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 .
Status of Claims
This action is in reply to the claims filed on 06/14/2024.
Claims 1-6 are currently pending and have been examined.
Information Disclosure Statement
Information Disclosure Statements received 06/14/2024, 02/10/2025, 07/03/2025, 08/04/2025, and 12/03/2025 has been reviewed and considered.
Claim Rejections- 35 U.S.C. § 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.
Claim 4 is rejected under 35.U.S.C. § 101 because the claimed invention is directed to non-statutory subject matter.
The claim(s) does not fall within at least one of the four categories of patent eligible subject matter because “A computer program comprising instructions” is neither a process, machine, manufacture, or composition. Products that do not have a physical or tangible form, such as information (often referred to as “data per se”) or a computer program per se (often referred to as “software per se”) when claimed as a product without any structural recitations, are not directed to any of the statutory categories. See MPEP 2106.03. For purposes of examination, the following subject matter eligibility analysis will treat claim 4 as if it were directed to a method.
Claims 1-6 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to an abstract idea without significantly more.
Under Step 1 of the subject matter eligibility (SME) analysis described in MPEP 2106.03, the instant claims fall within the four statutory categories of invention identified by 35 U.S.C. 101. In the instant case, claims 1-4 are directed to a method, claim 5 is directed to a manufacture, and claim 6 is directed to a system.
In Step 2A Prong One, it must be considered whether the claims recite a judicial exception. Claim 1, as exemplary, recites abstract concepts including: providing frame data for a plurality of frames; selecting a template frame; identifying one or more frames similar to the template frame based on a location of the plurality of frames in a compressed space of the compressed frame data based on a similarity criterion; and selecting one or more frames based on a ranking of similarity to the template frame calculated by a distance metric from the template frame..
These identified limitations recite the abstract idea of “selecting one or more spectacle frames”, which falls within the “Certain Methods of Organizing Human Activities” grouping of abstract ideas as it relates to commercial interactions of sales activities or behaviors. Accordingly, claim 1 recites an abstract idea. See MPEP 2106.04.
In Step 2A Prong Two, examiners evaluate integration into a practical application by: (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (2) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application.
Instant claim 1 and 4-6 recites additional elements including: compressing the frame data; at least one processor; a non-transitory storage medium, comprising the computer program; a device comprising: a processor; and stored instructions. The processor, non-transitory storage medium, and device are each recited at a high-level of generality (i.e., as generic computers performing generic functions of storing data and executing programs) such that these limitations amounts to no more than “apply it” or mere instruction to implement the abstract idea on a computer. Implementing an abstract idea on a generic computer, does not integrate the abstract idea into a practical application in Step 2A Prong Two similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer. See MPEP 2106.05(f). Similarly, the limitation “compressing the frame data” is also mere instruction to apply an exception on a computer because the claim lacks details as to how the computer performs the compression. In combination, these elements amount to a generic computer implementation of the identified abstract idea. Accordingly these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. See MPEP 2106.05. Claims 1 and 4-6 are thus directed to an abstract idea.
Under Step 2B of the SME analysis, if it is determined that the claims recite a judicial exception that is not integrated into a practical application of that exception, it is then necessary to evaluate the additional elements individually and in combination to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself).
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, as discussed above with respect to integration of the abstract idea into a practical application, the additional element(s) individually and in combination are merely being used to apply the abstract idea to a general computer components. For the same reason, the elements are not sufficient to provide an inventive concept. As explained in MPEP 2106.05(f), implementing an abstract idea with a generic computer does not add significantly more in Step 2B. Therefore, the additional elements, alone or in ordered combination, there is no inventive concept in the claim, and thus claims 1 and 4-6 are not patent eligible.
Dependent claim(s) 2-3 do not aid in the eligibility of the independent claims. These claims merely further define the abstract idea without reciting any further additional elements. Thus dependent claims 2-3 are also ineligible.
Claim Rejections - 35 U.S.C. § 103
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, 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.
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 factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Guo et al. (US 2018/0218429 A1) in view of Popa et al. (US 2018/0268458 A1).
Claim 1 – Guo discloses a method for selecting one or more items, the method comprising:
providing frame data for a plurality of items (¶ [0045] “ the catalog of the online retailer can comprise one or more digital images for each item of the plurality of items currently on sale”);
compressing the item data (¶ [0049] “In some embodiments, each branch of the two-branch Siamese CNN model can comprise a plurality of layers that transform each digital image of the plurality of digital images into a 100-dimensional or other n-dimensional vector.”);
selecting a template item (¶ [0053] “the new item”);
identifying one or more items similar to the template item based on a location of the plurality of items in a compressed space of the compressed item data based on a similarity criterion (¶ [0056] “Determining the at least one similar item of the plurality of items to which the new item is most similar also can comprise an activity of comparing the new 100-dimensional vector of the new item to at least a portion of the 100-dimensional vectors of the plurality of digital images.”); and
selecting one or more items based on a ranking of similarity to the template item calculated by a distance metric from the template item (¶ [0056] “Determining the at least one similar item of the plurality of items to which the new item is most similar also can comprise an activity of determining the at least one similar item of the plurality of items comprises at least one 100-dimensional vector most similar to the new 100-dimensional vector of the new item”; ¶ [0057] “method 400 also can comprise an activity 425 of coordinating a display of the new item on a webpage based on a ranking of the least one similar item”).
Guo does not disclose selecting spectacle frames, however Popa – which like Guo is directed to recommending items based on a visual analysis – teaches selecting spectacle frames (Popa ¶ [0177] “establishing an eyewear recommendation”; ¶ [0178] “For each image, the system undertakes ... Frame Shape Recognition”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the item of Guo to include the spectacle frames, as taught by Popa, because it would be beneficial to provide the consumer with a flexible recommendation framework that can aggregate items of different categories such as glasses (Popa ¶ [0005]).
Claim 2 – The combination of Guo in view of Popa teaches the method of claim 1. Guo further discloses, wherein the distance metric is an Euclidian distance metric (Guo ¶ [0052]).
Claim 3 – The combination of Guo in view of Popa teaches the method of claim 1. Guo does not teach the following limitations, however Popa further teaches: wherein the similarity criterion is a property including a color, a shape (¶ [0178] “frame shape classification 250”; ¶ [0222]), and a material.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the similarity criterion of Guo to include the shape, as taught by Popa, because it is a key distinctive feature (Popa ¶ [0248]).
Claim 4 – The combination of Guo in view of Popa teaches the method of claim 1. Guo further discloses a computer program comprising instructions, which, when carried out on at least one processor, cause execution of the method of claim 1 (¶ [0022]) “one or more application specific integrated circuits (ASICs) can be programmed to carry out one or more of the systems and procedures described herein. For example, one or more of the programs and/or executable program components described herein”).
Claim 5 – The combination of Guo in view of Popa teaches the computer program of claim 4. Guo further discloses a non-transitory storage medium, comprising the computer program of claim 4 (¶ [0019]).
Claim 6 – The combination of Guo in view of Popa teaches the method of claim 1. Guo further disclose a device comprising (FIG. 2): a processor (¶ [0022]); and stored instructions which, when carried out by the processor, cause execution of the method of claim 1.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Bowen et al. (US 2022/0075845 A1) describes systems and methods that provide computer aided design of customized items (e.g., physical or digital objects).
Fonte (US 2015/0055086 A1) describes a system that creates, manufactures, and delivers custom personal products on-demand that are best suited to the needs and preferences of an individual user by building the product from a specification that is generated from automatic and/or user-guided user-specific preference profiles
W.C. Kang, C. Fang, Z. Wang and J. McAuley (NPL Reference U) seeks to use image content (at the pixel level) to build recommender systems specifically in fashion contexts.
Zhou (US 2019/0188770 A1) describes determining recommendations including products to be provided to customers based on customer data and purchase data.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KENNEDY A GIBSON-WYNN whose telephone number is (571)272-8305. The examiner can normally be reached M-F 8:30-5:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeffrey Smith can be reached at 571-272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.G.W./Examiner, Art Unit 3688
/Jeffrey A. Smith/Supervisory Patent Examiner, Art Unit 3688