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 .
Claims 1-20 are currently pending in U.S. Patent Application No. 18/596,822 and an Office action on the merits follows.
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. 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.
Claims 1-20 are rejected on the grounds of nonstatutory double patenting as being unpatentable over one or more claims (direct correspondence see table below) of:
1) U.S. Patent No. 11,954,899 B2 to parent application 18/274,371
Although the claims at issue are not identical, they are not patentably distinct from each other because claims of reference anticipate claim(s) of the instant application. The conflicting claims are not patentably distinct from each other for the following reasons:
• Instant claims and claims of reference recite common subject matter, and recite the open ended transitional phrase “comprising” which does not preclude any additional elements recited by claims of reference (e.g. those second and third feature distances); Representative instant claim 1 features/requires limitations to include that first feature distance, first and second geodesic distances, and pair of loss values - the first of which is based on the first feature distance and the second being based on the first and second geodesic distances. Representative claim 1 of reference requires/explicitly recites at least the same:
“determining, by the one or more processors, a first loss value of a set of loss values, the first loss value being based on the first feature distance;
determining, by the one or more processors, a second loss value of the set of loss values, the second loss value being based on the second feature distance, the third feature distance, the first geodesic distance, and the second geodesic distance; and
modifying, by the one or more processors, one or more parameters of the neural network based at least in part on the set of loss values.” See also the table below illustrating direct correspondence between the instant and reference claims.
• Language/terminology of instant claim(s) constituting minor/slight variations from the claims of reference, if/where present, require interpretations under Broadest Reasonable Interpretation and/or plain meaning definitions (MPEP 2173 and 2111) equivalent to/met by language of the reference claims in view of that corresponding/shared Specification. While the disclosure of reference may not be used as prior art (Double Patenting concerns the claims of reference), portions of the specification which provide support for reference claims may also be examined and considered when addressing the scope of claim(s) of reference and the issue of whether an instant claim defines an obvious variation or falls within the scope of an invention claimed in the claim(s) of reference. See MPEP 804 with reference to In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970).
Instant application
Claims of Reference US 11,954,899 B2
Claim 1
Claim 1 see first bullet above
Claim 2
Claim 2
Claim 3
Claim 2
Claim 4
Claim 3
Claim 5
Claim 4
Claim(s) 6-7 generating first and second feature maps respectively
Claim 1 “generating..” at lines 3-14
Claim 8
Claim 1 lines 13-14 “having been generated using a three-dimensional model of the subject;”
Claim 9
Claim 10 “that is not represented in the second feature map”
Claim 10
Claim 11
Claim 11 “the other one of” depending on 10 and such that both are generated
Claim(s) 11-13 “at least one of the first image, the second image, …” in view of that second bullet above
Claim 12
Claim(s) 11-13 “generating… the first surface map”
Claim 13
Claim 14 “human or a representation of a human”
Claim 14
Claim 15 “in a different pose”
Claim 15
Claim 16 “in a different perspective”
Claim 16
Claim 17 system corr to method of 1
Claim(s) 17-20
See 18-20 and corresponding claims above
Eligibility Analysis - 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.
Eligibility analysis for the instant claims at least follows ‘Pathway B’ of that analysis flow as illustrated in MPEP 2106, similar to that of the Appeals Review Panel (ARP) Decision in Ex Parte Desjardins Appeal No. 2024-000567 (09/26/2025), for Application No. 16/319,040, designated precedential on November 4, 2025. Reference may be made to the most recent SME Memo(s) available at: https://www.uspto.gov/patents/laws/examination-policy/subject-matter-eligibility and more specifically: https://www.uspto.gov/sites/default/files/documents/memo-desjardins.pdf
Examiner recognizes that at least “determining… a first geodesic distance” and “determining… a second geodesic distance” may be drawn to the mathematical concepts (to include calculations/operations – see MPEP 2106.04(a)(2)(C) “a mathematical calculation is…”) Abstract Idea grouping when analyzed at Prong One of revised (2019) Step 2A. Proceeding to Prong Two, that “modifying… one or more parameters” is likely an ‘additional element’ that serves for integration in view of MPEP 2106.05(a) (similar to that “adjust[ing] the first values of the plurality of parameters…” identified in DesJardins), as it serves to realize Applicant’s improvement as disclosed in e.g. PGPUB at [0005] and associated literature Tan et al. “HumanGPS: Geodesic PreServing Feature for Dense Human Correspondences” arXiv preprint arXiv:2103.15573 at e.g. pages 2-3 Section(s) 1-2. As per the memo, MPEP § 2106.04(d) subsection III is updated to include “Specifically, the ARP upheld the Step 2A Prong One finding that the claims recited an abstract idea (i.e., mathematical concept). In Step 2A Prong Two, the ARP then determined that the specification identified improvements… Importantly, the ARP evaluated the claims as a whole in discerning at least the limitation “adjust the first values of the plurality of parameters …” reflected the improvement disclosed … and therefore the claims were deemed to be outside any specific, enumerated judicial exception (Step 2A: NO)”.
Allowable Subject Matter
Claim(s) 1-20 would be allowable if rewritten or amended (see above regarding Terminal Disclaimer) to overcome the Double Patenting rejections set forth in this Office action.
References of record fail to serve in any obvious combination teaching/ suggesting each and every limitation as required by the instant claims, and reasons for allowance are additionally apparent from/sufficiently correspond to those of record and associated with parent application 18/274,371. See MPEP § 1302.14. Examiner notes NPL Citation V in the attached PTO-892 is the most relevant: Tan, et al. “HumanGPS: Geodesic PreServing Feature for Dense Human Correspondences” arXiv preprint arXiv:2103.15573 (29 Mar 2021). While there is a difference in the inventive entity/authors for the literature in question (literature names another/additional person Ping Tan), and as such said literature would not constitute an exception on its face (see “and (3)” of MPEP 2153.01(a)), the associated publication date does not precede Applicant’s Effective Filing Date and the literature is not applicable under 102(a)(1) accordingly.
Additional References
Prior art made of record and not relied upon that is considered pertinent to applicant's disclosure:
Additionally cited references (see attached PTO-892) have been made of record in view of the manner in which they evidence the general state of the art.
Inquiry
Any inquiry concerning this communication or earlier communications from the examiner should be directed to IAN L LEMIEUX whose telephone number is (571)270-5796. The examiner can normally be reached Mon - Fri 9:00 - 6:00 EST.
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/IAN L LEMIEUX/Primary Examiner, Art Unit 2669