DETAILED ACTION
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 without traverse of Group I (claims 1, 3, 7, 8, 10, 14, 15, and 17) in the reply filed on 12/15/2025 is acknowledged.
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, 3, 7, 8, 10, 14, 15, and 17 are rejected under 35 U.S.C. 101 because the claimed invention is directed to judicial exception in the form of an abstract idea without significantly more.
Following is an analysis of claim 1 under the subject matter eligibility test for products and processes in MPEP 2106:
[Claim 1] A processing apparatus comprising:
at least one memory configured to store one or more instructions;
at least one processor configured to execute the one or more instructions to:
acquire an image of a product in a container;
(d) compute an identification score of a container for a product, based on at least one of color and pattern of the container detected form the image;
(e) compute an identification score of the product, based on the image; and
(f) decide identification information of the product, based on the computed identification score of the container and the computed identification score of the product.
The claim is to a machine. (Step 1: YES)
Each of elements (d) and (e) falls within the mathematical concepts groupings of abstract ideas because they cover mathematical relationships, mathematical formulas or equations, and mathematical calculations. See MPEP 2106.04(a)(2), subsection I.C.
Element (f) falls within the mental processes groupings of abstract ideas because it covers concepts performed in the human mind including an observation, evaluation, judgment, opinion. See MPEP 2106.04(a)(2), subsection III.C.
(Step 2A, Prong One, YES)
Additional elements (a) and (b) merely recite a generic computer. See MPEP 2106.05(b).
Additional element (c) recites insignificant extra-solution activity, because it is deemed a pre-solution activity that amounts to necessary data gathering. See MPEP 2106.05(g).
(Step 2A, Prong Two, NO)
Even when viewed in combination, these additional elements do not integrate the recited judicial exception into a practical application, and the claim is directed to the judicial exception. (Step 2A, YES)
Even when considered in combination, these additional elements represent a machine to implement an abstract idea or other judicial exception and insignificant extra-solution activity by a generic computer, that do not provide an inventive concept. (Step 2B: NO)
Each of claims 8 and 15 recite claim limitations similar to claim 1, therefore, similar reasons apply to these claims.
Each of the additional elements in claims 3, 10, and 17 falls within the mathematical concepts groupings of abstract ideas because they cover mathematical relationships, mathematical formulas or equations, and mathematical calculations. See MPEP 2106.04(a)(2), subsection I.C. These additional elements do not integrate the judicial exception into a practical application, and do not amount to significantly more than the judicial exception.
Additional elements in claims 7 and 14 merely indicate a field of use of technological environment in which the judicial exception is performed. See MPEP 2106.05(h). These additional elements do not integrate the judicial exception into a practical application, and do not amount to significantly more than the judicial exception.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3, 7, 8, 10, 14, 15, and 17 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Lu et al. (USPAPN 2020/0082169).
Regarding claim 1, Lu discloses
at least one memory configured to store one or more instructions; and at least one processor configured to execute the one or more instructions (see para [21], a processor and a memory) to:
acquire an image of a product in a container (see para [40], capturing an image of a food item in a container);
compute an identification score of a container for a product, based on at least one of color and pattern of the container detected from the image (see para [40]-[42] and step 421 of fig 4, computing a container confidence score; and see para [16] and [32], based on color and logo patterns on the container in the image);
compute an identification score of the product, based on the image (see para [45] and step 431 of fig 4, computing a food item confidence score, based on the image); and
decide identification information of the product, based on the computed identification score of the container and the computed identification score of the product (see para [46], determining identification of the food item, based on the container confidence score and food item confidence score).
Regarding claim 3, Lu further discloses:
wherein the identification score of the container for the product is value representing a degree of similarity between the container and each of a plurality of containers registered in advance (see para [42], the container confidence score computed in step 421 of fig 4 is a matching degree between the container and various known containers), and
wherein the identification score of the product is value representing the degree of similarity between the product and each of a plurality of products registered in advance (see para [46], the food item confidence score computed in step 431 of fig 4 is a matching degree between the food item and various known food items).
Regarding claim 7, Lu further discloses wherein the product is food or drink, and wherein the container is a dish or a tray (see rejection of claim 1, food item and container).
Regarding claims 8, 10, 14, 15, and 17, Lu discloses everything claimed as applied above (see rejection of claims 1, 3, or 7).
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, 8, and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3 of Shiraishi et al. (USPN 11,900,656) in view of Lu.
Regarding claim 1, Shiraishi discloses:
at least one memory configured to store one or more instructions (see Shiraishi claim 1, “at least one memory”); and
at least one processor configured to execute the one or more instructions (see Shiraishi claim 1, “at least one processor”) to:
an image of a product in a container (see Shiraishi claim 1, “an image of the product, the product including an object contained in the container”);
compute an identification score of a container for a product (see Shiraishi claim 1, “compute an identification score of a container of a product”);
compute an identification score of the product, based on the image (see Shiraishi claim 1, “compute an identification score of the product, based on the image”); and
decide identification information of the product, based on the computed identification score of the container and the computed identification score of the product (see Shiraishi claim 1, “determine identification information of the product, based on the computed identification score of the container and the computed identification score of the product”).
Shiraishi does not disclose:
acquire an image (i.e., Shiraishi recites “an image”, however, does not specify acquiring the image);
based on at least one of color and pattern of the container detected from the image (i.e., Shiraishi recites to “compute an identification score of a container”, however, does not specify using color and pattern of the container in the image).
In a similar field of endeavor of identifying a food item based on recognizing both the food item and its container, Lu discloses:
acquire an image (see para [40], capturing an image of a food item in a container);
based on at least one of color and pattern of the container detected from the image (see para [40]-[42] and step 421 of fig 4, computing a container confidence score; and see para [16] and [32], based on color and logo patterns on the container in the image).
Therefore, it would have been obvious to one of ordinary skill in the art to combine Shiraishi with Lu, use an image of a product and its container and compute a score for the container, as disclosed by Shiraishi, wherein the image is obtained during an obtaining step and the score for the container is computed based on its color and pattern, as disclosed by Lu, for the purpose of achieving greater accuracy in identifying the food item (see Lu para [11]).
Similar reasons apply to claims 8 and 15 (see Shiraishi claims 1 or 3 in view of Lu).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Ortiz et al. (USPN 9,349,297) discloses identifying food items by recognizing food items and corresponding containers.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SJ PARK whose telephone number is (571)270-3569. The examiner can normally be reached M-F 8:00 AM - 5:00 PM.
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/SJ Park/Primary Examiner, Art Unit 2675