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
This communication is in response to the application filed 07 June 2023. Claims 1-20 are pending. The rejections are as stated below.
Double Patenting
The non-statutory 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 non-statutory double patenting rejection is appropriate where the claims at issue 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); and 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 a non-statutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
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Claims 1-20 are rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1-20 of US Patent 10402553 B1 and claims 1-20 of US Patent 11755702 B2. Although the conflicting claims are not identical, they are not patentably distinct from each other because they recite means or steps that are substantially the same (using images to authenticate a user ) and that would have been obvious to one of ordinary skill in the art. Claims 1-20 of the instant application essentially repeat all the features listed in claims 1-20 of US Patent 10402553 B1 and claims 1-20 of US Patent 11755702 B2. However, certain language has been removed from the above issued Patents, “cross-verifying the received image against a plurality of images of the user stored in a social networking profile of a non-user, the social networking profile of the non-user being associated with the social networking profile of the user; and authenticating the user in the received image, based on the difference between the at least one facial descriptor from the received image and the at least one facial descriptor from the previously captured images and the cross verifications”. Therefore, the omission of an element with a corresponding loss of function is an obvious expedient. See In re Karlson, 136 USPQ 184 and Ex parte Rainu, 168 USPQ 375.
For these reasons, claims 1-20 of the instant application are not identical to claims 1-20 of US Patent 10402553 B1 and claims 1-20 of US Patent 11755702 B2, but they are not patently distinct.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. In particular, claims are directed to a judicial exception (abstract idea) without significantly more.
Claim 1 (exemplary) recites a series of steps for using images to authenticating a user (see ¶ 0002, of Applicant’s specification).
The claim is directed to a process, which is a statutory category of invention.
The claim is then analyzed to determine whether it is directed to a judicial exception.
Independent apparatus claims 1, recites the limitations of receiving an image of a user; identifying at least one facial descriptor of the user from the image; identifying at least one facial descriptor of the user from a plurality of previously captured images of the user; determining a difference between the at least one facial descriptor from the image and the at least one facial descriptor from the plurality of previously captured images; cross-verifying the difference against a plurality of images of the user stored in profile of the user; and authenticating the user in the image based on cross-verifying the difference.
These limitations, as drafted, are processes that, under its broadest reasonable interpretation covers steps directed to organizing human activity, namely a fundamental economic practice of performing face recognition by comparing images and/or commercial interaction by verifying and authenticating the identity of a user. Under the Guidance, certain methods of organizing human activity, including a fundamental economic practice or commercial interations, represent an abstract idea. See Guidance, 84 Fed. Reg. at 52. In addition to raising the abstract recitation of “‘organizing human activity,’ the claims recite “mental processes”. Claim 1, includes steps that reasonably can be performed by a human (pen and paper). For example, a human can perform the steps recited above in claim 1, by comparing and analyzing images. Under the Guidance, “mental processes—concepts performed in the human mind (including an observation, evaluation, judgment, opinion)” also constitute an abstract idea. See Guidance, 84 Fed. Reg. at 52. Accordingly, the above recitations, and the claim as a whole, recite an abstract idea involving mental processes.
Therefore, it is clear that exemplary independent claim 1 recites limitations, under the Revised Guidance, fall under the category of abstract ideas related to “certain methods of organizing human activity” and/or “mental processes” 2019 Revised Guidance, 84 Fed. Reg. at 52. See MPEP § 2106.04(a)(2). Accordingly, independent claim 1 recites an abstract idea.
Next, the claim is analyzed to determine if it is integrated into a practical application. The recited judicial exception may be integrated into a practical application by identifying whether there are any additional elements recited in the claim beyond the judicial exception and evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application. The claim recites additional limitation of a device and a social networking (claim 1) and at least one processor and a memory (claim 11) to perform the steps. The processor in the steps is recited at a high level of generality, i.e., as a generic computer performing a generic computer function of processing data (see Applicant’s specification ¶¶ 0044 and 0057). This generic computer limitations are no more than mere instructions to apply the exception using generic computer component. Also, these limitations are an attempt to limit the abstract idea to a particular technological environment. Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. See MPEP 2106.05(h). The claim is directed to the abstract idea.
Next, the claim is analyzed to determine if there are additional claim limitations that individually, or as an ordered combination, ensure that the claim amounts to significantly more than the abstract ideas (whether claim provides inventive concept). As discussed above, the recitation of the claimed limitations amounts to mere instructions to implement the abstract idea on a server (using the computer as a tool to implement the abstract idea). Taking the additional elements individually and in combination, the processor at each step of the process performs purely generic computer functions. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. The same analysis applies here, i.e., mere instructions to apply an exception using a generic computer component cannot integrate a judicial exception into a practical application at or provide an inventive concept. See MPEP 2106.05(h).
Viewing the limitations as an ordered combination does not add anything further than looking at the limitations individually. When viewed either individually, or as an ordered combination, the additional limitations do not amount to a claim as a whole that is significantly more than the abstract idea itself. Therefore, the claim does not amount to significantly more than the recited abstract idea. Therefore, the claim is not patent eligible.
The analysis above applies to the statutory category of invention of claims 1 and 11. Furthermore, dependent claims 2-10 and 12-20 do not add limitations that meaningfully limit the abstract idea. The dependent claims do not impart patent eligibility to the abstract idea of the independent claims. Therefore, none of the dependent claims alone or as an ordered combination add limitations that qualify as integrating the abstract idea into a practical application.
Lastly, dependent claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements are simply steps performed by a generic computer. The claim merely amounts to the application or instructions to apply the abstract idea on a processor, and is considered to amount to nothing more than requiring a generic server to merely carry out the abstract idea itself.
Accordingly, claims 1-20 are rejected as ineligible for patenting under 35 U.S.C. 101 based upon the same analysis.
The instant claims are rejected under 35 USC 101 in view of The Decision in Alice Corporation Ply. Ltd. v. CLS Bank International, et al. in a unanimous decision, the Supreme Court held that the patent claims in Alice Corporation Pty. Ltd. v. CLS Bank International, el al. ("Alice Corp. ") are not patent-eligible under 35 U.S.C. § 101.
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 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.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lau et al (US 20130015946 A1), hereinafter “Lau”.
Regarding claims 1 and 11, Lau discloses a system and a corresponding method for authenticating a user (abstract), comprising:
at least one processor (figure 1, element 110 and ¶ 0033); and
at least one memory storing instructions, wherein the instructions cause the at least one processor to perform operations (figure 1, element 120 and ¶ 0033) comprising:
receiving an image of the user of a device (figure 6, element 614 and ¶ 0080);
identifying at least one facial descriptor of the user from the image (figure 6, element 616 and ¶ 0080);
identifying at least one facial descriptor of the user from a plurality of previously captured images of the user stored in the device (¶¶ 0080 and 0116-0120);
determining a difference between the at least one facial descriptor from the image and the at least one facial descriptor from the plurality of previously captured images (¶¶ 0080-0081, 0116-0120 and 0126);
cross-verifying the difference against a plurality of images of the user stored in a social networking profile of the user (¶¶ 0063, 0080-0081 and 0094); and
authenticating the user in the image based on cross-verifying the difference (¶¶ 0080-0081 and 0094).
Regarding claims 2 and 12, Lau discloses the step of generating a notification that the user in the image is an authorized user when the difference between the at least one facial descriptor from the image and the at least one facial descriptor from the plurality of previously captured images is lower than a predetermined threshold (¶¶ 0006 and 0119-0124).
Regarding claims 3 and 13, Lau discloses the at least one facial descriptor of the user comprises at least one of an eye, a nose, or a mouth of the user (¶¶ 0088, 0110, 0117 and 0127).
Regarding claims 4 and 14, Lau discloses the step of generating a first color histogram of the at least one facial descriptor from the image; and comparing the first color histogram with second color histograms of the at least one facial descriptor from the plurality of previously captured images (¶¶ 0101, 0104, 0113-0116 and 0118).
Regarding claims 5 and 15, Lau discloses the step of aligning the at least one facial descriptor from the image with the at least one facial descriptor from the plurality of previously captured images (figures 9A and 9B, ¶¶ 00076 and 0111).
Regarding claims 6 and 16, Lau discloses the step of evaluating a liveness of the user by requesting the user to make a predetermined facial expression; capturing a second image of the user while the user is making the predetermined facial expression; and performing a three-dimensional rendering of the second image (¶ 0109).
Regarding claims 7 and 17, Lau discloses the step of aggregating social networking profiles of non-users associated with the social networking profile of the user; calculating, based on a facial recognition performed, a number of images in which the at least one facial descriptor of the user was identified; and authenticating the user when the number of images exceeds a predetermined threshold (¶ 0123).
Regarding claims 8 and 18, Lau discloses the step generating, based on at least the difference, a notification indicative of whether the user in the image is an authorized user, wherein the notification comprises at least one of a visual notification or an audible notification (figure 14, elements 1432 and 1434 and (¶ 0117).
Regarding claims 9 and 19, Lau discloses the step generating the notification further comprises at least one of:
unlocking the device (figure 6, element 622 and (¶¶ 0067-0069); and
enabling the user to access contents stored in the device or enabling the user to perform a financial transaction (figure 6, element 622 and (¶¶ 0067-0069).
Regarding claims 10 and 20, Lau discloses the step enabling the user to perform a financial transaction when the difference is lower than the predetermined threshold, wherein the predetermined threshold varies based on a type of financial transaction requested by the user (¶¶ 0067-0069 and 0119-0124).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Nagalla (US 10354126 B1) discloses “A method and system for authenticating users accessing financial accounts from user terminals via multi-factor image authentication. The system includes an authentication server and a user terminal. The method captures a first facial image of a user and compares this image with stored facial recognition credentials. The method prompts the user via a facial gesture cue to make a facial gesture, captures a second facial image of the user, and compares the second image with stored facial gesture credentials. The user is authorized to perform a transaction in the event the first facial image matches a facial recognition credential for an authorized account, and the second facial image matches a facial gesture credential associated with the authorized account. Facial gesture credentials may be based upon static gestures or dynamic gestures, and may be overt or secret. An additional authentication factor may employ a secondary biometric senso”
Mardikar (US 20170091533 A1) discloses “A system may receive a primary image containing a first set of facial feature data. The primary image may be sent by a facial recognition device for association with a user account. The system may also retrieve a secondary image from a secondary image source. The secondary image may contain a second set of facial feature data. The secondary image may further depict a user associated with the user account. The system may then compare the first set of facial feature data to the second set of facial feature data to determine whether the primary image depicts the user associated with the user account.”.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Hani Kazimi whose telephone number is (571) 272-6745. The examiner can normally be reached Monday-Friday from 8:30 AM to 5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Abhishek Vyas can be reached on (571) 270-1836. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Respectfully Submitted
/HANI M KAZIMI/
Primary Examiner, Art Unit 3691