Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Status of Claims
Claim(s) 1-6, 8-13, 15-21, 23 have been examined.
Claim(s) 7 and 13 and 22 are canceled.
Claim Rejections - 35 USC § 112
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.
Claims 1-6, 8-13, 15-21, 23 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 applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Specifically, the specification does not teach “without performing full-body mapping of the subject”. Correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-6, 8-13, 15-21 are rejected under 35 U.S.C. 101 because the claims recite a judicial exception which is not integrated into a practical application and the claims lack an inventive concept.
Step 1 is the first inquiry into eligibility analysis and asks whether the claims are directed to a statutory category. In this instance, the answer must be in the affirmative because they recite a method, medium, and a system.
Step 2A prong 1 is the next step in the eligibility analyses and asks whether the claimed invention recites a judicial exception. In this instance, the claims recite the following limitations which comprise the abstract idea:
receiving, an image of a subject and an indication of a height and a weight of the subject;
based on the image of the subject and the indication of the height and the weight of the subject, generating one or more physical features corresponding to the subject;
generating a multi-dimensional feature vector representing at least the one or more physical features of the corresponding subject;
receiving a selection of an item of clothing;
This is an abstract idea because it is a certain method of organizing human activity because it involves commercial activities such as sales and marketing behaviors and/or interactions. The commercial endeavors are further evidenced by paragraph [0022] which states that the electronic commerce application provides a way for users to buy and sell clothing items. Additional evidence is found in [0003]. So, the purpose of the generating representations of the model wearing clothing is so customers can preview how they fit before purchase. In addition, the generating of the feature vector is a mathematical concept.
Step 2A prong 2 is the next step in the eligibility analyses and looks at whether the abstract idea is integrated into a practical application. This requires an additional element or combination of additional elements in the claims to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception.
In this instance, the claims recite the additional elements such as:
one or more hardware processors
calculating, by the one or more hardware processors, a plurality of features of a body based on the depth image of the subject, without performing full-body mapping of the subject;
selecting a three-dimensional model from a plurality of three-dimensional models based at least in part on the plurality of features calculated and by performing a closest first match between the depth image and each depth profile associated with the plurality of three-dimensional models;
generating a representation of the selected three-dimensional model wearing the item of clothing for display.
However, these elements do not amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
In addition, the recitations of the hardware processors, selecting a model, and displaying are recited at a high level of generality and also do not amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
The dependent claims also fail to recite elements which amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. For example, claim 2 recites obtaining rigging data and animating the representation, but these steps do not amount to an integration according to any one of the considerations above. The same can be said for claim 3. As for claim 4, this claim contains limitations directed to the abstract ideal itself, along with claims 5-6.
Step 2B is the next step in the eligibility analyses and evaluates whether the claims recite additional elements that amount to an inventive concept (i.e., “significantly more”) than the recited judicial exception. According to Office procedure, revised Step 2A overlaps with Step 2B, and thus, many of the considerations need not be re-evaluated in Step 2B because the answer will be the same.
In Step 2A, several additional elements were identified as additional limitations:
one or more hardware processors
calculating, by the one or more hardware processors, a plurality of features of a body based on the depth image of the subject, without performing full-body mapping of the subject;
selecting a three-dimensional model from a plurality of three-dimensional models based at least in part on the plurality of features calculated and by performing a closest first match between the depth image and each depth profile associated with the plurality of three-dimensional models;
generating a representation of the selected three-dimensional model wearing the item of clothing for display.
These additional limitations, including the limitations in the dependent claims, do not amount to an inventive concept because they are recited at a high level of generality and also do not amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
In addition, they were already analyzed under Step 2A and did not amount to a practical application of the abstract idea.
Therefore, the claims lack one or more limitations which amount to an inventive concept in the claims.
For these reasons, the claims are rejected under 35 U.S.C. 101.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-2, 4-6, 8-9, 11-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Johnson (US 9,646,408) in in view of Kapur (US 2013/0336550) in further view of Black (US 9,679,409).
Referring to Claim 1, Johnson teaches a method comprising:
receiving, by one or more hardware processors, a depth image of a subject (see Johnson Col. 4 lines 15-18 and Col. 2 line 43);
selecting, by the one or more hardware processors, a three-dimensional model from a plurality of three-dimensional models based at least in part by performing a closest-fit match between the depth image and each depth profile associated with the plurality of three-dimensional models (see Johnson Col. 4 lines 32-40);
Johnson does not explicitly teach calculating, by the one or more hardware processors, a plurality of features of a body based on the depth image of the subject, without performing full-body mapping of the subject and wherein the selecting is based on the plurality of features calculated. However, Kapur teaches this (see Kapur ¶0030). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine these references because the results would be predictable. Specifically, Johnson would continue to select a three-dimensional model based on the depth image, except that now it would be further based on calculated features according to the teachings of Kapur. This is a predictable result of the combination.
While the combination does teach that embodiments have applications in clothing retail allowing consumers to visualize clothing, it does not teach receiving, by the one or more hardware processors, a selection of an item of clothing and generating, by the one or more hardware processors, generating a representation of the selected three-dimensional model wearing the item of clothing for display. However, Black teaches receiving, by one or more hardware processors, a selection of an item of clothing and generating, by the one or more hardware processors, generating a representation of the selected three-dimensional model wearing the item of clothing for display (see Black Col. 15 lines 45-60). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine these references because the results would be predictable. Specifically, customers could continue to use the three-dimensional modeling system to visualize clothing according to the teachings of Johnson and Kapur except that now customers could select and view the model wearing the clothing according to the teachings of Black. This is a predictable result of the combination.
Referring to Claim 2, the combination teaches the method of claim 1, further comprising: obtaining rigging data associated with the selected three-dimensional model; and animating the representation of the selected three-dimensional model wearing the item of clothing in a plurality of poses based at least in part on the rigging data (see Black Col. 11 lines 24-36).
Referring to Claim 4, the combination teaches the method of claim 1, further comprising: selecting a size of the item of clothing from a plurality of sizes of the item of clothing in response to receiving the selection of the item of clothing and based at least in part on one or more body measurements associated with the selected three- dimensional model, the selected size corresponding to the one or more body measurements of the selected three-dimensional model, wherein displaying the representation of the selected three-dimensional model wearing the item of clothing is based at least in part on the size of the item of clothing (see Black Col. 15 lines 15-55).
Referring to Claim 5, the combination teaches the method of claim 1, further comprising: determining one or more measurements associated with a size of the item of clothing based at least in part on receiving the selection of the item of clothing, wherein displaying the representation of the selected three-dimensional model wearing the item of clothing comprises rendering a model of the item of clothing on top of the selected three-dimensional model (see Black Col. 15 lines 36-55).
Referring to Claim 6, the combination teaches the method of claim 1, wherein the item of clothing is displayed on the representation of the selected three-dimensional model with one or more wrinkles (see Black Fig. 5).
Referring to Claims 8-9 and 11-13, these claims are similar to claims 1-2 and 4-6, and therefore rejected under the same reasons and rationale.
Examiner Comments and Remarks
In the present application, claims 3, 10, and 15-21 are not in condition for allowance because they are rejected under 35 U.S.C. 101 and claims 3, 10, and 15-21 are rejected under 35 U.S.C. 112.
At present, claim 23 overcomes the rejection under 35 U.S.C. 101.
In regards to the rejection under 35 U.S.C. 101, the applicant should roll up claim 23 into the independent claims, though claim 15 needs additional limitations as found in claim 1 to reach eligibility.
In regards to the applicant’s arguments regarding the prior art, the newly amended limitations necessitated a new search and new prior art. The applicant’s arguments have been fully addressed by the rejection above.
Additional prior art includes:
Inoue (US 7,133,839) teaches a virtual try-on environment for multiple users.
Paolini (US 2007/0130020) teaches using a body scan of a user to allow for virtual try-on with 3d representations of merchandise.
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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW E ZIMMERMAN whose telephone number is (571)270-5278. The examiner can normally be reached 8-4pm M-T, 8-12pm W.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeff Smith can be reached at (571)272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATTHEW E ZIMMERMAN/Primary Examiner, Art Unit 3688