DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election of group I, claims 41-50 in the reply filed on 11-12-2024 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Amended claims 52-53 are directed to an invention that is independent or distinct from the invention originally claimed as indicated in the restriction mailed 9-11-2024. The amendment of converting an independent claim to a dependent claim, changes the previous restriction to a species restriction. Accordingly, claims 52-53 are still withdrawn from consideration as being directed to a non-elected invention. However, since the parent claim is now claim 41, they could be rejoined if allowable subject matter is found on the parent claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 41-50 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea of a mental process and/or human activity without significantly more (Step 1 = YES — claim 1 is directed to the statutory category of invention of a process). The claim(s) recite(s) generating a personalized step-by-step makeup instruction based on annotated data and/or recommending products and displaying virtual makeup application. Recommending products and giving out instructions fall under certain method of organizing human activity and is commonly performed in the cosmetic section of retailers (Step 2A Prong One = YES - claim | recites an abstract idea of a mental process and human activity). This judicial exception is not integrated into a practical application because the additional elements in this case are: trained neural network, makeup product database, makeup annotation system are generic and can be practically performed mentally (Step 2A Prong Two = NO). The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements in this case are: trained neural network, makeup product database, makeup annotation system are generic and can be practically performed mentally (Step 2B = NO). The rest of the dependent further mention additional details which all can be performed by human mentally and/or is considered human activity.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claim(s) 41, 44-45 and 47-49 are rejected under 35 U.S.C. 103 as being unpatentable over Chong 20170178220 in view of Jennings 20190066348.
As to claims 41 and 47, Chong discloses a makeup recommendation system [see abstract], comprising: at least one trained neural network model for providing varying makeup styles (see fig. 3; par. 0009, 0025, 0039-0041); a makeup product database (see fig. 1, item 112; par. 0025); and a makeup annotation system [validation] (see par. 0040), wherein the makeup recommendation system is capable of: generating personalized step-by-step makeup instructions to a user based on data in the at least one trained neural network annotated by the annotation system and/or recommending products from the makeup product database (see par. 0024-0025, 0046), and of displaying virtual makeup application in a step-by-step manner to a user based on an input image of the user (see par. 0021, 0043, 0047). Please note that the plain meaning of capable is the possibility of doing the steps, and does not require doing the steps and Chong system include the same structure; thereby, capable. In case that the word capable is removed, in an analogous art, Jennings specify “step-by-step” (see fig. 3, step S4); comprising at least one virtual makeup tutorial (see par. 0002, 0010, 0022). Therefore, it would have been obvious to one of the ordinary skills in the art before the effective filing date of the present invention to combine the teachings and provide step by step instructions for the simple purpose of helping the user to correctly apply the makeup and increase user satisfaction.
As to claims 44-45, Chong discloses the system according to claim 41, wherein the annotation system annotates facial images (see par. 0024) having selected makeup styles [cosmetics, colors, etc.] applied thereon and the annotated facial images provide training data for the neural network (see par. 0039-0040), wherein the makeup styles are manually selected and annotated [validation of experts and polling in social can be equated to manually selected and annotated since each person add the data (see par. 0040). Please note that it would be within the knowledge of one of the ordinary skills in the art to provide an automatic or manual means and replace to a manual or automatic activity which accomplished the same result is not sufficient to distinguish over the prior art since it will produce the same predictable result.
As to claims 48, Chong the system according to claim 41, wherein the step-by-step instructions including (a) displaying a first selected color for a first type of makeup (see par. 0049-0050) and (b) applying the type of makeup in the selected color virtually to a corresponding region of the input image of the user's face (see par. 0047).
As to claims 49, Chong the system according to claim 48, wherein steps (a) and (b) are repeated for at least one further selected color and at least one second type of makeup to create a desired makeup look on the input image of the user based on the data in the recommendation system [multiple colors can be selected] (see par. 0049-0050).
Claim(s) 42-43 and 46 are rejected under 35 U.S.C. 103 as being unpatentable over Chong in view of Jennings as applied to claim 41 above, and further in view of Tran 20200098444.
As to claims 42-43 and 46, Chong discloses wherein the learning framework receives data input including: facial images having selected makeup styles applied thereon (see par. 0039); and output ground truth [validation] data from a makeup annotation system (see par. 0040). Chong fails to disclose a deep learning. In an analogous art, Tran discloses wherein the at least one trained model is derived from a deep learning framework (see par. 0197); wherein an input image is a frame from a video of a user (see par. 0020). Therefore, it would have been obvious to one of the ordinary skills in the art before the effective filing date of the present invention to combine the teachings for the simple purpose of accurate learning.
Allowable Subject Matter
Claim 50 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 101, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: the limitations of a system for adjusting brightness of the input image, wherein the system for adjusting brightness is configured to estimate a normalized skin color of a face in the input image of the user using a skin color estimator, detecting facial landmarks and assigning different weighted factors to a facial region, an image center region and a border region, calculating an average brightness of the input image and comparing the average brightness with the estimated normalized skin color to generate a correction factor, and applying a curve transform using a polynomial transformation to the input image according to the correction factor; have not been found nor have been fairly suggested in the prior art search.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARCOS L TORRES whose telephone number is (571)272-7926. The examiner can normally be reached 10:00 AM - 6:00 PM M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alison Slater can be reached on (571)270-0375. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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MARCOS L. TORRES
Primary Examiner
Art Unit 2647
/MARCOS L TORRES/Primary Examiner, Art Unit 2647
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