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 .
Claim Rejections - 35 USC § 102
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 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-5 and 8-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Couture (20150377587).
Regarding claim 1, Couture discloses (see at least Fig 1, Fig 2A, [0029]-[0046]) an observation system (Fig 1, night vision system 1) comprising a first optical path (A1) that is capable of receiving a first optical radiation emitted by a scene to be observed (Fig 1, [0024]) and including a main sensor (camera 21) configured to generate a first digital image from the first optical radiation ([0009], capture a video image that can be remote to the eyepiece); a second optical path (A2) that is capable of receiving a second optical radiation originating from the scene to be observed and including an optical attenuator (17) having a variable opacity and capable of modifying a light intensity of the second optical radiation ([0022], switchable between a transparent mode and an opaque mode); a display (23) configured to display a second digital image from the first digital image ; and a third optical path (A3) coupled to the display (23) and to the optical attenuator (13) and designed to observe the second digital image and third optical radiation transmitted by the optical attenuator ([0029], energize the switchable coating 17 causing it to go from transparent to opaque to block any light from exiting the front end 13 of the eyepiece 3); wherein it includes an electronic control unit including an image processing unit configured to determine a light intensity of at least one pixel of the first digital image ([0025], 23 receives video data from the camera 21 over a communications link 22 and displays this video onto the eyepiece 3), and in that the electronic control unit is configured to output a command to vary the opacity of the optical attenuator based on the determined light intensity ([0029], energize the switchable coating 17 causing it to go from transparent to opaque to block any light from exiting the front end 13 of the eyepiece 3; 18 is again pressed to turn off the switchable coating 17 causing it to go from opaque back to transparent).
Regarding claim 2, Couture discloses wherein the optical attenuator includes at least one liquid crystal cell ([0025], 1 further includes an Organic LED (OLED) panel 23).
Regarding claim 3, Couture discloses wherein the optical attenuator includes at least one electrochromic cell ([0022], electro-chromic coating).
Regarding claim 4, Couture discloses wherein the optical connector is configured to transmit the third optical radiation by transparency ([0022], switchable between a transparent mode and an opaque mode).
Regarding claim 5, Couture discloses wherein the optical attenuator is configured to transmit the third optical radiation by reflection ([0009], [0021], optical device reflects some of a video image toward an eye of a user of the eyepiece).
Regarding claim 8, Couture discloses wherein the first optical path (A1) comprises an optical element (4) configured to transmit a first part of the first optical radiation to the first sensor (Fig 1 shows A1 from camera 21) and to transmit a second part of the first optical radiation corresponding to the second optical radiation (A2) to the optical attenuator (Fig 1 show A2 reach front end 13).
Regarding claim 9, Couture discloses comprising an optical assembly including the optical element and the optical attenuator, the optical assembly being in one piece (Fig 1, [0020]).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 6 is rejected under 35 U.S.C. 103 as being unpatentable over Couture (20150377587) in view of Burton (8860831).
Regarding claim 6, Couture discloses the invention as described within claim 1 but does not teach wherein the electronic control unit is configured to output a command to increase the opacity of the optical attenuator when the light intensity of said at least one pixel is greater than or equal to a threshold. However, within a similar endeavor, Burton teaches wherein the electronic control unit is configured to output a command to increase the opacity of the optical attenuator when the light intensity of said at least one pixel is greater than or equal to a threshold (Fig 3, Col 7, line 33-43, notch filter coating 307 may also be placed on the DBCA/prism between the display and the prism, as shown, to provide additional attenuation at a specific wavelength(s)). It would have been obvious to one of ordinary skill in the art at the time of the invention was filed to combine the optical device of Couture with the components of Burton for the purpose of optimizing and providing attenuation within an optical display system (Burton, Col 7, line 40-43).
Claim(s) 7 is rejected under 35 U.S.C. 103 as being unpatentable over Couture (20150377587) in view of Smith (2007044582).
Regarding claim 7, Couture discloses the invention as described within claim 1 but does not teach comprising a fourth optical path capable of receiving fourth optical radiation emitted by the scene and including an additional sensor configured to generate a third digital image from the fourth optical radiation; the image processing unit being configured to generate the second digital image from a fusion between the first and third digital images. However, Smith teaches comprising a fourth optical path (Fig 3, path 103, 104, 105, 107) capable of receiving fourth optical radiation emitted by the scene and including an additional sensor configured to generate a third digital image from the fourth optical radiation (Fig 3, Page 5, lines 23-28); the image processing unit (camera 66) being configured to generate the second digital image from a fusion between the first and third digital images (Fig 3, Page 5, lines 23-28). It would have been obvious to one of ordinary skill in the art at the time of the invention was filed to combine the optical device of Couture with the components of Smith for the purpose of providing an amplified image to a user (Smith, Page 1, lines 13-15).
Claim(s) 10 is rejected under 35 U.S.C. 103 as being unpatentable over Couture (20150377587) in view of Tai (20120033195).
Regarding claim 10, Couture discloses (see at least Fig 1, Fig 2A, [0029]-[0046]) an observation method (Fig 1, night vision system 1), comprising receiving a first optical radiation (A1) emitted by a scene to be observed (Fig 1, [0024]) from a first optical path provided with a main sensor (camera 21) generating a first digital image from the first optical radiation ([0009], capture a video image that can be remote to the eyepiece); receiving a second optical radiation (A2) originating from the scene to be observed from a second optical path provided with an optical attenuator (17) having a variable opacity and capable of modifying a light intensity of the second optical radiation ([0022], switchable between a transparent mode and an opaque mode); displaying (23) a second digital image from the first digital image (Fig 1); and observing, from a third optical path, third optical radiation transmitted by the optical attenuator ([0029], energize the switchable coating 17 causing it to go from transparent to opaque to block any light from exiting the front end 13 of the eyepiece 3), and the second digital image, wherein it includes determining a light intensity of at least one pixel of the first digital image ([0025], 23 receives video data from the camera 21 over a communications link 22 and displays this video onto the eyepiece 3) and varying the opacity of the optical attenuator based on the determined light intensity ([0029], energize the switchable coating 17 causing it to go from transparent to opaque to block any light from exiting the front end 13 of the eyepiece 3; 18 is again pressed to turn off the switchable coating 17 causing it to go from opaque back to transparent) but does not teach by an electronic unit including an image processing unit, and outputting a command to vary the opacity of the optical attenuator based on the determined light intensity. However, Tai teaches by an electronic unit including an image processing unit (Fig 4, [0042], controller 460 is implemented by a programmable microprocessor based controller), and outputting a command to vary the opacity of the optical attenuator based on the determined light intensity ([0043], switch/sensor 450 to change operating modes from direct view to digitally imaged mode; controller 460 to change operating modes). It would have been obvious to one of ordinary skill in the art at the time of the invention was filed to combine the optical device of Couture with the components of Tai for the purpose of provide an enhanced imaging implementation (Tai, [0020]).
Response to Arguments
Applicant's arguments filed 10/15/2025 have been fully considered but they are not persuasive. Please see the response to arguments below in the present Office action. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action.
Applicant’s amendment have overcome the outstanding objection to the Specification, unless otherwise noted below.
Applicant argues that the prior art Couture fails to disclose the automatic, pixel-intensity-based control of the optical attenuator of claim 1. It should be not that the singular elements recited by the claims are not required by Applicant’s claim language to be exclusive. The preamble word “comprising” is open-ended and thus does not require the exclusivity of the recited elements, but allows the reference or combination of references to contain other elements as well. Additionally, “[t]he word ‘comprising’ transitioning from the preamble to the body signals that the entire claim is presumptively open-ended.” In Gillette Co. v. Energizer Holdings Inc., 405 F.3d 1367, 74 USPQ2d 1586 (Fed. Cir. 2005). See also Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) (“like the term comprising,’ the terms containing’ and mixture’ are open-ended.”), Invitrogen Corp. v. Biocrest Mfg., L.P., 327 F.3d 1364, 1368, 66 USPQ2d 1631, 1634 (Fed. Cir. 2003) (“The transition comprising’ in a method claim indicates that the claim is open-ended and allows for additional steps.”); Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501, 42 USPQ2d 1608, 1613 (Fed. Cir. 1997). (MPEP §2111.02.). Furthermore, The recitation "pixel intensity based control" of the intended use 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, then it meets the claim. MPEP §2106. With respect to the argument that the prior art Couture cannot perform the control or image processing tasks as identified within the OLED panel, the system within Couture discloses that the system further includes a camera that can be a remote camera that is remote from the eyepiece. Although the cited reference is different from the invention disclosed, the language of Applicant's claims is sufficiently broad to reasonably read on the cited reference. A broad reading does not constitute "teaching away."
Further, it has been held that nonpreferred embodiments failing to assert discovery beyond that known in the art does not constitute a “teaching away” unless such disclosure criticizes, discredits, or otherwise discourages the solution claimed. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971), In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994), In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004), (see MPEP §2124).
Regarding the Applicant’s argument that the prior art Couture does not teach the newly amended independent claim 10, this argument refers to the invention disclosed in the office dated 7/07/2023.
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 Sharrief I Broome whose telephone number is (571)272-3454. The examiner can normally be reached Monday-Friday 8am-5pm, EST.
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Sharrief I. Broome
Primary Examiner
Art Unit 2872
/SHARRIEF I BROOME/ Primary Examiner, Art Unit 2872