DETAILED ACTION
Notice of AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement
2. The list(s) of references is/are of extensive length. Additionally, there exists a significant lack of clarity as to how a large percent of the listed references could possibly be material to patentability of the presently claimed invention. Forcing an examiner to find a needle in a haystack is probative of bad faith (Molins PLC v. Textron, Inc., 48 F.3d 1172 (Fed. Cir. 1995)). Such acts of cloaking relevant references by inclusion in a long list of citations may not comply with Applicant's duty of disclosure (Penn Yah Boats', Inc. v. Sea Lark Boats', Inc., 359 F. Supp. 948 (S.D. Fla. 1972)). Similarly, failing to highlight to an examiner buried references disclosing a particularly relevant embodiment to the pending claims has been found to be misrepresentation, resulting in holding patents unenforceable due to inequitable conduct (Golden Valley Microwave Foods' Inc. v. Weayer Popcorn Co. Inc., 837 F. Supp. 1444, 1477 (N.D. Ind. 1992); Penn Yah Boats', Inc. v. Sea Lark Boats', Inc., 359 F. Supp. 948,965 (S.D. Fla. 1972)).
Each non-patent literature document listed in the information disclosure statements and not crossed-through has been considered only to the extent of the title of the document or, if lacking a title, the first word of the first page. Each foreign patent document listed in the information disclosure statements and not crossed-through has been considered only to the extent of the country from which the document originates and the document number. Each communication from the U.S.P.T.O. or a foreign patent authority, listed in the information disclosure statements, and not crossed-through has been considered only to the extent of the application number, the country or authority from which the communication originates, the communication type, and the date the communication was mailed or, if a different date appears on the document instead of a mailing date, the different date. Each document listed in the information disclosure statements that is (1) not a U.S. Patent or U.S. Publication, (2) not covered by one of the preceding sentences in this paragraph, and (3) not crossed-through has been considered only to the extent of the first word of the first page.
If Applicant(s) desires Examiner perform further consideration of the references, Applicant(s) must provide a concise explanation of why the information is being submitted, how the information is understood to be relevant, and whether one or more are highly relevant with pinpoint citations to specific pages and specific lines (See, MPEP § 609.04(a)(III), final paragraph, Provision of these explanations with specific citations to pages and lines is encouraged by the Office).
Double Patenting
3. Claim 14 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 14 of prior U.S. Application 18/405,422. This is a statutory double patenting rejection.
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
4. Claims 1-12 and 15-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 and 15-20 of U.S. Application 18/405,422 in view of Song et al (US Pub: 20130269618)’s further teaching on a plurality of bird/animal stations [abstract]. The combined teaching would have been obvious to an ordinary skilled in the art for monitoring birds at various stations for improved communication. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-12 and 14-20 of US Application 18/405,422 in view of Song et al disclose the limitations of the corresponding claims of current application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claim Rejections - 35 USC § 103
5. 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 of this title, 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.
6. Claims 1-3, 11, 12, and 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Song et al (US Pub: 20130269618) and in further view of Bohao (WO Pub: 2020076225) and Gao et al (CN Pub: 110598715).
Regarding claim 1 (Original), Song et al teaches: A system for identifying and tracking an individual bird, comprising: a plurality of bird stations, wherein each bird station provides at least one of food, drink, bathing, nesting and shelter for birds [abstract, p0008], and comprises a respective imaging device arranged to generate respective image data by capturing a respective image which shows at least part of a foot of a bird visiting the bird station [p0038 (optical cow recognition)]; and a data processing apparatus comprising at least one processor, and at least one memory storing computer-executable instructions that, when executed by the at least one processor, cause the at least one processor to generate bird tracking data for tracking a movement of an individual bird between at least some of the bird stations [p0012, p0020]; and performing, for each bird station of the plurality of bird stations, processes of: in case it is determined that the bird visiting the bird station can be identified as being one of the plurality of different birds, generating a respective item of the tracking data, which item comprises: respective identification information which identifies the one of the plurality of different birds [p0043]; respective location information indicative of a geographical location of the bird station [p0012]; and a respective indication of a time at which the bird visited the bird station [p0012]; and in case it is determined that the bird visiting the bird station cannot be identified as being one of the plurality of different birds, generating an indicator indicating that the bird cannot be identified as being one of the plurality of different birds [page 6: line 16-19].
Song et al does not disclose animal identification and tracking through imaging. In the same field of endeavor, Bohao teaches: processing the respective image data from each bird station of the plurality of bird stations using reference data which comprises, for each bird of a plurality of different birds, a respective set of feature descriptors derived from at least one image of a foot of the bird, and respective bird identification information which identifies the bird, to determine whether the bird visiting the bird station can be identified as being one of the plurality of different birds [page 2: lines 10-30]. Therefore, given Song et al’s tracking technique by imaging, it would have been obvious for an ordinary skilled in the art before the effective filing date of the claimed invention to combine the teaching of the two to track animal by imaging for more accurate identification.
Bohao identifies an animal by imaging its head. Song in view of Bohao does not identify a bird by foot. In the same field of endeavor, Gao et al further teaches bird identification by foot [page 16: p07]. Therefore, it would have been obvious for an ordinary skilled in the art before the effective filing date of the claimed invention to combine the teaching of all to apply Song in view of Bohao’s animal identification and tracking technique to bird identification by its foot for target attribute per design choice.
Regarding claim 2 (Previously Presented), the rationale applied to the rejection of claim 1 has been incorporated herein. Bohao further teaches: The system of claim 1, wherein the computer-executable instructions, when executed by the at least one processor, cause the at least one processor to process the respective image data from each bird station of the plurality of bird stations to determine whether the bird visiting the bird station can be identified as being one of the plurality of different birds by: processing the image data to generate a set of feature descriptors of the respective image [page 10: lines 5-14]; calculating a respective degree of similarity between the generated set of feature descriptors and each of one or more of the sets of feature descriptors in the reference data; and determining, based on the calculated degrees of similarity, whether the bird visiting the bird station can be identified as being one of the plurality of different birds [page 12: lines 14-28, page 13: lines 1-7].
Regarding claim 3 (Previously Presented), the rationale applied to the rejection of claim 2 has been incorporated herein. Bohao further teaches: The system of claim 2, wherein the computer-executable instructions, when executed by the at least one processor, cause the at least one processor to process the respective image data from each bird station of the plurality of bird stations to generate the respective set of feature descriptors by segmenting the respective image to isolate a part of the image representing an image of the at least part of the foot of the bird at the bird station from a remainder of the image, and processing the isolated part of the image to generate the respective set of feature descriptors of the image [page 7: lines 19-26, page 12: 6-13, page 13: lines 8-17]. Therefore, given Bohao’s image segmentation and processing technique and Gao et al’s bird identification by foot, the combined teaching would have made bird identification by foot segmentation obvious to a skilled in the art.
Regarding claim 11 (Currently Amended), the rationale applied to the rejection of claim 1 has been incorporated herein. Song et al further teaches: The system of claim 1, wherein the reference data further comprises a respective indication of a geographical location at which the respective image of the foot of each bird of the plurality of different birds was captured, and the computer-executable instructions, when executed by the at least one processor, further cause the at least one processor to identify a third subset of the reference data using an indication of a geographical location at which the image captured by the imaging device of a first bird station of the plurality of bird stations was captured, wherein the processing of the image data from the first bird station to determine whether the bird at the first bird station can be identified as being one of the plurality of different birds uses feature descriptors that are limited to the feature descriptors in the third subset of the reference data [p0012, p0013].
Regarding claim 12 (Currently Amended), the rationale applied to the rejection of claim 1 has been incorporated herein. Bohao further teaches: The system of claim 1, wherein each bird station of the plurality of bird stations further comprises a respective wireless transmitter arranged to wirelessly transmit the image data from the bird station to the data processing apparatus [page 8: lines 7-16].
Claims 14-16 have been analyzed and rejected with regard to claims 1-3 respectively.
71066.. Claims 4, 5, 13, 17, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Song et al (US Pub: 20130269618), Bohao (WO Pub: 2020076225) and Gao et al (CN Pub: 110598715); and in further view of Canning et al (EP Pub: 4470368).
Regarding claim 4 (Currently Amended), the rationale applied to the rejection of claim 1 has been incorporated herein. Song et al in view of Bohao and Gao et al does not specify updating reference data. In the same field of endeavor, Canning et al teaches: The system of claim 1, wherein the computer- executable instructions, when executed by the at least one processor, further cause the at least one processor to: in case it is determined that the bird visiting first a bird station of the plurality of bird stations can be identified as being one of the plurality of different birds, update the set of feature descriptors in the reference data for the one of the plurality of different birds using at least one new feature descriptor which is derived from the image captured by the imaging device of the first bird station; and in case it is determined that the bird visiting a first bird station of the plurality of bird stations cannot be identified as being one of the plurality of different birds, update the reference data to include at least one new feature descriptor which is derived from image captured by the imaging device of the first bird station, and associated new bird identification information which indicates a newly assigned identity of the bird visiting the first bird station [p0017, p0086, p0092, p0096 (Feature vectors are updated in both known and unknown animal database.)].
Therefore, given Canning et al’s prescription, updating databased for both known and unknown animals/birds would have been within grasp of an ordinary skilled in the art.
Regarding claim 5 (Currently Amended), the rationale applied to the rejection of claim 1 has been incorporated herein. Claim 5 has been analyzed and rejected with regard to claim 4 and in accordance with Bohao’s further teaching on: The system of claim 1, wherein the imaging device of a first bird station of the plurality of bird stations is arranged to generate the image data by capturing a first set of images of at least part of the foot of the bird visiting the first bird station, which first set of images includes the image captured by the imaging device of the first bird station, the first bird station further comprises a second imaging device arranged to capture a second set of images, each image of the second set of images showing a feathered portion of a bird at the first bird station, the second imaging device being arranged to capture the second set of images while the imaging device of the first bird station is capturing the first set of images [page 2: lines 9-29], and in case it is determined that the same bird was not imaged in the images of the second set of images, generate an indicator which indicates that the reference data is not to be updated using at least one image in the first set of images [page 6: lines 16-19].
Regarding claim 13 (Currently Amended), the rationale applied to the rejection of claim 1 has been incorporated herein. Bohao further teaches: The system of claim 1, wherein the data processing system comprises a plurality of processors, and a plurality of memories storing computer-executable instructions that, when executed by the processors, cause the processors to generate the bird tracking data, the imaging device of each of the bird stations comprises a respective processor of the plurality of processors and a respective memory of the plurality of memories, the respective memory storing computer-executable instructions that, when executed by the respective processor, cause the respective processor to generate, as the respective image data, one or more feature descriptors derived from the respective image captured by the imaging device, the system further comprises a data processing hub arranged to receive the respective one or more feature descriptors from the respective processor of each imaging device, the data processing hub comprising a processor of the plurality of processors and a memory of the plurality of memories which stores the reference data and the computer-executable instructions that, when executed by the processor of the data processing hub, cause the processor of the data processing hub to process the respective one or more feature descriptors generated by the respective processor of each of the bird stations to generate the bird tracking data [page 8: lines 7-16].
And Canning et al, in the same field of endeavor, also teaches data processing hub: [p0043-p0045]. Therefore, the combined teaching would have made a data processing hub/server obvious to a skilled in the art for improving processing efficiency.
Claims 17 and 18 have been analyzed and rejected with regard to claims 4 and 5 respectively.
81066.. Claims 6, 7, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Song et al (US Pub: 20130269618), Bohao (WO Pub: 2020076225) and Gao et al (CN Pub: 110598715); and in further view of Zhou et al (CN Pub: 117288249).
Regarding claim 6 (Currently Amended), the rationale applied to the rejection of clam 1 has been incorporated herein. Bohao’s further teaches: The system of claim 1, wherein the reference data further comprises, for each bird of the plurality of different birds, a respective indication of one or more attributes relating to the bird, a first bird station of the plurality of bird stations further comprises a second imaging device arranged to capture a second image of the bird at the first bird station, wherein the second image comprises an image portion which shows a feathered portion of the bird at the first bird station, and the computer-executable instructions, when executed by the at least one processor, further cause the at least one processor to: process the image portion to obtain an indication of at least one attribute of the one or more attributes which relates to the bird at the first bird station; and identify a subset of the reference data using the obtained indication, and the processing of the image data from the first bird station to determine whether the bird at the first bird station can be identified as being one of the plurality of different birds uses feature descriptors that are limited to the feature descriptors in the identified subset of the reference data [page 2: lines 9-29; page 7: lines 6-26].
Song et al in view of Bohao and Gao et al does not identify feather. In the same field of endeavor, Zhou et al teaches: bird identification through bird feather [abstract]. Therefore, using feather as a part of identification attribute would have been an obvious alternative for a skilled in the art for identifying an animal based on its unique characteristics.
Regarding claim 7 (Currently Amended), the rationale applied to the rejection of claim 1 has been incorporated herein. Claim 7 has been analyzed and rejected with regard to claim 6.
Claims 19 and 20 have been analyzed and rejected with regard to claims 6 and 7 respectively.
91066.. Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Song et al (US Pub: 20130269618), Bohao (WO Pub: 2020076225) and Gao et al (CN Pub: 110598715), and Zhou et al (CN Pub: 117288249) and in further view of Eric (GB Pub: 2638121) and Goff et al (CN Pub: 120226058).
Regarding claim 8 (Currently Amended), the rationale applied to the rejection of claim 6 has been incorporated herein. Song et al in view of Bohao and Gao et al does not identify sex or age of a bird. In the same field of endeavor, Eric teaches: The system of claim 6, wherein the one or more attributes comprises one or more of a species of the bird, a sex of the bird, an age of the bird [page 3: p05].
And Goff et al further teaches: and whether the feature descriptor derived from the at least one image of the foot of the bird relates to a left foot of the bird or a right foot of the bird [page 23: p05]. Although Goff et al identifies left/right wing rather than foot, given collect bird foot as attribute described by Gao et al. It would have been obvious for a skilled in the art to collect any feature of a bird as an attribute for recognition and comparison purpose.
101066.. Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Song et al (US Pub: 20130269618), Bohao (WO Pub: 2020076225), Gao et al (CN Pub: 110598715), Zhou et al (CN Pub: 117288249), Eric (GB Pub: 2638121) and Goff et al (CN Pub: 120226058); and in further view of You et al (CN Pub: 113645389).
Regarding claim 9 (Previously Presented), the rationale applied to the rejection of claim 8 has been incorporated herein. Song et al in view of Bohao, Gao et al, Eric, and Goff et al does not disclose orientation of a bird. In the same field of endeavor, You et al teaches: The system of claim 8, wherein the computer-executable instructions, when executed by the at least one processor, cause the at least one processor to: process the image portion to obtain an indication of an orientation of the bird at the first bird station; and identify the subset of the reference data in accordance with the obtained indication of the orientation of the bird, such that the subset of the reference data comprises feature descriptors that are limited to feature descriptors derived from respective images of either a left foot or a right foot of each bird of the plurality of different birds [page 6: p01]. Therefore, the combined teaching of all would have made orientation of a bird an attribute per design choice.
111066.. Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Song et al (US Pub: 20130269618), Bohao (WO Pub: 2020076225) and Gao et al (CN Pub: 110598715); and in further view of Margolis et al (US Pub: 20100322483).
Regarding claim 10 (Currently Amended), the rationale applied to the rejection of claim 1 has been incorporated herein. Song et al in view of Bohao and Gao et al does not specify image capturing date. In the same field of endeavor, Margolis et al teaches: The system of claim 1, wherein the reference data further comprises a respective indication of a date on which the respective image of the foot of each bird of the plurality of different birds was captured, and the computer-executable instructions, when executed by the at least one processor, further cause the at least one processor to identify a second subset of the reference data using a date of capture of the image captured by the imaging device of a first bird station of the plurality of bird stations, wherein the processing of the image data from the first bird station to determine whether the bird at the first bird station can be identified as being one of the plurality of different birds uses feature descriptors that are limited to the feature descriptors in the second subset of the reference data [abstract]. Therefore, the combined teaching of all would have made image capturing date an attribute per design choice.
Contact
12. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FAN ZHANG whose telephone number is (571)270-3751. The examiner can normally be reached on Mon-Fri 9:00-5:00.
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/Fan Zhang/
Patent Examiner, Art Unit 2682