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 .
Claim Interpretation Under - 35 USC § 112(f)
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.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
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.
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 do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
an image sensitivity threshold setter, a current frame measurer, a previous frame measurer, an image sensitivity threshold adjuster, and a frame renderer claims 1-13.
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 the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend 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 avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1 - 12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. Though claims 1 - 12 recite a “system” comprising various “units” being a setter, measurer, measurer, adjuster, and renderer. The original specification discloses these “units” in the apparatus 500 (page 11, lines 5 – 8) and the functions of each of these “units” (page 11, lines 9 – page 16, line 2). However, the original specification does not disclose that said “units” are any hardware structural components and does not explicitly define only hardware components to said “units”. One of ordinary skill can reasonably interpret the “units” in the apparatus to be merely software. Therefore, the “apparatus” is nothing more than functional descriptive material per se, and hence is nonstatutory. Descriptive material can be characterized as either “functional descriptive material” or “nonfunctional descriptive material.” In this context, “functional descriptive material” consists of data structures and computer programs which impart functionality when employed as a computer component. (The definition of “data structure” is “a physical or logical relationship among data elements, designed to support specific data manipulation functions.” The New IEEE Standard Dictionary of Electrical and Electronics Terms 308 (5th ed. 1993).) “functional descriptive material” is nonstatutory when claimed as descriptive material per se. Warmerdam, 33 F.3d at 1360, 31 USPQ2d at 1759. When functional descriptive material is recorded on some computer-readable medium causing a processor to perform the instructions, it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized.
Claim 18 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. Claim 18 fails to fall within a statutory category of the invention. Though claim 18 discloses, “computer readable recording medium”, the original specification does not explicitly define or limit “computer-readable recording medium” to only non-transitory medium, but gives potential examples of a computer-readable recording medium and does not limit computer-readable recording medium to only non-transitory types medium (page 7, lines 70 14). Therefore the phrase “computer-readable medium” can be reasonably interpreted to comprise a non-transitory computer-readable medium and a transitory computer-readable medium. The transitory computer readable medium is considered to be transmission medium. Therefore “computer readable medium” in claims CRM101 are considered to be non-statutory. Claims that recite nothing but the physical characteristics of a form of energy, such as a frequency, voltage, or the strength of a magnetic field, define energy or magnetism, per se, and as such are nonstatutory natural phenomena (O’Reilly, 56 U.S. (15 How.) at 112-14). Moreover, it does not appear that a claim reciting a signal encoded with functional descriptive material falls within any of the categories of patentable subject matter set forth in § 101.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1 – 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “image sensitivity threshold” in claims 1, 3 – 10, and 12 – 18 is a relative term which renders the claim indefinite. The term “image sensitivity threshold”, more specifically “image sensitivity” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The original specification discloses “set an image sensitivity threshold by determining weights between FPS sensitivity and image quality sensitivity based on a resolution and a screen size” (page 11, line 17 – page 12, line 2), the image sensitivity threshold can be set “relatively high” (page 12, lines 16 – 22), image sensitivity threshold may be decreased or increased in generally to change the performance of the rendering/ray tracing (page 15, lines 2 – 9). However, it is unclear what “image sensitivity” is and how “image sensitivity” is measured to determine a threshold metric value to adjust and compared if the “image sensitivity threshold” has been met or not.
The terms “FPS sensitivity” and “image quality sensitivity” in claims 2 – 4 and 14 are relative terms which renders the claim indefinite. The terms “FPS sensitivity” and “image quality sensitivity” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The specification discloses “FPS sensitivity” and “image quality sensitivity” can be increased and decreased with weights and correspond to a degree of sensitivity (page 11, lines 17 – 9). However, it is unclear what “FPS sensitivity” and “image quality sensitivity” are and how “FPS sensitivity” and “image quality sensitivity” are measured to determine a metric value to adjust.
The term “predetermined criterion” in claims 9 and 10 is a relative term which renders the claim indefinite. The term “image sensitivity threshold”, more specifically “image sensitivity” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The original specification discloses the detected camera movement speed is compared to a “predetermined criterion” (page 14, lines 22 – 9). However, it is unclear what “predetermined criterion” is and how “predetermined criterion” is measured to determine a metric value to compare to.
The term “image quality” in claims 7, 9 and 16 is a relative term which renders the claim indefinite. The term “image quality” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The original specification discloses “image quality” can be increased or decreased (page 10, lines 20 – page 11, line 2). However it’s not clear what “image quality” is and how “image quality” is measured to determine for being increased and decreased.
The term “accuracy” in claims 12 is a relative term which renders the claim indefinite. The term “accuracy” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The original specification discloses “accuracy of interpolation” can be increased or decreased (page 16, lines 12 – 21). However it’s not clear how an interpolation would be more accurate or less accurate being how to increase or decrease an accuracy of interpolation.
Therefore with all the relative terms stated above, claims 1 – 20 are rejected under 35 U.S.C. 112(b) for containing relatively terminology.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY J CHOW whose telephone number is (571)272-8078. The examiner can normally be reached 11AM-7PM.
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/JEFFREY J CHOW/Primary Examiner, Art Unit 2618