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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 9/5/2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
The information disclosure statement (IDS) submitted on 11/19/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Amendment
The amended claims filed on 09/06/2023 were received and considered.
Claims 3, 4, and 7 were amended.
However, the original set of claims (with claims dependent upon multiple claims and claim 7 having 101 rejection) has been filed again on 11/19/2024.
For the purpose of examination, the examiner has considered the set of claims filed on 09/06/2023.
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 use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation(s) is/are: video obtainer, human detector, moving object detector, human candidate identifier, and determiner in claim 1.
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 only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends 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 remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
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.
Claim(s) 1-7 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The limitations, under their broadest reasonable interpretation, cover mental process (concept performed in a human mind, including as observation, evaluation, judgment, opinion, organizing human activity and mathematical concepts and calculations). The claim(s) recite(s) an apparatus, and a method to detect a human. This judicial exception is not integrated into a practical application because the steps do not add meaningful limitations to be considered specifically applied to a particular technological problem to be solved .The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the steps of the claimed invention can be done mentally and no additional features in the claims would preclude them from being performed as such except for the generic computer elements at high level of generality (i.e., processor, memory).
According to the USPTO guidelines, a claim is directed to non-statutory subject matter if:
STEP 1: the claim does not fall within one of the four statutory categories of invention (process, machine, manufacture or composition of matter), or
STEP 2: the claim recites a judicial exception, e.g. an abstract idea, without reciting additional elements that amount to significantly more than the judicial exception, as determined using the following analysis:
STEP 2A (PRONG 1): Does the claim recite an abstract idea, law of nature, or natural phenomenon?
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application?
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
Using the two-step inquiry, it is clear that claims 1 and 6 are directed to an abstract idea as shown below:
STEP 1: Do the claims fall within one of the statutory categories? YES. Claim(s) 1 and 6 are directed to an apparatus, and a method.
STEP 2A (PRONG 1): Is the claim directed to a law of nature, a natural phenomenon or an abstract idea? YES, the claims are directed toward a mental process (i.e. abstract idea).
With regard to STEP 2A (PRONG 1), the guidelines provide three groupings of subject matter that are considered abstract ideas:
Mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations;
Certain methods of organizing human activity – fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions); and
Mental processes – concepts that are practicably performed in the human mind (including an observation, evaluation, judgment, opinion).
The method in claim 1 (and computer-readable storage in claim(s) 10) comprise a mental process that can be practicably performed in the human mind (or generic computers or components configured to perform the method) and, therefore, an abstract idea.
Regarding Claim(s) 1 and 6: the apparatus and the method recite the steps (functions) of:
a video obtainer configured to obtain a video captured with a camera; (data gathering)
a human detector configured to perform human detection with the video obtained by the video obtainer; (mental process including observation)
a moving object detector configured to perform moving object detection with the video obtained by the video obtainer; (mental process including observation)
a human candidate identifier configured to identify, as an image of a human candidate area, an image of an area detected through the human detection performed by the human detector based on a degree of matching between the image of the area detected through the human detection performed by the human detector and an image of an area detected through the moving object detection performed by the moving object detector; (mental process including observation and evaluation, matching two images can be done mentally in the human mind)
and a determiner configured to determine whether the image of the human candidate area identified by the human identifier is an image of a human based on a degree of matching between the image of the human candidate area and a reference image of an object erroneously detected as a human. (mental process including observation and evaluation, identifying an image of a human can be done mentally in the human mind)
These limitations, as drafted, is a simple process that, under their broadest reasonable interpretation, covers performance of the limitations in the mind or by a human. The Examiner notes that under MPEP 2106.04(a)(2)(III), the courts consider a mental process (thinking) that “can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same). As such, a person could mentally analyze an image and determine a fill level, either mentally or using a pen and paper. The mere nominal recitation that the various steps are being executed by a device/in a device (e.g. processing unit) does not take the limitations out of the mental process grouping. Thus, the claims recite a mental process.
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application? NO, the claims do not recite additional elements that integrate the judicial exception into a practical application.
With regard to STEP 2A (prong 2), whether the claim recites additional elements that integrate the judicial exception into a practical application, the guidelines provide the following exemplary considerations that are indicative that an additional element (or combination of elements) may have integrated the judicial exception into a practical application:
an additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to affect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
While the guidelines further state that the exemplary considerations are not an exhaustive list and that there may be other examples of integrating the exception into a practical application, the guidelines also list examples in which a judicial exception has not been integrated into a practical application:
an additional element merely recites the words “apply it” (or an equivalent) with the judicial exception, or merely includes instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea;
an additional element adds insignificant extra-solution activity to the judicial exception; and
an additional element does no more than generally link the use of a judicial exception to a particular technological environment or field of use.
Claim(s) 1 and 6 do not recite any of the exemplary considerations that are indicative of an abstract idea having been integrated into a practical application.
These limitations are recited at a high level of generality (i.e. as a general action or change being taken based on the results of the acquiring step) and amounts to mere post solution actions, which is a form of insignificant extra-solution activity. Further, the claims are claimed generically and are operating in their ordinary capacity such that they do not use the judicial exception in a manner that imposes a meaningful limit on the judicial exception. Accordingly, even in combination, 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.
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception? NO, the claims do not recite additional elements that amount to significantly more than the judicial exception.
With regard to STEP 2B, whether the claims recite additional elements that provide significantly more than the recited judicial exception, the guidelines specify that the pre-guideline procedure is still in effect. Specifically, that examiners should continue to consider whether an additional element or combination of elements:
adds a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present; or
simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present.
Claim(s) 1 and 6 does/do not recite any additional elements that are not well-understood, routine or conventional. The use of a computer for “obtaining, detecting, and identifying, etc., as claimed in Claim(s) 1 and 6 is a routine, well-understood and conventional process that is performed by computers.
Thus, since Claim(s) 1 and 6 are: (a) directed toward an abstract idea, (b) do not recite additional elements that integrate the judicial exception into a practical application, and (c) do not recite additional elements that amount to significantly more than the judicial exception, it is clear that Claim(s) 1 and 6 is/are not eligible subject matter under 35 U.S.C 101.
Regarding claims 2-5, and 7, the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process.
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.
Claim(s) 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Kawano (US 20200034631 A1) and further in view of Kusakabe (US 20180165515 A1).
Regarding claim 1, Kawano teaches An image processing apparatus, comprising: a video obtainer configured to obtain a video captured with a camera; (“the image processing apparatus 100 may be mounted on a monitoring apparatus or a recording apparatus. When the image processing apparatus 100 is mounted on a monitoring apparatus, the external apparatus is assumed to be a network camera or recording apparatus connected to the monitoring apparatus via a network.” Kawano, para. [0035])
a human detector configured to perform human detection with the video obtained by the video obtainer; (“The human body detection unit 103 performs human body detection processing for detecting a human body from images acquired by the image acquisition unit 101.”
a moving object detector configured to perform moving object detection with the video obtained by the video obtainer; (“The moving object detection unit 102 performs moving object detection processing for detecting a moving object from images acquired by the image acquisition unit 101.” Kawano, para. [0021])
a human candidate identifier configured to identify, as an image of a human candidate area, (“FIG. 4B illustrates a state where a moving object 404 is detected by the moving object detection processing, and a human body 405 is detected by the human body detection processing. FIG. 4B also illustrates a state where an area that is a combination of the newly appearing picture 403 and the person 401 is detected as the moving object 404, and the person 402 is detected as the human body 405.” Kawano, para. [0048]) an image of an area detected through the human detection performed by the human detector based on a degree of matching between the image of the area detected through the human detection performed by the human detector and an image of an area detected through the moving object detection performed by the moving object detector; (“In step S102, based on images acquired by the image acquisition unit 101, the moving object detection unit 102 performs processing for detecting a moving object by using the background subtraction method, and the human body detection unit 103 performs processing for detecting a human body by using the pattern matching method. More specifically, the moving object detection unit 102 detects a moving object area based on variations between images, and provides the background updating unit 104 with the moving object information (the center coordinates (position information) and the circumscribed rectangle (shape information) of the moving object) acquired by the relevant detection. The human body detection unit 103 detects a human body area based on features in images, and provides the background updating unit 104 with the human body information (the center coordinates (position information) and the circumscribed rectangle (shape information) of the human body) acquired by the relevant detection.” Kawano, para. [0059]), figs. 6 and 7.
However, Kawano does not teach and a determiner configured to determine whether the image of the human candidate area identified by the human identifier is an image of a human based on a degree of matching between the image of the human candidate area and a reference image of an object erroneously detected as a human.
Kusakabe teaches and a determiner configured to determine whether the image of the human candidate area identified by the human identifier is an image of a human based on a degree of matching between the image of the human candidate area and a reference image of an object erroneously detected as a human. (“in the flowchart illustrated in FIG. 4, the processing of step S410 (the processing by the person region processing unit 304) was not executed on a person region determined as a false detection in step S409, but there is no limitation to this. For example, configuration may be taken such that there is a plurality of processing with respect to a person region in step S410, and to change processing in accordance with a false detection determination result. Furthermore, in this case, configuration may be taken such that an output result of the false detection determination processing of step S405 is stored as a value indicating a level (having three or more values) instead of a binary value for the existence or absence of a false detection, and the processing content is changed in accordance with this value.” Kusakabe, para. [0033])
Kawano and Kusakabe are combinable because they are from the same field of endeavor, object detection.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Kawano in light of Kusakabe’s erroneously detecting a human. One would have been motivated to do so because it can improve the precision of the detection.
Regarding claim 2, Kawano teaches wherein the human candidate identifier identifies the human candidate area based on a degree of matching indicated by an inter-image distance calculated using coordinate information of the image of the area detected through the human detection performed by the human detector and coordinate information of the image of the area detected through the moving object detection performed by the moving object detector. (“The moving object detection unit 102 provides the background updating unit 104 with moving object information acquired by the moving object detection processing. The moving object information according to the present exemplary embodiment includes information about the center coordinates (position information) and information about the circumscribed rectangle (shape information) of a moving object detected from the images. The moving object detection unit 102 performs the moving object detection processing on each of a plurality of images acquired by the image acquisition unit 101, and provides the background updating unit 104 with the moving object information acquired as a result of the processing.” Kawano, para. [0022])
Regarding claim 3, Kawano teaches wherein the determiner determines whether the image of the human candidate area (“A protection area refer to an area having a predetermined difference in luminance based on the comparison between the luminance of the processing target images and the luminance of the background image for each area.” Kawano, para. [0041]) is an image of a human based on a degree of matching indicated by a luminance difference between pixels in the image of the human candidate area excluding pixels corresponding to a moving object and pixels in the reference image corresponding to the pixels in the image of the human candidate area excluding pixels corresponding to the moving object, and the corresponding pixels in the reference image are determined based on coordinate information of the image of the human candidate area and coordinate information of the reference image. (“The image comparison unit 105 generates a luminance image based on acquired images acquired from the image acquisition unit 101 and, at the same time, generates a luminance image based on the background image acquired from the background updating unit 104. Then, the image comparison unit 105 generates a difference image composed of absolute values of differences in pixel units between the luminance image based on acquired images and the luminance image based on the background image. Then, out of pixels of the relevant difference image, the image comparison unit 105 determines pixels having a larger difference value than a luminance threshold value, as protection target pixels. Then, the image comparison unit 105 identifies a protection area by connecting adjacent protection target pixels, and generates the protection area information indicating the position and shape of the protection area.” Kawano, para. [0055])
Regarding claim 4, Kawano does not teach wherein the determiner uses, as the reference image, a first image being the image of the area detected through the human detection performed by the human detector and not identified as a human candidate area by the human candidate identifier or a second image being the image of the human candidate area identified by the human candidate identifier and not determined as an image of a human by the determiner.
Kusakabe teaches wherein the determiner uses, as the reference image, a first image being the image of the area detected through the human detection performed by the human detector and not identified as a human candidate area by the human candidate identifier or a second image being the image of the human candidate area identified by the human candidate identifier and not determined as an image of a human by the determiner. (“the background updating unit 104 sets the stable background time to 0 for each of blocks to which a human body area identified by the human body information belongs, and updates (increments) the stable background time for each of blocks to which a human body area does not belong.” Kusakabe, para. [0040])
Kawano and Kusakabe are combinable because they are from the same field of endeavor, object detection.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Kawano in light of Kusakabe’s not identifying a human. One would have been motivated to do so because it can improve the precision of the detection.
Regarding claim 5, Kawano teaches wherein the determiner determines whether to use the first image as the reference image based on a luminance difference between the first image and the reference image being used, and determines whether to use the second image as the reference image based on a luminance difference between the second image and the reference image being used. (“the image comparison unit 105 controls the background updating unit 104 according to the protection area and the area of acquired images (processing target images) before protection processing. In the relevant control, the background updating unit 104 generates (updates) the background image by using the result of the human body area detection by the human body detection unit 103 for detecting a human body area based on features in images and without using the result of the detection by the moving object detection unit 102 for detecting a moving object area based on the comparison between images. A protection area refer to an area having a predetermined difference in luminance based on the comparison between the luminance of the processing target images and the luminance of the background image for each area” Kawano, para. [0041])
Regarding claim 6, refer to the explanation of claim 1.
Regarding claim 7, Kawano teaches A non-transitory computer readable medium storing a program for causing a computer to perform operations included in the image processing method. (“Embodiment(s) of the present invention can also be realized by a computer of a system or apparatus that reads out and executes computer executable instructions (e.g., one or more programs) recorded on a storage medium (which may also be referred to more fully as a ‘non-transitory computer-readable storage medium’) to perform the functions of one or more of the above-described embodiment(s)” Kawano, para. [0092])
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PARDIS SOHRABY whose telephone number is (571)270-0809. The examiner can normally be reached Monday - Friday 9 am till 6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Mehmood can be reached at (571) 272-2976. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PARDIS SOHRABY/Examiner, Art Unit 2664
/JENNIFER MEHMOOD/Supervisory Patent Examiner, Art Unit 2664
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