DETAILED ACTION
Applicant presents Claims 1-12 for examination. The Office rejects Claims 1-12 as detailed 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.
(Independent) Claims 1, 10-12, and all corresponding dependent claims are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter:
STEP 1
With respect to Step 1 of the Patent Subject Matter Eligibility (MPEP § 2106.03) analysis, the claims nominally fall within the statutory categories of invention.
…Step 1 of the eligibility analysis asks: Is the claim to a process, machine, manufacture or composition of matter? Like the other steps in the eligibility analysis, evaluation of this step should be made after determining what applicant has invented by reviewing the entire application disclosure and construing the claims in accordance with their broadest reasonable interpretation (BRI).
(MPEP § 2106.03(II))
–– In this case, (independent) Claims 1 and 10-12 nominally relate to the statutory machine (1, 10), process (11), and manufacture (12) categories of invention, respectively.
STEP 2A, Prong One
Under Step 2A, Prong One, the claims recite at least one judicial exception.
Step 2A is a two-prong inquiry, in which examiners determine in Prong One whether a claim recites a judicial exception, and if so, then determine in Prong Two if the recited judicial exception is integrated into a practical application of that exception. Together, these prongs represent the first part of the Alice/Mayo test, which determines whether a claim is directed to a judicial exception.
(MPEP § 2106.03(II)(A))
If the claim recites a judicial exception (i.e., an abstract idea enumerated in MPEP § 2106.04(a), a law of nature, or a natural phenomenon), the claim requires further analysis in Prong Two.
(MPEP § 2106.03(II)(A)(1))
To facilitate examination, the Office has set forth an approach to identifying abstract ideas that distills the relevant case law into enumerated groupings of abstract ideas. The enumerated groupings are firmly rooted in Supreme Court precedent as well as Federal Circuit decisions interpreting that precedent, as is explained in MPEP § 2106.04(a)(2). This approach represents a shift from the former case-comparison approach that required examiners to rely on individual judicial cases when determining whether a claim recites an abstract idea. By grouping the abstract ideas, the examiners’ focus has been shifted from relying on individual cases to generally applying the wide body of case law spanning all technologies and claim types.
The enumerated groupings of abstract ideas are defined as:
1) Mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP § 2106.04(a)(2), subsection I);
2) 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) (see MPEP § 2106.04(a)(2), subsection II); and
3) Mental processes – concepts performed in the human mind (including an observation, evaluation, judgment, opinion) (see MPEP § 2106.04(a)(2), subsection III).
(MPEP § 2106.04(a))
Accordingly, the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgments, and opinions.
(MPEP § 2106.04(a)(2)(III))
If a claim recites a limitation that can practically be performed in the human mind, with or without the use of a physical aid such as pen and paper, the limitation falls within the mental processes grouping, and the claim recites an abstract idea.
(MPEP § 2106.04(a)(2)(III)(B))
–– In this case, the independent claims recite
(1, 10, 11, 12) …and [determine to] control the first optical system to acquire the first distance information in a case where reliability of the first distance information is higher than a predetermined value [compare], and [determine to] control the second optical system to acquire the second distance information in a case where the reliability is lower than the predetermined value [compare].
The highlighted independent claim limitations—including comparing and determining—correspond to concepts performed in the human mind (including observations, evaluations, judgments, and opinions) (i.e., mental processes), with or without the use of a physical aid such as pen and paper.
The dependent claims recite
(2) …wherein the reliability is higher than the predetermined value in a case where contrast of the image information is higher than a predetermined contrast value, and the reliability is lower than the predetermined value in a case where the contrast is lower than the predetermined contrast value [further defines determining step in parent claim];
(3) …wherein the reliability is higher than the predetermined value in a case where a focus position of the first optical system is in a predetermined range, and the reliability is lower than the predetermined value in a case where the focus position is outside the predetermined range [further defines determining step in parent claim];
(4) …acquire the second distance information in a case where [it is determined] the reliability is higher than the predetermined value and an image for recording is acquired by using the first optical system;
(5) …wherein a frame rate of acquiring the second distance information is lower than a frame rate of acquiring of the first distance information [further defines a variable of the determining step in parent claim];
(6) …wherein the processor is configured to control the first optical system to acquire the first distance information in a case where [it is determined that] the reliability is lower than the predetermined value [compare] and a remaining battery level for driving the first optical system and the second optical system is smaller than [compare] a predetermined level;
(7) …wherein the processor is configured to control the first optical system to acquire the first distance information in a case where [it is determined that] the reliability is lower than the predetermined value [compare] and a light amount of environmental light different from light that has been emitted from the second optical system and then reflected by a target is larger than [compare] a predetermined amount;
The highlighted dependent claim limitations—including comparing and determining— correspond to concepts performed in the human mind (including observations, evaluations, judgments, and opinions) (i.e., mental processes), with or without the use of a physical aid such as pen and paper.
Accordingly, the claims recite at least one judicial exception.
STEP 2A, Prong Two
Under Step 2A, Prong Two, the claims as a whole do not integrate the recited judicial exception into a practical application of the exception.
Prong Two asks does the claim recite additional elements that integrate the judicial exception into a practical application? In Prong Two, examiners evaluate whether the claim as a whole integrates the exception into a practical application of that exception. If the additional elements in the claim integrate the recited exception into a practical application of the exception, then the claim is not directed to the judicial exception (Step 2A: NO) and thus is eligible at Pathway B. This concludes the eligibility analysis. If, however, the additional elements do not integrate the exception into a practical application, then the claim is directed to the recited judicial exception (Step 2A: YES), and requires further analysis under Step 2B (where it may still be eligible if it amounts to an ‘‘inventive concept’’). For more information on how to evaluate whether a judicial exception is integrated into a practical application, see MPEP § 2106.04(d)(2).
(MPEP § 2106.03(II)(A)(2))
…
The courts have also identified limitations that did not integrate a judicial exception into a practical application:
• Merely reciting the words "apply it" (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f);
• Adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g); and
• Generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
(MPEP § 2106.04(d)(I))
–– In this case, the independent claims additionally recite
(1, 10-12) …acquire at least one of first distance information [storing/retrieving information] corresponding to the image information and obtained by using the first optical system, and second distance information [storing/retrieving information] corresponding to the image information and obtained by using the second optical system, and control the first optical system to acquire [storing/retrieving information] the first distance information in a case where reliability of the first distance information is higher than a predetermined value, and control the second optical system to acquire [storing/retrieving information] the second distance information in a case where the reliability is lower than the predetermined value.
(1, 10, 12) …a memory storing instructions; and a processor that executes the instructions; [<< using a computer as a tool to perform an abstract idea] the first optical system; and the second optical system [< field of use/technological environment]; and a non-transitory computer-readable storage medium storing a computer program [<< using a computer as a tool to perform an abstract idea];
The highlighted independent claim limitations correspond to [1] using a computer as a tool to perform an abstract idea; [2] to storing/retrieving information, which add insignificant extra-solution activity to the judicial exception; and [3] merely linking a judicial exception to a field of use/technological environment. Accordingly, as a whole they fail to integrate the recited judicial exceptions into a practical application of the exception.
The dependent claims additionally recite
(4) …wherein the processor is configured to control the second optical system to acquire the second distance information [storing/retrieving information]…;
(6) …wherein the processor is configured to control the first optical system to acquire the first distance information [storing/retrieving information]…;
(7) …wherein the processor is configured to control the first optical system to acquire the first distance information [storing/retrieving information]...;
(8) …wherein the processor is configured to acquire the first distance information based on outputs from phase difference detecting pixels configured to detect a phase difference between images [storing/retrieving information];
(9) …wherein the processor is configured to acquire the second distance information using a light emitter configured to emit light and a light receiver configured to receive the light reflected by a target [storing/retrieving information];
The highlighted dependent claim limitations correspond to storing/retrieving information, which adds insignificant extra-solution activity to the judicial exception. Accordingly, as a whole they fail to integrate the recited judicial exceptions into a practical application of the exception.
Thus, the claims as a whole do not integrate the recited judicial exception into a practical application of the exception.
STEP 2B
With respect to Step 2B of the Alice analysis, the Office does not find any element or combination of elements that transforms the abstract idea into a patent eligible application.
Limitations that the courts have found not to be enough to qualify as "significantly more" when recited in a claim with a judicial exception include: …ii. Simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry, as discussed in Alice Corp., 134 S. Ct. at 2359-60….
MPEP § 2106.05(I)(A)
….
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. 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); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., 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 USPQ2d 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));
ii. Performing repetitive calculations, Flook, 437 U.S. at 594, 198 USPQ2d at 199 (recomputing or readjusting alarm limit values); Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) ("The computer required by some of Bancorp’s claims is employed only for its most basic function, the performance of repetitive calculations, and as such does not impose meaningful limits on the scope of those claims.");
iii. Electronic recordkeeping, Alice Corp., 134 S. Ct. at 2359, 110 USPQ2d at 1984 (creating and maintaining "shadow accounts"); Ultramercial, 772 F.3d at 716, 112 USPQ2d at 1755 (updating an activity log);
iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93;
v. Electronically scanning or extracting data from a physical document, Content Extraction and Transmission, LLC v. Wells Fargo Bank, 776 F.3d 1343, 1348, 113 USPQ2d 1354, 1358 (Fed. Cir. 2014) (optical character recognition); and
vi. A web browser’s back and forward button functionality, Internet Patent Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015).
MPEP § 2106.05(d)(II)(i-vi)
–– In this case, the independent claims additionally recite
(1, 10-12) …acquire at least one of first distance information [storing/retrieving information] corresponding to the image information and obtained by using the first optical system, and second distance information [storing/retrieving information] corresponding to the image information and obtained by using the second optical system, and control the first optical system to acquire [storing/retrieving information] the first distance information in a case where reliability of the first distance information is higher than a predetermined value, and control the second optical system to acquire [storing/retrieving information] the second distance information in a case where the reliability is lower than the predetermined value.
(1, 10, 12) …a memory storing instructions; and a processor that executes the instructions; [<< generic computer components performing generic computer functions] the first optical system; and the second optical system [< field of use/technological environment]; and a non-transitory computer-readable storage medium storing a computer program [<< generic computer components performing generic computer functions];
The highlighted independent claim limitations recite [1] generic computer components performing generic computer functions that are well-understood, routine and conventional activities previously known to the industry; [2] storing/retrieving information and receiving/transmitting data, which is recognized by the courts as a well‐understood, routine, and conventional computer function (See MPEP § 2106.05(d)(II); included above); and [3] merely linking a judicial exception to a field of use/technological environment.
The dependent claims additionally recite
(4) …wherein the processor is configured to control the second optical system to acquire the second distance information [storing/retrieving information]…;
(6) …wherein the processor is configured to control the first optical system to acquire the first distance information [storing/retrieving information]…;
(7) …wherein the processor is configured to control the first optical system to acquire the first distance information [storing/retrieving information]...;
(8) …wherein the processor is configured to acquire the first distance information based on outputs from phase difference detecting pixels configured to detect a phase difference between images [storing/retrieving information];
(9) …wherein the processor is configured to acquire the second distance information using a light emitter configured to emit light and a light receiver configured to receive the light reflected by a target [storing/retrieving information];
These dependent claim limitations further detail the elements of the independent claims that correspond to storing/receiving data, which is recognized by the courts as a well‐understood, routine, and conventional computer functions (See MPEP § 2106.05(d)(II)))
Further, looking at the limitations as an ordered combination adds nothing more that is not already present when looking at the elements taken individually. There is no indication that the combination of the elements improves the functioning of a computer or improves any other technology, they merely use existing technology for the same purpose for which it was intended.
In sum, the Office does not find any element or combination of elements that transforms the abstract idea into a patent eligible application.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
+_+_+ Claims 1-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shimoda – U.S. Pub. 20160266347 +_+_+
As for Claim 1, Shimoda teaches to …acquire at least one of first distance information corresponding to the image information and obtained by using the first optical system (Fig. 7, active and passive AF calculators 57, 58, ¶55|1: “The controller 29 is configured to include, for example, a central processing unit (CPU), and the controller 29 controls the overall operation of the imaging apparatus 11. The controller 29 is configured to include the lens control unit 54, the shutter and diaphragm control unit 55, an image sensor control unit 56, a passive mode AF calculator 57, an active mode AF calculator 58, an AF mode determination unit 59, a light emission control unit 60, an operation system control unit 61, a display control unit 62, and a recording medium control unit 63.”), and second distance information corresponding to the image information and obtained by using the second optical system (Fig. 7, active and passive AF calculators 57, 58, ¶55|1: “The controller 29 is configured to include, for example, a central processing unit (CPU), and the controller 29 controls the overall operation of the imaging apparatus 11. The controller 29 is configured to include the lens control unit 54, the shutter and diaphragm control unit 55, an image sensor control unit 56, a passive mode AF calculator 57, an active mode AF calculator 58, an AF mode determination unit 59, a light emission control unit 60, an operation system control unit 61, a display control unit 62, and a recording medium control unit 63.”), and control the first optical system to acquire the first distance information in a case where reliability of the first distance information is higher than a predetermined value, and control the second optical system to acquire the second distance information in a case where the reliability is lower than the predetermined value (¶62|1: “The AF mode determination unit 59 compares the luminance level [high luminance = high reliability] of the captured image detected by the captured- image processing unit 52 with the magnitude of a predetermined threshold th, and selects any one autofocus mode of the passive mode and the active mode.”)
As for Claim 2, which depends from Claim 1, Shimoda teaches wherein the reliability is higher than the predetermined value in a case where contrast of the image information is higher than a predetermined contrast value, and the reliability is lower than the predetermined value in a case where the contrast is lower than the predetermined contrast value (¶62|1: “The AF mode determination unit 59 compares the luminance level of the captured image detected by the captured- image processing unit 52 with the magnitude of a predetermined threshold th, and selects any one autofocus mode of the passive mode and the active mode.”)
As for Claim 3, which depends from Claim 1, Shimoda teaches wherein the reliability is higher than the predetermined value in a case where a focus position of the first optical system is in a predetermined range, and the reliability is lower than the predetermined value in a case where the focus position is outside the predetermined range (Fig. 7, active and passive AF calculators 57, 58, ¶55|1: “The controller 29 is configured to include, for example, a central processing unit (CPU), and the controller 29 controls the overall operation of the imaging apparatus 11. The controller 29 is configured to include the lens control unit 54, the shutter and diaphragm control unit 55, an image sensor control unit 56, a passive mode AF calculator 57, an active mode AF calculator 58, an AF mode determination unit 59, a light emission control unit 60, an operation system control unit 61, a display control unit 62, and a recording medium control unit 63.”)
As for Claim 4, which depends from Claim 1, Shimoda teaches wherein the processor is configured to control the second optical system to acquire the second distance information in a case where the reliability is higher than the predetermined value and an image for recording is acquired by using the first optical system (Fig. 7, active and passive AF calculators 57, 58, ¶55|1: “The controller 29 is configured to include, for example, a central processing unit (CPU), and the controller 29 controls the overall operation of the imaging apparatus 11. The controller 29 is configured to include the lens control unit 54, the shutter and diaphragm control unit 55, an image sensor control unit 56, a passive mode AF calculator 57, an active mode AF calculator 58, an AF mode determination unit 59, a light emission control unit 60, an operation system control unit 61, a display control unit 62, and a recording medium control unit 63.”)
As for Claim 5, which depends from Claim 1, Shimoda teaches wherein a frame rate of acquiring the second distance information is lower than a frame rate of acquiring of the first distance information (¶62|1: “The AF mode determination unit 59 compares the luminance level of the captured image detected by the captured- image processing unit 52 with the magnitude of a predetermined threshold th, and selects any one autofocus mode of the passive mode and the active mode.”)
As for Claim 6, which depends from Claim 1, Shimoda teaches wherein the processor is configured to control the first optical system to acquire the first distance information in a case where the reliability is lower than the predetermined value and a remaining battery level for driving the first optical system and the second optical system is smaller than a predetermined level (¶62|1: “The AF mode determination unit 59 compares the luminance level [high luminance = high reliability] of the captured image detected by the captured- image processing unit 52 with the magnitude of a predetermined threshold th, and selects any one autofocus mode of the passive mode and the active mode.”)
As for Claim 7, which depends from Claim 1, Shimoda teaches wherein the processor is configured to control the first optical system to acquire the first distance information in a case where the reliability is lower than the predetermined value and a light amount of environmental light different from light that has been emitted from the second optical system and then reflected by a target is larger than a predetermined amount (¶62|1: “The AF mode determination unit 59 compares the luminance level [high luminance = high reliability] of the captured image detected by the captured- image processing unit 52 with the magnitude of a predetermined threshold th, and selects any one autofocus mode of the passive mode and the active mode.”)
As for Claim 8, which depends from Claim 1, Shimoda teaches wherein the processor is configured to acquire the first distance information based on outputs from phase difference detecting pixels configured to detect a phase difference between images (Fig. 7, active and passive AF calculators 57, 58, ¶55|1: “The controller 29 is configured to include, for example, a central processing unit (CPU), and the controller 29 controls the overall operation of the imaging apparatus 11. The controller 29 is configured to include the lens control unit 54, the shutter and diaphragm control unit 55, an image sensor control unit 56, a passive mode AF calculator 57, an active mode AF calculator 58, an AF mode determination unit 59, a light emission control unit 60, an operation system control unit 61, a display control unit 62, and a recording medium control unit 63.”)
As for Claim 9, which depends from Claim 1, Shimoda teaches wherein the processor is configured to acquire the second distance information using a light emitter configured to emit light and a light receiver configured to receive the light reflected by a target (Fig. 7, active and passive AF calculators 57, 58, ¶55|1: “The controller 29 is configured to include, for example, a central processing unit (CPU), and the controller 29 controls the overall operation of the imaging apparatus 11. The controller 29 is configured to include the lens control unit 54, the shutter and diaphragm control unit 55, an image sensor control unit 56, a passive mode AF calculator 57, an active mode AF calculator 58, an AF mode determination unit 59, a light emission control unit 60, an operation system control unit 61, a display control unit 62, and a recording medium control unit 63.”)
Claims 10-12 recite substantially the same subject matter as Claim 1 and stand rejected on the same basis accordingly.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CLINT THATCHER whose telephone number is (571)270-3588. The examiner can normally be reached Mon-Fri 9am-5:30pm ET and generally keeps a daily 2:30pm timeslot open for interviews.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Yuqing Xiao, can be reached at (571) 270-3603.
Though not relied on, the Office considers the additional prior art listed in the Notice of Reference Cited form (PTO-892) pertinent to Applicant's disclosure.
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/Clint Thatcher/
Examiner, Art Unit 3645
/YUQING XIAO/Supervisory Patent Examiner, Art Unit 3645
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