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 .
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.
DETAILED ACTION
Response to Arguments
Applicant’s deletion of the word substantially removes the 112(b) rejection related to the word being unclear in the claims. It does not remove the 112(b) rejection with respect to the “filter” portion of the claim.
Applicant’s amendment incorporates the elements of claims 2 and 7 (including the typo) into claims 1 and 6 respectively. Applicant’s response to the 101 rejection explains the invention as described by the specification but does not meaningfully address the claim language or discuss the issues the examiner has raised with respect to the claim language. Therefore the arguments are not persuasive and the rejection is maintained.
Applicant does not meaningfully discuss the other rejections and those rejections are maintained.
Claim Rejections - 35 USC § 112
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.
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-10 are rejected under 35 U.S.C. 101 because the claimed invention is not supported by either a specific and substantial asserted utility or a well-established utility.
In particular, the steps of claim 1, if followed, according to the specification would not lead to the asserted utility.
The steps of claim 1 are as follows:
ingesting (304), into an image segmentation device, an input image to be segmented as reference frame, wherein the reference frame comprises values that correspond to the values of a plurality of pixels in the input image, wherein ingesting (304) comprises initializing a matrix with the pixel values of the input image, and\ wherein the dimensionality of the matrix corresponds to the dimensionality of the input image;
initializing (306), by the image segmentation device, a filter of substantially same properties as the reference frame, with a first pre-defined value;
initializing (308), by the image segmentation device, a processed image which is substantially the same as the reference image;
updating (310), by the image segmentation device, each of the plurality of pixels of the processed image with value of corresponding pixel in the filter, till the value of each the plurality of pixels of the processed image is the same as those of the reference image;
identifying (312), by the image segmentation device, during each iteration of incrementing, a plurality of root nodes in the processed image, wherein each of the plurality of root nodes correspond to pixels having a second pre-defined value;
assigning (314), by the image segmentation device, an index to the identified root nodes, wherein the index corresponds to the iteration count at which the value of the pixel of the identified root node reached the second pre-defined value;
segmenting (316), by the image segmentation device, the identified root nodes of the processed image in a plurality of clusters, wherein each cluster comprises a plurality of root nodes that are present in a pre-defined vicinity of each other and have the assigned index that is in a pre-defined range.
The three initializing steps with the updating step, end up with a processed image that is the same as reference image – “updating (310), by the image segmentation device, each of the plurality of pixels of the processed image with value of corresponding pixel in the filter, till the value of each the plurality of pixels of the processed image is the same as those of the reference image” (emphasis added).
The next two steps, “identifying (312), by the image segmentation device, during each iteration of incrementing, a plurality of root nodes in the processed image, wherein each of the plurality of root nodes correspond to pixels having a second pre-defined value” and “assigning (314), by the image segmentation device, an index to the identified root nodes, wherein the index corresponds to the iteration count at which the value of the pixel of the identified root node reached the second pre-defined value” are described in paragraphs ¶38, ¶56. Of note is that the indexing causes all the pixels to be assigned the same value. “[C]onfigured to assign value ‘6’ to all pixels (including the one at the location “1023, 563”), a value of ‘6’ and may designate such pixels as root nodes.” This is the only example given in the specification of how the assigning of the index functions. While the examiner does not expect that all the pixels be assigned a value of “6,” the specification is clear that all pixels (not just the root node pixels) are assigned the same value, whatever that value may be. This causes an image to be of a singular color and that all pixels would be considered root nodes.
As the resulting image would all be of a singular color and that all pixels would be considered root notes, there would be no ability to “segmenting (316), by the image segmentation device, the identified root nodes of the processed image in a plurality of clusters, wherein each cluster comprises a plurality of root nodes that are present in a pre-defined vicinity of each other and have the assigned index that is in a pre-defined range” as the entire image is composed of a singular color and every pixel is considered a root node. There is nothing to segment.
Claims 1-10 are also rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph. Specifically, because the claimed invention is not supported by either a specific and substantial asserted utility or a well-established utility for the reasons set forth above, one skilled in the art clearly would not know how to use the claimed invention.
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.
Claims 1-10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In particular, the claims recite a “filter of the same properties as the reference frame.” The specification then describes that the values in the filter include pre-defined values. It is unclear how a filter’s properties relate to a reference frame. In particular, a filter attempts to “filter” or allow only certain values through. If the filter is similar to the reference frame, it cannot also have pre-defined values as those values of the filter should be the same as that of the reference frame. For purposes of examination, the filter is treated as being the reference frame.
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 1-10 are rejected under 35 U.S.C. § 101 because the instant application is directed to non-patentable subject matter. Specifically, the claims are directed toward at least one judicial exception without reciting additional elements that amount to significantly more than the judicial exception. The rationale for this determination is in accordance with the guidelines of USPTO, applies to all statutory categories, and is explained in detail below.
When considering subject matter eligibility under 35 U.S.C. 101, (1) it must be determined whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter. If the claim does fall within one of the statutory categories, (2a) it must then be determined whether the claim is directed to a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea), and if so (2b), it must additionally be determined whether the claim is a patent-eligible application of the exception. If an abstract idea is present in the claim, any element or combination of elements in the claim must be sufficient to ensure that the claim amounts to significantly more than the abstract idea itself. Examples of abstract ideas include fundamental economic practices; certain methods of organizing human activities; an idea itself; and mathematical relationships/formulas, (groups a, b - 2019 PEG)
STEP 1. Per Step 1 of the two-step analysis, the claims are determined to include a method, as in independent Claim 1 and in the therefrom dependent claims. Such terminals fall under the statutory category of "process." Therefore, the claims are directed to a statutory eligibility category.
Step 2A: The invention is directed to processing an image which is akin to mathematical relationships, As such, the claims include an abstract idea. When considering the limitations individually and as a whole the limitations directed to the abstract idea are:
ingesting (304), into an image segmentation device, an input image to be segmented as reference frame, wherein the reference frame comprises values that correspond to the values of a plurality of pixels in the input image, wherein ingesting (304) comprises initializing a matrix with the pixel values of the input image, and\ wherein the dimensionality of the matrix corresponds to the dimensionality of the input image;
initializing (306), by the image segmentation device, a filter of same properties as the reference frame, with a first pre-defined value;
initializing (308), by the image segmentation device, a processed image which is the same as the reference image;
updating (310), by the image segmentation device, each of the plurality of pixels of the processed image with value of corresponding pixel in the filter, till the value of each the plurality of pixels of the processed image is the same as those of the reference image;
identifying (312), by the image segmentation device, during each iteration of incrementing, a plurality of root nodes in the processed image, wherein each of the plurality of root nodes correspond to pixels having a second pre-defined value;
assigning (314), by the image segmentation device, an index to the identified root nodes, wherein the index corresponds to the iteration count at which the value of the pixel of the identified root node reached the second pre-defined value;
segmenting (316), by the image segmentation device, the identified root nodes of the processed image in a plurality of clusters, wherein each cluster comprises a plurality of root nodes that are present in a pre-defined vicinity of each other and have the assigned index that is in a pre-defined range.
This judicial exception is not integrated into a practical application. The elements are recited at a high level of generality, i.e. a generic computing system performing generic functions including generic processing of data. Accordingly the additional elements do not integrate the abstract into a practical application because it does not impose any meaningful limits on practicing the abstract idea. Therefore the claims are directed to an abstract idea. (2019 Revised Patent Subject Matter Eligibility Guidance ("2019 PEG"). Thus, under Step 2A of the Mayo framework, the Examiner holds that the claims are directed to concepts identified as abstract.
STEP 2B.
Because the claims include one or more abstract ideas, the examiner now proceeds to Step 2B of the analysis, in which the examiner considers if the claims include individually or as an ordered combination limitations that are "significantly more" than the abstract idea itself. This includes analysis as to whether there is an improvement to either the "computer itself," "another technology," the "technical field," or significantly more than what is "well-understood, routine, or conventional" in the related arts.
The instant application includes in Claim 1 no additional steps to those deemed to be abstract idea(s).
In the instant case, Claim 1 is directed to above mentioned abstract idea. Technical functions such as sending, receiving, displaying and processing data are common and basic functions in computer technology. The individual limitations are recited at a high level and do not provide any specific technology or techniques to perform the functions claimed.
Looking to MPEP 2106.05 (d), based on court decisions well understood, routine and conventional computer functions or mere instruction and/or insignificant activity have been identified to include: Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321,120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TU Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); O/P Techs., /no., v. Amazon.com, Inc., 788 F,3d 1359, 1363, 115 USPQ2d 1090,1093 (Fed. Cir, 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPG2d 1097,
1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result-a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink," (emphasis added)}; Insignificant intermediate or post solution activity -See Bilski v. Kappos, 581 U.S. 593, 611 -12, 95 USPQ2d 1001,1010 (2010) (well-known random analysis techniques to establish the inputs of an equation were token extra-solution activity); In Bilski referring to Flook, where Flook determined that an insignificant post-solution activity does not makes an otherwise patent ineligible claim patent eligible. In Bilski, the court added to Flook that pre-solution (such as data gathering) and insignificant step in the middle of a process (such as receiving user input) to be equally ineffective. The specification and Claim does not provide any specific process with respect to the display output that would transform the function beyond what is well understood. Like as found in Electric Power Group, Bilski, the technical process to implement the input and display functions are conventional and well understood.
In addition, when the claims are taken as a whole, as an ordered combination, the combination of steps does not add "significantly more" by virtue of considering the steps as a whole, as an ordered combination. The instant application, therefore, still appears only to implement the abstract idea to the particular technological environments using what is well-understood, routine, and conventional in the related arts. The steps are still a combination made to the abstract idea. The additional steps only add to those abstract ideas using well-understood and conventional functions, and the claims do not show improved ways of, for example, an unconventional non-routine functions for authorizing the timing of a payment and to activate a display screen based on a trigger or camera functions that could then be pointed to as being "significantly more" than the abstract ideas themselves. Moreover, Examiner was not able to identify any "unconventional" steps, which, when considered in the ordered combination with the other steps, could have transformed the nature of the abstract idea previously identified. The instant application, therefore, still appears to only implement the abstract ideas to the particular technological environments using what is well-understood, routine, and conventional in the related arts.
Further, note that the limitations, in the instant claims, are done by the generically recited computing devices. The limitations are merely instructions to implement the abstract idea on a computing device and require no more than a generic computing devices to perform generic functions.
CONCLUSION
It is therefore determined that the instant application not only represents an abstract idea identified as such based on criteria defined by the Courts and on USPTO examination guidelines, but also lacks the capability to bring about "Improvements to another technology or technical field" (Alice), bring about "Improvements to the functioning of the computer itself" (Alice), "Apply the judicial exception with, or by use of, a particular machine" (Bilski), "Effect a transformation or reduction of a particular article to a different state or thing" (Diehr), "Add a specific limitation other than what is well-understood, routine and conventional in the field" (Mayo), "Add unconventional steps that confine the claim to a particular useful application" (Mayo), or contain "Other meaningful limitations beyond generally linking the use of the judicial exception to a particular technological environment" (Alice), transformed a traditionally subjective process performed by humans into a mathematically automated process executed on computers (McRO), or limitations directed to improvements in computer related technology, including claims directed to software (Enfish).
The remaining dependent claims—which impose additional limitations—also fail to claim patent-eligible subject matter because the limitations cannot be considered statutory. In reference to claims 2-4 these dependent claim have also been reviewed with the same analysis as independent claim 1. The dependent claim(s) have been examined individually and in combination with the preceding claims, however they do not cure the deficiencies of claim 1; where all claims are directed to the same abstract idea, "addressing each claim of the asserted patents [is] unnecessary." Content Extraction &. Transmission LLC v, Wells Fargo Bank, Natl Ass'n, 776 F.3d 1343, 1348 (Fed. Cir. 2014). If applicant believes the dependent claims are directed towards patent eligible subject matter, they are invited to point out the specific limitations in the claim that are directed towards patent eligible subject matter. Claims for the other statutory classes are similarly analyzed.
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 Ming Shui whose telephone number is (303)297-4247. The examiner can normally be reached on 7-5 Pacific Time, M-Th.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Greg Morse can be reached on 571-272-38383838. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Ming Shui/
Primary Examiner, Art Unit 2663