DETAILED ACTION
1. 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 .
2. Status of Application and Claims
Claims 11-20 are pending.
Claims 11 and 19 were amended or newly added in the Applicant's filing on 9/04/2025.
This office action is being issued in response to the Applicant's filing on 9/04/2025.
3. Claim Interpretation
The subject matter of a properly construed claim is defined by the terms that limit its scope when given their broadest reasonable interpretation. see MPEP §2013(I)(C). Specifically, the “broadest reasonable construction ‘in light of the specification as it would be interpreted by one of ordinary skill in the art.’” See MPEP §2111, citing Phillips v. AWH Corp., 75 USPQ2d 1321, 1329 (Fed. Cir. 2005). However, “[t]hough understanding the claim language may be aided by explanations contained in the written description, it is important not to import into claim limitations that are not part of the claim.” See MPEP §2111.01, citing Superguide Corp. v. DirecTV Enterprises, Inc., 69 USPQ2d 1865, 1868 (Fed. Cir. 2004). Construing claims broadly during prosecution is not unfair to the applicant, because the applicant has the opportunity to amend the claims to obtain more precise claim coverage. See MPEP §2111, citing In re Yamamoto, 222 USPQ 934, 936 (Fed. Cir. 1984).
As a general matter, grammar and the plain meaning of terms as understood by one having ordinary skill in the art used in a claim will dictate whether, and to what extent, the language limits the claim scope. See MPEP §2013(I)(C). Language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. See MPEP §2013(I)(C).
As such, claim limitations that contain statement(s) such as “if, may, might, can, could” are treated as containing optional language. See MPEP §2013(I)(C). As matter of linguistic precision, optional claim elements do not narrow claim limitations, since they can always be omitted. See MPEP §2013(I)(C).
Similarly, a method step exercised or triggered upon the satisfaction of a condition, where there remains the possibility that the condition was not satisfied under the broadest reasonable interpretation, is an optional claim limitation. see MPEP §2111.04(II). As the Applicant does not address what happens should the optional claim limitations fail, Examiner assumes that nothing happens (i.e., the method stops). An alternate interpretation is that merely the claim limitations based upon the condition are not triggered or performed.
In addition, when a claim requires selection of an element from a list of alternatives, the prior art teaches the element if one of the alternatives is taught by the prior art. See MPEP §2143.03, citing Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1298 (Fed. Cir. 2009);
Language in a method or system claim that states only the intended use or intended result, but does not result in a manipulative difference in the steps of the method claim nor a structural difference between the system claim and the prior art, fails to distinguish the claims from the prior art. In other words, if the prior art structure is capable of performing the intended use, then it meets the claim.
The following types of claim language may raise a question as to its limiting effect (this list is not exhaustive):
Statements of intended use or field of use, including statements of purpose or intended use in the preamble. See MPEP §2111.02;
Clauses such as “adapted to”, “adapted for”, “wherein”, and “whereby.” See MPEP §2111.04;
Contingent limitations. See MPEP §2111.04(II);
Printed matter. See MPEP §2111.05; and
Functional language associated with a claim term. See MPEP §2181.
As such, while all claim limitations have been considered and all words in the claims have been considered in judging the patentability of the claimed invention, the following italicized, underlined and emboldened language is interpreted as not further limiting the scope of the claimed invention.
Additionally, the following italicized, underlined and emboldened language is not necessarily an exhaustive list of claim language that is interpreted as not further limiting the scope of the claimed invention. Applicant should review all claims for additional claim interpretation issues.
Claim 11 recites a method comprising:
inserting, by the processor, a customer record into a data store, the customer record comprises the loyalty identifier and the score, wherein the score is linked and mapped to the loyalty identifier.
Method claims are defined by the method steps being actively performed (i.e., linking and mapping), not method steps performed in the past (i.e., linked and mapped). Claiming method steps in the past tense can be interpreted as the method steps performed in the past are outside the scope of the claimed method. Alternatively stated, the scope of the claimed method are the active method steps which are building off a pre-existing state. The method steps performed for creation of the pre-existing state are outside the scope of the claimed invention.
Claim 19 has similar issues.
Claim 11 recites a method comprising:
detecting specific facial features comprising distances between eyes of the customer, distances between end of nose and lips for the customer, sizes of the eyes, the lips, the nose, ears, and distances from the nose to the ears to improve accuracy of facial recognition without requiring customer interaction;
The intended use or purpose of the data must result in a structural and/or functional difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose (i.e., to improve accuracy of facial recognition), then it meets the claim. See MPEP §2114(II), citing Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987).
Additionally, under the broadest reasonable interpretation, “without requiring customer interaction” does not necessarily mean that there is no customer interaction. “[W]ithout requiring customer interaction” just means that customer interaction is not a requirement (i.e., customer interaction is optional).
Claim 19 has similar issues.
Claim 11 recites a method comprising:
maintaining a table having rows that include scores and corresponding loyalty identifiers, wherein the score returned from the MLM is searched within a predefined range to identify a specific loyalty identifier for the customer.
A method is defined by the method steps actively being performed (i.e., searching and returning), not method steps performed in the past (i.e., returned or searched). Claiming method steps in the past tense can be interpreted as the method steps performed in the past are outside the scope of the claimed method. Alternatively stated, the scope of the claimed method are the active method steps which are building off a pre-existing state. The method steps performed for creation of the pre-existing state are outside the scope of the claimed invention.
Claim 19 has similar issues.
Claim 13 recites a method wherein:
identifying further includes receiving the loyalty identifier based on a loyalty system assigning to the customer, wherein the loyalty system registered the customer for a loyalty account during the first transaction and assigns the loyalty identifier within the transaction workflow.
A method is defined by the method steps actively being performed, not method steps performed in the past (i.e., evaluated) or method steps to be performed in the future (i.e., for adjusting). The method is maintaining (i.e., storing) a threshold range in a data store. Claiming method steps in the past tense can be interpreted as the method steps performed in the past are outside the scope of the claimed method. Alternatively stated, the scope of the claimed method are the active method steps which are building off a pre-existing state. The method steps performed for creation of the pre-existing state are outside the scope of the claimed invention.
Claim 14 recites a method wherein inserting further includes:
maintaining a threshold range with each of the customer records of the data store or with the data store as a whole, wherein the threshold range is evaluated for adjusting corresponding scores subsequent returned from the MLM.
A method is defined by the method steps actively being performed, not method steps performed in the past (i.e., evaluated) or method steps to be performed in the future (i.e., for adjusting). The method is maintaining (i.e., storing) a threshold range in a data store.
Claim 15 recites wherein receiving the second facial image further includes:
receiving the second facial image from the different transaction terminal for the second transaction.
Claim 15 is dependent upon an alternate claim element recited in Claim 11.
The Court has stated that where claim limitations recited a series of alternative limitations, the prior art need only disclose one of the alternatives to anticipate. See MPEP §2131, citing Brown v. 3M, 60 USPQ2d 1375, 1377-78 (Fed. Cir. 2001). As such, prior art utilized to reject one alternative limitation would also reject all other alternative limitations, regardless of whether the prior art addressed the other alternative limitations.
Therefore, further dependent claims that depended upon the alternative limitations rejected, although not addressed by the prior art would also be rejected, as the basis of their dependency was rejected. Such dependent claims would thereby be rejected by prior art that failed to address their actual substance. Those dependent claims would essentially “drop out.”
4. 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) 11-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bowles (US PG Pub. 2016/0275518) and Cheesman (US PG Pub. 2018/0315063).
Regarding Claim 11, Bowles discloses a method comprising:
receiving, by a processor of a cloud server (server computers and/or cloud computing services), a first facial image of a customer during a first transaction at a transaction terminal (kiosk) from a transaction workflow (transaction) being processed on the first transaction terminal (kiosk) for the first transaction. (fig. 3A-3C; para. 42-43);
identifying, by the processor, a loyalty identifier (user identification and/or account information provided via a loyalty card) for the customer from the transaction workflow. (see para. 52 and 116)
training, by the processor, a machine-learning model (MLM) on the first facial image (feature data, numeric representations of features in an image). (see para. 43-46 and 94);
producing, by the MLM, a score (numeric representations of features in an image) from features of a face of the customer depicted in the first facial image. (see para. 43-46 and 94);
wherein producing comprises:
producing the score from biometric features that are scored by calculating distances between eyes of the customer (interpupillary distance – para. 51), and size of the nose. (see para. 46).
inserting, by the processor, a customer record into a data store (database), the customer record comprises the loyalty identifier (user identification and/or account information) and the score, wherein the score is linked and mapped to the loyalty identifier (user identification and/or account information) (see fig. 17; para. 50, 52, 59, 62-63, 69, 83, 95, 106);
receiving, by the processor, a second facial image (current photograph) of the customer from the transaction workflow during a second transaction at the transaction terminal or a different transaction terminal (a return customer who has previously completed successful transactions at the kiosk). (see fig. 6; para. 58 and 79-88);
providing, by the processor, the second facial image (current photograph) to the MLM and receiving a candidate score (current photograph feature data) as output from the MLM. (see fig. 6; para. 79-88);
matching, by the processor, the candidate score to the score of the customer record within the data store. (see para. 83);
detecting specific facial features comprising distances between eyes of the customer (interpupillary distances) and sizes of the nose to improve accuracy of facial recognition without requiring customer interaction. (see para. 43, 46 and 51); and
maintaining a table having rows that include scores (feature data) and corresponding loyalty identifiers (user identification and/or account information). (see fig. 7; para. 87-89);
wherein the score returned from the MLM is searched (matched) within a predefined range (amount of variance) to identify a specific loyalty identifier (user identification and/or account information) for the customer. (see para. 47); and
injecting, by the processor, the loyalty identifier (driver license ID) of the customer into the transaction workflow for the second transaction, wherein the injecting comprises using an interface to inject the loyalty identifier back into the transaction work flow being processed by the transaction manager of the transaction terminal. (see fig. 4-5; para. 65-75 and 80)
Bowles does not explicitly teach a method comprising calculating or detecting distances between an end of the nose and lips of the customer, distances between the nose and ears of the customer, and sizes of the eyes, the lips, and the ears.
However, Bowles does disclose a method comprising calculating and detecting the “distance and angle measurements of the relative positions, shapes, and sizes of identifiable facial features” (see para. 43), and identifiable facial features include eyes (see para. 43), nose (see para. 46), and lips (mouth – see para. 43).
Regardless, Cheesman discloses a method comprising:
producing a score from features of a face of the customer depicted in the first facial image. (para. 76)
wherein producing comprises:
producing the score from biometric features that are scored by calculating distances between eyes (left eye, right eye) of the customer, distances between an end of a nose (nose tip) and lips (lip curve, tubercle of an upper lip, top portion of a lip, bottom portion of a lip, mouth corner) of the customer, distances between the nose (nose tip) and ears (right ear, left ear) of the customer, and sizes (dimensions) of the eyes, the lips, the nose, and ears. (see para. 69).
It would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have modified Bowles by incorporating identifiable facial features, as suggested by Bowles and disclosed by Cheesman, thereby utilizing standard and conventional biometric features for facial recognition.
Bowles does not explicitly teach a method comprising injecting the loyalty identifier of the customer record into the transaction workflow for the second transaction without the customer taking any actions to associate the second transaction with the loyalty identifier. However, Bowles does disclose the method proceeding without the customer taking any actions (user verification enables a user's identity to be automatically verified without human intervention). (see para. 86).
Examiner notes it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to eliminate the customer actions, since it has been held that mere omission of an element and its function in a combination, without more, involves only routine skill in the art. see MPEP §2144.04 (II).
Bowles does not teach a method wherein the interface for injection of data is an application programming interface.
Cheesman discloses a method wherein the interface for injection (communication) of data is an application programming interface. (see para. 250).
It would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have modified Bowles and Cheesman by incorporating an API, as suggested by disclosed by Cheesman, thereby utilizing standard and conventional computer technology.
Regarding Claim 12, Bowles discloses a method wherein identifying further includes receiving the loyalty identifier from the transaction workflow based on the customer supplying the loyalty identifier (via a loyalty card reader). (see para. 33).
Regarding Claim 13, Bowles does not teach a method wherein identifying further includes receiving the loyalty identifier based on a loyalty system assigning to the customer the loyalty identifier, wherein the loyalty system registered the customer for a loyalty account during the first transaction and assigns the loyalty identifier within the transaction workflow.
Cheesman discloses a method wherein identifying further includes receiving the loyalty identifier (respondent identifier) based on a loyalty system assigning to the customer the loyalty identifier (respondent identifier), wherein the loyalty system registered the customer for a loyalty account during the first transaction (survey) and assigns the loyalty identifier (respondent identifier) within the transaction workflow. (see abstract; para. 196).
It would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have modified Bowles and Cheesman by incorporating an assignment of a loyalty identifier to a customer, as disclosed by Cheesman, as assignment of a loyalty identifier to a customer is standard and conventional.
Regarding Claim 14, Bowles discloses a method wherein inserting further includes maintaining a threshold range (preset threshold or typical range of expected values) with each of the plurality of customer records of the data store or with the data store as a whole, wherein the threshold range is evaluated for adjusting corresponding scores subsequent returned from the MLM. (see para. 59, 62-63, 69, 84-85 and 101).
Regarding Claim 15, Bowles discloses a method wherein receiving the second facial image further includes receiving the second facial image from the different transaction terminal for the second transaction (a plurality of kiosks in a network of kiosks). (see para. 52).
Regarding Claim 16, Bowles discloses a method wherein matching further includes adjusting the candidate score by a threshold range (within a threshold range) and searching the data store to match the score of the customer record within the data store. (see para. 69).
Regarding Claim 17, Bowles discloses a method wherein injecting further includes personalizing the second transaction (message) for the customer based on loyalty details associated with the loyalty identifier maintained in a loyalty system. (see para. 85).
Regarding Claim 18, Bowles discloses a method wherein injecting further includes causing a loyalty system (master database) to be updated with transaction details associated with the second transaction (from the local database). (see para. 52).
Regarding Claim 19, such claim recites substantially similar limitations as claimed in previously rejected claims and, therefore, would have been obvious based upon previously rejected claims.
Regarding Claim 20, Bowles discloses a system wherein the terminals comprise point-of-sale terminals (point-of-sale terminals – see para. 35), self-service terminals (self-serve kiosks – para. 5 and 32), automated teller machines (ATMs), or any combination of the POS terminals, the SSTs, and the ATMs.
7. Response to Arguments
Applicant’s arguments with respect to the pending claims have been considered.
Arguments pertaining to the previously asserted §101 Rejection were persuasive and, as such, the previously asserted §101 Rejection has been withdrawn.
Other arguments have been rendered moot based upon new references utilized in the current rejection. However, some arguments remain relevant, as they apply to a reference and/or rejection still utilized in the current rejection. Such arguments have been fully considered but are not persuasive and are addressed below.
§103 Rejection
Regarding the scoring of specific biometric measurements and API-based loyalty integration arguments, said arguments pertain to newly amended claim language. The §103 Rejection has been rewritten and the prior art remapped to account for the newly amended claim language.
Applicant further argues:
Predefined range searching: Bowles teaches "amount of variance" but does not teach maintaining "a table having rows that include scores and corresponding loyalty identifiers" where "the score returned from the MLM is searched within a predefined range to identify a specific loyalty identifier." See Arguments, p. 10.
The Examiner respectfully disagrees.
Bowles recites:
FIG. 7 is a table 700 of known user information configured in accordance with an embodiment of the present technology. The known users table 700 includes rows 701 and 702, each containing information about a user that has previously used one of the kiosks 100. Information in the table 700 can also be obtained from other sources, such as another type of kiosk (e.g., a movie rental kiosk), a law enforcement database, an app running on the user's mobile device and operably connected to the kiosk, etc. In the illustrated embodiment, each row in the table 700 is divided into a name column 721 containing the user's name; an ID number column 722 containing a unique identification number for the user (e.g., a driver's license number); an images column 723 containing one or more images of the user (e.g., facial images); a feature data column 724 containing information associated with one or more of the user images (e.g., features of each image, features of the most recent image, and/or a composite or aggregate of features of the user's images); a transaction history column 725 identifying past transactions conducted by the user at the kiosk 100; and a status column 726 indicating whether the user is, for example, approved to use the kiosk 100 or is on a do-not-buy list of blocked users. See para. 87 – emphasis added.
Bowles discloses a method comprising maintaining a table having rows that include scores (information associated with one or more of the user images, features of each image, features of the most recent image, and/or a composite or aggregate of features of the user's images) and corresponding loyalty identifiers (name, driver’s license number, unique identification for the user). See para. 87.
Bowles also recites:
In the illustrated embodiment, the feature comparison component 320 is configured to compare the feature data of two or more facial images and generate a rating, score, or other metric describing the level of similarity between the images. For example, where feature data includes facial contour measurements, the feature comparison component 320 can determine, e.g., whether some or all of the measurements from a first image (e.g., a real-time photograph of the user) match the measurements from a second image (e.g., a driver's license picture) within a certain margin of error (e.g., an amount of variance allowed based on measurement uncertainty). As another example, if the feature data are expressed as vectors, then the feature comparison component 320 can calculate the Euclidian distance (i.e., the shortest line) between the vectors and/or their endpoints; the smaller the distance, the higher the level of similarity. As yet another example, where image feature data is based on image statistics, the feature comparison component 320 can compare feature data from a first image to feature data from a second image to identify a degree of statistical similarity. The feature comparison component 320 can compare images using multiple approaches and generate one or more similarity scores 322 representing a probability that the images are of the same user. See para. 47 – emphasis added.
Bowles discloses a method wherein the score returned from the MLM is searched within a predefined range (within a predefined variance, the predefined variance defining the range) to identify a specific loyalty identifier for the customer. See para. 47.
Examiner notes that a method is defined by the method steps actively being performed (i.e., searching and returning), not method steps performed in the past (i.e., returned or searched). Claiming method steps in the past tense (i.e., returned and searched) can be interpreted as the method steps performed in the past are outside the scope of the claimed method.
Applicant further argues that there is inadequate motivation to combine the previously asserted prior art (Bowles and Panigrahi). While the Applicant’s arguments pertain to the newly amended claim language (e.g., utilization of an application programming interface) and the prior art has been updated to reflect the newly amended claim language, Examiner will address arguments since they may occur in future iterations of examination.
Applicant argues that the previously asserted prior art pertains to different technical fields than the claimed invention. See Arguments, p. 10.
The Examiner respectfully disagrees.
MPEP §2141.01(a) recites:
A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention).
Examiner asserts that based upon common sense, the field of the references and/or the problem the inventor was concerned about, that the cited prior art reference(s) would have been utilized by a skilled artisan in the art, as all prior art reference(s) relate to facial biometrics and facial recognition.
Applicant further argues that there is inadequate motivation to combine the previously asserted prior art (Bowles and Panigrahi), as the prior art utilizes facial recognition for different purposes. See Arguments, pp. 10-11.
The Examiner respectfully disagrees.
The recitation of the intended use or purpose of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use or fulfilling said purpose, then it meets the claim. See MPEP §2114(II), citing Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987).
Additionally, the prior art and the claimed invention utilize facial recognition for the same purpose, the purpose of identifying a customer and/or system user.
Applicant further argues that there is no motivation to combine the prior art. See Arguments, p. 11.
The Examiner respectfully disagrees.
The courts have stated that “[a] suggestion, teaching, or motivation to combine the relevant prior art teachings does not have to be found explicitly in the prior art, as the teaching, motivation, or suggestion may be implicit from the prior art as a whole, rather than expressly stated in the references...The test for an implicit showing is what the combined teachings, knowledge of one of ordinary skill in the art, and the nature of the problem to be solved as a whole would have suggested to those of ordinary skill in the art… there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” See In re Kahn, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
Examiner asserts that he can and/or has provided such “articulated reasoning” to support the legal conclusion of obviousness.
8. 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 JASON M. BORLINGHAUS whose telephone number is (571)272-6924. The examiner can normally be reached M-F 9-5.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, RYAN D. DONLON can be reached on (571)270-3602. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Jason M. Borlinghaus/Primary Examiner, Art Unit 3692 May 31, 2025