2181 I, the Examiner concludes that Functional Phrase 3 does invokes 35 U.S.C § 112 6th paragraph.
Corresponding structure for Functional Phrase 3
Once a claimed phrase invokes 35 U.S.C. § 112 6th paragraph, the next step is to determine the corresponding structure. (MPEP § 2181 II). In order to satisfy the requirements of 35 U.S.C. § 112, second paragraph, there must be identified in the applications’ disclosure a single structure and/or algorithm which performs the function of FP3.
The Examiner has carefully reviewed the original disclosure to determine the corresponding structure for FP3. In reviewing the original disclosure, the Examiner finds that the ‘787 Patent discloses:
Method 400 may be implemented on one or more computing devices. The one or more computing devices may, for example, contain one or more processors, memories, and other components typically present in general purpose computing devices. The one or more processors may be any conventional processors, such as, for example, commercially available CPUs. The processors may also be dedicated devices such as, for example, ASICs or other hardware-based processors. The one or more memories may be of any type capable of storing information accessible by the one or more processors. For example, one or more memories may include a computing device-readable medium, or other medium that stores data that may be read with the aid of an electronic device, such as, for example, a hard-drive, memory card, ROM, RAM, DVD or other optical disks, as well as other write-capable and read-only memories. The information stored in the one or more memories may include instructions and data that may be executed or otherwise used by the one or more processors. The instructions may be stored in object code format for direct processing by the processor, or in any other computing device language including scripts or collections of independent source code modules that are interpreted on demand or compiled in advance.
(‘787 Patent at c.10, ll.31-45- emphasis added). In lieu of above, the Examiner finds that the ‘787 Patent discloses instructions as being stored code, language, scripts etc. for direct processing by a processor. (Id.) From this perspective, one of ordinary skill in the art would look to the rest of the ‘787 Patent for specific disclosure of the specific instructions (i.e., algorithms) required to satisfy the function of Functional Phrase 3. In examination of the ‘787 Patent, the Examiner finds that the instructions 460, occurring in the method 400 of Figure 4 of the ‘787 Patent, to generate a 3D model of the complex object as being essentially a “black box.” As noted in the MPEP, “merely referencing [] a black box designed to perform their cited function, will not be sufficient because there must be some explanation of how the computer or the computer component performs the claimed function. [Emphasis added.] ” (MPEP § 2181 II. B citing Blackboard). In lieu of the black box, the Examiner finds that the ‘787 Patent discloses instructions as being “[s]oftware, such as Leica Cyclone, Leica CloudWorx, and/or AutoCAD, [may be used] to extract structural members and other objects from the single 3D point cloud to generate the 3D model of the cell tower.” (‘787 Patent at c.10, ll.5-10; see Figure 4). One of ordinary skill in the art would recognize that the ‘787 Patent provides disclosure to 1) broad and undefined software; and 2) an example of specific software.
With respect to 1), the Examiner finds that to generate a 3D model of the complex object using a 3D point cloud requires more than generic processing software, as evidenced by Applicant’s own ‘787 Patent’s disclosure. (Id.) From this perspective, the Examiner finds that the ‘787 Patent fails to disclose or discuss any exact, unique and separate specific algorithms to generate a 3D model of the complex object using a 3D point cloud.
With respect to 2), the Examiner finds that the ‘787 Patent discloses a known technique(s) to provide the software processing to generate a 3D model of the complex object using a 3D point cloud. (‘787 Patent at c.10, ll.5-10; see Figure 4). However, the MPEP states,
the corresponding structure, material, or acts cannot include any structure, material, or acts disclosed only in the material incorporated by reference or a prior art reference. See Pressure Prods. Med. Supplies, Inc. v. Greatbatch Ltd., 599 F.3d 1308, 1317, 94 USPQ2d 1261, 1267 (Fed. Cir. 2010) (stating, "[s]imply mentioning prior art references in a patent does not suffice as a specification description to give the patentee outright claim to all of the structures disclosed in those references."); Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1381, 53 USPQ2d 1225, 1230 (Fed. Cir. 1999).
(MPEP § 2181 III; emphasis). In this light, the Examiner finds that “[a] bare statement that known techniques or methods can be used would not be a sufficient disclosure to support a means-plus-function limitation.” (Id.) Thus, the Examiner concludes that the functions and ‘787 Patent fails to clearly link and associate corresponding structure to FP3.11
In light of the finding that Functional Phrase 3 invokes 35 U.S.C. § 112 6th paragraph, Functional Phrase 3 is construed to cover the corresponding structure described in the specification and equivalents thereof. In light of the examination of the ‘787 Patent above, the Examiner finds that the ‘787 Patent provides insufficient corresponding structures and thus this phrase is nothing more than “instructions.” From this perspective, and to advance prosecution by providing art rejections infra, the Examiner construes the structure for performing the claimed function as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts a 3D point cloud and generates 3D model, or its equivalent.
claims 12, 21 and 24 (and included in each of dependent claims 14-16, 18, 19, 21, 22 and 24)
Functional Phrase – “Deriving Instructions II”
A fourth means-plus-function phrase is recited in claims 12, 21 and 24 (and included in each of dependent claims 14-16, 18, 19, 21, 22 and 24) which recites “instructions …” or hereinafter “Functional Phrase 4” or “FP4.” The Examiner determines herein that FP4 does meet the three prong test and thus will be interpreted as a means-plus-function limitation under 35 U.S.C. §112(6th ¶).
The Examiner finds that claim 12 expressly recites:
instructions executable by the one or more processors, wherein the instructions comprise:
deriving a second 3D point cloud from scan data obtained from one or more scanners at a first location near the complex object ;
[emphasis added]; claim 21 expressly recites:
[instructions executable by the one or more processors, wherein the instructions comprise:]
deriving one or more 3D point clouds from laser scan data obtained from one or more LiDAR scanners at respective locations near the complex object;
[emphasis added]; and claim 24 expressly recites:
[instructions executable by the one or more processors, wherein the instructions comprise:]
deriving a third 3D point cloud from laser scan data obtained from the one or more LIDAR scanners at a second location near the complex object
[emphasis added].
3-Prong Analysis: Prong (A)
FP4 meets invocation prong (A) because "means ... for" type language is recited. The Examiner first finds that “instructions” is a generic placeholder or nonce term equivalent to “means” because the term “instructions” does nothing more than simply define a generic structure, i.e., means. The Examiner further notes that the specification of the ‘787 Patent does not specifically define “instructions” and thus the specification of the ‘787 Patent does not impart or disclose any structure for the phrase, for the same reasons as set forth above. (See § VIII.B.(2).i, supra).
In light of the above, the Examiner concludes that the term “instructions …” is a generic placeholder having no specific structure associated therewith. Because “instructions …” is merely a generic placeholder having no specific structure associated therewith, the Examiner concludes that FP4 meets invocation Prong (A).
ii. 3-Prong Analysis: Prong (B)
Based upon a review of FP4, the Examiner finds that claimed functions are:
[D]eriving one or more 3D point clouds from laser scan data obtained from one or more LiDAR scanners at respective locations near the complex object;
[D]eriving a second 3D point cloud from laser scan data obtained from one or more LIDAR scanners at a first location near the complex object; and
[D]eriving a third 3D point cloud from laser scan data obtained from the one or more LIDAR scanners at a second location near the complex object
Because FP4 recites the above recited functions, the Examiner concludes that FP4 meets Invocation Prong (B).
3-Prong Analysis: Prong (C)
Based upon a review of the entire Functional Phrase 4, while one of ordinary skill in the art would recognize that “instructions” or “logic” implies some structures, it is not alone a sufficient structures for performing the claimed function.12 Thus, the Examiner finds that Functional Phrase 4 does not contain sufficient structure for performing the entire claimed function that is set forth within Functional Phrase 4.
Because Functional Phrase 4 does not contain sufficient structure for performing the entire claimed function, the Examiner concludes that Functional Phrase 4 meets invocation Prong (C).
Because Functional Phrase 4 meets the 3-prong analysis as set forth in MPEP § 2181 I, the Examiner concludes that Functional Phrase 4 does invokes 35 U.S.C § 112 6th paragraph.
Corresponding structure for Functional Phrase 4
Once a claimed phrase invokes 35 U.S.C. § 112 6th paragraph, the next step is to determine the corresponding structure. (MPEP § 2181 II). In order to satisfy the requirements of 35 U.S.C. § 112, second paragraph, there must be identified in the applications’ disclosure a single structure and/or algorithm which performs the function of FP4.
The Examiner has carefully reviewed the original disclosure to determine the corresponding structure for FP4. In reviewing the original disclosure, the Examiner finds that the ‘787 Patent discloses:
Method 400 may be implemented on one or more computing devices. The one or more computing devices may, for example, contain one or more processors, memories, and other components typically present in general purpose computing devices. The one or more processors may be any conventional processors, such as, for example, commercially available CPUs. The processors may also be dedicated devices such as, for example, ASICs or other hardware-based processors. The one or more memories may be of any type capable of storing information accessible by the one or more processors. For example, one or more memories may include a computing device-readable medium, or other medium that stores data that may be read with the aid of an electronic device, such as, for example, a hard-drive, memory card, ROM, RAM, DVD or other optical disks, as well as other write-capable and read-only memories. The information stored in the one or more memories may include instructions and data that may be executed or otherwise used by the one or more processors. The instructions may be stored in object code format for direct processing by the processor, or in any other computing device language including scripts or collections of independent source code modules that are interpreted on demand or compiled in advance.
(‘787 Patent at c.10, ll.31-45- emphasis added). In lieu of above, the Examiner finds that the ‘787 Patent discloses instructions as being stored code, language, scripts etc. for direct processing by a processor. (Id.) From this perspective, one of ordinary skill in the art would look to the rest of the ‘787 Patent for specific disclosure of the specific instructions (i.e., algorithms) required to satisfy the function of Functional Phrase 4. In examination of the ‘787 Patent, the Examiner finds that the instructions 410, 420, 430, occurring in the method 400 of Figure 4 of the ‘787 Patent, to
derive 3D point clouds from laser scan data obtained from one or more LiDAR scanners at respective locations near a complex object as being essentially a “black box.” As noted in the MPEP, “merely referencing [] a black box designed to perform their cited function, will not be sufficient because there must be some explanation of how the computer or the computer component performs the claimed function. [Emphasis added.] ” (MPEP § 2181 II. B citing Blackboard). In lieu of the black box, the Examiner finds that the ‘787 Patent discloses the LiDAR scanner providing laser scan data from various locations, in which the location specific obtained laser scan data is utilized to derive corresponding 3D point cloud data at that location. (‘787 Patent at c.6, ll.12-29; c.8, ll.11-16; see Figures 2A-2C). The Examiner finds that the ‘787 Patent discloses the derived 3D point clouds containing a plurality of unique points, however, the ‘787 Patent does not discloses how the plurality of unique points are derived from the obtained laser scan data at each respective location. (Id.) From this perspective, one of ordinary skill in the art would recognize that the ‘787 Patent provides disclosure to block 410 deriving 3D point clouds, however, the Examiner finds that the ‘787 Patent fails to disclose or discuss any exact, unique and separate specific algorithms utilized to derive the 3D point clouds from the respective obtained laser scan data from each position. Thus, the Examiner concludes that the functions and ‘787 Patent fails to clearly link and associate corresponding structure to FP4.13
In light of the finding that Functional Phrase 4 invokes 35 U.S.C. § 112 6th paragraph, Functional Phrase 4 is construed to cover the corresponding structure described in the specification and equivalents thereof. In light of the examination of the ‘787 Patent above, the Examiner finds that the ‘787 Patent provides insufficient corresponding structures and thus this phrase is nothing more than “instructions.” From this perspective, and to advance prosecution by providing art rejections infra, the Examiner construes the structure for performing the claimed function as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts laser scan data and derives 3D point cloud data therefrom, or its equivalent.
Functional Phrase – “Combining Instructions”
A fifth means-plus-function phrase is recited in claims 12, 21 and 24 (and included in each of dependent claims 14-16, 18, 19, 21, 22 and 24) which recites “instructions …” or hereinafter “Functional Phrase 5” or “FP5.” The Examiner determines herein that FP5 does meet the three prong test and thus will be interpreted as a means-plus-function limitation under 35 U.S.C. §112(6th ¶).
The Examiner finds that claim 12 expressly recites:
instructions executable by the one or more processors, wherein the instructions comprise:
combining the first and second 3D point clouds into a single 3D point cloud
[emphasis added]; claim 21 expressly recites:
[instructions executable by the one or more processors, wherein the instructions comprise:]
combining the first 3D point cloud and the one or more 3D point clouds into the single 3D point cloud
[emphasis added]; and claim 24 expressly recites:
[instructions executable by the one or more processors, wherein the instructions comprise:]
combining the first, second, and third 3D point clouds into the single 3D point cloud
[emphasis added].
3-Prong Analysis: Prong (A)
FP5 meets invocation prong (A) because "means ... for" type language is recited. The Examiner first finds that “instructions” is a generic placeholder or nonce term equivalent to “means” because the term “instructions” does nothing more than simply define a generic structure, i.e., means. The Examiner further notes that the specification of the ‘787 Patent does not specifically define “instructions” and thus the specification of the ‘787 Patent does not impart or disclose any structure for the phrase, for the same reasons as set forth above. (See § VIII.B.(2).i, supra).
In light of the above, the Examiner concludes that the term “instructions …” is a generic placeholder having no specific structure associated therewith. Because “instructions …” is merely a generic placeholder having no specific structure associated therewith, the Examiner concludes that FP5 meets invocation Prong (A).
ii. 3-Prong Analysis: Prong (B)
Based upon a review of FP5, the Examiner finds that claimed functions are:
[C]ombining the first 3D point cloud and the one or more 3D point clouds into a single 3D point cloud; and
[C]ombining the first, second, and third 3D point clouds into a single 3D point cloud
Because FP5 recites the above recited functions, the Examiner concludes that FP5 meets Invocation Prong (B).
3-Prong Analysis: Prong (C)
Based upon a review of the entire Functional Phrase 5, while one of ordinary skill in the art would recognize that “instructions” or “logic” implies some structures, it is not alone a sufficient structures for performing the claimed function.14 Thus, the Examiner finds that Functional Phrase 5 does not contain sufficient structure for performing the entire claimed function that is set forth within Functional Phrase 5.
Because Functional Phrase 5 does not contain sufficient structure for performing the entire claimed function, the Examiner concludes that Functional Phrase 5 meets invocation Prong (C).
Because Functional Phrase 5 meets the 3-prong analysis as set forth in MPEP § 2181 I, the Examiner concludes that Functional Phrase 5 does invokes 35 U.S.C § 112 6th paragraph.
Corresponding structure for Functional Phrase 5
Once a claimed phrase invokes 35 U.S.C. § 112 6th paragraph, the next step is to determine the corresponding structure. (MPEP § 2181 II). In order to satisfy the requirements of 35 U.S.C. § 112, second paragraph, there must be identified in the applications’ disclosure a single structure and/or algorithm which performs the function of FP5.
The Examiner has carefully reviewed the original disclosure to determine the corresponding structure for FP5. In reviewing the original disclosure, the Examiner finds that the ‘787 Patent discloses:
Method 400 may be implemented on one or more computing devices. The one or more computing devices may, for example, contain one or more processors, memories, and other components typically present in general purpose computing devices. The one or more processors may be any conventional processors, such as, for example, commercially available CPUs. The processors may also be dedicated devices such as, for example, ASICs or other hardware-based processors. The one or more memories may be of any type capable of storing information accessible by the one or more processors. For example, one or more memories may include a computing device-readable medium, or other medium that stores data that may be read with the aid of an electronic device, such as, for example, a hard-drive, memory card, ROM, RAM, DVD or other optical disks, as well as other write-capable and read-only memories. The information stored in the one or more memories may include instructions and data that may be executed or otherwise used by the one or more processors. The instructions may be stored in object code format for direct processing by the processor, or in any other computing device language including scripts or collections of independent source code modules that are interpreted on demand or compiled in advance.
(‘787 Patent at c.10, ll.31-45- emphasis added). In lieu of above, the Examiner finds that the ‘787 Patent discloses instructions as being stored code, language, scripts etc. for direct processing by a processor. (Id.) From this perspective, one of ordinary skill in the art would look to the rest of the ‘787 Patent for specific disclosure of the specific instructions (i.e., algorithms) required to satisfy the function of Functional Phrase 5. In examination of the ‘787 Patent, the Examiner finds that the instructions 450, occurring in the method 400 of Figure 4 of the ‘787 Patent, to combine all of the 3D point clouds into a single 3D point cloud as being essentially a “black box.” As noted in the MPEP, “merely referencing [] a black box designed to perform their cited function, will not be sufficient because there must be some explanation of how the computer or the computer component performs the claimed function. [Emphasis added.] ” (MPEP § 2181 II. B citing Blackboard). In lieu of the black box, the Examiner finds that the ‘787 Patent discloses instructions as being “[s]oftware, such as, for example, Leica Cyclone 3D point cloud processing software [may be used] to combine 3D point clouds.” (‘787 Patent at c.6, l.65 – c.7, l.4; c.9, ll.51-54; see Figure 4). One of ordinary skill in the art would recognize that the ‘787 Patent provides disclosure to 1) broad and undefined software; and 2) an example of specific software.
With respect to 1), the Examiner finds that to combine all of the 3D point clouds into a single 3D point cloud requires more than generic processing software, as evidenced by Applicant’s own ‘787 Patent’s disclosure. (Id.) From this perspective, the Examiner finds that the ‘787 Patent fails to disclose or discuss any exact, unique and separate specific algorithms to combine all of the 3D point clouds into a single 3D point cloud.
With respect to 2), the Examiner finds that the ‘787 Patent discloses a known technique(s) to provide the software processing to generate a 3D model of the complex object using a 3D point cloud. (‘787 Patent at c.6, l.65 – c.7, l.4; c.9, ll.51-54; see Figure 4). However, the MPEP states,
the corresponding structure, material, or acts cannot include any structure, material, or acts disclosed only in the material incorporated by reference or a prior art reference. See Pressure Prods. Med. Supplies, Inc. v. Greatbatch Ltd., 599 F.3d 1308, 1317, 94 USPQ2d 1261, 1267 (Fed. Cir. 2010) (stating, "[s]imply mentioning prior art references in a patent does not suffice as a specification description to give the patentee outright claim to all of the structures disclosed in those references."); Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1381, 53 USPQ2d 1225, 1230 (Fed. Cir. 1999).
(MPEP § 2181 III; emphasis). In this light, the Examiner finds that “[a] bare statement that known techniques or methods can be used would not be a sufficient disclosure to support a means-plus-function limitation.” (Id.) Thus, the Examiner concludes that the functions and ‘787 Patent fails to clearly link and associate corresponding structure to FP5.15
In light of the finding that Functional Phrase 5 invokes 35 U.S.C. § 112 6th paragraph, Functional Phrase 5 is construed to cover the corresponding structure described in the specification and equivalents thereof. In light of the examination of the ‘787 Patent above, the Examiner finds that the ‘787 Patent provides insufficient corresponding structures and thus this phrase is nothing more than “instructions.” From this perspective, and to advance prosecution by providing art rejections infra, the Examiner construes the structure for performing the claimed function as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts a 3D point clouds and combines them to form a single and newly combined 3D point cloud, or its equivalent.
Claim Rejections – 35 U.S.C. § 112
35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Written Description
Claims 12, 14-16, 18, 19, 21, 22 and 24-26 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
With respect to the limitations of claims 12, 21 and 24, the Examiner finds that claims 12, 21 and 24 recite “instruction(s)” claim requirements that are invoking 35 U.S.C § 112 6th paragraph (i.e., See §§ VIII.B.(2)-(5)). Of the four (4) Functional Phrases invoking 35 U.S.C § 112 6th paragraph, the Examiner finds all four (4) of them indefinite. (See §§ VIII.B.(2)-(5); also see § IX.B, infra). In this light, the Examiner finds that the specific “instruction ” claim requirements (i.e., “Deriving Instructions I ,” “Generating Instructions I,” “Deriving Instructions II,” and “Combining Instructions” as set forth supra) are insufficiently described in the original specification. The MPEP states,
[O]riginal claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. See MPEP §§ 2163.02 and 2181, subsection IV.
The level of detail required to satisfy the written description requirement varies depending on the nature and scope of the claims and on the complexity and predictability of the relevant technology. Ariad, 598 F.3d at 1351, 94 USPQ2d at 1172; Capon v. Eshhar, 418 F.3d 1349, 1357-58, 76 USPQ2d 1078, 1083-84 (Fed. Cir. 2005). Computer-implemented inventions are often disclosed and claimed in terms of their functionality. For computer-implemented inventions, the determination of the sufficiency of disclosure will require an inquiry into the sufficiency of both the disclosed hardware and the disclosed software due to the interrelationship and interdependence of computer hardware and software. The critical inquiry is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date. Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 682. 114 USPQ2d 1349, 1356 (citing Ariad Pharm., Inc. V. Eli Lilly & Co, 598 F.3d 1336, 1351, 94 USPQ2d 1161, 1172 (Fed. Cir. 2010) in the context of determining possession of a claimed means of accessing disparate databases).
(MPEP § 2161.01.(I); emphasis added).
From this perspective, and as discussed above, Applicant’s specification in the ‘787 Patent discloses the ‘algorithm[s]’ in no more detail than the claims themselves. (See §§ VIII.B.(2)-(5), supra). For a computer-implemented invention, the algorithm must be of sufficient detail that one of ordinary skill in the art would understand how the inventor intended the functions to be performed. Applicant’s disclosure, however, lacks the required detailed algorithm.
Thus, as such, the Examiner concludes that there is insufficient indication in the specification that Owner had possession of a system comprising “Deriving Instructions I,” “Generating Instructions,” “Deriving Instructions II,” and “Combining Instructions.”
Claims 14-16, 18, 19, 21, 22 and 24 are rejected in light of their dependency from at least original independent claim 12.
With respect to the limitations of claims 21, 23 and 24, the Examiner finds that claims 21. 23 and 24 recite ,
wherein generating the 3D model further comprises…
(Feb 2022 Claim Amendment at claims 21, 23, 24; emphasis added). The Examiner finds that recitations to generating the 3D model further comprising the steps recited in the claim is not sufficiently described in the ‘787 Patent. Specifically, the Examiner finds that the claims further recite “deriving,” “combining,” and “generating” steps as being further included in the preceding claim’s “generating” step claim requirement. Since the “deriving” and “combining” steps and are considered to be outside of the scope the “generating” step (see §§ VIII.B.(2)-(5), supra), the Examiner finds that providing a “generating” step that further includes recite “deriving,” “combining,” and “generating” steps as not having sufficient support in the ‘787 Patent.
Thus, as such, the Examiner concludes that there is insufficient indication in the specification that Applicant had possession of “wherein generating the 3D model further comprises…” the steps as recited. [Emphasis added].
New Matter
Claim 22 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
With respect to the limitations of claim 22, the Examiner finds that claim 22 recites:
wherein the first 3D point cloud and the second 3D point cloud are captured from one or more respective ground-based perspectives
(Sept 2024 Claim Amendment at claim 22 emphasis added). The Examiner finds that the recitation to “the first 3D point cloud … [being] captured from one or more respective ground-based perspectives” is not sufficiently described in the ‘787 Patent. To support the Examiner’s position, the Examiner finds that the ‘391 Patent explicitly discloses a UAV vehicle capturing the plurality of overlapping images being utilized to derive the first 3D point cloud. (‘787 Patent at c.5, ll.20-65; ; c.6, ll.43-52; see Figures 1, 2D). In addition, the Examiner finds that the ‘787 Patent discloses other devices being utilized to capture the plurality of overlapped images. (Id. at c.7, ll.35-40; c.10, ll.59-67). While the Examiner acknowledges that other devices can be utilized to capture the plurality of overlapped images, the Examiner finds that the ‘787 Patent provides insufficient support to the first 3D point cloud … [being] captured from any respective ground-based perspectives. Hence, even though the ‘787 Patent provides disclosure to other devices being utilized to capture the plurality of overlapped images in order to derive the first 3D cloud, the Examiner finds that neither the ‘787 Patent, nor its prosecution history, establish that the ‘787 Patent was concerned with deriving a first 3D cloud from a plurality of images captured from a ground perspective.
Thus, as such, the Examiner concludes that there is insufficient indication in the specification that Applicant had possession of a system “wherein the first 3D point cloud and the second 3D point cloud are captured from one or more respective ground-based perspectives,” as recited.
35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph
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 12, 14-16, 18, 19, 21, 22 and 24 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.
With respect to claims 12, 21 and 24, the claim elements “Deriving Instructions I,” “Generating Instructions,” “Deriving Instructions II,” and “Combining Instructions” (i.e., FP2-FP5) are limitations that invoke 35 U.S.C. 112, sixth paragraph. However, the written description fails to clearly link or associate the disclosed structures, materials, or acts to the claimed functions such that one of ordinary skill in the art would recognize what structures, materials, or acts perform the claimed function.
With respect to the “Deriving Instructions I,” the phrase is indefinite because–to one of ordinary skill in this art–the metes and bounds of the phrase cannot be reasonably determined. The Examiner finds that the ‘787 Patent’s written description fails to disclose the corresponding structures, materials, or acts for the claimed function. (See § VIII.B.(2) for explanation supra).
With respect to the “Generating Instructions,” the phrase is indefinite because–to one of ordinary skill in this art–the metes and bounds of the phrase cannot be reasonably determined. The Examiner finds that the ‘787 Patent’s written description fails to disclose the corresponding structures, materials, or acts for the claimed function. (See § VIII.B.(3) for explanation supra).
With respect to the “Deriving Instructions II,” the phrase is indefinite because–to one of ordinary skill in this art–the metes and bounds of the phrase cannot be reasonably determined. The Examiner finds that the ‘787 Patent’s written description fails to disclose the corresponding structures, materials, or acts for the claimed function. (See § VIII.B.(4) for explanation supra).
With respect to the “Combining Instructions,” the phrase is indefinite because–to one of ordinary skill in this art–the metes and bounds of the phrase cannot be reasonably determined. The Examiner finds that the ‘787 Patent’s written description fails to disclose the corresponding structures, materials, or acts for the claimed function. (See § VIII.B.(5) for explanation supra).
Therefore, the claims are indefinite and are rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112, sixth paragraph; or
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the claimed function without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claims 14-16, 18, 19, 21, 22 and 24 are rejected in light of their dependency from at least original independent claim 12.
Claims 1-8, 10-12 and 14-24 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 11 recites the limitation “the plurality of images” in line 1. There is insufficient antecedent basis for this limitation in the claims. Further clarification is required to either provide proper antecedent basis or further differentiate the claim requirements.
Claim 15 recites the limitation “at least the section” in line 2. The preceding claim recites the limitation “at least a section of the first portion of the complex object” in line 11. It is unclear and indefinite to whether “at least the section” in claim 15 is the same as the “at least a section of the first portion of the complex object” or a different section. Further clarification is required to either provide proper antecedent basis or further differentiate the claim requirements. The claims are examined as “at least the section” being “the at least a section of the first portion of the complex object.”
Claim 22 recites the limitation “wherein the first 3D point cloud and the second 3D point cloud are captured from one or more respective ground-based perspectives” in lines 2-3. The Examiner finds that the preceding claim recites “deriving a first 3D point cloud” from a plurality of overlapping images captured from an unmanned aerial vehicle (UAV) (see Sept 2024 Claim Amendment at claim 12 lines 9-10). Since the claims require the plurality of overlapping images being captured by a UAV, the Examiner finds it unclear and indefinite to how the [derived] first 3D point cloud can be captured from one or more ground perspectives. Thus, the Examiner finds it unclear and indefinite to exactly how this claim requirement further limits the claim. Further clarification is required to either provide proper antecedent basis or further differentiate the claim requirements.
The claims are examined as requiring only the second 3D point cloud being captured from one or more respective ground-based perspectives.
Claims 20 and 24 recites the limitation “the one or more LIDAR scanners” in lines 2-3 and 3-4, respectively. There is insufficient antecedent basis for this limitation in the claims. Further clarification is required to either provide proper antecedent basis or further differentiate the claim requirements.
The Examiner finds that because claims 1-8, 10-12 and 14-24 are indefinite under 35 U.S.C. §112 second paragraph as outlined above, it is impossible to properly construe claim scope at this time. See e.g. Honeywell International Inc. v. ITC, 68 USPQ2d 1023, 1030 (Fed. Cir. 2003) (“Because the claims are indefinite, the claims, by definition, cannot be construed.”). However, in accordance with MPEP § 2173.06 and the USPTO’s policy of trying to advance prosecution by providing art rejections even though these claims are indefinite, the claims are construed and the art is applied as much as practically possible.
Broadening of Examined Claims
Broadening of Examined Claims’ Limitations
Claims 1 and 12
As set forth infra, the Examiner further finds that claims 1 and 12 enlarge the scope of the patent, i.e., a claim which is greater in scope than each and every claim of the original patent.
Specifically, the Examiner finds that amended original claims 1 and 12 (“RI Claims 1/12”) of the instant ‘811 Reissue Application recites,
deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded; and
deriving a second 3D point cloud from scan data obtained from one or more scanners at a first location near the complex object;
combining the first and second 3D point clouds into a single 3D point cloud; and
generating a 3D model of the complex object from the single 3D point cloud.
(“Broad RI Claims 1/12 Deriving/Combining/Generating Implementation”; Sept 2024 Claim Amendment, RI Claims 1/12; emphasis added). The Examiner finds that now patented claims 1 and 12 of the ‘787 Patent (“Patent Claims 1/12”), in part, recites,
deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded;
deriving a second 3D point cloud from laser scan data obtained from one or more LiDAR scanners at a first location near the complex object;
deriving a third 3D point cloud from laser scan data obtained from the one or more LiDAR scanners at a second location near the complex object;
combining the first, second, and third 3D point clouds into a single 3D point cloud; and
generating a 3D model of the complex object from the single 3D point cloud.
(“Narrow Patent Claims 1/12 Deriving/Combining/Generating Implementation”; ‘787 Patent, claims 1, 12; emphasis added).
The Examiner finds that the Broad RI Claims 1/12 Deriving/Combining/Generating Implementation is broader than the Narrow Patent Claims 1/12 Deriving/Combining/Generating Implementation. The Examiner finds that these limitations are surrendered.
First, the Examiner finds that Broad RI Claims 1/12 Deriving/Combining/Generating Implementation does not have the requirement of further deriving third 3D point cloud, from respective laser scan data obtained from one or more LiDAR scanners (“RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud”; emphasis added). And finally, the Examiner finds that Broad RI Claim 1/12 Deriving/Combining/Generating Implementation does not have the requirement of combining a third 3D point clouds with the first 3D point cloud and second 3D point cloud to attain a single 3D point cloud. (“RI Claims 1/12 Surrendered Combining First/Second/Third 3D Point Clouds”; emphasis added).
In addition, the Examiner finds that amended original claims 1 and 12 (“RI Claims 1/12”) of the instant ‘811 Reissue Application recites,
deriving a second 3D point cloud from scan data obtained from one or more scanners at a first location near the complex object;
(“Broad RI Claims 1/12 Deriving Second Point Cloud Implementation”; Sept 2024 Claim Amendment, RI Claims 1/12; emphasis added). The Examiner finds that now patented claims 1 and 12 of the ‘787 Patent (“Patent Claims 1/12”), in part, recites,
deriving a second 3D point cloud from laser scan data obtained from one or more LiDAR scanners at a first location near the complex object;
(“Narrow Patent Claims 1/12 Deriving Second Point Cloud Implementation”; ‘787 Patent, claims 1, 12; emphasis added).
The Examiner finds that the Broad RI Claims 1/12 Second Point Cloud Implementation is broader than the Narrow Patent Claims 1/12 Second Point Cloud Implementation. The Examiner finds that these limitations are surrendered.
The Examiner finds that Broad RI Claims 1/12 Deriving Second Point Cloud Implementation does not have the requirement of deriving a second 3D point cloud from laser scan data obtained from one or more LiDAR scanners (“RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner”; emphasis added).
Claim 25
As set forth infra, the Examiner further finds that claim 25 enlarges the scope of the patent, i.e., a claim which is greater in scope than each and every claim of the original patent.
Specifically, the Examiner finds that new claim 25 (“RI Claim 25”) of the instant ‘811 Reissue Application recites,
deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded;
deriving a second 3D point cloud from (i) laser scan data obtained from one or more LiDAR scanners at a first location near the complex object; or (ii) image data obtained from one or more cameras;
combining the first and second 3D point clouds into a single 3D point cloud; and
generating, from at least the first 3D point cloud, a 3D model of the complex object. |
(“Broad RI Claim 25 Deriving/Combining/Generating Implementation”; Sept 2024 Claim Amendment, RI Claim 25; emphasis added). The Examiner finds that now patented claims 1 and 12 of the ‘787 Patent (“Patent Claims 1/12”), in part, recites,
deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially | or wholly occluded;
deriving a second 3D point cloud from laser scan data obtained from one or more LiDAR scanners at a first location near the complex object;
deriving a third 3D point cloud from laser scan data obtained from the one or more LiDAR scanners at a second location near the complex object;
combining the first, second, and third 3D point clouds into a single 3D point cloud; and
generating a 3D model of the complex object from the single 3D point cloud.
(“Narrow Patent Claims 1/12 Deriving/Combining/Generating Implementation”; ‘787 Patent, claims 1, 12; emphasis added).
The Examiner finds that the Broad RI Claim 25 Deriving/Combining/Generating Implementation is broader than the Narrow Patent Claims 1/12 Deriving/Generating Combining/ Implementation. The Examiner finds that these limitations are surrendered.
First, the Examiner finds that Broad RI Claim 25 Deriving/Combining/Generating Implementation does not have the requirement of deriving a third 3D point cloud from respective laser scan data obtained from one or more LiDAR scanners (“RI Claim 25 Surrendered Deriving Third 3D Point Cloud”; emphasis added). Moreover, the Examiner finds that Broad RI Claim 25 Deriving/Combining/Generating Implementation does not have the requirement of further combining a third 3D point clouds with the first 3D point cloud and second 3D point cloud to attain a single 3D point cloud. (“RI Claim 25 Surrendered Combining First/Second/Third 3D Point Clouds”; emphasis added).
Claim Rejections - 35 USC § 251
New Matter
Claims 1-8, 10-12 and 14-26 are rejected under 35 U.S.C. 251 as being based upon new matter added to the patent for which reissue is sought. The added material which is not supported by the prior patent is as follows:
The Examiner finds that there is insufficient indication in the specification that Applicant had possession of a system for enhanced 3D modeling of a complex object with the claim requirements of claim 22, as set forth above. (See § IX.A.(2) supra for further explanation).
Broadening/Recapture
Claims 1, 2, 7, 11, 12, 14-19, 21-23, 25 and 26 are rejected under 35 U.S.C. 251 as being an improper recapture of broadened claimed subject matter surrendered in the application for the patent upon which the present reissue is based. See Greenliant Systems, Inc. et al v. Xicor LLC, 692 F.3d 1261, 103 USPQ2d 1951 (Fed. Cir. 2012); In re Shahram Mostafazadeh and Joseph O. Smith, 643 F.3d 1353, 98 USPQ2d 1639 (Fed. Cir. 2011); North American Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 75 USPQ2d 1545 (Fed. Cir. 2005); Pannu v. Storz Instruments Inc., 258 F.3d 1366, 59 USPQ2d 1597 (Fed. Cir. 2001); Hester Industries, Inc. v. Stein, Inc., 142 F.3d 1472, 46 USPQ2d 1641 (Fed. Cir. 1998); In re Clement, 131 F.3d 1464, 45 USPQ2d 1161 (Fed. Cir. 1997); Ball Corp. v. United States, 729 F.2d 1429, 1436, 221 USPQ 289, 295 (Fed. Cir. 1984). A broadening aspect is present in the reissue which was not present in the application for patent. The record of the application for the patent shows that the broadening aspect (in the reissue) relates to claimed subject matter that applicant previously surrendered during the prosecution of the application. Accordingly, the narrow scope of the claims in the patent was not an error within the meaning of 35 U.S.C. 251, and the broader scope of claim subject matter surrendered in the application for the patent cannot be recaptured by the filing of the present reissue application.
It is noted that the following is the three step test for determining recapture in reissue applications (see: MPEP 1412.02(I)):
"(1) first, we determine whether, and in what respect, the reissue claims are broader in scope than the original patent claims;
(2) next, we determine whether the broader aspects of the reissue claims relate to subject matter surrendered in the original prosecution; and
(3) finally, we determine whether the reissue claims were materially narrowed in other respects, so that the claims may not have been enlarged, and hence avoid the recapture rule."
(Step 1: MPEP 1412.02(A)) In the instant ‘811 Reissue Application and by way of the Feb 2022 Claim Amendment, Applicant seeks to broaden RI Claims 1, 12 and 25.
RI Claims 1/12:
Thus, as set forth above, the Examiner finds that RI Claims 1 and 12 are broadened at least by deleting/omitting the patent claim language requiring the: 1) RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud; 2) RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner; and 3) RI Claims 1/12 Surrendered Combining First/Second/Third 3D Point Clouds. (See § X.A.(1), supra).
RI Claim 25:
Thus, as set forth above, the Examiner finds that RI Claim 25 is broadened at least by deleting/omitting the patent claim language requiring the: 1) RI Claim 25 Surrendered Deriving Third 3D Point Cloud; and 2) RI Claim 25 Surrendered Combining First/Second/Third 3D Point Clouds. (See § X.A.(2), supra).
(Step 2: MPEP 1412.02(B)) In the ‘073 Application, the Examiner finds that the Office provided a Non-Final Office action to Applicant on 19 April 2019 rejection all claims, including Patent Claim 1 and apparatus claim 14. (“‘073 Application April 2019 NF Action”). The Office and Applicant had an Interview 13 May 2019 specifically focusing on the claim limitations of claims 4 and 10-13 and placing limitations therefrom into the independent claims (i.e., Patent Claim 1/12). (See Interview Summary mailed 31 May 2019 (“‘073 Application May 2019 Int Summary”) and accompanying Agenda Appendix (“‘073 Application May 2019 Int Summary Agenda Appendix”).
In a response filed by Applicant on 19 July 2017 (“‘073 Application July 2019 Response”), Applicant provided an amendment (“‘073 Application July 2019 Claim Amendment”) providing new claim 24 and placing: 1) a 90% overlapping requirement on the captured plurality of images from the UAV; 2) a portion of the complex object being partially or wholly occluded; and 3) amending claims 1 and 14 to incorporate various limitations from claims 3, 4, 15 and 16, and canceling claims 3 and 15. (See ‘073 Application July 2019 Response at 7-9; emphasis added). The Examiner finds that new claim 24 included the claim requirements of: 24-1) capturing a plurality of images from the UAV with a 90% overlapping requirement on the captured plurality of images; 24-2) deriving at first 3D point cloud from the captured a plurality of images; and 24-3) generating a 3D model from the derived 3D point cloud. The Examiner finds that the amendment to claims 1 and 14 regarding item “3)” above is the specific addition of: 1)RI Claims 1/12/25 Surrendered Deriving Third 3D Point Cloud; 2) RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner; and 3) RI Claims 1/12/25 Surrendered Combining First/Second/Third 3D Point Clouds, respectively. Applicant further provided arguments to the prior art of record16 not teaching “capturing a plurality of overlapping images of a complex object from one or more cameras mounted to an unmanned aerial vehicle (UAV), wherein each image of the plurality of overlapping images overlaps one or more respective other images in the plurality of overlapping images by more than 90%” nor “deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded.” (073 Application July 2019 Response at 8-9; emphasis added).
The Examiner finds that the Office provided a Final Office action to Applicant on 29 August 2019 (“‘073 Application Aug 2019 Final Action”) rejecting new claim 24 over Priest (U.S. Publication No. 2017/0024929) (id. at 3-4) and indicating allowable subject in independent claims 1 and 14 (id. at 4). In a response filed by Applicant on 11 October 2019 (“‘073 Application Oct 2019 Response”), Applicant provided an amendment (“‘073 Application Oct 2019 Claim Amendment”) canceling new claim 24.
The Examiner finds that the Office provided a Notice of Allowance to Applicant on 18 November 2019 (“‘073 Application Nov 2019 Allowance”) indicating again that independent claims 1 and 14 were allowable over the prior art of record. The Examiner finds that claim 1 from the ‘073 Application remains Patent Claim 1 and claim 14 from the ‘073 Application is now Patent Claim 12.
In light of the ‘073 Application Oct 2019 Claim Amendment canceling new claim 24 and the 073 Application July 2019 Claim Amendment amending claims 1 and 14 to incorporate various limitations from claims 3, 4, 15 and 16, and canceling claims 3 and 15., the Examiner finds that the limitations of: 1) canceled new claim 24; and 2) the amendment to claims 1 and 14 regarding item “3)” above is the specific addition of: 1)RI Claims 1/12/25 Surrendered Deriving Third 3D Point Cloud; 2) RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner; and 3) RI Claims 1/12/25 Surrendered Combining First/Second/Third 3D Point Clouds, respectively are surrendered subject matter.
RI Claims 1/12:
Accordingly, the Examiner concludes that specific claim limitations (i.e., 1) RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud; 2) RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner; and 3) RI Claims 1/12 Surrendered Combining First/Second/Third 3D Point Clouds) added to claims 1 and 14 by Applicant, in response to the ‘073 Application April 2019 NF Action, are thus surrendered subject matter.
RI Claim 25:
Accordingly, the Examiner concludes that specific claim limitations (i.e., 1) RI Claim 25 Surrendered Deriving Third 3D Point Cloud; and 2) RI Claim 25 Surrendered Combining First/Second/Third 3D Point Clouds added to claims 1 and 14 by Applicant, in response to the ‘073 Application April 2019 NF Action, are thus surrendered subject matter.
Step 3: MPEP 1412.02(C)),
RI Claims 1/12: With respect to the RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud, it is noted that the surrendered subject matter of the RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud has been entirely eliminated from RI Claims 1 and 12. If surrendered subject matter has been entirely eliminated from a claim present in the reissue application, then a recapture rejection under 35 U.S.C. 251 is proper and must be made for that claim. (MPEP § 1412.02(C)).
Thus, improper recapture of broadened claimed subject matter surrendered in the application is clearly present in the instant ‘811 Reissue Application. Claims 2, 7, 11, 14-19 and 21-23 are similarly rejected based on its dependency from RI Claims 1 and 12.
To the degree a reviewing body finds that the RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud has not been entirely eliminated from RI Claims 1 and 12, the following alternative is provide below.
With respect to the RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud, the Examiner finds that the surrendered subject matter of the RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud has not been entirely eliminated from RI Claims 1 and 12 in the instant ‘811 Reissue Application, but rather it has been made less restrictive in the reissue application claims. If the surrendered subject matter limitation is modified but not eliminated, the claims must be materially narrowed relative to the surrendered subject matter such that the surrendered subject matter is not entirely or substantially recaptured. The Examiner finds that this is not the case. The Examiner finds that the RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud has not been materially narrowed relative to the surrendered subject matter. However, on the other hand, if the retained portion of the modified limitation is “well known in the prior art,” impermissible recapture has not been avoided. (See MPEP § 1412.02 (I)(C)). In the instant ‘811 Reissue Application, the Examiner finds that the Broad RI Claims 1/12 Deriving/Combining/Generating Implementation are new limitations that have been retained. The Examiner finds that the Broad RI Claims 1/12 Deriving/Combining/Generating Implementation limitation is well known in the prior art.17
Thus, improper recapture of broadened claimed subject matter surrendered in the application is clearly present in the instant ‘181 Reissue Application. Claims 2, 7, 11, 14-19 and 21-23 are similarly rejected based on its dependency from RI Claims 1 and 12.
With respect to the RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner, the Examiner finds that the surrendered subject matter of the RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner has not been entirely eliminated from RI Claims 1 and 12 in the instant ‘811 Reissue Application, but rather it has been made less restrictive in the reissue application claims. If the surrendered subject matter limitation is modified but not eliminated, the claims must be materially narrowed relative to the surrendered subject matter such that the surrendered subject matter is not entirely or substantially recaptured. The Examiner finds that this is not the case. The Examiner finds that the RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner has not been materially narrowed relative to the surrendered subject matter. However, on the other hand, if the retained portion of the modified limitation is “well known in the prior art,” impermissible recapture has not been avoided. (See MPEP § 1412.02 (I)(C)). In the instant ‘811 Reissue Application, the Examiner finds that the Broad RI Claims 1/12 Deriving Second Point Cloud Implementation are new limitations that have been retained. The Examiner finds that the Broad RI Claims 1/12 Deriving Second Point Cloud Implementation limitation is well known in the prior art.18
Thus, improper recapture of broadened claimed subject matter surrendered in the application is clearly present in the instant ‘181 Reissue Application. Claims 2, 7, 11, 14-19 and 21-23 are similarly rejected based on its dependency from RI Claims 1 and 12.
With respect to the RI Claims 1/12 Surrendered Combining First/Second/Third 3D Point Clouds, the Examiner finds that the surrendered subject matter of the RI Claims 1/12 Surrendered Combining First/Second/Third 3D Point Clouds has not been entirely eliminated from RI Claims 1 and 12 in the instant ‘811 Reissue Application, but rather it has been made less restrictive in the reissue application claims. If the surrendered subject matter limitation is modified but not eliminated, the claims must be materially narrowed relative to the surrendered subject matter such that the surrendered subject matter is not entirely or substantially recaptured. The Examiner finds that this is not the case. The Examiner finds that the RI Claims 1/12 Surrendered Combining First/Second/Third 3D Point Clouds has not been materially narrowed relative to the surrendered subject matter. However, on the other hand, if the retained portion of the modified limitation is “well known in the prior art,” impermissible recapture has not been avoided. (See MPEP § 1412.02 (I)(C)). In the instant ‘811 Reissue Application, the Examiner finds that the Broad RI Claims 1/12 Deriving/Combining/Generating Implementation are new limitations that have been retained. The Examiner finds that the Broad RI Claims 1/12 Deriving/Combining/Generating Implementation limitation is well known in the prior art.19
Thus, improper recapture of broadened claimed subject matter surrendered in the application is clearly present in the instant ‘181 Reissue Application. Claims 2, 7, 11, 14-19 and 21-23 are similarly rejected based on its dependency from RI Claims 1 and 12.
RI Claim 25: With respect to the RI Claim 25 Surrendered Deriving Third 3D Point Cloud, it is noted that the surrendered subject matter of the RI Claim 25 Surrendered Deriving Third 3D Point Cloud, has been entirely eliminated from RI Claim 25. If surrendered subject matter has been entirely eliminated from a claim present in the reissue application, then a recapture rejection under 35 U.S.C. 251 is proper and must be made for that claim. (MPEP § 1412.02(C)).
Thus, improper recapture of broadened claimed subject matter surrendered in the application is clearly present in the instant ‘811 Reissue Application. Claim 26 is similarly rejected based on its dependency from RI Claim 25.
To the degree a reviewing body finds that the RI Claim 25 Surrendered Deriving Third 3D Point Cloud has not been entirely eliminated from RI Claims 1 and 12, the following alternative is provide below.
With respect to the RI Claims 1/12 Surrendered Deriving Third 3D Point Cloud, the Examiner finds that the surrendered subject matter of the RI Claims 25 Surrendered Deriving Third 3D Point Cloud has not been entirely eliminated from RI Claim 25 in the instant ‘811 Reissue Application, but rather it has been made less restrictive in the reissue application claims. If the surrendered subject matter limitation is modified but not eliminated, the claims must be materially narrowed relative to the surrendered subject matter such that the surrendered subject matter is not entirely or substantially recaptured. The Examiner finds that this is not the case. The Examiner finds that the RI Claims 25 Surrendered Deriving Third 3D Point Cloud has not been materially narrowed relative to the surrendered subject matter. However, on the other hand, if the retained portion of the modified limitation is “well known in the prior art,” impermissible recapture has not been avoided. (See MPEP § 1412.02 (I)(C)). In the instant ‘811 Reissue Application, the Examiner finds that the Broad RI Claims 25 Deriving/Combining/Generating Implementation are new limitations that have been retained. The Examiner finds that the Broad RI Claims 25 Deriving/Combining/Generating Implementation limitation is well known in the prior art.20
Thus, improper recapture of broadened claimed subject matter surrendered in the application is clearly present in the instant ‘181 Reissue Application. Claim 26 is similarly rejected based on its dependency from RI Claim 25.
With respect to the RI Claims 25 Surrendered Combining First/Second/Third 3D Point Clouds, the Examiner finds that the surrendered subject matter of the RI Claims 25 Surrendered Combining First/Second/Third 3D Point Clouds has not been entirely eliminated from RI Claims 25 in the instant ‘811 Reissue Application, but rather it has been made less restrictive in the reissue application claims. If the surrendered subject matter limitation is modified but not eliminated, the claims must be materially narrowed relative to the surrendered subject matter such that the surrendered subject matter is not entirely or substantially recaptured. The Examiner finds that this is not the case. The Examiner finds that the RI Claims 25 Surrendered Combining First/Second/Third 3D Point Clouds has not been materially narrowed relative to the surrendered subject matter. However, on the other hand, if the retained portion of the modified limitation is “well known in the prior art,” impermissible recapture has not been avoided. (See MPEP § 1412.02 (I)(C)). In the instant ‘811 Reissue Application, the Examiner finds that the Broad RI Claims 25 Deriving/Combining/Generating Implementation are new limitations that have been retained. The Examiner finds that the Broad RI Claims 25 Deriving/Combining/Generating Implementation limitation is well known in the prior art.21
Thus, improper recapture of broadened claimed subject matter surrendered in the application is clearly present in the instant ‘181 Reissue Application. Claim 26 is similarly rejected based on its dependency from RI Claim 25.
Original Patent Requirement
Claims 1-8, 10-12 and 14-26 are rejected under 35 U.S.C. 251 as being in violation of the original patent requirement.
Section 251 requires that reissue is for “the invention disclosed in the original patent.” In order to satisfy the original patent requirement, “[i]t must appear from the face of the instrument that what is covered by the reissue was intended to have been covered and secured by the original.” U.S. Indus. Chems., Inc. v. Carbide & Carbon Chems. Corp., 315 U.S. 668, 676 (1942)(“Indus Chems”). Furthermore, “it is not enough that an invention might have been claimed in the original patent because it was suggested or indicated in the specification.” Id. In other words, the original patent “must clearly and unequivocally disclose the newly claimed invention as a separate invention.” Antares Pharma, Inc. v. Medac Pharma Inc., 771 F.3d 1354, 1362 (Fed. Cir. 2014) (“Antares”).
In the instant case, it does not appear from the face of the original patent that Applicant intended to cover a system, nor a method, for enhanced 3D modeling of a complex object without 1) deriving a second 3D point cloud from laser scan data obtained from one or more LiDAR scanners at a first location near the complex object; 22 and 2) deriving a second 3D point cloud from image data obtained from the one or more cameras. 23
The Technical Problem first makes clear that the invention is drawn to a system and method for 3D modeling in order to remotely and accurately generate a 3D model of a complex object. (‘787 Patent at c.1, ll.40-46). The Examiner finds that the problem is solved “through the use of laser scan data and a plurality of overlapping images taken of the complex object” with a LIDAR device being utilized to obtain the laser scan data (Id. at Abstract; c.1, ll.40-49; also see c.2, ll.1-16, 29-60). It is readily apparent that the entire point of the ‘787 Patent was to solve a problem of providing a system and method for remotely and accurately generating a 3D model of a complex object that minimizes or eliminates manual inspection. (Id. at c.1, ll.33-26, 40-46). The claims as filed and during prosecution were always drawn to a system and a method for enhanced 3D modeling of a complex object comprising multiple elements, including: the ability to derive one or more 3D point clouds from laser scan data obtained from one or more LiDAR scanners at respective locations near the complex object. (Id. at Abstract; c.1, ll.40-49; c.2, ll.1-8; 29-37, 45-53; c.3, ll.14-20; c.4, l.14 – c.5, l.2; c.6, ll.12-29; c.7, ll.35-40; c.8, ll.11-56; see Figures 1, 2A-2C, 4).
This situation is also somewhat analogous to the Federal Circuit decision in Antares. In Antares, the original patent claims were drawn to various embodiments of a jet injection device that specify, for example, the exact depth the needle assist plunges to, the force at which the medicant is expelled, and the gauge of the needle. (Antares at 1356). In reissue, patentee broadened the claims to cover embodiments of injection devices with particular combinations of safety features. (Id.) The Federal Circuit determined that the new claims did not comply with the original patent requirement of section § 251 because the face of the patent (i.e., via the abstract, summary of invention, specification and all disclosed embodiments) provides “‘suggest[ions]’ or ‘indicat[ions]’ of alternative inventions [that] are not sufficient to satisfy the original patent requirement of § 251.” (Id. at 1363). The Court concluded that the specification did not clearly and unequivocally disclose the particular combinations of safety features claimed on reissue, separate from the jet injection invention, thus, the original patent requirement was violated by broadening the claims to the separate invention. (Id.) Similarly, the patent here does not clearly and unequivocally disclose any embodiment that includes a system and method for enhanced 3D modeling of a complex object without specifically using laser scan data obtained from one or more LiDAR scanners at locations near the complex object to derive 3D point clouds. To support the Examiner’s position, while the ‘787 Patent does provide simple statements/disclosure to: 1) deriving one or more 3D point clouds from scan data obtained from one or more scanners at respective locations near the complex object (‘787 Patent at c.1, 57-64; c.2, ll.17-25); and 2) other scanners being utilized to derive 3D point clouds (id. at c.7, ll.58-67; c.10, ll.55-59), the Examiner finds these statements are no more than mere suggestions and/or indications of a claimed invention and not a fully described invention, in order to satisfy the original patent requirement of § 251 (i.e., “it is not enough that an invention might have been claimed in the original patent because it was suggested or indicated in the specification; Indus Chems at 676). Thus, to broaden the claims to permit such an embodiment runs afoul of the original patent requirement.
Claims 2-8, 10, 11, 14-24 and 26 are similarly rejected based on their dependency from independent claims 1, 12 and 25, respectively.
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 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, 2, 11, 12, 14, 15 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Priest (U.S. Publication No. 2017/0024929) in view of Ohhashi (U.S. Patent No. 11,428,527).
With respect to the limitations of claim 1, and
[a] method comprising:
capturing a plurality of overlapping images of a complex object from one or more cameras mounted to an unmanned aerial vehicle (UAV), wherein each image of the plurality of overlapping images overlaps one or more respective other images in the plurality of overlapping images by more than 90%,
In this regard, the Examiner finds that Priest discloses systems and methods using an Unmanned Aerial Vehicle (“UAV”) to capture a plurality of images of cell sites and generate a 3D model from the captured imaging data. (Priest at Title; ¶¶ 0031, 0033, 0129-0130, 0133, 0136-0139, 0236-0238, 0241-0243; see Figures 17, 19, 48, 49). Specifically, the Examiner finds that Priest discloses capturing a plurality of overlapping images in which the image overlap is at least 75% with another captured photograph. (Id. at ¶ 0241).
deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded;
In this regard, the Examiner finds that Priest discloses the 3D model process including deriving 3D point cloud data from various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0237-0238; see Figures 48, 49). Moreover, in examination of the flight path disclosed in Figure 14 and images captured by the UAV in Figure 17, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images having sections that are inherently partially or occluded. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17).
In addition, the Examiner finds that Priest discloses the 3D model process generating a 3D model from the derived 3D point cloud data. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; 0237-0238; see Figures 14, 17-19).
deriving a second 3D point cloud from scan data obtained from one or more scanners at a first location near the complex object; and
combining the first and second 3D point clouds into a single 3D point cloud; and
generating the 3D model of the complex object from the single 3D point cloud.
The Examiner finds that Priest discloses the limitations, as set forth above, except for specifically calling for, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from scan data obtained from a scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model.
However, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from scan data obtained from a scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model is known in the art. The Examiner finds that Ohhashi, for example, teaches a system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4). The Examiner finds that Ohhashi teaches the merging of multiple terrain model data to form a single terrain model data of the wide-area observation object 12. (Id. at c.5, ll.50-54; c.16, ll.60-65). The Examiner finds that Ohhashi teaches the terrain model data being 3D point cloud data. (Id. at c.17, ll.8-16).
The Examiner finds that it would have been obvious to one of ordinary skill in the art at the time of the invention was made to incorporate, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from scan data obtained from a scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, as described by Ohhashi, in the system and method of Priest.
A person of ordinary skill in the art would be motivated to incorporate, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from scan data obtained from a scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, since it provides a mechanism to generate a complete 3D point data cloud from either 1) a plurality of regions of the an entire wide-area observation object; or 2) from a plurality of perspectives of the an entire wide-area observation object. (Id. at c.16, l.60- c.17, l.4). In other words, such a modification would have provided a system and method that effectively provides a complete representation of positional information of the terrain, thereby increasing the operational efficiency of the system and method.
To the degree a reviewing body finds that it is not inherent that Ohhashi teaches combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud, the following alternative to this feature is provided as set forth below:
As set forth above, Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4). The Examiner finds that Ohhashi teaches the merging of multiple terrain model data to form a single terrain model data of the wide-area observation object 12. (Id. at c.5, ll.50-54; c.16, ll.60-65).
The Examiner finds that it would have been obvious to one of ordinary skill in the art at the time of the invention was made to combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, as described by Ohhashi, in the system and method of Priest.
From this perspective, this combination of references satisfies at least rationale E identified by the Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007): “ ‘Obvious to try’ – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success.” The elements of the Graham factual inquiry for supporting a finding of obviousness based on this rationale are provided below:
(1) A finding that at the time of the invention, there had been a recognized problem or need of generating a single merged 3D point cloud from a plurality of three-dimensional measurement device 3D point clouds, as described in Ohhashi, in order to generate a complete 3D point data cloud from either 1) a plurality of regions of the an entire wide-area observation object; or 2) from a plurality of perspectives of the an entire wide-area observation object.
(2) A finding that Ohhashi provides a finite number of identified, predictable potential solutions of generating terrain model data (i.e., 1) only by UAV; 2) only by three-dimensional measurement devices; or 3) by both Methods 1) and 2)).
(3) A finding that one of ordinary skill in the art could have pursued the known potential solutions with a reasonable expectation of success. Here, since Ohhashi explicitly teaches the utilization of both the UAV and three-dimensional measurement devices to generate separate 3D point clouds, Ohhashi teaches that one of ordinary skill in the art could have pursued the known potential solutions (i.e., combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud) with a reasonable expectation of success (i.e., Obvious to try).
From this perspective, the Examiner asserts choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success is obvious to one of ordinary skill in the art. That is, as set forth above, one of ordinary skill in the art could have pursued the known potential solutions (i.e., combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud) with a reasonable expectation of success (i.e., Obvious to try).
Thus, the rationale to support a conclusion that the claim would have been obvious is that “a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103.” KSR, 550 U.S. at 421, 82 USPQ2d at 1397.
With respect to the limitations of claim 2, Priest and Ohhashi teaches and/or renders obvious
wherein the first portion is the entire complex object.
As set forth above, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17).
With respect to the limitations of claim 11, Priest and Ohhashi teaches and/or renders obvious
wherein the plurality of images are captured from the perspective of an UAV in flight.
As set forth above, the Examiner finds that Priest discloses the capturing of the plurality of overlapping images being performed by a UAV in flight. (Id. at Title; ¶¶ 0031, 0033, 0129-0130, 0133, 0136-0139, 0236-0238, 0241-0243; see Figures 17, 19, 48, 49; emphasis at Figures 14 and 49).
With respect to the limitations of claim 17, Priest and Ohhashi teaches and/or renders obvious
wherein the plurality of overlapping images include images captured at two or more elevations.
As set forth above, the Examiner finds that Priest discloses the capturing of the plurality of overlapping images being performed by a UAV in flight at several different elevations. (Id.)
With respect to the limitations of claim 12, and
[a] system comprising:
one or more computing devices having one or more processors;
and memory storing instructions executable by the one or more processors, wherein the instructions comprise:
receiving a plurality of overlapping images of a complex object from one or more cameras mounted to an unmanned aerial vehicle (UAV), wherein each image of the plurality of overlapping images overlaps one or more respective other images in the plurality of overlapping images by more than 90%
As set forth supra, the Examiner finds that Functional Phrase 1 does not invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(1) supra). In this regard, the Examiner finds that Priest discloses a system comprising a mobile device 100 which includes a processor 102 and memory 110, in which the memory includes software programs having executable instructions to perform the logical functions of the system. (Id. at ¶¶ 0081-0086; see Figures 4, 5). Specifically, the Examiner finds that Priest discloses systems and methods using an Unmanned Aerial Vehicle (“UAV”) to capture a plurality of images of cell sites and generate a 3D model from the captured imaging data. (Priest at Title; ¶¶ 0031, 0033, 0129-0130, 0133, 0136-0139, 0236-0238, 0241-0243; see Figures 17, 19, 48, 49). The Examiner finds that Priest discloses capturing a plurality of overlapping images in which the image overlap is at least 75% with another captured photograph. (Id. at ¶ 0241).
deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded;
As set forth supra, the Examiner finds that Functional Phrase 2 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(2) supra). In addition, the Examiner finds that Functional Phrase 2 as recited in claim 12 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of photogrammetry software which accepts a plurality of overlapping images and produces 3D point cloud data, or its equivalent.
From this perspective, the Examiner finds that Priest discloses a system comprising a mobile device 100 which includes a processor 102 and memory 110, in which the memory includes software programs having executable instructions to perform the logical functions of the system. (Priest at ¶¶ 0081-0086; see Figures 4, 5). Moreover, the Examiner finds that Priest discloses the 3D model process including instructions to derive 3D point cloud data from various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0237-0238; see Figures 48, 49). Moreover, in examination of the flight path disclosed in Figure 14 and images captured by the UAV in Figure 17, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images having sections that are inherently partially or occluded. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17).
In addition, as set forth supra, the Examiner finds that Functional Phrase 3 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(3) supra). In addition, the Examiner finds that Functional Phrase 3 as recited in claim 12 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts a 3D point cloud and generates 3D model, or its equivalent.
From this perspective, the Examiner finds that Priest discloses a system comprising a mobile device 100 which includes a processor 102 and memory 110, in which the memory includes software programs having executable instructions to perform the logical functions of the system. (Id. at ¶¶ 0081-0086; see Figures 4, 5). Moreover, the Examiner finds that Priest discloses the 3D model process generating a 3D model from the derived 3D point cloud data. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; 0237-0238; see Figures 14, 17-19).
deriving a second 3D point cloud from scan data obtained from one or more scanners at a first location near the complex object;
combining the first and second 3D point clouds into a single 3D point cloud; and
generating the 3D model of the complex object from the single 3D point cloud
As set forth supra, the Examiner finds that Functional Phrase 4 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(4) supra). In addition, the Examiner finds that Functional Phrase 4 as recited in claims 21 and 24 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts laser scan data and derives 3D point cloud data therefrom, or its equivalent.
As set forth supra, the Examiner finds that Functional Phrase 5 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(5) supra). In addition, the Examiner finds that Functional Phrase 5 as recited in claims 21 and 24 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts a 3D point clouds and combines them to form a single and newly combined 3D point cloud, or its equivalent.
As set forth supra, the Examiner finds that Functional Phrase 3 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(3) supra). In addition, the Examiner finds that Functional Phrase 3 as recited in claims 12, 21 and 24 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts a 3D point cloud and generates 3D model, or its equivalent.
From this perspective, the Examiner finds that Priest discloses the limitations, as set forth above, except for specifically calling for, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model.
However, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model is known in the art. In this regard, the Examiner finds that Ohhashi, for example, teaches a system comprising a processor and memory, in which the memory includes software programs having executable instructions to perform the logical functions of the system. (Ohhashi at claim 18; see Figure 1). The Examiner finds that Ohhashi teaches the system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4). The Examiner finds that Ohhashi teaches the merging of multiple terrain model data to form a single terrain model data of the wide-area observation object 12. (Id. at c.5, ll.50-54; c.16, ll.60-65). The Examiner finds that Ohhashi teaches the terrain model data being 3D point cloud data. (Id. at c.17, ll.8-16).
The Examiner finds that it would have been obvious to one of ordinary skill in the art at the time of the invention was made to incorporate, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, as described by Ohhashi, in the system and method of Priest.
A person of ordinary skill in the art would be motivated to incorporate, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, since it provides a mechanism to generate a complete 3D point data cloud from either 1) a plurality of regions of the an entire wide-area observation object; or 2) from a plurality of perspectives of the an entire wide-area observation object. (Id. at c.16, l.60- c.17, l.4). In other words, such a modification would have provided a system and method that effectively provides a complete representation of positional information of the terrain, thereby increasing the operational efficiency of the system and method.
To the degree a reviewing body finds that it is not inherent that Ohhashi teaches combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud, the following alternative to this feature is provided as set forth below:
As set forth above, Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4). The Examiner finds that Ohhashi teaches the merging of multiple terrain model data to form a single terrain model data of the wide-area observation object 12. (Id. at c.5, ll.50-54; c.16, ll.60-65).
The Examiner finds that it would have been obvious to one of ordinary skill in the art at the time of the invention was made to combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, as described by Ohhashi, in the system and method of Priest.
From this perspective, this combination of references satisfies at least rationale E identified by the Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007): “ ‘Obvious to try’ – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success.” The elements of the Graham factual inquiry for supporting a finding of obviousness based on this rationale are provided below:
(1) A finding that at the time of the invention, there had been a recognized problem or need of generating a single merged 3D point cloud from a plurality of three-dimensional measurement device 3D point clouds, as described in Ohhashi, in order to generate a complete 3D point data cloud from either 1) a plurality of regions of the an entire wide-area observation object; or 2) from a plurality of perspectives of the an entire wide-area observation object.
(2) A finding that Ohhashi provides a finite number of identified, predictable potential solutions of generating terrain model data (i.e., 1) only by UAV; 2) only by three-dimensional measurement devices; or 3) by both Methods 1) and 2)).
(3) A finding that one of ordinary skill in the art could have pursued the known potential solutions with a reasonable expectation of success. Here, since Ohhashi explicitly teaches the utilization of both the UAV and three-dimensional measurement devices to generate separate 3D point clouds, Ohhashi teaches that one of ordinary skill in the art could have pursued the known potential solutions (i.e., combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud) with a reasonable expectation of success (i.e., Obvious to try).
From this perspective, the Examiner asserts choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success is obvious to one of ordinary skill in the art. That is, as set forth above, one of ordinary skill in the art could have pursued the known potential solutions (i.e., combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud) with a reasonable expectation of success (i.e., Obvious to try).
Thus, the rationale to support a conclusion that the claim would have been obvious is that “a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103.” KSR, 550 U.S. at 421, 82 USPQ2d at 1397.
With respect to the limitations of claims 14, 15 and 19, Priest and Ohhashi teaches and/or renders obvious
the complex object is a cell tower (claim 14);
the first portion of the complex object is an upper portion of the cell tower and the section includes at least one antenna cluster. (claim 15); and
wherein the first portion is the entire complex object (claim 19);
As set forth above, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17).
With respect to the limitations of claim 18, Priest and Ohhashi teaches and/or renders obvious
wherein the plurality of overlapping images include images captured at two or more elevations.
As set forth above, the Examiner finds that Priest discloses the capturing of the plurality of overlapping images being performed by a UAV in flight at several different elevations. (Id. at Title; ¶¶ 0031, 0033, 0129-0130, 0133, 0136-0139, 0236-0238, 0241-0243; see Figures 17, 19, 48, 49; emphasis at Figures 14 and 49).
Claims 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Priest (U.S. Publication No. 2017/0024929) in view of Ohhashi (U.S. Patent No. 11,428,527) as applied to claims 1, 2, 11, 12, 14, 15 and 17-19 above, and in further view of Engstrom (U.S. Publication No. 2011/01910213).
With respect to the limitations of claims 7 and 16 and
wherein the complex object is one or more of a putting green, a fairway, and tee box:
The Examiner finds that Priest and Ohhashi discloses the limitations, as set forth above, except for specifically calling for the complex object, which is captured and analyzed by the system and method to produce a 3D model, being one or more of a putting green, a fairway, and tee box.
However, a complex object, which is captured and analyzed by a system and method to produce a 3D model, being one or more of a putting green, a fairway, and tee box is known in the art. The Examiner finds that Engstrom, for example, teaches capturing, via a UAV, a plurality of overlapping images, which include a putting green, a fairway, and tee box, and analyzing the image data to produce a 3D model. (Engstrom at Abstract; ¶¶ 0009-0012, 0026, 0028; see Figure 1).
The Examiner finds that it would have been obvious to one of ordinary skill in the art at the time of the invention was made to incorporate a complex object, which is captured and analyzed by the system and method to produce a 3D model, being one or more of a putting green, a fairway, and tee box, as described by Engstrom, in the system and method of Priest.
A person of ordinary skill in the art would be motivated to incorporate a complex object, which is captured and analyzed by the system and method to produce a 3D model, being one or more of a putting green, a fairway, and tee box, since it provides a mechanism to apply the application and functionality of 3D modeling to golf course structures for a more accurate representation and presentation of golf course topography in order to effectively and more robustly navigate a golf course. (Id. at Abstract; ¶¶ 0003, 0007-0009). In other words, such a modification would have provided a system and method that effectively compensates for deficiencies of traditional golf navigation strategies, thereby increasing the operational efficiency of the system and method.
Claims 3-6, 8, 10 and 20-26 are rejected under 35 U.S.C. 103 as being unpatentable over Priest (U.S. Publication No. 2017/0024929) in view of Ohhashi (U.S. Patent No. 11,428,527) as applied to claims 1, 2, 11, 12, 14, 15 and 17-19 above, and in further view of Robert et al. (U.S. Publication No. 2017/0193693)(“Robert”).
With respect to the limitations of claims 20, 3 and 23, and
deriving a third 3D point cloud from laser scan data obtained from the one or more LIDAR scanners at a second location near the complex object;
combining the first, second, and third 3D point clouds into the single 3D point cloud; and
generating the 3D model of the complex object from the single 3D point cloud (claim 20);
deriving a fourth 3D point cloud from laser scan data obtained from the one or more LiDAR scanners at a third location near the complex object,
wherein combining the first, second, and third 3D point clouds into the single 3D point cloud includes combining the first, second, third, and fourth 3D point clouds into the single 3D point cloud (claim 3); and
wherein generating the 3D model of the complex object comprises:
deriving one or more 3D point clouds from laser scan data obtained from one or more LiDAR scanners at respective locations near the complex object;
combining the first 3D point clouds and the one or more 3D point clouds into a single 3D point cloud; and
generating the 3D model from the single 3D point cloud from the single 3D point cloud (claim 23)
As set forth supra, the Examiner finds that Functional Phrase 4 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(4) supra). In addition, the Examiner finds that Functional Phrase 4 as recited in claims 3, 20 and 23 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts laser scan data and derives 3D point cloud data therefrom, or its equivalent.
As set forth supra, the Examiner finds that Functional Phrase 5 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(5) supra). In addition, the Examiner finds that Functional Phrase 5 as recited in claims 3, 20 and 23 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts a 3D point clouds and combines them to form a single and newly combined 3D point cloud, or its equivalent.
As set forth supra, the Examiner finds that Functional Phrase 3 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(3) supra). In addition, the Examiner finds that Functional Phrase 3 as recited in claims 20 and 23 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts a 3D point cloud and generates 3D model, or its equivalent.
From this perspective, the Examiner finds that Priest discloses the 3D model process including deriving 3D point cloud data from various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0237-0238; see Figures 48, 49). Moreover, in examination of the flight path disclosed in Figure 14 and images captured by the UAV in Figure 17, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images having sections that are inherently partially or occluded. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17). In addition, the Examiner finds that Priest discloses the 3D model process generating a 3D model from the derived 3D point cloud data. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; 0237-0238; see Figures 14, 17-19).
Moreover, Ohhashi teaches a system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4). The Examiner finds that Ohhashi teaches the merging of multiple terrain model data to form a single terrain model data of the wide-area observation object 12. (Id. at c.5, ll.50-54; c.16, ll.60-65). The Examiner finds that Ohhashi teaches the terrain model data being 3D point cloud data. (Id. at c.17, ll.8-16).
As set forth above, the Examiner finds that Ohhashi teaches and/or renders obvious utilizing, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model. (See §§ XII.A.(3)-(5), supra).
While Priest and Ohhashi discloses the limitations, as set forth above, Priest and Ohhashi is silent to specifically calling for the three-dimensional measurement devices being LiDAR scanners.
However, utilizing a LiDAR scanners as a three-dimensional measurement devices is known in the art. The Examiner finds that Robert, for example, teaches a 3D modeling system and method utilizing a UAV and 3D measurement device sensor in which the 3D measurement device sensor is a LiDAR scanner (Robert at ¶¶ 0025, 0027, 0060; see Figures 1, 6).
The Examiner finds that it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the three-dimensional measurement devices being LiDAR scanners as described in Robert in the system and method of Priest and Ohhashi.
A person of ordinary skill in the art would be motivated to provide the one or more quality features comprising contrast information, since it provides a mechanism to utilize a conventional off-the-shelf and well-recognized apparatus and method for obtaining 3D measurement data. In other words, such a modification would increase the standardization, thereby inherently increasing the operational efficiency.
With respect to the limitations of claim 4, Priest, Ohhashi and Robert teaches and/or renders obvious
wherein the second 3D point cloud, the third 3D point cloud, and the fourth 3D point cloud are respectively captured from one or more ground-based perspectives.
In this regard, Ohhashi teaches generating terrain model data utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4).
The Examiner finds that it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the second 3D point cloud, the third 3D point cloud, and the fourth 3D point cloud being respectively captured from one or more ground-based perspectives as described in Ohhashi to the system and method of Priest, Ohhashi and Robert.
A person of ordinary skill in the art would be motivated to incorporate the second 3D point cloud, the third 3D point cloud, and the fourth 3D point cloud being respectively captured from one or more ground-based perspectives, since it provides a mechanism to generate a complete 3D point data cloud from either 1) a plurality of regions of the an entire wide-area observation object; or 2) from a plurality of perspectives of the an entire wide-area observation object. (Id. at c.16, l.60- c.17, l.4). In other words, such a modification would have provided a system and method that effectively provides a complete representation of positional information of the terrain, thereby increasing the operational efficiency of the system and method.
With respect to the limitations of claims 5, 6 and 8, Priest, Ohhashi and Robert teaches and/or renders obvious
the complex object is a cell tower (claim 5);
the first portion of the complex object is an upper portion of the cell tower and the section includes at least one antenna cluster (claim 6); and
wherein the first portion of the complex object is a lower portion of complex object (claim 8);
In this regard, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Priest at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17).
With respect to the limitations of claim 10, Priest, Ohhashi and Robert teaches and/or renders obvious
wherein the first portion is partially or wholly occluded from at least one of the one or more ground-based perspectives.
In this regard, the Examiner finds that Priest discloses the 3D model process including deriving 3D point cloud data from various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0237-0238; see Figures 48, 49). Moreover, in examination of the flight path disclosed in Figure 14 and images captured by the UAV in Figure 17, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images having sections that are inherently partially or occluded. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17).
Moreover, Ohhashi teaches a system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4).
As set forth above, the Examiner finds that Ohhashi teaches and/or renders obvious utilizing, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model. (See §§ XII.C.(1)-(6), supra).
From this perspective, the Examiner finds that the various portions of complex elements at cell sites provided by three-dimensional measurement devices having sections that are inherently partially or occluded.
With respect to the limitations of claims 21 and 24, and
wherein generating the 3D model of the complex object further comprises:
deriving one or more 3D point clouds from laser scan data obtained from one or more LiDAR scanners at respective locations near the complex object;
combining the first 3D point cloud and the one or more 3D point clouds into a single 3D point cloud; and
generating the 3D model from the single 3D point cloud (claim 21); and
wherein generating the 3D model further comprises:
deriving a third 3D point cloud from laser scan data obtained from the one or more LIDAR scanners at a second location near the complex object;
combining the first, second, and third 3D point clouds into a single 3D point cloud; and
generating the 3D model of the complex object from the single 3D point cloud (claim 24)
As set forth supra, the Examiner finds that Functional Phrase 4 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(4) supra). In addition, the Examiner finds that Functional Phrase 4 as recited in claims 21 and 24 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts laser scan data and derives 3D point cloud data therefrom, or its equivalent.
As set forth supra, the Examiner finds that Functional Phrase 5 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(5) supra). In addition, the Examiner finds that Functional Phrase 5 as recited in claims 21 and 24 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts a 3D point clouds and combines them to form a single and newly combined 3D point cloud, or its equivalent.
As set forth supra, the Examiner finds that Functional Phrase 3 does invoke 35 U.S.C. §112, 6th paragraph. (See § VIII.B.(3) supra). In addition, the Examiner finds that Functional Phrase 3 as recited in claims 12, 21 and 24 is indefinite. (See § IX.B supra). In this light and to advance prosecution by providing art rejections even though this claim is indefinite, the Examiner construes the ‘instructions …’ as instructions, that can be executed by a computer/processing device, comprising: some type of software which accepts a 3D point cloud and generates 3D model, or its equivalent.
From this perspective, the Examiner finds that Priest discloses the 3D model process including deriving 3D point cloud data from various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0237-0238; see Figures 48, 49). Moreover, in examination of the flight path disclosed in Figure 14 and images captured by the UAV in Figure 17, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images having sections that are inherently partially or occluded. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17). In addition, the Examiner finds that Priest discloses the 3D model process generating a 3D model from the derived 3D point cloud data. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; 0237-0238; see Figures 14, 17-19).
Moreover, Ohhashi teaches a system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4). The Examiner finds that Ohhashi teaches the merging of multiple terrain model data to form a single terrain model data of the wide-area observation object 12. (Id. at c.5, ll.50-54; c.16, ll.60-65). The Examiner finds that Ohhashi teaches the terrain model data being 3D point cloud data. (Id. at c.17, ll.8-16).
As set forth above, the Examiner finds that Ohhashi teaches and/or renders obvious utilizing, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model. (See §§ XII.A.(3)-(5), supra).
While Priest and Ohhashi discloses the limitations, as set forth above, Priest and Ohhashi is silent to specifically calling for the three-dimensional measurement devices being LiDAR scanners.
However, utilizing a LiDAR scanners as a three-dimensional measurement devices is known in the art. The Examiner finds that Robert, for example, teaches a 3D modeling system and method utilizing a UAV and 3D measurement device sensor in which the 3D measurement device sensor is a LiDAR scanner (Robert at ¶¶ 0025, 0027, 0060; see Figures 1, 6).
The Examiner finds that it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the three-dimensional measurement devices being LiDAR scanners as described in Robert in the system and method of Priest and Ohhashi.
A person of ordinary skill in the art would be motivated to provide the one or more quality features comprising contrast information, since it provides a mechanism to utilize a conventional off-the-shelf and well-recognized apparatus and method for obtaining 3D measurement data. In other words, such a modification would increase the standardization, thereby inherently increasing the operational efficiency.
With respect to the limitations of claim 22, Priest, Ohhashi and Robert teaches and/or renders obvious
wherein the first 3D point cloud and the second 3D point cloud are captured from one or more ground-based perspectives; and
In this regard, Ohhashi teaches a system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4).
The Examiner finds that it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to the first 3D point cloud and the second 3D point cloud being captured from one or more ground-based perspectives as described in Ohhashi to the system and method of Priest, Ohhashi and Robert.
A person of ordinary skill in the art would be motivated to incorporate the first 3D point cloud, the second 3D point cloud, the third 3D point cloud, and the fourth 3D point cloud being respectively captured from one or more ground-based perspectives, since it provides a mechanism to generate a complete 3D point data cloud from either 1) a plurality of regions of the an entire wide-area observation object; or 2) from a plurality of perspectives of the an entire wide-area observation object. (Id. at c.16, l.60- c.17, l.4). In other words, such a modification would have provided a system and method that effectively provides a complete representation of positional information of the terrain, thereby increasing the operational efficiency of the system and method.
With respect to the limitations of claim 22, Priest, Ohhashi and Robert teaches and/or renders obvious
wherein the first portion is partially or wholly occluded from at least one of the one or more ground-based perspectives.
In this regard, the Examiner finds that Priest discloses the 3D model process including deriving 3D point cloud data from various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0237-0238; see Figures 48, 49). Moreover, in examination of the flight path disclosed in Figure 14 and images captured by the UAV in Figure 17, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images having sections that are inherently partially or occluded. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17).
Moreover, Ohhashi teaches a system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4).
As set forth above, the Examiner finds that Ohhashi teaches and/or renders obvious utilizing, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model,. (See §§ XII.A.(3)-(5), supra).
From this perspective, the Examiner finds that the various portions of complex elements at cell sites provided by three-dimensional measurement devices having sections that are inherently partially or occluded.
With respect to the limitations of claim 25, and
[a] method comprising:
capturing a plurality of overlapping images of a complex object from one or more cameras mounted to an unmanned aerial vehicle (UAV), wherein each image of the plurality of overlapping images overlaps one or more respective other images in the plurality of overlapping images by more than 90%,
In this regard, the Examiner finds that Priest discloses systems and methods using an Unmanned Aerial Vehicle (“UAV”) to capture a plurality of images of cell sites and generate a 3D model from the captured imaging data. (Priest at Title; ¶¶ 0031, 0033, 0129-0130, 0133, 0136-0139, 0236-0238, 0241-0243; see Figures 17, 19, 48, 49). Specifically, the Examiner finds that Priest discloses capturing a plurality of overlapping images in which the image overlap is at least 75% with another captured photograph. (Id. at ¶ 0241).
deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded; and
In this regard, the Examiner finds that Priest discloses the 3D model process including deriving 3D point cloud data from various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0237-0238; see Figures 48, 49). Moreover, in examination of the flight path disclosed in Figure 14 and images captured by the UAV in Figure 17, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images having sections that are inherently partially or occluded. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17).
deriving a second 3D point cloud from (i) laser scan data obtained from one or more LIDAR scanners at a first location near the complex object, or (ii) image data obtained from one or more cameras;
combining the first and second 3D point clouds into a single 3D point cloud; and
generating the 3D model of the complex object from the single 3D point cloud
The Examiner finds that Priest discloses the limitations, as set forth above, except for specifically calling for, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model.
However, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model is known in the art. In this regard, the Examiner finds that Ohhashi, for example, teaches a system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4). The Examiner finds that Ohhashi teaches the merging of multiple terrain model data to form a single terrain model data of the wide-area observation object 12. (Id. at c.5, ll.50-54; c.16, ll.60-65). The Examiner finds that Ohhashi teaches the terrain model data being 3D point cloud data. (Id. at c.17, ll.8-16).
The Examiner finds that it would have been obvious to one of ordinary skill in the art at the time of the invention was made to incorporate, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, as described by Ohhashi, in the system and method of Priest.
A person of ordinary skill in the art would be motivated to incorporate, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, since it provides a mechanism to generate a complete 3D point data cloud from either 1) a plurality of regions of the an entire wide-area observation object; or 2) from a plurality of perspectives of the an entire wide-area observation object. (Id. at c.16, l.60- c.17, l.4). In other words, such a modification would have provided a system and method that effectively provides a complete representation of positional information of the terrain, thereby increasing the operational efficiency of the system and method.
To the degree a reviewing body finds that it is not inherent that Ohhashi teaches combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud, the following alternative to this feature is provided as set forth below:
As set forth above, Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4). The Examiner finds that Ohhashi teaches the merging of multiple terrain model data to form a single terrain model data of the wide-area observation object 12. (Id. at c.5, ll.50-54; c.16, ll.60-65).
The Examiner finds that it would have been obvious to one of ordinary skill in the art at the time of the invention was made to combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, as described by Ohhashi, in the system and method of Priest.
From this perspective, this combination of references satisfies at least rationale E identified by the Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007): “ ‘Obvious to try’ – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success.” The elements of the Graham factual inquiry for supporting a finding of obviousness based on this rationale are provided below:
(1) A finding that at the time of the invention, there had been a recognized problem or need of generating a single merged 3D point cloud from a plurality of three-dimensional measurement device 3D point clouds, as described in Ohhashi, in order to generate a complete 3D point data cloud from either 1) a plurality of regions of the an entire wide-area observation object; or 2) from a plurality of perspectives of the an entire wide-area observation object.
(2) A finding that Ohhashi provides a finite number of identified, predictable potential solutions of generating terrain model data (i.e., 1) only by UAV; 2) only by three-dimensional measurement devices; or 3) by both Methods 1) and 2)).
(3) A finding that one of ordinary skill in the art could have pursued the known potential solutions with a reasonable expectation of success. Here, since Ohhashi explicitly teaches the utilization of both the UAV and three-dimensional measurement devices to generate separate 3D point clouds, Ohhashi teaches that one of ordinary skill in the art could have pursued the known potential solutions (i.e., combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud) with a reasonable expectation of success (i.e., Obvious to try).
From this perspective, the Examiner asserts choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success is obvious to one of ordinary skill in the art. That is, as set forth above, one of ordinary skill in the art could have pursued the known potential solutions (i.e., combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud) with a reasonable expectation of success (i.e., Obvious to try).
Thus, the rationale to support a conclusion that the claim would have been obvious is that “a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103.” KSR, 550 U.S. at 421, 82 USPQ2d at 1397.
Priest and Ohhashi discloses the limitations, as set forth above, except for specifically calling for the three-dimensional measurement devices being LiDAR scanners.
However, utilizing a LiDAR scanners as a three-dimensional measurement devices is known in the art. The Examiner finds that Robert, for example, teaches a 3D modeling system and method utilizing a UAV and 3D measurement device sensor in which the 3D measurement device sensor is a LiDAR scanner (Robert at ¶¶ 0025, 0027, 0060; see Figures 1, 6).
The Examiner finds that it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the three-dimensional measurement devices being LiDAR scanners as described in Robert in the system and method of Priest and Ohhashi.
A person of ordinary skill in the art would be motivated to provide the one or more quality features comprising contrast information, since it provides a mechanism to utilize a conventional off-the-shelf and well-recognized apparatus and method for obtaining 3D measurement data. In other words, such a modification would increase the standardization, thereby inherently increasing the operational efficiency.
With respect to the limitations of claim 26, Priest, Ohhashi and Robert teaches and/or renders obvious
deriving a plurality of 3D point clouds, the 3D point clouds comprising the first and the second 3D point clouds, and one or more 3D point clouds from laser scan data obtained from the one or more LiDAR scanners at one or more locations near the complex object.
As set forth above, Ohhashi teaches a system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). Specifically, the Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4).
In this light, the Examiner finds that it would have been obvious to one of ordinary skill in the art at the time of the invention was made to incorporate, in addition to only deriving a first 3D point cloud from a plurality of overlapping images from a UAV and generating a 3D model from the sole first 3D point cloud, deriving multiple 3D point clouds from laser scan data obtained from a LiDAR scanner at respective multiple locations, combining the 3D first point cloud with the multiple 3D point clouds to form a new combined single 3D point cloud; and using the newly combined 3D point to generate a 3D model, as described by Ohhashi, in the system and method of Priest.24
Moreover, the Examiner finds that Robert, for example, teaches a 3D modeling system and method utilizing a UAV and 3D measurement device sensor in which the 3D measurement device sensor is a LiDAR scanner (Robert at ¶¶ 0025, 0027, 0060; see Figures 1, 6).
The Examiner finds that it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the three-dimensional measurement devices being LiDAR scanners as described in Robert in the system and method of Priest and Ohhashi. 25
Response to Arguments
Oath/Declaration Objection(s)
With respect to the objection to the Oath/Declaration filed by Applicant on 18 February 2022 (“Feb 2022 Oath/Declaration”), the Examiner finds that the Sept 2024 Oath/Declaration filed by Applicant overcomes the objection provided in the April 2024 Non-Final Office Action. (See Sept 2024 Applicant Response at § VI). Thus, the objection to the Feb 2022 Oath/Declaration is withdrawn.
However, while the error statement in the Sept 2024 Oath/Declaration is deemed compliant because it has an error statement which includes at least one error that the instant ‘811 Reissue Application can be based upon (i.e., specifically removal of “deriving a third 3D point cloud from laser scan data obtained from the one or more LiDAR scanners at a second location near the complex object”), the Examiner finds that the inclusion of the error of “combining the first, second, and third 3D point clouds into a single 3D point cloud” is not proper since the claim requirement of “combining the first and second 3D point clouds into a single 3D point cloud” is still broadly present in the claims the instant ‘811 Reissue Application, with the removal “third 3D point cloud” claim requirement, and its combination with the 3D first point cloud and the second 3D point cloud, only.
Claim Objection(s)
With respect to the Claim Objections, the Sept 2024 Applicant Response, including the Sept 2024 Claim Amendment and “Remarks,” has been fully considered and is persuasive. (See Sept 2024 Applicant Response at § VII).
However, based upon both the Sept 2024 Claim Amendment, the Examiner finds that the instant ‘811 Reissue Application still has outstanding Claim Objection issues present. (See § VII, supra).
Claim Interpretation - 35 U.S.C. § 112, Sixth Paragraph, Invocation
Deriving Instructions I, Generating Instructions, Deriving Instructions II and Combining Instructions
Applicant contends that the utilization of “software” (i.e., “photography software” and “Leica’s Cyclone 3D point cloud software”) as described in the specification, would allow a person of ordinary skill in the art to reasonably discern that the term “instructions” is not used as a generic term,” thus, the functional phrases should be construed outside of 35 U.S.C § 112 6th Paragraph. (See Sept 2024 Applicant Response at 11-13, 14-15, 15-16). Specifically, Applicant contends that “instructions” is not a generic placeholder and is supported by sufficient structure for performing the entire claimed function within the functional phrases. (Id.)
The Examiner respectfully disagrees. The Examiner finds that the specification of the ‘787 Patent does not specifically define “instructions” and thus the specification of the ‘787 Patent does not impart or disclose any structure for the phrase. Rather, the Examiner finds that the ‘787 Patent uses this same phrase to describe several instructions. This is evidence by the recitation to “memory storing instruction executable by the one or more processors, wherein the instructions comprise: deriving a first point 3D point cloud…; deriving a second 3D point cloud…; combining the first and second 3D point clouds…; and generating a 3D model.” (Sept 2024 Claim Amendment at claim 12).
While one of ordinary skill in the art would agree that off-the-shelf “instructions” (e.g. an operating system) are structure, the question is not whether these terms are structure but whether these terms are “sufficient structure” as defined by the Federal Circuit. For example, for FP1-FP5, what is clear from the express claimed language is that “instructions” stored within the “memory” (in e.g., claim 12) performs at least five separate functions (see: Functions of FP1-FP5) discussed above. Moreover, in the Prong A analysis performed by the Office in regards to whether Functional Phrases 2-5 (i.e., Deriving Instructions I, Generating Instructions, Deriving Instructions II and Combining Instructions) invoke 35 U.S.C § 112 6th Paragraph, the Examiner found there is no disclosure or suggestion from the prior art that instructions is a sufficient and definite structure to perform the functions recited in FP2-FP5. Specifically, the Examiner cited to prior art (i.e., U.S. Publication No. 2017/0024929 and U.S. Patent No. 11,428,527) illustrating instructions for: utilizing a plurality of overlapping image to derive a first 3D point cloud of a first portion of a complex object; and utilizing the derived first 3D point cloud to generate a 3D model having different instructions (i.e., implemented blocks) and distinct operations from any of the instructions of the ‘787 Patent.
Moreover, it is the Examiner’s position that without the application of 35 U.S.C § 112 6th Paragraph to the Functional Phrases, Applicant would be obtaining a right to exclude others for all ways and methods for performing the Functions of FP2-FP5. For example, without the invocation of § 35 U.S.C § 112 6th Paragraph, FP2 utilizes pure functional language since such claims, as currently drafted, will cover all methods and manner of performing the Functions of FP2. Yet the Federal Circuit is clear that 35 U.S.C § 112 6th Paragraph was promulgated by Congress in order to limit such ‘purely functional language.’ As noted in Greenberg v. Ethicon Endo-Surgery:
As this court has observed, the record is clear on why paragraph six was enacted. In Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3, 71 USPQ 175 (1946), the Supreme Court held invalid a claim that was drafted in means-plus- function fashion. Congress enacted paragraph six, originally paragraph three, to overrule that holding. In place of the Halliburton rule, Congress adopted a compromise solution, one that had support in the pre-Halliburton case law: Congress permitted the use of purely functional language in claims, but it limited the breadth of such claim language by restricting its scope to the structure disclosed in the specification and equivalents thereof. [Emphasis added.]
Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1582 (Fed. Cir. 1996) (select citations and quotations omitted) (“Greenberg”).
This reasoning was again set forth by the Federal Circuit in Aristocrat Techs. Australia PTY Ltd. v. Intl. Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008) (“Aristocrat”), “The point of the requirement that the patentee disclose particular structure in the specification and that the scope of the patent claims be limited to that structure and its equivalents is to avoid pure functional claiming. [Emphasis added.]”
Finally and to use colloquial terms, 35 U.S.C § 112 6th Paragraph is simply shorthand notation for structure. In essence, a claimed functional phrase that invokes 35 U.S.C § 112 6th Paragraph incorporates the “corresponding structure” from the specification into the claim as if it were expressly recited in the claim. If the claimed functional phrase is computer implemented as argued by Applicant, then the “corresponding structure” is an algorithm.26 Thus, a computer implemented functional phrase that invokes 35 U.S.C § 112 6th Paragraph incorporates the “corresponding structure” (i.e. algorithm) into the claim as if the algorithm were expressly recited in the claim.
As noted above, without the application of 35 U.S.C § 112 6th Paragraph, the Functional Phrases 2-5 would amount to pure functional claiming, as set forth by the Federal Circuit in Greenberg and Aristocrat.
In summary, without the application of 35 U.S.C § 112 6th Paragraph, Applicant is simply committing a cardinal sin of claim construction—reading the specification into the claim. See Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002) (noting that “the district court committed a ‘cardinal sin’ of claim construction by importing limitations from the written description into the claims”)(overruled on other grounds).
Thus, the Examiner concludes and maintains that the “instruction” elements, as recited in claims 12, 14-16, 18, 19, 21, 22 and 24, do invoke 35 U.S.C. § 112, sixth paragraph, and will be examined as such.
35 U.S.C. § 112, First Paragraph, Rejections
Written Description
Claims 12, 14-16, 18, 19, 21, 22 and 24
In light of Applicant’s arguments regarding Functional Phrases 2-5 (i.e., Deriving Instructions I, Generating Instructions, Deriving Instructions II and Combining Instructions) not invoke 35 U.S.C § 112 6th Paragraph, Applicant contends that Functional Phrases 2-5 are not indefinite and have sufficient support in the original ‘787 Patent disclosure. (Sept 2024 Applicant Response at 16).
The Examiner respectfully disagrees. The Examiner finds this contention the same as previously set forth by Owner. (April 2024 Applicant Response at 11-13, 14-15, 15-16). Thus, the Examiner finds this argument addressed above. (See § XIII.C.(1), supra).
Moreover, to claim a means for performing a specific computer-implemented function and then to disclose only a general purpose computer as the structure designed to perform that function amounts to pure functional claiming. (Aristocrat at 1333). In such an instance, the structure corresponding to a 35 U.S.C. § 112, sixth paragraph claim limitation for a computer-implemented function must include the algorithm needed to transform the general purpose computer or microprocessor disclosed in the specification. (Aristocrat at 1333; Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008); WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999). The corresponding structure is not simply a general purpose computer by itself but the special purpose computer as programmed to perform the disclosed algorithm. (Aristocrat at 1333).
Thus, the specification must sufficiently disclose an algorithm to transform a general purpose microprocessor to the special purpose computer. (Aristocrat at 1338) (“Aristocrat was not required to produce a listing of source code or a highly detailed description of the algorithm to be used to achieve the claimed functions in order to satisfy 35 U.S.C. § 112 ¶ 6. It was required, however, to at least disclose the algorithm that transforms the general purpose microprocessor to a ‘special purpose computer programmed to perform the disclosed algorithm.’ WMS Gaming, 184 F.3d at 1349.”) An algorithm is defined, for example, as “a finite sequence of steps for solving a logical or mathematical problem or performing a task.”27 Applicant may express the algorithm in any understandable terms including as a mathematical formula, in prose, in a flow chart, or “in any other manner that provides sufficient structure.” Finisar, 523 F.3d at 1340; see also Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1366 (Fed. Cir. 2003); In re Dossel, 115 F.3d 942, 946-47 (Fed. Cir.1997); Typhoon Touch Inc. v. Dell Inc., 659 F.3d 1376, 1385 (Fed. Cir. 2011); In re Aoyama, 656 F.3d 1293, 1306 (Fed. Cir. 2011).
From this perspective, the Examiner recommends that Applicant provide the Office specific/sufficient direction and explanation from the ‘787 Patent disclosure for algorithms being performed by the “instructions” to overcome the 35 U.S.C. § 112, first and second paragraph, rejection above.
Claims 21, 23 and 24
Since the ‘787 Patent discloses “[g]enerat[ing] a 3D model of the cell tower using the single 3D point cloud” at block 460 and combining the various previously derived 3D point clouds at block 450, Applicant contends the “generating a 3D model of a 3D model” is sufficiently described in the ’78 Patent. (Sept 2024 Applicant Response at 17).
The Examiner respectfully disagrees. The Examiner finds that further recited “deriving,” “combining,” and “generating” steps are outside the scope of the recited “generating a 3D model of a 3D model” step. Specifically, the Examiner finds that the claims further recite “deriving,” “combining,” and “generating” steps as being further included in the preceding claim’s “generating” step claim requirement. Since the “deriving” and “combining” steps and are considered to be outside of the scope the “generating” step (see §§ VIII.B.(2)-(5), supra; also see blocks 410-450 preceding block 460), the Examiner finds that providing a “generating” step that further includes recite “deriving,” “combining,” and “generating” steps as not having sufficient support in the ‘787 Patent. (Id.; emphasis on blocks 410-450 preceding block 460 and not being within block 460 itself.
Thus, as such, the Examiner concludes that there is insufficient indication in the specification that Applicant had possession of “wherein generating the 3D model further comprises…” the steps as recited. [Emphasis added].
Claim 25
Applicant contends that amendment to claim 25 with the removal of the claim requirement of “at the first location near the complex object” (emphasis to the one or more cameras not being at that position) overcomes the failed written description requirement. (See Sept 2024 Applicant Response at 17).
The Examiner respectfully agrees. The Examiner finds that the Sept 2024 Applicant Response, including the Sept 2024 Claim Amendment, filed by Applicant does overcome the failed written description rejection provided in the April 2024 Non-Final Office Action. Thus, the rejection under 35 U.S.C. 112(a) is withdrawn.
35 U.S.C. § 112, Second Paragraph, Rejections
Claims 12, 14-16, 18, 19, 21, 22 and 24
In light of Applicant’s arguments regarding Functional Phrases 2-5 (i.e., Deriving Instructions I, Generating Instructions, Deriving Instructions II and Combining Instructions) not invoke 35 U.S.C § 112 6th Paragraph, Applicant contends that Functional Phrases 2-5 are not indefinite and have support in the original ‘787 Patent disclosure. (Sept 2024 Applicant Response at 16).
The Examiner respectfully disagrees. The Examiner finds this contention the same as previously set forth by Owner. (April 2024 Applicant Response at 11-13, 14-15, 15-16). Thus, the Examiner finds this argument addressed above. (See § XIII.C.(1), supra).
Moreover, to claim a means for performing a specific computer-implemented function and then to disclose only a general purpose computer as the structure designed to perform that function amounts to pure functional claiming. (Aristocrat at 1333). In such an instance, the structure corresponding to a 35 U.S.C. § 112, sixth paragraph claim limitation for a computer-implemented function must include the algorithm needed to transform the general purpose computer or microprocessor disclosed in the specification. (Aristocrat at 1333; Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008); WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999). The corresponding structure is not simply a general purpose computer by itself but the special purpose computer as programmed to perform the disclosed algorithm. (Aristocrat at 1333).
Thus, the specification must sufficiently disclose an algorithm to transform a general purpose microprocessor to the special purpose computer. (Aristocrat at 1338) (“Aristocrat was not required to produce a listing of source code or a highly detailed description of the algorithm to be used to achieve the claimed functions in order to satisfy 35 U.S.C. § 112 ¶ 6. It was required, however, to at least disclose the algorithm that transforms the general purpose microprocessor to a ‘special purpose computer programmed to perform the disclosed algorithm.’ WMS Gaming, 184 F.3d at 1349.”) An algorithm is defined, for example, as “a finite sequence of steps for solving a logical or mathematical problem or performing a task.”28 Applicant may express the algorithm in any understandable terms including as a mathematical formula, in prose, in a flow chart, or “in any other manner that provides sufficient structure.” Finisar, 523 F.3d at 1340; see also Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1366 (Fed. Cir. 2003); In re Dossel, 115 F.3d 942, 946-47 (Fed. Cir.1997); Typhoon Touch Inc. v. Dell Inc., 659 F.3d 1376, 1385 (Fed. Cir. 2011); In re Aoyama, 656 F.3d 1293, 1306 (Fed. Cir. 2011).
From this perspective, the Examiner recommends that Applicant provide the Office specific/sufficient direction and explanation from the ‘787 Patent disclosure for algorithms being performed by the “instructions” to overcome the 35 U.S.C. § 112, first and second paragraph, rejection above.
Claims 1-8, 10-12 and 14-24
Applicant contends that amendment to claims 1 and 12 with the removal of the claim requirement of “from at least the first 3D point cloud” (emphasis to the removal of 3D model being generated from the 3D first point cloud alone) overcomes the failure to particularly point out and distinctly claim the subject matter requirement. (See Sept 2024 Applicant Response at 17).
The Examiner respectfully agrees. The Examiner finds that the Sept 2024 Applicant Response, including the Sept 2024 Claim Amendment, filed by Applicant does overcome the failed written description rejection provided in the April 2024 Non-Final Office Action. Thus, the rejection under 35 U.S.C. 112(b) is withdrawn.
The Examiner respectfully agrees. The Examiner finds that the Sept 2024 Applicant Response, including the Sept 2024 Claim Amendment, filed by Applicant does overcome the failure to particularly point out and distinctly claim the subject matter rejection provided in the April 2024 Non-Final Office Action. Thus, the rejection under 35 U.S.C. 112(b) is withdrawn.
Claims 10 and 15
Applicant contends that amendment to claims 10 and 15 overcomes the failure to particularly point out and distinctly claim the subject matter requirement. (See Sept 2024 Applicant Response at 18-19).
The Examiner respectfully agrees. The Examiner finds that the Sept 2024 Applicant Response, including the Sept 2024 Claim Amendment, filed by Applicant does overcome the failure to particularly point out and distinctly claim the subject matter rejection provided in the April 2024 Non-Final Office Action. Thus, the rejection under 35 U.S.C. 112(b) is withdrawn.
Claim 22
Applicant contends that amendment to claim 22 overcomes the failure to particularly point out and distinctly claim the subject matter requirement. (See Sept 2024 Applicant Response at 19).
The Examiner respectfully disagrees. The Examiner finds that the Sept 2024 Applicant Response, including the Sept 2024 Claim Amendment, filed by Applicant does not overcome the failure to particularly point out and distinctly claim the subject matter rejection is still present. (See § IX.B, supra). Thus, the rejection under 35 U.S.C. § 112(b) is maintained. (Id.)
Claims 21, 23 and 24
Since the ‘787 Patent discloses “[g]enerat[ing] a 3D model of the cell tower using the single 3D point cloud” at block 460 and combining the various previously derived 3D point clouds at block 450, Applicant contends the “generating a 3D model of a 3D model” is sufficiently described. (Sept 2024 Applicant Response at 19-20).
The Examiner respectfully disagrees. The Examiner finds this contention the same as previously set forth by Owner. (April 2024 Applicant Response at 17). Thus, the Examiner finds this argument addressed above. (See § XIII.D.(1).(b), supra).
35 U.S.C. § 251 Rejections
Oath/Declaration
With respect to the Oath/Declaration rejection of claims under 35 U.S.C. § 251, the Examiner finds that the Sept 2024 Oath/Declaration filed by Applicant overcomes the rejection provided in the April 2024 Non-Final Office Action. (See Sept 2024 Applicant Response at § VI). Thus, the rejection under 35 U.S.C. § 251 is withdrawn.
However, while the error statement in the Sept 2024 Oath/Declaration is deemed compliant because it has an error statement which includes at least one error that the instant ‘811 Reissue Application can be based upon (i.e., specifically removal of “deriving a third 3D point cloud from laser scan data obtained from the one or more LiDAR scanners at a second location near the complex object”), the Examiner finds that the inclusion of the error of “combining the first, second, and third 3D point clouds into a single 3D point cloud” is not proper since the claim requirement of “combining the first and second 3D point clouds into a single 3D point cloud” is still broadly present in the claims the instant ‘811 Reissue Application, with the removal “third 3D point cloud” claim requirement, and its combination with the 3D first point cloud and the second 3D point cloud, only.
New Matter
With respect to the 35 U.S.C. 112, first paragraph and 35 U.S.C. 251 rejections, the April 2024 Non-Final Office Action inadvertently categorized the “written description” 35 U.S.C. 112, first paragraph, rejection as a 35 U.S.C. 251 “new matter” rejections. (Compare April 2024 Non-Final Office Action at § IX.A.(1) to § XI.B). “new matter” rejection. Thus, the “new matter” rejection under 35 U.S.C. 251 is withdrawn.
However, based upon both the Sept 2024 Claim Amendment, the Examiner finds that the instant ‘811 Reissue Application still has outstanding “new matter” 35 U.S.C. 112, first paragraph and 35 U.S.C. 251 issues present. (See §§ IX.A.(1); XI.A, supra).
Broadening/Recapture
Applicant contends that prosecution history of the ‘073 Application does not support the second step of the three step test for determining recapture in reissue applications. (See Sept 2024 Applicant Response at § X.C). Specifically, since Applicant only provided arguments to the prior art of record29 not teaching “capturing a plurality of overlapping images of a complex object from one or more cameras mounted to an unmanned aerial vehicle (UAV), wherein each image of the plurality of overlapping images overlaps one or more respective other images in the plurality of overlapping images by more than 90%” nor “deriving a first 3D point cloud of a first portion of the complex object from the plurality of overlapping images, wherein at least a section of the first portion of the complex object is partially or wholly occluded,” Applicant contends that the amendment of claims 1 and 14 to incorporate various limitations from claims 3, 4, 15 and 16, and canceling claims 3 and 15 (i.e., 1)RI Claims 1/12/25 Surrendered Deriving Third 3D Point Cloud; 2) RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner; and 3) RI Claims 1/12/25 Surrendered Combining First/Second/Third 3D Point Clouds is not surrender subject matter.
The Examier respectfully disagrees, MPEP § 1412.02 states,
If an original patent claim limitation now being omitted or broadened in the present reissue application was originally relied upon by applicant in the original application to make the claims allowable over the art, the omitted limitation relates to subject matter previously surrendered by applicant. The reliance by applicant to define the original patent claims over the art can be by presentation of new/amended claims to define over the art, or an argument/statement by applicant that a limitation of the claim(s) defines over the art. To determine whether such reliance occurred, the examiner must review the prosecution history of the original application (of the patent to be reissued and any related application(s)) for surrender of claimed subject matter which may result in recapture. The prosecution history includes the rejections and applicant’s arguments made therein.
With respect to whether applicant surrendered any subject matter, it is to be noted that a patent owner (reissue applicant) is bound by the argument that applicant relied upon to overcome an art rejection in the original application for the patent to be reissued, regardless of whether the Office adopted the argument in allowing the claims. Greenliant Systems, Inc. v. Xicor LLC, 692 F.3d 1261, 1271, 103 USPQ2d 1951, 1958 (Fed. Cir. 2012). As pointed out by the court, “[i]t does not matter whether the examiner or the Board adopted a certain argument for allowance; the sole question is whether the argument was made.” Id.
(MPEP § 1412.02.II.B.1.(A); emphasis added); and provides an example of when an “amendment of the claims without argument” provides the basis for previously surrendered subject matter stating,
(B) Example (2) - Amendment of the claims without argument:
The limitation omitted in the reissue claim(s) was added in the original application claims for the purpose of making the application claims allowable over a rejection or objection made in the application. Even though applicant made no argument on the record that the limitation was added to obviate the rejection, the nature of the addition to the claim can show that the limitation was added in direct reply to the rejection. This too will establish the omitted limitation as relating to subject matter previously surrendered.
(MPEP § 1412.02.II.B.2.(B); emphasis added).
From this perspective, and in examination of the prosecution history of the original ‘073 Application, the Examiner finds that Applicant provided an amendment of the claims without argument to overcome a rejection made in the original ‘073 Application. Specifically, the Examiner finds that the ‘073 Application July 2019 Claim Amendment, amending claims 1 and 14 to incorporate various limitations from claims 3, 4, 15 and 16, and canceling claims 3 and 15 (i.e., 1)RI Claims 1/12/25 Surrendered Deriving Third 3D Point Cloud; 2) RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner; and 3) RI Claims 1/12/25 Surrendered Combining First/Second/Third 3D Point Clouds), was provided in response to the ‘073 Application April 2019 NF Action and in light of the Interview that occurred on 13 May 2019. In examination of the‘073 Application May 2019 Int Summary Agenda Appendix, Applicant stated,
I would like to focus on the rejection of claims 4 and 10-13. In particular I would like to discuss the possibility of amending the independent claims to include certain combinations of the features in listed claims to overcome the rejections.
(‘073 Application May 2019 Int Summary Agenda Appendix). Accordingly, the Examiner finds that the amendment of the ‘073 Application July 2019 Claim Amendment including: 1)RI Claims 1/12/25 Surrendered Deriving Third 3D Point Cloud; 2) RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner; and 3) RI Claims 1/12/25 Surrendered Combining First/Second/Third 3D Point Clouds was added in direct reply to a rejection provided in the ‘073 Application April 2019 NF Action, as is evidenced by the‘073 Application May 2019 Int Summary Agenda Appendix noted above.
Thus, the Examiner concludes and maintains that the claim requirements of: 1)RI Claims 1/12/25 Surrendered Deriving Third 3D Point Cloud; 2) RI Claims 1/12 Surrendered Deriving Second 3D Point Cloud with Laser Scan Data from LIDAR Scanner; and 3) RI Claims 1/12/25 Surrendered Combining First/Second/Third 3D Point Clouds are surrendered subject matter, and thus, improper recapture of broadened claimed subject matter surrendered in the application is clearly present in the instant ‘181 Reissue Application.
35 U.S.C. § 102 Rejections
Applicant’s arguments, with respect to the rejection(s) of claim(s) 1, 2, 11, 12, 14, 15 and 17-19 under 35 U.S.C. 102(a)(1)/(a)(2) as anticipated by Priest, have been fully considered and persuasive. (Sept 2024 Applicant Response at § XII). Therefore, the rejection has been withdrawn.
35 U.S.C. § 103 Rejections
Combination of Priest and Ohhashi
Applicant contends that Ohhashi does not teach or suggest “generating the 3D model of the complex object from the single 3D point cloud” because Ohhashi does not account for partial or whole occlusion of the object in the images utilized to generate a model. (Sept 2024 Applicant Response at 29-30).
The Examiner respectfully disagrees. In response to Applicant’s arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
First, the Examiner finds that the instant rejection is an obviousness-type rejection and not an anticipation rejection. (See April 2024 Non-Final Office Action at § XII.B; also see §§ XII.A, XII.C, supra). Thus, Ohhashi, alone, is not cited for all of the steps/instructions of independent claims 1, 12 and 25. Moreover, while one of ordinary skill in the art would recognize that Ohhashi is somewhat silent to: 1) the plurality of images of cell sites including sections of objects that partially or wholly occluded; and 2) the explicit generation of a 3D model from a 3D point cloud, the Examiner finds that Ohhashi is cited to fulfill the differences between the prior art and the claims at issue. (Id.)
From this perspective, the Examiner finds that Priest discloses systems and methods using an Unmanned Aerial Vehicle (“UAV”) to capture a plurality of images of cell sites and generate a 3D model from the captured imaging data. In the systems and methods disclosed by Priest, the Examiner finds that Priest discloses the 3D model process including deriving 3D point cloud data from various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images. (Id. at ¶¶ 0237-0238; see Figures 48, 49). Moreover, in examination of the flight path disclosed in Figure 14 and images captured by the UAV in Figure 17, the Examiner finds that Priest discloses the various portions of complex elements at cell sites provided by the capturing of the plurality of overlapping images having sections that are inherently partially or wholly occluded. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; see Figures 14, 17-19; emphasis at Figure 17). In addition, the Examiner finds that Priest discloses the 3D model process generating a 3D model from the derived 3D point cloud data. (Id. at ¶¶ 0129-0130, 0133, 0136-0139; 0237-0238; see Figures 14, 17-19; emphasis added). Accordingly, Priest is concerned with capturing a plurality overlapping images, via a UAV, which inherently include sections of objects that partially or wholly occluded, deriving a 3D point cloud therefrom, and generating 3D output model data from the derived 3D point cloud data. However, since Priest is silent to utilizing any other data and combining it with the UAV derived 3D point cloud data, the Examiner finds that one of ordinary skill in the art would look to the teachings of generating model data based upon the combination of UAV derived 3D point cloud data with derived multiple 3D point clouds from scan data obtained from a scanner at respective multiple locations, to form a new combined single 3D point cloud to improve the system and method for obtaining a 3D model for cell sites.
In this light, the Examiner finds that Ohhashi is concerned with monitoring a complex object which utilizes the combination of UAV derived 3D point cloud data with derived multiple 3D point clouds from scan data obtained from a scanner at respective multiple locations, to form a new combined single 3D point cloud in order to effectively provide a complete representation of positional information of the object(s), thereby increasing the operational efficiency of the system and method. (Ohhashi at c.16, l.60- c.17, l.4). Specifically, the Examiner finds that Ohhashi teaches a system and method comprising utilizing both a UAV 11 and three-dimensional devices 15 to generate 3D model terrain data. (Ohhashi at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36; see Figures 1, 12). The Examiner finds that Ohhashi teaches the combination of two methods of 1) capturing a plurality of images of a wide-area observation object 12, via a camera on a flying object 11, at multiple positions in order to generate “terrain model data” (id. at c.5, ll.10-18; c.16, ll.47-56) and 2) directly measuring the wide-area observation object 12 at multiple positions, via three-dimensional measurement devices 15, 15’, to generate “terrain model data” (id. at c.5, ll.25-50, 54-65; c.16, ll.46-47; c.16, l.60 – c.17, l.4). The Examiner finds that Ohhashi teaches the merging of multiple terrain model data to form a single terrain model data of the wide-area observation object 12. (Id. at c.5, ll.50-54; c.16, ll.60-65). The Examiner finds that Ohhashi teaches the terrain model data being 3D point cloud data. (Id. at c.17, ll.8-16).
In conclusion, since Priest explicitly discloses systems and methods using an Unmanned Aerial Vehicle (“UAV”) capturing a plurality of images of cell sites including sections of objects that partially or wholly occluded, deriving a 3D point cloud data therefrom, and generating a 3D model from the derived 3D point cloud data and Ohhashi teaches monitoring a complex object utilizing the combination of UAV derived 3D point cloud data with derived multiple 3D point clouds from scan data obtained from a scanner at respective multiple locations, to form a new combined single 3D point cloud, the Examiner finds that one of ordinary skill in that art would look to improve the system and method for obtaining a 3D model for cell sites of Priest with the utilization of the combination of UAV derived 3D point cloud data with derived multiple 3D point clouds from scan data obtained from a scanner at respective multiple locations, to form a new combined single 3D point cloud since it provides a mechanism to generate a complete 3D point data cloud from either 1) a plurality of regions of the an entire wide-area observation object; or 2) from a plurality of perspectives of the an entire wide-area observation object. (Id. at c.16, l.60- c.17, l.4). In addition, one of ordinary skill in the art could have pursued the known potential solutions (i.e., combining the 3D first point cloud obtained from the plurality of images from the UAV with the multiple 3D point clouds from the three-dimensional measurement devices to form a new combined single 3D point cloud) with a reasonable expectation of success (i.e., Obvious to try).
Consequently, irrelevant of Ohhashi being somewhat silent to: 1) the plurality of images of cell sites including sections of objects that partially or wholly occluded; and 2) the explicit generation of a 3D model from a 3D point cloud, the Examiner concludes that one of ordinary would look to the teachings of Ohhashi and combine them with Priest. Thus, the Office has properly established a prima facie case of obviousness.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 date of this final action.
Because this application is now final, Applicant are reminded of the USPTO’s after final practice as discussed in MPEP §714.12 and §714.13 and that entry of amendments after final is not a matter of right. “The refusal of an examiner to enter an amendment after final rejection of claims is a matter of discretion.” In re Berger, 279 F.3d 975, 984, 61 USPQ2d 1523, 1529 (Fed. Cir. 2002) (citations omitted). Furthermore, suggestions or examples of claim language provided by the Examiner are just that—suggestions or examples—and do not constitute a formal requirement mandated by the Examiner. Unless stated otherwise by an express indication that a claim is “allowed,” exemplary claim language provided by the Examiner to overcome a particular rejection or to change claim interpretation has not been addressed with respect to other aspects of patentability (e.g. §101 patentable subject matter, §112, first paragraph written description and enablement, §112, second paragraph indefiniteness, and §102 and §103, prior art). Therefore, any claim amendment submitted under 37 C.F.R. §1.116 that incorporates an Examiner suggestion or example or simply changes claim interpretation will nevertheless require further consideration and/or search and a patentability determination as noted above.
Applicant is respectfully reminded that any suggestions or examples of claim language provided by the Examiner are just that—suggestions or examples—and do not constitute a formal requirement mandated by the Examiner. To be especially clear, any suggestion or example provided in this Office Action (or in any future office action) does not constitute a formal requirement mandated by the Examiner.
Should Applicant decide to amend the claims, Applicant is also reminded that—like always—no new matter is allowed. The Examiner therefore leaves it up to Applicant to choose the precise claim language of the amendment in order to ensure that the amended language complies with 35 U.S.C. § 112 1st paragraph.
Independent of the requirements under 35 U.S.C. § 112 1st paragraph, Applicant is also respectfully reminded that when amending a particular claim, all claim terms must have clear support or antecedent basis in the specification. See 37 C.F.R. § 1.75(d)(1) and MPEP § 608.01(o). Should Applicant amend the claims such that the claim language no longer has clear support or antecedent basis in the specification, an objection to the specification may result. Therefore, in these situations where the amended claim language does not have clear support or antecedent basis in the specification and to prevent a subsequent ‘Objection to the Specification’ in the next office action, Applicant is encouraged to either (1) re-evaluate the amendment and change the claim language so the claims do have clear support or antecedent basis or, (2) amend the specification to ensure that the claim language does have clear support or antecedent basis. See again MPEP § 608.01(o) (¶3). Should Applicant choose to amend the specification, Applicant is reminded that—like always—no new matter in the specification is allowed. See 35 U.S.C. § 132(a). If Applicant has any questions on this matter, Applicant is encouraged to contact the Examiner via the telephone number listed below.
Applicant is reminded of the obligation to apprise the Office of any prior or concurrent proceedings in which the ‘787 Patent is or was involved, such as interferences or trials before the Patent Trial and Appeal Board, other reissues, reexaminations, or litigations and the results of such proceedings.
Applicant is further reminded of the continuing obligation under 37 C.F.R. §1.56 to timely apprise the Office of any information which is material to patentability of the claims under consideration in this reissue application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHEN J RALIS whose telephone number is (571)272-6227. The examiner can normally be reached Monday-Friday 8:30am-5:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Hetul Patel can be reached on 571-272-4184. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Stephen J. Ralis/Primary Examiner, Art Unit 3992 Conferees:
/KENNETH WHITTINGTON/Primary Examiner, Art Unit 3992 /H.B.P/Hetul Patel
Supervisory Patent Examiner, Art Unit 3992
SJR
10/24/2024
1 The Examiner notes that all of the Rejected Claims stood rejected under 251; claims 12, 14-16, 18, 19, 21, 22 and 24-26 stood rejected under 112(a); claims 1-8, 10-12 and 14-24 stood rejected under 112(b); claims 1, 2, 11, 12, 14, 15 and 17-19 stood rejected under 102; and claims 3-8, 10, 16 and 20-26 stood rejected under 103.
2 Claims 1, 10, 11 and 12 amended in the instant Sept 2024 Claim Amendment.
3 Claim 15 amended in the instant Sept 2024 Claim Amendment; and claims 3 and 14 amended in the Feb 2022 Claim Amendment.
4 Original claims 9 and 13 canceled in the Feb 2022 Claim Amendment.
5 Claims 20-25 amended in the instant Sept 2024 Claim Amendment.
6 Claim 26 provided new in the Feb 2022 Claim Amendment.
7 This will also overcome the indefinite rejection of claim 11 set forth below (see § IX.B, supra).
8 See Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367 (Fed. Cir. 2020)
9 Since it is unclear what exact structure the Applicant intend to claim as the structure embodying the “instructions” of Functional Phrase 2, the claims are subject to rejection under 35 U.S.C. § 112 second paragraph as failing to particularly point out and distinctly claim the subject matter which the inventors regard as the invention.
10 See Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367 (Fed. Cir. 2020)
11 Since it is unclear what exact structure the Applicant intend to claim as the structure embodying the “instructions” of Functional Phrase 3, the claims are subject to rejection under 35 U.S.C. § 112 second paragraph as failing to particularly point out and distinctly claim the subject matter which the inventors regard as the invention.
12 See Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367 (Fed. Cir. 2020)
13 Since it is unclear what exact structure the Applicant intend to claim as the structure embodying the “instructions” of Functional Phrase 4, the claims are subject to rejection under 35 U.S.C. § 112 second paragraph as failing to particularly point out and distinctly claim the subject matter which the inventors regard as the invention.
14 See Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367 (Fed. Cir. 2020)
15 Since it is unclear what exact structure the Applicant intend to claim as the structure embodying the “instructions” of Functional Phrase 5, the claims are subject to rejection under 35 U.S.C. § 112 second paragraph as failing to particularly point out and distinctly claim the subject matter which the inventors regard as the invention.
16 Kitamura et al. (U.S. Publication No. 2013/0121564)(“Kitamura”); Earl et al. (U.S. Patent No. 9,858,640)(“Earl”); and Bethke et al. (U.S. Publication No. 2017/0192418)(“Bethke”).
17 See Ohhashi ((U.S. Patent No. 11,428,527) at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36).
18 See Ohhashi (U.S. Patent No. 11,428,527) at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36); and Earl et al. (U.S. Patent at Abstract; c.5, ll.47-55; claim 7).
19 See Ohhashi ((U.S. Patent No. 11,428,527) at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36).
20 See Ohhashi ((U.S. Patent No. 11,428,527) at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36).
21 See Ohhashi ((U.S. Patent No. 11,428,527) at c.5, ll.6-65; c.16, l.40 – c.17, l.16; c.24, ll.4-6; c.42, ll.33, 35-36).
22 Independent claims 1 and 12.
23 Independent claim 25.
24 See §§ XII.C.(9)-(13) for prima facie obviousness rationale(s)).
25 Id.
26 “Aristocrat and related cases hold that, if a patentee has invoked computer-implemented means-plus-function claiming, the corresponding structure in the specification for the computer implemented function must be an algorithm unless a general purpose computer is sufficient for performing the function. [Emphasis added.]” Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014)(citing Aristocrat Techs. Austl. Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008)).
27 “algorithm,” Microsoft Computer Dictionary, Fifth Edition Microsoft Press., Redmond, WA, 2002 at.23.
28 “algorithm,” Microsoft Computer Dictionary, Fifth Edition Microsoft Press., Redmond, WA, 2002 at.23.
29 Kitamura et al. (U.S. Publication No. 2013/0121564)(“Kitamura”); Earl et al. (U.S. Patent No. 9,858,640)(“Earl”); and Bethke et al. (U.S. Publication No. 2017/0192418)(“Bethke”).
Prosecution Insights