DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This action is in reply to the communications filed on July 7, 2025. The Applicant’s Amendment and Request for Reconsideration has been received and entered.
Claims 1-5 are currently pending and have been examined. Claims 1 and 2 have been amended.
Application 18/739,161, filed on 06/10/2024, is a Continuation of Application 17/527,591, filed on 11/16/2021, now U.S. Patent #12,008,620. Application 17/527,591 is a Divisional of Application 16/398,545, filed 04/30/2019, now U.S. Patent # 11,205,211.
Response to Arguments
Applicant’s amendments necessitated the new grounds of rejection.
The non-statutory double patenting rejection has been withdrawn in light of filed terminal disclaimer.
Regarding the rejection of claims 1-5 under 35 USC 101, Applicant’s arguments have been fully considered but they are not persuasive for the reasons set forth infra.
Additionally, the Examiner respectfully argues that while Applicant asserts that the present application “provides a technical solution to a technical problem,” a technical problem has not been provided, rather image processing is not a problem specifically arising in the realm of computers or technology.
Applicant’s remaining arguments have been fully considered but they are not persuasive. Particularly, Applicant’s arguments are directed to the instantly amended claims, and are thus moot in view of the new grounds of rejection.
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 1-5 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Step 1. When considering subject matter eligibility under 35 U.S.C. 101, it must be determined whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter.
Step 2A – Prong One. If the claims fall within one of the statutory categories, it must then be determined whether the claims recite an abstract idea, law of nature, or natural phenomenon.
Step 2A – Prong Two. If the claims recite an abstract idea, law of nature, or natural phenomenon, it must then be determined whether the claims recite additional elements that integrate the judicial exception into a practical application. If the claims do not recite additional elements that integrate the judicial exception into a practical application, then the claims are directed to a judicial exception.
Step 2B. If the claims are directed to a judicial exception, it must be evaluated whether the claims recite additional elements that amount to an inventive concept (i.e. “significantly more”) than the recited judicial exception.
In the instant case, claims 1-5 are directed to a process.
A claim “recites” an abstract idea if there are identifiable limitations that fall within at least one of the groupings of abstract ideas enumerated in MPEP 2106. In the instant case, claim 1 recites the steps of: receiving, from a first associated with a first human user, a communication indicating that the first human user has selected one or more items for purchase and has purchased the one or more items; receiving identifying information of the one or more items and corresponding identifiers of one or more merchants offering the one or more items for sale; identifying one or more merchants offering the one or more items for sale; receiving, either from a second associated with a second human user, or from a third in response to a request by the second human user, one or more images depicting the first human user using the one or more items; after receipt of the one or more images, processing the one or more images by
applying, to a current item of the one or more items within a current image of the one
or more images, a classifier that assigns an item type to the current item according to visual attributes of at least one of the current item or current image; matching the current item with a known item associated with the first human user and assigned the item type; and based on said applying and matching done for each item, determining that the one or more items are depicted in the one or more images;
determining, based on visual characteristics of the one or more images, that the one or more items are depicted in the one or more images; and transmitting, for display to the second human user, the one or more images, when followed by the second human user, convey the second human user to a merchant allowing the second human user to purchase the one or more items from the one or more merchants -- these claim limitations set forth certain methods of organizing human activity, particularly commercial interactions including advertising, marketing, and sales activities/behaviors.
Further, the limitations of the claims are not indicative of integration into a practical application. Taking the independent claim elements separately, the additional elements of performing the steps automatically and via a first computing device, a second computing device, a third computing device, a artificial intelligence classifier and a generated augmented graphical user interface comprising hyperlinks, wherein the hyperlinks, convey a website -- merely implement the abstract idea on a computer environment. Additionally, taking the dependent claim elements separately, the additional elements of performing the steps via a mobile phone and a mobile app executed on the mobile phone also merely implement the abstract idea on a computer environment. Considered in combination, the steps of Applicant’s method add nothing that is not already present when the steps are considered separately.
Thus, claims 1-5 are directed to an abstract idea.
Regarding the independent claims, the technical elements of performing the steps automatically and via a first computing device, a second computing device, a third computing device, a artificial intelligence classifier and a generated augmented graphical user interface comprising hyperlinks, wherein the hyperlinks, convey a website -- merely implement the abstract idea on a computer environment. Additionally, regarding the dependent claims, the technical elements of performing the steps via a mobile phone and a mobile app executed on the mobile phone also merely implement the abstract idea on a computer environment.
When considering the elements and combinations of elements, the claim(s) as a whole, do not amount to significantly more than the abstract idea itself. This is because the claims do not amount to an improvement to another technology or technical field; the claims do not amount to an improvement to the functioning of a computer itself; the claims do not move beyond a general link of the use of an abstract idea to a particular technological environment; the claims merely amounts to the application or instructions to apply the abstract idea on a computer; or the claims amounts to nothing more than requiring a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry.
The analysis above applies to all statutory categories of invention. Accordingly, claims 1-5 are rejected as ineligible for patenting under 35 USC 101 based upon the same rationale.
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 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over Conte (US 2015/0245103 A1) in view of Rogers (US 2010/0058397 A1) in view of Tapley (US 2009/0304267 A1).
Claim 1 –
As per claim 1, Conte teaches a computer implemented method of image analysis, comprising:
receiving, from a first computing device associated with a first human user, a communication indicating that the first human user has selected one or more items for purchase and has purchased the one or more items;” [0039]; Examiner notes broadest reasonable interpretation of the term asset encompasses property purchased by a person or company.)
receiving, from the first computing device, identifying information of the one or more items . . . ; (see “actor” in paragraph [0036]; “asset list” in paragraph [0039]; and authoritative list of products” in paragraph [0042]);
identifying one or more merchants offering the one or more items for sale; (see “merchants” in paragraphs [0042].)
receiving, either from a second computing device associated with a second human user, or from a third computing device in response to a request by the second human user, one or more images depicting the first human user using the one or more items; (see “video” in paragraphs [0033] and [0037]; and “actor” in paragraph [0036].)
after receipt of the one or more images, automatically processing the one or more images by (see “visual indicator” in paragraph [0036]; and “recognition of objects” in paragraph [0039]) and
generating and transmitting, for display to the second human user, an augmented graphical user interface comprising the one or more images and hyperlinks, wherein the hyperlinks, when followed by the second human user, convey the second human user to a merchant website allowing the second human user to purchase the one or more items from the one or more merchants. (see “see visual indicators…overlaid on an image frame of a video” in paragraph [0032]; “direct link from selecting the visual indicator…match sellers with visual indicators” in paragraph [0041]).
Conte does not disclose:
receive, from a second computing device, identifying information of the purchased one or more items by a first user and corresponding identifiers of one or more merchants offering the one or more items for sale;
Rogers teaches receiving, from a second computing device, identifying information of one or more items and corresponding identifiers of a merchant offering each of the one or more items for sale (see paragraph [0054] of Rogers). This instruction of Rogers is applicable to the system of Conte as they both share characteristics and capabilities, namely, they are directed to purchasing products worn in a video. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the instruction of the received identifying information of one or more items as disclosed by Conte to include corresponding identifiers of a merchant offering each of the one or more items for sale as taught by Rogers. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Conte in order to create an effective selling channel to directly sell merchandise or consumer goods as seen on television program’s talent or the program sets (see paragraph [0006] of Rogers).
Conte/Rogers do not disclose:
applying, to a current item of the one or more items within a current image of the one or more images, an artificial intelligence classifier that assigns an item type to the current item according to visual attributes of at least one of the current item or current image; matching the current item with a known item associated with the first human user and assigned the item type; and based on said applying and matching done for each item, determining that the one or more items are depicted in the one or more images;
Tapley teaches
applying, to a current item of the one or more items within a current image of the one or more images, an artificial intelligence classifier that assigns an item type to the current item according to visual attributes of at least one of the current item or current image; (Figs. 6-7; “item identification . . . applying an edge detection algorithm” in paragraph [0036]; “a neural network module compares the color histograms to generate a statistical analysis of the comparison. The statistical analysis may identify a statistical difference or a statistical similarity between the compared color histograms, and the match is based on the resulting statistical analysis. . . . The neural network module may then return a set of statistical analysis and associated item identifiers assigned to each set of comparisons.” in paragraphs [0037]-[0038]; see also paragraphs [0032]-[0033])
matching the current item with a known item associated with the first human user and assigned the item type; and (Figs. 6-7; “Additionally, one or more other images and their associated item identifiers, which identify the items depicted in these other images, are accessed at 604. These images and item identifiers may be from user-submitted item postings and are stored in and accessed from a repository of, for example, a network-based publication system. . . . A variety of image identification techniques may be applied to identify the item depicted in the image. As an example, the identification can be based on identifying a match of the image with one of the other images accessed from the repository. In this embodiment, the image is compared with other images at 606, and a match of the image with at least one of the other images is identified at 608 based on the comparison. Once a match is identified, the item identifier associated with the matched image is accessed and the submitted image is associated with the item identifier at 610. Since the item identifier identifies the item depicted in the image, the association effectively results in the identification of the item depicted in the image.” in paragraphs [0032]-[0033])
based on said applying and matching done for each item, determining that the one or more items are depicted in the one or more images; and applying, to a current item of the one or more items within a current image of the one or more images, an artificial intelligence classifier that assigns an item type to the current item according to visual attributes of at least one of the current item or current image; (Figs. 6-7; “item identification . . . applying an edge detection algorithm” in paragraph [0036]; “a neural network module compares the color histograms to generate a statistical analysis of the comparison. The statistical analysis may identify a statistical difference or a statistical similarity between the compared color histograms, and the match is based on the resulting statistical analysis. . . . The neural network module may then return a set of statistical analysis and associated item identifiers assigned to each set of comparisons. . . . Once a match is identified, the item identifier associated with the matched image is accessed at 712 and associated with the image being submitted at 714. In the example above, if the item identifier “DVD player” is associated with the matched image from the repository, then the “DVD player” is associated with the image being submitted. It should be appreciated that in addition to the application of the edge detector algorithm and the comparison with other images as discussed above . . .” in paragraphs [0037]-[0038]; see also paragraphs [0032]-[0033])
This known technique is applicable to the method of Conte/Rogers as they both share characteristics and capabilities, namely, they are directed to image recognition.
One of ordinary skill in the art at the time of filing would have recognized that applying the known technique of Tapley would have yielded predictable results and resulted in an improved method. It would have been recognized that applying the technique of Tapley to the teachings of Conte/Rogers would have yielded predictable results because the level of ordinary skill in the art demonstrated by the references applied shows the ability to incorporate such applying artificial intelligence classifier and matching features into similar methods. Further, applying the applying, to a current item of the one or more items within a current image of the one or more images, an artificial intelligence classifier that assigns an item type to the current item according to visual attributes of at least one of the current item or current image; matching the current item with a known item associated with the first human user and assigned the item type; and based on said applying and matching done for each item, determining that the one or more items are depicted in the one or more images to the teachings of Conte/Rogers would have been recognized by those of ordinary skill in the art as resulting in an improved method for accurate matching of a query to relevant items (see paragraphs [0004] of Tapley).
Claim 2 –
Conte teaches the method of claim 1 as described above.
Additionally, Conte teaches:
wherein determining that the one or more items are depicted in the one or more images comprises identifying the first human user as being present in the one or more images using facial recognition. (see “the catalog can…be browseable and/or searchable by…actor, character” in paragraph [0036]; “facial recognition” in paragraph [0039])
Claim 3 –
Conte teaches the method of claim 1 as described above.
Conte does not explicitly disclose the limitation below, however Rogers further teaches a method:
wherein the identifying information of the one or more items comprises a photograph of a bar code or a photograph of a sales receipt. (see paragraphs [0054] and [0064] of Rogers)
This instruction of Rogers is applicable to the system of Conte as they both share characteristics and capabilities, namely, they are directed to purchasing products worn in a video. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the photograph of a bar code or the photograph of a sales receipt as disclosed by Rogers to the receiving identifying information of the one or more items as taught by Conte. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Conte in order to create an effective selling channel to directly sell merchandise or consumer goods as seen on television program’s talent or the program sets (see paragraph [0006] of Rogers).
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Conte/Rogers/ Tapley in view of Giampaolo et al. (US 2018/0182016 A1).
Claim 4 –
Conte/Rogers/Tapley teach the method of claim 1 as described above.
Conte/Rogers/Tapley do not explicitly disclose the limitation below, however Giampaolo further teaches a method:
receiving access to a website shopping cart or online shopping history to obtain the identifying information of the one or more items purchased by the first human user. (see “a user purchases a new garment from a store or website, the merchant POS terminal 150 or the merchant database terminal 140 may transmit garment data associated with the newly purchased item to the service provider terminal 110 to be added to the wardrobe database 260” in paragraph [0046] of Giampaolo)
This instruction of Giampaolo is applicable to the system of Conte/Rogers/Tapley as they both share characteristics and capabilities, namely, they are directed to inputting a wardrobe into a database. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the receiving access to a website shopping cart or online shopping history to obtain the identifying information of the one or more items purchased by the first human user as taught by Giampaolo to the one or more items purchased by the first human user as taught by Conte/Rogers/Tapley. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify the combination of Conte in order to reduce the cost and time of maintaining a database that catalogs each garment owned by the consumer (see paragraphs [0005]-[0006] of Giampaolo).
Claim 5 –
Conte/Rogers/Tapley teaches the method of claim 1 as described above.
Conte/Rogers/Tapley does not explicitly disclose the limitation below, however Giampaolo further teaches a method:
wherein the first computing device is a mobile phone and the identifying information of the one or more items is entered or captured via a mobile app executed on the mobile phone. (see “mobile computing device” in paragraph [0027]; “data may be obtained by deriving the wardrobe data from images of the garments captured by, for example, a digital camera associated with computing device” in paragraph [0046]; and “smart phones” in paragraph [0060]; Fig. 8 of Giampaolo).
This instruction of Giampaolo is applicable to the system of Conte/Rogers/Tapley as they share characteristics and capabilities, namely, they are directed to inputting a wardrobe into a database. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the first computing device is a mobile phone and the identifying information of the one or more items is entered or captured via a mobile app executed on the mobile phone as taught by Giampaolo to the first computing device and the identifying information as taught by Conte/Rogers/Tapley. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify the combination of Conte/Rogers/Tapley in order to reduce the cost and time of maintaining a database that catalogs each garment owned by the consumer (see paragraphs [0005]-[0006] of Giampaolo).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Liu, Rebecca. The Business Times, p 12. "Fashion with a passion." (2011 June 15) – merchant website allowing users to purchase.
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 JENNIFER V LEE whose telephone number is (571)272-4778. The examiner can normally be reached Monday - Friday 9AM - 5PM EST.
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/JENNIFER V LEE/Examiner, Art Unit 3688
/Jeffrey A. Smith/Supervisory Patent Examiner, Art Unit 3688