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 .
Response to Arguments
Applicant's arguments filed 10/21/2025 have been fully considered but they are not persuasive.
Regarding claims 1 and 21, applicant argues that Taylor in view of Haitani fail to teach the amended features such as displaying how fabric moves and sits on the user’s body with an item of clothing while the… user is moving by spinning around and walking, since in Haitani the avatar is not an image of the users themselves, but rather a separate representation; remarks pages 7-8.
However, the examiner respectfully disagrees with the applicant. Taylor discloses a user system 14 which includes an interface 32 that allows users to virtually try on products presented on the video content; paragraphs [0036] [0038]. Wherein user system 14 comprises a camera to capture the user, and the mechanism can display a user's face and/or body on the user interface 32 so that they can virtually try on products that they are interested in buying. The mechanism can also display other items of the user with the camera, such as a room, their house, or their yard or property; paragraph [0036].
While Taylor already discloses the user interface 32 displaying a user's face and/or body virtually trying on products by a user system 14, e.g. mobile device, Taylor is silent to explicitly disclose that the user may spin around and walk. Haitani further recites that it is known in the art to enable customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace. Wherein the customer may spin, walk, jump, lean or take any other action as the imaging device captures depth data from the customer; col. 6 lines 23-47 figure 1, col. 27 lines 1-11 .
The examiner notes that Haitani was merely introduced to teach that it is known in virtual try-on systems to allow the user to be able to see how fabric moves and sits on the user’s body with an item of clothing while the user is moving by spinning around and walking, as described by Haitani. One or ordinary skill in the art would recognize that the teachings of Taylor in view of Haitani clearly disclose the claimed features of claims 1 and 21, as shown in the current office action.
Priority
The examiner notes that the effective filing date of the instant application is 03/29/2023, since the current application is the earliest application in the CIP family to fully support at least: “virtually trying on products displays how fabric moves and sits on the first individual user’s body with an item of clothing while the first individual user is moving by spinning around and walking”, as amended in independent claims 1 and 21.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,155,901 in view of Haitani al. (Patent No. US 10,664,903). Claim 1 of U.S. Patent No. 12,155,901 already discloses most of the claimed features in claims 1 and 21, except for the mechanism for virtually trying on products displays how fabric moves and sits on the first individual user’s body with an item of clothing while the first individual user is moving by spinning around and walking
Nevertheless, in a similar field of endeavor Haitani discloses that the mechanism for virtually trying on products displays how fabric moves and sits on the first individual user’s body (Col. 13 lines 53-67; predict how the fabric would appear or behave while being worn by the customer) with an item of clothing while the first individual user is moving by spinning around and walking (Col. 6 lines 23-47 figure 1; enable customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace. Wherein the customer may spin, walk, jump, lean or take any other action as the imaging device captures depth data from the customer; col. 27 lines 1-11).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify claim 1 of U.S. Patent No. 12,155,901 by specifically providing the elements mentioned above, as taught by Haitani, for the predictable result of allowing customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace saving shipping costs and increasing profit for the seller (Haitani – col. 2 lines 57-60).
Claims 1 and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,831,960 in view of Haitani al. (Patent No. US 10,664,903). Claim 1 of U.S. Patent No. 11,831,960 already discloses most of the claimed features in claims 1 and 21, except for the mechanism for virtually trying on products displays how fabric moves and sits on the first individual user’s body with an item of clothing while the first individual user is moving by spinning around and walking
Nevertheless, in a similar field of endeavor Haitani discloses that the mechanism for virtually trying on products displays how fabric moves and sits on the first individual user’s body (Col. 13 lines 53-67; predict how the fabric would appear or behave while being worn by the customer) with an item of clothing while the first individual user is moving by spinning around and walking (Col. 6 lines 23-47 figure 1; enable customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace. Wherein the customer may spin, walk, jump, lean or take any other action as the imaging device captures depth data from the customer; col. 27 lines 1-11).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify claim 1 of U.S. Patent No. 11,831,960 by specifically providing the elements mentioned above, as taught by Haitani, for the predictable result of allowing customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace saving shipping costs and increasing profit for the seller (Haitani – col. 2 lines 57-60).
Claims 1 and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,503,378 in view of Haitani al. (Patent No. US 10,664,903). Claim 1 of U.S. Patent No. 11,503,378 already discloses most of the claimed features in claims 1 and 21, except for the mechanism for virtually trying on products displays how fabric moves and sits on the first individual user’s body with an item of clothing while the first individual user is moving by spinning around and walking
Nevertheless, in a similar field of endeavor Haitani discloses that the mechanism for virtually trying on products displays how fabric moves and sits on the first individual user’s body (Col. 13 lines 53-67; predict how the fabric would appear or behave while being worn by the customer) with an item of clothing while the first individual user is moving by spinning around and walking (Col. 6 lines 23-47 figure 1; enable customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace. Wherein the customer may spin, walk, jump, lean or take any other action as the imaging device captures depth data from the customer; col. 27 lines 1-11).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify claim 1 of U.S. Patent No. 11,503,378 by specifically providing the elements mentioned above, as taught by Haitani, for the predictable result of allowing customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace saving shipping costs and increasing profit for the seller (Haitani – col. 2 lines 57-60).
Claims 1 and 21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18/192,265 in view of Haitani al. (Patent No. US 10,664,903). Claim 1 of copending Application No. 18/192,265 already discloses most of the claimed features in claims 1 and 21, except for the mechanism for virtually trying on products displays how fabric moves and sits on the first individual user’s body with an item of clothing while the first individual user is moving by spinning around and walking
Nevertheless, in a similar field of endeavor Haitani discloses that the mechanism for virtually trying on products displays how fabric moves and sits on the first individual user’s body (Col. 13 lines 53-67; predict how the fabric would appear or behave while being worn by the customer) with an item of clothing while the first individual user is moving by spinning around and walking (Col. 6 lines 23-47 figure 1; enable customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace. Wherein the customer may spin, walk, jump, lean or take any other action as the imaging device captures depth data from the customer; col. 27 lines 1-11).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to claim 1 of copending Application No. 18/192,265 by specifically providing the elements mentioned above, as taught by Haitani, for the predictable result of allowing customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace saving shipping costs and increasing profit for the seller (Haitani – col. 2 lines 57-60).
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.
Claims 1, 4, 6-21, 24 and 26-29 are rejected under 35 U.S.C. 103 as being unpatentable over Taylor (Pub No US 2021/0274260 – published on 09-02-2021) in view of Haitani al. (Patent No. US 10,664,903). Hereinafter, referenced as Taylor and Haitani, respectively.
Regarding claim 1, Taylor disclose a system for virtually trying on products (e.g. user system 14), consisting of a first user system including a first user interface having an input device and screen view that is generated by software stored on a memory device of a first user transmitter/receiver (Paragraph [0050]; transmitter/receiver 22),
the first user system displaying products available to purchase in media and including a mechanism for virtually trying on products on products having facial recognition software stored on non-transitory computer readable media in electronic communication with a camera on said first user system (Paragraph [0036]; virtually trying on products including a facial recognition software and a camera),
wherein the first user system and the camera are integrated in an device chosen from a smartphone and tablet (Paragraph [0050]; the user system 14 may be integrated in hardware and/or software components of a cellular phone, i.e., smartphone, or tablet),
wherein the mechanism for virtually trying on products displays products on a first individual user’s face, on a first individual user’s body, in a first individual user’s room, and on a first individual user’s property (Paragraph [0036]; virtually trying on products on the user’s face, body, room and property) and such that the product is virtually applied to the first individual user displayed in the first user interface (Paragraphs [0036] [0038]; virtually trying on products including facial recognition software with a camera on the user system 14, e.g. interface 32, such as from a smartphone, tablet, desktop computer, laptop, gaming system, or other system).
While Taylor discloses virtually trying on products displayed to the user (Paragraph [0036]), it is noted that Taylor is silent to explicitly disclose that the mechanism for virtually trying on products displays how fabric moves and sits on the first individual user’s body with an item of clothing while the first individual user is moving by spinning around and walking.
Nevertheless, in a similar field of endeavor Haitani discloses that the mechanism for virtually trying on products (Col. 5 line 51-col.6 line 22, col. 40 lines 1-15, Figure 1H; personal computer 175 showing a visual representation 140 of the item 130A on an avatar 122 of the customer 170 that is derived based on the point cloud 120 captured in real time) displays how fabric moves and sits on the first individual user’s body (Col. 13 lines 53-67; predict how the fabric would appear or behave while being worn by the customer) with an item of clothing while the first individual user is moving by spinning around and walking (Col. 6 lines 23-47 figure 1; enable customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace. Wherein the customer may spin, walk, jump, lean or take any other action as the imaging device captures depth data from the customer; col. 27 lines 1-11).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Taylor by specifically providing the elements mentioned above, as taught by Haitani, for the predictable result of allowing customers to virtually “try on” articles of clothing prior to purchasing them from an electronic marketplace saving shipping costs and increasing profit for the seller (Haitani – col. 2 lines 57-60).
Regarding claim 4, Taylor and Haitani disclose the system of claim 1; moreover, Taylor discloses that the mechanism for virtually trying on products allows for trying on or out a product chosen from the group consisting of jewelry, makeup, hair dye, items of clothing, furniture, decor, trees, and flowers (Paragraph [0031]; jewelry).
Regarding claim 6, Taylor and Haitani disclose the system of claim 1; moreover, Taylor discloses a recording mechanism that records a desired portion of media upon activation by a first individual user who is not a content provider, the portion of media being less than a full media episode (Paragraph [0041]; recording mechanism);
a friend request mechanism for sending and receiving friend requests between users to be approved to receive and share media and wherein the friend request mechanism suggests friends who have similar interests of the first individual user, and wherein the friends are searchable by information chosen from the group consisting of name, user name, gamer tag, telephone, address, and email (Paragraph [0008]; friend request mechanism);
the first user transmitter/receiver included in the first user system that transmits the portion of media and a message generated by the first individual user regarding the portion of media to a second individual user who is not a content provider, the first user system including a user profile generator interface and a store section for shopping for products and listing products for sale, wherein the store section includes software that recognizes and tags items available to purchase in the media and the mechanism for virtually trying on products (Paragraph [0008]; first transmitter/receiver allowing users to shop for products and list products for sale, along with a mechanism that allows the users to virtually try on products);
a confirmation mechanism that confirms that the second individual user is authorized to view the portion of media and a notification mechanism that notifies the first individual user if the second individual user is not authorized to receive the portion of media and notifies the second individual user that the portion of media cannot be received due to programming configuration subscribed to by the second individual user (Paragraph [0008]; confirmation mechanism);
a second user transmitter/receiver included in a second user system that receives the portion of media upon authorization of the second individual user; the second user system including a second user interface having an input device and screen view that is generated by software stored on a memory device of the second user transmitter/receiver, the second user system including a user profile generator interface and a store section for shopping for products and listing products for sale, wherein the store section includes software that recognizes and tags items available to purchase in the media and a mechanism for virtually trying on products (Paragraph [0008]; a second user transmitter/receiver allowing users to shop for products and list products for sale, along with a mechanism that allows the users to virtually try on products);
a search mechanism that allows the first individual user and second individual user to search by keywords for media and products used in media (Paragraph [0008]; search mechanism);
a video recording mechanism that allows the first individual user to record a video of themselves and share the video with the second individual user (Paragraph [0008]; recording mechanism to allow the user to record themselves and share the video);
an online betting module that allows the first individual user to place bets (Paragraph [0008]; online betting);
and an online food ordering module that allows the first individual user to order food, wherein the online food ordering module includes software that recognizes and tags food available to order in the media (Paragraph [0008]; online food ordering).
Regarding claim 7, Taylor and Haitani disclose the system of claim 6; moreover, Taylor discloses that the online food ordering module allows the first individual user to order food chosen from the group consisting of food advertised in a commercial, food advertised in an online ad, and food shown in a media program (Paragraphs [0008] [0043]; online food ordering, e.g. shown in a commercial).
Regarding claim 8, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that the online food ordering module interacts with an existing food ordering and delivery platform (Paragraphs [0008] [0043]; online food ordering interacts with existing food ordering platform).
Regarding claim 9, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that the first user interface further includes a quick share button that allows for instant recording of media for a length of time chosen from the group consisting of 5 seconds, 10 seconds, 15 seconds, 30 seconds, 1 minute, and 5 minutes (Paragraph [0052]; e.g. 5 seconds).
Regarding claim 10, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that the first user system and second user system are capable of receiving and executing voice commands chosen from the group consisting of rewinding media, fast forwarding media, recording media, adding a message to recorded media, and sending media and/or a message (Paragraph [0052]; voice commands).
Regarding claim 11, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that second user system is integrated in a smartphone or tablet and the first user system and the second user system are accessible by using an application stored on non- transitory computer readable media (Paragraph [0050]; integrated on a cellular phone).
Regarding claim 12, Taylor and Haitani disclose the system of claim 1; moreover, Taylor discloses that the media is chosen from the group consisting of program information, programming shows, movies, concerts, sporting events, online games, virtual reality, preset blocks of media, and commercials (Paragraph [0057]; e.g. sporting events).
Regarding claim 13, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that the second user transmitter/receiver includes a recording mechanism that records a desired portion of media upon activation by the second individual user and can transmit the portion of media to the first individual user (Paragraph [0006]; record a desired portion).
Regarding claim 14, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that the first user interface transmits the portion of media to the second user transmitter/receiver based upon a profile established through a user interface of the second user transmitter/receiver (Paragraph [0006]; stabilized profile).
Regarding claim 15, Taylor and Haitani disclose the system of claim 14; moreover, Taylor discloses that the profile comprises select program or program type disseminated by a media content provider and personal information of the user of the first user transmitter/receiver (Paragraphs [0023] [0024]).
Regarding claim 16, Taylor and Haitani disclose the system of claim 15; moreover, Taylor discloses that the personal information includes payment information (Paragraph [0035]; payment information).
Regarding claim 17, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that the first user transmitter/receiver automatically records media disseminated by the media content provider based upon preferences entered into a user profile of the first user transmitter/receiver (Paragraphs [0023] [0044]).
Regarding claim 18, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that the notification mechanism notifies the first individual user, the second individual user, or both, if the second user transmitter/receiver does not have sufficient memory to receive the portion of media (Paragraph [0051]; sufficient memory).
Regarding claim 19, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that the message is chosen from the group consisting of text, voice, video, emojis, text and drawing markups in the media, and images (Paragraph [0007]; text, voice, emojis, etc.).
Regarding claim 20, Taylor and Haitani disclose the system of claim 7; moreover, Taylor discloses that the products are chosen from the group consisting of product directly advertised to the first individual user, products based on a user profile, products shown in media, songs heard in media, and combinations thereof (Paragraph [0019]; e.g. songs).
Regarding claim 21, Taylor and Haitani disclose all the limitations of claim 21; therefore, claim 21 is rejected for the same reasons stated in claim 1.
Regarding claim 24, Taylor and Haitani disclose all the limitations of claim 24; therefore, claim 24 is rejected for the same reasons stated in claim 4.
Regarding claim 26, Taylor and Haitani disclose all the limitations of claim 26; therefore, claim 26 is rejected for the same reasons stated in claims 6, 7 and 19.
Regarding claim 27, Taylor and Haitani disclose all the limitations of claim 27; therefore, claim 27 is rejected for the same reasons stated in claim 6.
Regarding claim 28, Taylor and Haitani disclose all the limitations of claim 28; therefore, claim 28 is rejected for the same reasons stated in claim 11.
Regarding claim 29, Taylor and Haitani disclose all the limitations of claim 29; therefore, claim 29 is rejected for the same reasons stated in claims 6 and 12.
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 JUNIOR O MENDOZA whose telephone number is (571)270-3573. The examiner can normally be reached Mon-Fri 10am-6pm EST..
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, Benjamin Bruckart can be reached at 571-272-3982. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
JUNIOR O. MENDOZA
Primary Examiner
Art Unit 2424
/JUNIOR O MENDOZA/Primary Examiner, Art Unit 2424