DETAILED ACTION
Contents
Notice of Pre-AIA or AIA Status 2
Claim Interpretation 2
Claim Rejections - 35 USC § 112 5
Double Patenting 6
Claim Rejections - 35 USC § 102 7
Conclusion 14
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 .
This action is responsive to applicant’s claim set received on 8/28/23. Claims 1-20 are currently pending.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “one or more source devices configured to: capture a first image of a face of a person; generate an avatar based on the first image of the face of the person, wherein the avatar approximates the first image of the face of the person; transmit the avatar to a destination device; capture a second image of the face of the person; calculate expression information based on the second image of the face of the person, wherein the expression information approximates an expression on the face of the person as captured in the second image; transmit the expression information to the destination device; and the destination device configured to: animate the avatar on a display component using the expression information, wherein the source device is configured to transmit the expression information to the destination device after transmitting the avatar to the destination device” in claims 16-20.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
The following is a quotation of the second paragraph of 35 U.S.C. 112:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 16-20 are rejected under 35 U.S.C. 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. The claims invoke 112 sixth paragraph as mentioned above, but the original disclosure does not incorporate physical structure into the claim language and deems the claim indefinite. The scope of protection is unclear since what is considered to be a source device and a destination device? In view of 35 USC 112 sixth paragraph, "means plus function" directs the claim towards physical structure within the specification, yet the disclosure does not appear to cite any concrete examples of structure. The Examiner will interpret the cited invocation of means plus function as reasonably broad as possible to one ordinary skilled in the art. Therefore, the interpretation given for the non-structural term is considered to be any general purpose computer, processor or hardware with an algorithm or any dedicated circuitry that performs the claimed functions. Correction is required.
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. See 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) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent is shown to be commonly owned with this application. See 37 CFR 1.130(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).
Claims 1, 16 and all corresponding dependent claims are rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1, 15 of U.S. Patent No. 9,996,940 B1. The conflicting claims are not identical because application claims 1, 16 are more broad in scope than those of ‘940 patent as indicated below:
Regarding claims 1 and 16, the conflicting claims are not identical because patent claims 1, 15 require additional elements of sensors which are not required by application claims 1 and 16. Therefore, any patent granted on the current application would result in the unjustifiable timewise extension of the monopoly granted on patent claims 1, 15.
The conflicting claims are not patentably distinct from each other because:
Claims 1 and 16 and patent claims 1, 15 recite common subject matter;
Whereby claims 1, 16, which recites the open ended transitional phrase “comprising”, does not preclude the additional elements recited by patent claims 1, 15.
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.(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 - 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Li et al (US 9,398,262 B2). Regarding claim 1, Li discloses a method comprising: capturing a first image of a face of a person (see col. 7, lines 60-col. 8, lines 13; a camera in the device may then begin capturing images in operation 408. The images may be still images or live video (e.g., multiple images captured in sequence). In operation 410 image analysis may occur starting with detection/tracking of a face/head in the image); generating an avatar based on the first image of the face of the person, wherein the avatar approximates the first image of the face of the person (see col. 7, lines 60-col. 8, lines 13; In operation 406, communication may be initiated between the device and the at least one remote device or virtual space. For example, a connection establishment request may be transmitted to the remote device or virtual space. For the sake of explanation herein, it is assumed that the connection establishment request is accepted by the remote device or virtual space. A camera in the device may then begin capturing images in operation 408. The images may be still images or live video (e.g., multiple images captured in sequence). In operation 410 image analysis may occur starting with detection/tracking of a face/head in the image. The detected face may then be analyzed in order to extract facial features (e.g., facial landmarks, facial expression, etc.). In operation 412 the detected face/head position and/or facial features are converted into Avatar parameters. Avatar parameters are used to animate the selected avatar on the remote device or in the virtual space. In operation 414 at least one of the avatar selection or the avatar parameters may be transmitted);
transmitting the avatar to a destination device (see col. 7, lines 60-col. 8, lines 13; In operation 414 at least one of the avatar selection or the avatar parameters may be transmitted);
capturing a second image of the face of the person on a source device (see col. 8, lines 10-32; operations 408-416 may repeat in order to continue to display and animate an avatar on the remote apparatus based on the analysis of the user's face);
calculating expression information based on the second image of the face of the person, wherein the expression information approximates an expression on the face of the person as captured in the second image (see col. 4, lines 64-col. 5, lines 11; Feature extraction module 206 may also be configured to recognize an expression associated with the detected features (e.g., identifying whether a previously detected face happy, sad, smiling, frown, surprised, excited, etc.)));
transmitting the expression information from the source device to the destination device (see col. 6, lines 40-55; Communication module 216 is configured to transmit and receive information for selecting avatars, displaying avatars, animating avatars, displaying virtual place perspective, etc. Communication module 216 may include custom, proprietary, known and/or after-developed communication processing code (or instruction sets) that are generally well-defined and operable to transmit avatar selections, avatar parameters and receive remote avatar selections and remote avatar parameters. Communication module 216 may also transmit and receive audio information corresponding to avatar-based interactions. Communication module 216 may transmits and receive the above information via network 122 as previously described); and
animating the avatar on a display component of the destination device using the expression information (see col. 8, lines 13-33; An avatar corresponding to the remote user may then be displayed based on the received remote avatar selection, and may be animated based on the received remote avatar parameters), wherein the transmitting the expression information from the source device to the destination device is performed after the transmitting the avatar to the destination device (see fig. 4, col. 8, lines 13-33; In the instance of virtual place interaction (e.g., system 126), information may be received allowing the device to display what the avatar corresponding to the device user is seeing. A determination may then be made in operation 418 as to whether the current communication is complete. If it is determined in operation 418 that the communication is not complete, operations 408-416 may repeat in order to continue to display and animate an avatar on the remote apparatus based on the analysis of the user's face).
Regarding claims 2-15, Li discloses avatar is a photo-realistic avatar used to simulate a presence of the person during a video call with a user of the destination device (see col. 3, lines 1-15; col. 6, lines 56-67).
destination device is performed at most one time during the video call, and wherein the transmitting the expression information from the source device to the destination device is performed more than once during the video call (see col. 8,lines 1-35);
capturing a third image of a face of a second person; generating a second avatar based on the third image of the face of the second person, wherein the second avatar approximates the third image of the face of the second person; transmitting the second avatar to the source device; capturing a fourth image of the face of the second person on the destination device; calculating second expression information based on the fourth image of the face of the second person, wherein the second expression information approximates an expression on the face of the second person as captured in the fourth image; transmitting the second expression information from the destination device to the source device; and animating the second avatar on a display component of the source device using the second expression information (see col. 5, lines 30-67);
transmitting the expression information and the transmitting the second expression information are performed substantially simultaneously (see col. 6, lines 1-67);
animating the avatar on the display component of the destination device using the expression information includes animating the avatar in a virtual reality environment (see col. 3, lines 35-67);
calculating the expression information, the transmitting the expression information, and the animating the avatar are performed substantially in real-time with the capturing the second image of the face of the person (see col. 2, lines 55-67);
capturing audio information using an audio input component of the source device; transmitting the audio information from the source device to the destination device; and outputting the audio information using the destination device (see col. 2, lines 55-67);
capturing the audio information, the transmitting the audio information, and the outputting the audio information are performed substantially in real-time with the capturing the second image of the face of the person (see col. 7, lines 10-45);
expression information comprises facial landmark indicators (see col. 4, lines 45-67);
a motion vector of facial landmark indicators (see col. 5, lines 31-67);
generating a second avatar that approximates the face of the person; receiving a user input indicating a facial avatar to use; and selecting the avatar based on the user input, wherein the selecting the avatar is performed prior to the transmitting the avatar to the destination device (see col. 5, lines 11-30);
avatar is a photo-realistic avatar, and wherein the second avatar is a generic avatar (see col. 3, lines 1-15);
real-time image of the face of the person is not transmitted from the source device to the destination device (see abstract);
receiving a user input to modify a visual aspect of the avatar; and modifying a visual aspect of the avatar based on the received user input, wherein the receiving the user input and the modifying the visual aspect of the avatar are performed prior to the transmitting the avatar to the destination device (see col. 5, lines 10-30).
Regarding claim 16, Li discloses a system comprising: one or more source devices configured to: capture a first image of a face of a person (see col. 7, lines 60-col. 8, lines 13; a camera in the device may then begin capturing images in operation 408. The images may be still images or live video (e.g., multiple images captured in sequence). In operation 410 image analysis may occur starting with detection/tracking of a face/head in the image);
generate an avatar based on the first image of the face of the person, wherein the avatar approximates the first image of the face of the person (see col. 7, lines 60-col. 8, lines 13; In operation 406, communication may be initiated between the device and the at least one remote device or virtual space. For example, a connection establishment request may be transmitted to the remote device or virtual space. For the sake of explanation herein, it is assumed that the connection establishment request is accepted by the remote device or virtual space. A camera in the device may then begin capturing images in operation 408. The images may be still images or live video (e.g., multiple images captured in sequence). In operation 410 image analysis may occur starting with detection/tracking of a face/head in the image. The detected face may then be analyzed in order to extract facial features (e.g., facial landmarks, facial expression, etc.). In operation 412 the detected face/head position and/or facial features are converted into Avatar parameters. Avatar parameters are used to animate the selected avatar on the remote device or in the virtual space. In operation 414 at least one of the avatar selection or the avatar parameters may be transmitted);
transmit the avatar to a destination device (see col. 7, lines 60-col. 8, lines 13; In operation 414 at least one of the avatar selection or the avatar parameters may be transmitted); capture a second image of the face of the person (see col. 8, lines 10-32; operations 408-416 may repeat in order to continue to display and animate an avatar on the remote apparatus based on the analysis of the user's face);
calculate expression information based on the second image of the face of the person, wherein the expression information approximates an expression on the face of the person as captured in the second image (see col. 4, lines 64-col. 5, lines 11; Feature extraction module 206 may also be configured to recognize an expression associated with the detected features (e.g., identifying whether a previously detected face happy, sad, smiling, frown, surprised, excited, etc.)));
transmit the expression information to the destination device (see col. 6, lines 40-55; Communication module 216 is configured to transmit and receive information for selecting avatars, displaying avatars, animating avatars, displaying virtual place perspective, etc. Communication module 216 may include custom, proprietary, known and/or after-developed communication processing code (or instruction sets) that are generally well-defined and operable to transmit avatar selections, avatar parameters and receive remote avatar selections and remote avatar parameters. Communication module 216 may also transmit and receive audio information corresponding to avatar-based interactions. Communication module 216 may transmits and receive the above information via network 122 as previously described); and the destination device configured to: animate the avatar on a display component using the expression information (see col. 8, lines 13-33; An avatar corresponding to the remote user may then be displayed based on the received remote avatar selection, and may be animated based on the received remote avatar parameters), wherein the source device is configured to transmit the expression information to the destination device after transmitting the avatar to the destination device (see fig. 4, col. 8, lines 13-33; In the instance of virtual place interaction (e.g., system 126), information may be received allowing the device to display what the avatar corresponding to the device user is seeing. A determination may then be made in operation 418 as to whether the current communication is complete. If it is determined in operation 418 that the communication is not complete, operations 408-416 may repeat in order to continue to display and animate an avatar on the remote apparatus based on the analysis of the user's face).
Regarding claims 17-20, Li discloses a capture the second image of the face of the person, calculate the expression information, and transmit the expression information substantially in real-time with the destination device animating the avatar (see col. 8, lines 13-33);
capture audio information using an audio input component; and transmit the audio information to the destination device; and wherein the destination device is further configured to: output the audio information (see col. 2, lines 55-67);
capture the second image of the face of the person, capture the audio information, and transmit the audio information substantially in real-time with the destination device outputting the audio information (see col. 7, lines 10-45);
facial landmark indicators (see col. 4, lines 64-col. 5, lines 12).
Conclusion
Claims 1-20 are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWARD PARK. The examiner’s contact information is as follows:
Telephone: (571)270-1576 | Fax: 571.270.2576 | Edward.Park@uspto.gov
For email communications, please notate MPEP 502.03, which outlines procedures pertaining to communications via the internet and authorization. A sample authorization form is cited within MPEP 502.03, section II.
The examiner can normally be reached on M-F 9-6 CST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrew Moyer, can be reached on (571) 272-9523. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EDWARD PARK/
Primary Examiner, Art Unit 2666
Prosecution Insights