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 .
Response to Arguments
Regarding the previous 35 USC 112(f) claim interpretation, the remarks do not appear to include separate arguments regarding the previous 35 USC 112(f) claim interpretation. Accordingly, the previous 35 USC 112(f) claim interpretation is maintained.
Regarding the previous Double Patenting rejection, Applicant’s arguments have been fully considered but are not persuasive. Applicants argue that Applicant respectfully contends that the pending claims are not obvious over co-pending Application No. 18/751,515. The instant application and copending Application No. 18/751,515 are directed towards image analysis method for a computer-implemented determination of a degree of grain cracking of grains within a flow of harvested material processed by at least one working unit of a forage harvester. The instant application and copending Application No. 18/751,515 classify grain and non-grain components and then classify whole grain and crushed grains in order to automatically control at least one working unit based on the degree of grain cracking. Copending Application No. 18/751,515 has been allowed but does not yet have a US Patent No. An updated Double Patenting is made below necessitated by amendment.
Regarding the previous 35 USC 102(a)(1) and 35 USC 103 rejections, Applicant’s arguments, pages 8-9, have been fully considered and are persuasive. The prior arts Heitmann and Rasmussen do not explicitly disclose a two stage process, page 9 of remarks, wherein, in the first stage, the image pixels in the one or more images are classified into the grain components and the non-grain components using semantic image segmentation, object detection, or instance segmentation and wherein, in the second stage, a differentiation between the whole grains and the cracked grains is performed, using the semantic image segmentation, within the image pixels of the one or more images that have been classified as the grain components in the first stage. Accordingly, the previous 35 USC 102(a)(1) and 35 USC 103 rejections are withdrawn in light of the present claim amendments and remarks.
Claim Interpretation
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.
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.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not 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 not 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 function without reciting 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: image analysis apparatus configured to: receive…; driver assistance system to automatically control…; attachment configured to collect harvested material; working units configured to process…; optical recording apparatus configured to generate…; image analysis apparatus configured to determine…; driver assistance system configured to automatically control…; automatic processing unit is configured to optimize… in claims 12-19, 21-22.
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. Applicant’s specification includes at least [0037]: secondary crushing device and the driver assistance system may form an automatic processing unit, [0043] optical recording apparatus 16 has at least one camera; [0046] driver assistance system 17 may include at least one processor 36 and at least one memory 37. In one or some embodiments, the processor 36 may comprise a microprocessor, controller.
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.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-5, 7-9, 11-22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 18751515 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claim recite similar subject matter. The instant application and copending Application No. 18751515 are directed towards image analysis method for a computer-implemented determination of a degree of grain cracking of grains within a flow of harvested material processed by at least one working unit of a forage harvester. The instant application and copending Application No. 18751515 classify grain and non-grain components and then classify whole grain and crushed grains in order to automatically control at least one working unit based on the degree of grain cracking.
Regarding claims 1, 12, 15, claims 1-18 of copending Application No. 18751515 disclose
An image analysis method for a computer-implemented determination of a degree of grain cracking of grains within a flow of harvested material processed by at least one working unit of a forage harvester, the flow comprises whole grains and cracked grains as grain components and non-grain components, wherein the at least one working unit is automatically controlled depending on the degree of grain cracking that is determined (see at least claim 1: An image analysis method for a computer-implemented determination of a degree of grain cracking of grains within a flow of harvested material processed by at least one working unit of a forage harvester, the flow comprising whole grains and crushed grains as grain components and non-grain components, claim 15: A self-propelled forage harvester comprising: an attachment configured to pick up harvested material; one or more working units configured to process a flow of the harvested material, the one or more working units comprising a secondary crushing device), the method comprising:
obtaining, using at least one optical recording device, one or more images of the flow of harvested material (see at least claim 1: recording, using a camera system, one or more images of the flow of harvested material, claim 15);
in a first stage of the image analysis method, classifying image pixels contained in the one or more images into the grain components and the non-grain components (see at least claim 1: determining, by an image analysis apparatus, the degree of grain cracking by: classifying image pixels in the one or more images into grain components and non-grain components; classifying, using a segmentation model, whole grains and crushed grains within the image pixels of the one or more images classified as grain components, claim 6: pixels, claim 15);
in a second stage of the image analysis method, performing, using a length-width comparison, a length determination of a long main axis and a short main axis of one or more of the classified grain components, wherein at least one neural network performs the first stage and the second stage (see at least claim 9, claim 11: wherein, to classify whole grains and crushed grains, a length determination of a long main axis and a short main axis of each classified grain component is performed using a length-width comparison; and to calculate the degree of grain cracking, quotient is formed from a sum of an area of classified grain components which fall below an adaptive limit value for length of the short main axes, and a sum of the area of all classified grain components, claims 12-14, claim 16: wherein the image analysis apparatus is designed with an algorithm for machine learning that is implemented as a neural network in a form of a U-Net architecture of a convolutional neural network or as a recurrent neural network);
determining, using the length determination, the degree of grain cracking (see at least claim 11: wherein, to classify whole grains and crushed grains, a length determination of a long main axis and a short main axis of each classified grain component is performed using a length-width comparison; and to calculate the degree of grain cracking, quotient is formed from a sum of an area of classified grain components which fall below an adaptive limit value for length of the short main axes, and a sum of the area of all classified grain components, claims 12-14); and
automatically controlling the at least one working unit based on the degree of grain cracking (see at least claim 1: automatically controlling the at least one working unit based on the degree of grain cracking, claim 15: A self-propelled forage harvester comprising: an attachment configured to pick up harvested material; one or more working units configured to process a flow of the harvested material, the one or more working units comprising a secondary crushing device); and
wherein, in the first stage, the image pixels in the one or more images are classified into the grain components and the non-grain components using semantic image segmentation, object detection, or instance segmentation (see at least claim 1: determining, by an image analysis apparatus, the degree of grain cracking by: classifying image pixels in the one or more images into grain components and non-grain components); and
wherein, in the second stage, a differentiation between the whole grains and the cracked grains is performed, using the semantic image segmentation, within the image pixels of the one or more images that have been classified as the grain components in the first stage (see at least claim 1: classifying, using a segmentation model, whole grains and crushed grains within the image pixels of the one or more images classified as grain components, claim 9: wherein determining the degree of grain cracking uses at least one neural network that includes a U-Net architecture as the segmentation model, claim 16: wherein the image analysis apparatus is designed with an algorithm for machine learning that is implemented as a neural network in a form of a U-Net architecture of a convolutional neural network or as a recurrent neural network).
This is a provisional nonstatutory double patenting rejection.
Allowable Subject Matter
Claim(s) 1-5, 7-9, 11-22 would be allowable if the Double Patenting rejection is overcome, set forth in this Office action. The following is a statement of reasons for the indication of allowable subject matter: The prior art taken either individually or in combination with other prior art of record fails to disclose, suggest, teach, or render obvious the invention as a whole:
An image analysis method for a computer-implemented determination of a degree of grain cracking of grains within a flow of harvested material processed by at least one working unit of a forage harvester, the flow comprises whole grains and cracked grains as grain components and non-grain components, wherein the at least one working unit is automatically controlled depending on the degree of grain cracking that is determined, the method comprising:
obtaining, using at least one optical recording device, one or more images of the flow of harvested material;
in a first stage of the image analysis method, classifying image pixels contained in the one or more images into the grain components and the non-grain components;
in a second stage of the image analysis method, performing, using a length-width comparison, a length determination of a long main axis and a short main axis of one or more of the classified grain components, wherein at least one neural network performs the first stage and the second stage;
determining, using the length determination, the degree of grain cracking; and
automatically controlling the at least one working unit based on the degree of grain cracking; and
wherein, in the first stage, the image pixels in the one or more images are classified into the grain components and the non-grain components using semantic image segmentation, object detection, or instance segmentation; and
wherein, in the second stage, a differentiation between the whole grains and the cracked grains is performed, using the semantic image segmentation, within the image pixels of the one or more images that have been classified as the grain components in the first stage.
Conclusion
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 ANGELINA M SHUDY whose telephone number is (571)272-6757. The examiner can normally be reached M - F 10am - 6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fadey Jabr can be reached at 571-272-1516. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Angelina Shudy
Primary Examiner
Art Unit 3668
/Angelina M Shudy/Primary Examiner, Art Unit 3668
Prosecution Insights