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 Status
Claims 1, 9, 10 and 17 have been amended.
Claims 1-3, 5-8, 17-18 and 20 were previously withdrawn.
Claims 4 and 19 have been canceled.
Claims 9-16 are currently pending and rejected.
Response to Arguments
35 USC 101 rejection
Applicant's arguments with respect to the rejection of claims 9-16 under 35 USC 101, as being directed to a judicial exception, have been fully considered but are not persuasive, in view of the accompanying amendments and in view of MPEP 2106. The rejection under 35 USC 101 is explained in further detail below.
Examiner appreciates Applicant’s inclusion of additional limitations, however, the Examiner asserts that even with the inclusion of additional features, the claims remain abstract and directed to a judicial exception. As written, the claims merely set forth a system for providing product recommendations, which is considered to be an abstract idea as it relates to ‘certain methods of organizing human activity,’ namely marketing or sales activities or behaviors.
Applicant argues the claims recite a practical application, however, the claims merely include instruction to implement the abstract idea on a computer, or merely use a computer as a tool to perform the abstract idea. Applicant argues that the present invention provides a technical solution to a technical problem, however Examiner disagrees. Although the claim may use technology (i.e. a VR dressing room) to perform steps related to solving a problem, the claim does not amount to a ‘technical improvement’ as the technology (i.e. a computer or other machinery) is merely used in its ordinary capacity for economic or other tasks (e.g., to receive and transmit data). Furthermore, the claims merely disclose usage of artificial intelligence and machine learning in a new environment. This new environment is product recommendation and the ranking of content items. The claimed methods are not rendered patent eligible by the fact that (using existing machine learning technology) they perform a task previously undertaken by humans with greater speed and efficiency than could previously be achieved.
Examiner reiterates that although claim 9 may use technology (i.e. a computer system, a processor, etc.) to perform steps related to solving a problem, the claim does not amount to a ‘technical improvement’ as the technology (i.e. a computer or other machinery) is merely used in its ordinary capacity for economic or other tasks (e.g., to store, receive and transmit data). Further clarification with regards to the specific improvements achieved by the artificial intelligence or machine learning model may assist with the analysis of these claims. “After the examiner has consulted the specification and determined that the disclosed invention improves technology, the claim must be evaluated to ensure the claim itself reflects the disclosed improvement in technology” (See MPEP 2106.05(A)).
The additional elements are merely recited at a high level of generality and amount to little more than the mere instructions to implement an abstract idea on a computer or similar hardware. Further, these elements represent little more than a general link to a technological environment (i.e. a mere attempt to restrict use of the idea to a technical environment such as the Internet or computer networks – see Ultramercial, Inc. v. Hulu, LLC) as currently written. In each case, the courts have found such limitations insufficient to qualify as “significantly more” when recited in a claim with a judicial exception (see MPEP 2106.05(A)).
As written, the claims fail to be significantly more than the abstract idea because the claims use a computer or other machinery in its ordinary capacity for economic or other tasks or simply add a general purpose computer or computer components (i.e. search interface) after the fact to an abstract idea. Therefore, the claims continue to be viewed as examples of an abstract idea without significantly more and thus lack subject matter eligibility.
Additionally, where certain dependent claims rely upon similar additional elements as recited in claim 9 these do not result in significantly more than the abstract idea itself. The additional elements of the dependent claims are treated at least similarly as those discussed above with respect to claim 9.
Even when viewed as an ordered combination, the dependent claims simply convey the abstract idea itself applied on a generic computer and are held to be ineligible under Steps 2A/2B of the Mayo framework at least similar rationale as discussed above regarding claim 9.
In view of the above, the Examiner concludes that there are no meaningful limitations in the claim that transform the judicial exception into a patent eligible application such that the claim amounts to significantly more than the judicial exception itself. For at least these reasons above, the rejections under 35 USC 101 have been maintained and are explained in further detail below.
35 USC 102 and 103 Rejections
Applicant’s arguments with respect to the rejection of claims under 35 USC 102 have been fully considered and are partially persuasive, in view of the accompanying amendments.
Applicant's amended claim 9 now requires the steps to “calculate, based on the received first input and using an artificial intelligence model trained on user feedback and user settings and utilizing interference operations, a size and a fit of the wearable item to provide to the user; project onto the user the wearable item; and determine and suggest in real time, utilizing a machine learning model and additional user input with respect to size, fit, color, and texture,”. These limitations had not been previously been recited and change the scope of the invention.
Applicant’s amendments have therefore necessitated the new grounds for rejection, explained in further detail below.
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 9-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 1:
Claims 9-16 are directed to a dressing room, which is a machine. Therefore, claims 9-16 are directed to one of the four statutory categories of invention.
Step 2A (Prong 1):
Claim 9 sets forth the following limitations which recite the abstract idea of providing product recommendations:
capture an image of a user;
receive a request from the user for a wearable item;
calculate, based on the received first input and on user feedback and user settings and utilizing interference operations, a size and a fit of the wearable item to provide to the user;
project onto the user the wearable item;
present the wearable item on the image of the user;
request the wearable item in response to a request from the user for the wearable item; and
determine and suggest in real time, utilizing additional user input with respect to size, fit, color, and texture an alternative option an alternative option in response to a rejection of the wearable item from the user.
The recited limitations as a whole set forth the process for providing product recommendations. These limitations amount to certain methods of organizing human activity, including commercial or legal interactions (e.g. advertising, marketing or sales activities or behaviors).
Such concepts have been identified by the courts as abstract ideas (see: MPEP 2106).
Step 2A (Prong 2):
Examiner acknowledges that claim 9 does recite additional elements, such as a display screen, artificial intelligence model, machine learning model, processing device, etc.
Taken individually and as a whole, claim 9 does not integrate the recited judicial exception into a practical application of the exception. The claim merely includes instruction to implement an abstract idea on a computer, or to merely use a computer as a tool to perform an abstract idea, while the additional elements do no more than generally link the use of a judicial exception to a particular field of technological environment or field of use.
Furthermore, this is also because the claim fails to (i) reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, (ii) implement a judicial exception with a particular machine, (iii) effect a transformation or reduction of a particular article to a different state or thing, or (iv) apply the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
In view of the above, under Step 2A (Prong 2), claim 9 does not integrate the recited exception into a practical application (see again: MPEP 2106).
Step 2B:
When taken individually or as a whole, the additional elements of claim 9 do not provide an inventive concept (i.e. whether the additional elements amount to significantly more than the exception itself). As discussed above with respect to integration of the abstract idea into a practical application, the additional element of using a computer device to perform the receiving and determining steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Certain additional elements also recite well-understood, routine, and conventional activity (See MPEP 2106.05(d)).
Even when considered as an ordered combination, the additional elements of claim 9 do not add anything further than when they are considered individually.
In view of the above, claim 9 does not provide an inventive concept under step 2B, and is ineligible for patenting.
Dependent claims 10-16 recite further complexity to the judicial exception (abstract idea) of claim 9, such as by further defining the process for providing product recommendations. Thus, each of claims 10-16 are held to recite a judicial exception under Step 2A (Prong 1) for at least similar reasons as discussed above.
Therefore, dependent claims 10-16 do not add “significantly more” to the abstract idea. The dependent claims recite additional functions that describe the abstract idea and only generally link the abstract idea to a particularly technological environment, and applied on a generic computer. Further, the additional limitations fail to provide an improvement to the functioning of the computer, another technology, or a technical field.
Even when viewed as an ordered combination, the dependent claims simply convey the abstract idea itself applied on a generic computer and are held to be ineligible under Steps 2A/2B for at least similar rationale as discussed above regarding claim 9.
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 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 of this title, 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.
Claims 9-15 are rejected under 35 U.S.C. 103 as being unpatentable over Cypher et al. (U.S. Pre-Grant Publication No. 2015/0262288) (“Cypher”), in view of Sholl et al. (U.S. Pre-Grant Publication No. 2024/0037869 A1) (“Sholl”).
Regarding claim 9, Cypher teaches a dressing room, comprising:
a first portion comprising:
a plurality of interactive display screens (Fig. 7, 8; para [0084]-[0086], video wall 708 may be an instance of the interactive wall display) in communication with a non-transitory machine-readable medium comprising a processing device in communication with a memory resource having instructions executable to:
capture an image of a user (Fig. 8; para [0086]-[0087], camera 804 is a device for recording visual images);
receive a request from the user for a wearable item (para [0082], identify each item brought into the interactive fitting room 700, and provide detailed product information about the items);
project onto the user the wearable item (Fig. 7; para [0029], interactive mirror system may appear, at least initially, to the individual as an ordinary fitting room mirror, while also being capable of displaying graphical user interfaces (GUI) with multiple user interface (UI) elements alongside or overlaid upon the reflection of the consumer; para [0081], interactive mirror display 112 presents a GUI 702 along with an image or reflection of an individual 704 trying on garments in the fitting room);
present, via the plurality of interactive display screens, the wearable item on the image of the user (Fig. 7; para [0081], interactive mirror display 112 presents a GUI 702 along with an image or reflection of an individual 704 trying on garments in the fitting room);
request, from a second portion of the dressing room, the wearable item in response to a request from the user for the wearable item (para [0082], individual 704 may use the GUI 702 to request an alternative size or color for an item brought into the fitting room); and
provide an alternative option via the plurality of interactive display screens in response to a rejection of the wearable item from the user (para [0082], individual 704 may use the GUI 702 to request an alternative size or color for an item brought into the fitting room 700. The GUI 702 may also allow the individual to browse other items offered for sale in the retail store, and may be used by the individual 704 to provide feedback related to items.); and
the second portion in communication with the non-transitory machine-readable medium and housing the wearable item (para [0038], retail store server 102 is communicatively coupled to a database 108, which stores data such as inventory, transaction histories, and member profiles, for example. The inventory may include a record of each uniquely identified item offered for sale by the retail store).
Although Cypher teaches a virtual dressing room system, Cypher does not explicitly teach calculate, based on the received first input and using an artificial intelligence model trained on user feedback and user settings and utilizing interference operations, a size and a fit of the wearable item to provide to the user; and determine and suggest in real time, utilizing a machine learning model and additional user input with respect to size, fit, color, and texture.
In a similar field of endeavor, Sholl teaches:
calculate, based on the received first input and using an artificial intelligence model trained on user feedback and user settings and utilizing interference operations, a size and a fit of the wearable item to provide to the user (para [0076], system may employ advanced computer vision and machine learning and augmented reality technologies to create a realistic and immersive virtual try-on experience. By incorporating styling capabilities, users may be able to personalize and customize their virtual outfits to suit their preferences. The system utilizes an intuitive user interface and a vast database of clothing styles and accessories to provide a seamless and enjoyable virtual shopping experience.; para [0204], Through an intuitive user interface and intelligent algorithms, users can experiment, receive recommendations, and create personalized looks that reflect their unique fashion preferences);
determine and suggest in real time, utilizing a machine learning model and additional user input with respect to size, fit, color, and texture (para [0207], system may employ computer vision and/or machine learning algorithms to analyze the user's body shape, size, and proportions based on images or video input. These algorithms generate a personalized virtual avatar that accurately represents the user's physique. The selected clothing items are dynamically fitted onto the user's virtual avatar, taking into account fabric draping, stretching, and body movement, resulting in a realistic and visually accurate representation of the outfit; para [0208], Users can experiment with color variations, patterns, and textures to further customize their outfits);
Since each individual element and its function are shown in the prior art, albeit shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the noted limitations as taught by Sholl in the system of Cypher, since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. Namely, improved systems and methods for virtual try-on of articles of real-world clothing virtually (See Sholl: para [0007]).
Regarding claim 10, Cypher and Sholl teach the above dressing room of claim 9. Cypher also teaches comprising instructions executable to project the alternative option onto the user and to display, via the plurality of interactive display screens, the alternative option on the image of the user (para [0029], interactive mirror system may display each of the items in the fitting room and may further display suggested additional items such as accessories (e.g., a belt) or alternative items (e.g., alternate colors for the dress)).
Regarding claim 11, Cypher and Sholl teach the above dressing room of claim 9. Cypher also teaches comprising instructions executable to display, via the plurality of interactive display screens, suggestions for additional wearable items based on the request from the user for the wearable item (para [0029], interactive mirror system may display each of the items in the fitting room and may further display suggested additional items such as accessories (e.g., a belt) or alternative items (e.g., alternate colors for the dress); para [0155], generating of the offer by the recommendation module 820 may include generating one or more recommendations for garments that are similar (e.g., other colors, sizes, or styles) or related (e.g., accessories) to the garment)).
Regarding claim 12, Cypher and Sholl teach the above dressing room of claim 11. Cypher also teaches wherein the suggestions for additional wearable items are based on a fit of the wearable item (para [0029], alternative items; para [0038], product information (e.g., a description, size, price, brand, style, fabric, and color) for each item; para [0155]).
Regarding claim 13, Cypher and Sholl teach the above dressing room of claim 11. Cypher also teaches wherein the suggestions for additional wearable items are based on a design of the wearable item (para [0029], alternative items; para [0038], product information (e.g., a description, size, price, brand, style, fabric, and color) for each item; para [0155]).
Regarding claim 14, Cypher and Sholl teach the above dressing room of claim 11. Cypher also teaches wherein the suggestions for additional wearable items are based on a texture of the wearable item (para [0029], alternative items; para [0038], product information (e.g., a description, size, price, brand, style, fabric, and color) for each item; para [0155]).
Regarding claim 15, Cypher and Sholl teach the above dressing room of claim 9. Cypher also teaches wherein the wearable item is a clothing item (para [0003], [0083]).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Cypher and Sholl in view of Vilcovsky et al. (U.S. Pre-Grant Publication No. 2013/0229482) (“Vilcovsky”).
Regarding claim 16, Cypher and Sholl teach the above dressing room of claim 9. However, Cypher and Sholl do not explicitly teach wherein the wearable item is a cosmetic item.
In a similar field of endeavor, Vilcovsky teaches wherein the wearable item is a cosmetic item (para [0005]).
Since each individual element and its function are shown in the prior art, albeit shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself. It would have been obvious to one of ordinary skill in the art at the time of filing to include the noted limitations as taught by Vilcovsky in the dressing room of Cypher, since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. Namely, improved interactive display system within a retail environment to try-out various articles including apparel and cosmetics (see Vilcovsky; para [0003]-[0005]).
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANAND LOHARIKAR whose telephone number is 571-272-8756. The examiner can normally be reached Monday-Friday, 9am-5pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marissa Thein can be reached at 571-272-6764. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANAND LOHARIKAR/Primary Examiner, Art Unit 3689
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