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 .
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. 17/042,063, filed on 25 September 2020.
Response to Arguments
Applicant's arguments filed 13 July 2026 have been fully considered but they are not persuasive. Applicant’s remarks are terse and simply state, “the remaining claim is not coextensive in scope.” On its face, Applicant’s amendments appear to have broadened claim 1, which would do nothing to distinguish it over their prior patent. Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
Allowable Subject Matter
Claims 1 and 4 are currently subject to non-statutory double patent rejections, but are otherwise not subject to any prior art rejections under either 35 U.S.C. § 102 or 35 U.S.C. § 103. Assuming that the foregoing shortcomings of these claims were rectified by the timely filing of a terminal disclaimer, these claims would be allowable.
The following is a statement of reasons for the indication of allowable subject matter:
With regards to claims 1 and 4, these claims recite the same patentable features as were found allowable in parent application no. 17/659,574, which issued as United States Patent No. 11,961,320 on 16 April 2024. The present claims are allowable for the same reasons as were provided in the parent application.
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.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,961,320. Although the claims at issue are not identical, they are not patentably distinct from each other as shown in the following table:
Present Application
Claim 1
U.S. Patent No. 11,961,320
Claim 1
An identification method comprising a machine learning model to identify a subject in an
image., with the subject having at least one machine readable identifier providing a subject ID, said method comprising:
A method for training a machine learning model to identify a subject in a group of subjects with each subject having at least one machine readable identifier providing a subject ID, said method comprising:
providing a computer vision system with an image capturing system comprising at least one image capturing device, and a reader system comprising at least one reader for reading said at least one machine readable identifier;
providing a computer vision system with an image capturing system comprising at least one image capturing device, and a reader system comprising at least one reader for reading said at least one machine readable identifier;
defining said machine learning model in said computer vision system;
defining said machine learning model in said computer vision system;
capturing at least one image using said image capturing system, said at least one image showing the subject
capturing a first image using said image capturing system, said first image showing a first subset of subjects of said group of subjects;
reading said subject ID of the subjects and linking said subject ID of the subject at least one
image, providing an annotated image
reading said subject ID of each subject in said first subset, and linking each subject ID of said first subset with said first image, providing a first annotated image;
capturing at least one further image using said image capturing system, said at least one further
image showing the subject
capturing at least one further image using said image capturing system, said further image showing a further subset of subjects of said group of subjects;
subjecting said annotated image and said at least one further image to said machine learning model for identifying the subject
reading said subject ID of each subject …, and subjecting said first annotated image and said at least one further annotated image to said machine learning model for training said machine learning model.
Claim 4 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No. 11,961,320. Although the claims at issue are not identical, they are not patentably distinct from each other as shown in the following table:
Present Application
Claim 4
U.S. Patent No. 11,961,320
Claim 17
A non-transitory computer-readable medium having stored thereon computer program instructions that, when executed by a data processor on a computer vision system, enables said computer vision system to perform the method of claim 1.
A non-transitory computer readable medium having stored thereon computer program instructions that…
Incorporated from claim 1
… when executed by a data processor on a computer vision system with an image capturing system comprising at least one image capturing device and a reader system comprising at least one reader for reading at least one machine readable identifier, enables said computer vision system to identify a subjecting a group of subjects with each subject having at least one machine readable identifier providing a subject ID by:
providing a computer vision system with an image capturing system comprising at least one image capturing device, and a reader system comprising at least one reader for reading said at least one machine readable identifier;
defining said machine learning model in said computer vision system;
defining a machine learning model in said computer vision system;
capturing at least one image using said image capturing system, said at least one image showing the subject
capturing a first image using said image capturing system, said first image showing a first subset of subjects of said group of subjects;
reading said subject ID of the subjects and linking said subject ID of the subject at least one image, providing an annotated image
reading said subject ID of each subject in said first subset, and linking each subject ID of said first subset with said first image, providing a first annotated image;
capturing at least one further image using said image capturing system, said at least one further
image showing the subject
capturing at least one further image using said image capturing system, said further image showing a further subset of subjects of said group of subjects;
subjecting said annotated image and said at least one further image to said machine learning model for identifying the subject
reading said subject ID …, and subjecting saidfirst annotated image and said at least one further annotated image to said machine learning model for training said machine learning model.
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 DAVID F DUNPHY whose telephone number is (571)270-1230. The examiner can normally be reached 9 am - 5 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chineyere Wills-Burns can be reached on (571) 272-9752. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID F DUNPHY/Primary Examiner, Art Unit 2673
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