DETAILED ACTION
This action is responsive to the application filed on July 01, 2024, which is continuation of 16/908,322 filed on June 22, 2020, now US Pat. No. 12,135,636.
Claims 1-14 are pending and presented to examination.
The present application is being examined under the pre-AIA first to invent provisions.
Examiner Notes
Examiner cites particular columns, paragraphs, figures and line numbers in the references as applied to the claims below for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested that, in preparing responses, the applicant fully consider the references in their entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
Drawings
The drawings filed on July 01, 2024 are acceptable for examination purposes.
Specification
The disclosure is objected to because of the following informalities:
RELATED APPLICATION(S) section discloses a parent case 16/908,322, now patented. The patent number must be disclosed on record. Appropriate correction is required.
RELATED APPLICATION(S) recites that the present application is a continuation of Application No. 16/908,322, “which is a continuation of U.S. Application number 15/083,183, filed March 28, 2016 (now US Patent no. 10,691,579).” The parent application that issued as U.S. Patent No. 10,691,579 is Application No. 15/083,186, not “15/083,183.” The front-page data of U.S. Patent Nos. 10,691,579 and 12,135,636 confirm the correct serial number is 15/083,186. Appropriate correction of paragraph [0001] is required (“15/083,183” should read “15/083,186”).
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 8-9 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.
Claim 8 depends from claim 1 and recites “wherein manipulation of the image by the application includes modifying data of the image.” There is insufficient antecedent basis for the recitations “the image”. Claim 1, from which claim 8 depend, does not recite an image or any manipulation of an image; the term “an image” is first introduced in claim 2. Claim 9 depends from claim 1 and recites “wherein manipulation of the image by the application includes creating video content.” There is insufficient antecedent basis for the recitations “manipulation of the image”.
Claim 1, from which claims 8 and 9 depend, does not recite an image or any manipulation of an image; the term “an image” is first introduced in claim 2. Because neither an image nor a manipulation of an image is recited in claim 1, the terms “manipulation of the image” and “the image” in claims 8 and 9 lack proper antecedent basis and render the claims indefinite. For purposes of examination, claims 8 and 9 are each interpreted as depending from claim 2. Appropriate correction is required (e.g., amending each of claims 8 and 9 to depend from claim 2).
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 1-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 7-21 of U.S. Patent No. 12,135,636. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are anticipated by, and in the alternative would have been obvious over, the patented claims, as shown below. The instant application and U.S. Patent No. 12,135,636 are commonly owned by Wapp Tech Corp.
Instant independent claim 1 recites, verbatim, every limitation of claim 1 of U.S. Patent No. 12,135,636. The sole additional recitation — “wherein the application is a mobile commerce application” — is not patentably distinct from claim 18 of the patent, which recites that “the application includes mobile commerce capabilities.” Shared/similar claim language is shown in bold.
Instant Application 18/760,855
U.S. Patent No. 12,135,636
A non-transitory, computer-readable medium comprising software instructions for developing an application to be run on a mobile device, wherein the software instructions, when executed, cause a computer to: display a list of one or more mobile device types, wherein upon selection of a mobile device type from the list, one or more mobile device characteristics are loaded from at least one of a remote server and a computer-readable media to simulate either a mobile device model, or a real mobile device, or both; initiate transmission of the application to run in either the mobile device model, or the real mobile device, or both; monitor utilization of one or more resources of the selected mobile device type over time; display one or more representations of the application’s resource utilization, wherein each representation relates to a different mobile device characteristic and is synched in time as the application is running; identify one or more areas of code, or functions, or both of the application responsible for utilization of a displayed mobile device characteristic at a given time; modify one or more areas of code, or functions, or both of the application based on at least one displayed resource utilization; test performance of the application on the selected mobile device type; provide a performance data report which includes resource utilization of either the application performance, or the mobile device type performance, or both; and recommend an optimization of the application based on an analysis of the performance data report to improve the performance of the selected mobile device type; wherein the application is a mobile commerce application.
A non-transitory, computer-readable medium comprising software instructions for developing an application to be run on a mobile device, where the software instructions, when executed, cause a computer to: display a list of one or more mobile device types, wherein upon selection of a mobile device type from the list, one or more mobile device characteristics are loaded from at least one of a remote server and a computer-readable media to simulate either a mobile device model, or a real mobile device, or both; initiate transmission of the application to run in either the mobile device model, or the real mobile device, or both; monitor utilization of one or more resources of the selected mobile device type over time; display one or more representations of the application’s resource utilization, wherein each representation relates to a different mobile device characteristic and is synched in time as the application is running; identify one or more areas of code, or functions, or both of the application responsible for utilization of a displayed mobile device characteristic at a given time; modify one or more areas of code, or functions, or both of the application based on at least one displayed resource utilization; test performance of the application on the selected mobile device type; provide a performance data report which includes resource utilization of either the application performance, or the mobile device type performance, or both; recommend an optimization of the application based on an analysis of the performance data report to improve the performance of the selected mobile device type.
Claim 18: The non-transitory, computer-readable medium of claim 1, wherein the application includes mobile commerce capabilities.
The dependent claims correspond to the patented claims as set forth in the following table; each instant dependent claim is not patentably distinct from the identified patented claim(s):
Instant Application 18/760,855
U.S. Patent No. 12,135,636
Claim 2 (application executable to manipulate an image)
Claim 7
Claim 3 (the image is a photo)
Claim 10
Claim 4 (application has photo editing capabilities)
Claim 11
Claim 5 (manipulation includes transferring the image)
Claim 12
Claim 6 (transfer between the mobile device and an Internet server)
Claims 12 and 2
Claim 7 (transfer includes storing image data to non-volatile memory)
Claim 9
Claim 8 (manipulation includes modifying data of the image)
Claims 8 and 14
Claim 9 (manipulation includes creating video content)
Claim 15
Claim 10 (application allows a user to personalize an image)
Claim 16
Claim 11 (personalizing includes modifying data of the image)
Claim 17
Claim 12 (mobile commerce app facilitates a financial transaction)
Claim 19
Claim 13 (financial transaction is a point-of-sale transaction)
Claim 20
Claim 14 (mobile commerce app facilitates online shopping)
Claim 21
Claim 1 is additionally and cumulatively rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 and 5 of U.S. Patent No. 10,691,579. Although the conflicting claims are not identical, they are not patentably distinct from each other because instant claim 1 would have been obvious over the patented claims. The instant application and U.S. Patent No. 10,691,579 are commonly owned by Wapp Tech Corp. Shared/similar claim language is shown in bold.
Instant Application 18/760,855
U.S. Patent No. 10,691,579
A non-transitory, computer-readable medium comprising software instructions for developing an application to be run on a mobile device, wherein the software instructions, when executed, cause a computer to: display a list of one or more mobile device types, wherein upon selection of a mobile device type from the list, one or more mobile device characteristics are loaded from at least one of a remote server and a computer-readable media to simulate either a mobile device model, or a real mobile device, or both; initiate transmission of the application to run in either the mobile device model, or the real mobile device, or both; monitor utilization of one or more resources of the selected mobile device type over time; display one or more representations of the application’s resource utilization, wherein each representation relates to a different mobile device characteristic and is synched in time as the application is running; identify one or more areas of code, or functions, or both of the application responsible for utilization of a displayed mobile device characteristic at a given time; modify one or more areas of code, or functions, or both of the application based on at least one displayed resource utilization; test performance of the application on the selected mobile device type; provide a performance data report which includes resource utilization of either the application performance, or the mobile device type performance, or both; and recommend an optimization of the application based on an analysis of the performance data report to improve the performance of the selected mobile device type; wherein the application is a mobile commerce application.
Claim 1: A non-transitory, computer-readable medium comprising software instructions for developing an application to be run on a mobile device, wherein the software instructions, when executed, cause a computer to: display a list of one or more mobile device types from which a user can select; simulate one or more characteristics of a selected mobile device type; initiate loading of at least one of the selected characteristics from at least one of a remote server and a computer-readable media; monitor utilization of one or more resources of the selected mobile device type over time as an application is running; display a representation of one or more of the monitored resources.
Claim 2: The medium of claim 1, wherein the software instructions include identifying one or more areas of code, or functions, or both of the application responsible for utilization of a specific displayed resource at a given time.
Claim 5: The medium of claim 1, wherein the instructions initiate transmission of the application that is being developed to one or more physical versions of a mobile device corresponding to the selected mobile device type.
Claim 1 of U.S. Patent No. 10,691,579, in combination with its dependent claims 2 and 5 (which depend from claim 1 and therefore belong to the same invention group), recites the same core development-and-profiling process as instant claim 1: displaying a list of mobile device types, loading device characteristics from a remote server or computer-readable media, initiating transmission of the application, monitoring resource utilization over time, displaying a representation of the monitored resource, and identifying the code or functions responsible for a displayed utilization at a given time. The remaining limitations of instant claim 1 — modifying the identified code, testing performance, providing a performance data report, and recommending an optimization based on that report — are the ordinary, iterative use of the very profiling data that the patented claims already generate and display, and therefore are not patentably distinct refinements of the patented subject matter. The further recitation “wherein the application is a mobile commerce application” is a field-of-use designation that imparts no patentable distinction.
Allowable Subject Matter
Claims 1–14 recite subject matter that is allowable over the prior art of record. A search of the prior art was conducted and no reference, alone or in combination, teaches or renders obvious the full combination recited in independent claim 1 — in particular, loading one or more mobile device characteristics upon selection to simulate a mobile device model or a real mobile device, monitoring resource utilization over time, displaying one or more representations of the application’s resource utilization each relating to a different mobile device characteristic and synched in time as the application is running, identifying and modifying the areas of code or functions responsible for a displayed utilization, testing performance, providing a performance data report, and recommending an optimization based on an analysis of that report to improve performance of the selected mobile device type. The closest art of record is the applicant’s own commonly owned patent family, which forms the basis for the double patenting rejection set forth above rather than a rejection under 35 U.S.C. 102 or 103. No prior-art rejection under 35 U.S.C. 102 or 103 is made. Accordingly, the application will be in condition for allowance upon: (1) filing of a terminal disclaimer over U.S. Patent Nos. 12,135,636 and 10,691,579 to obviate the nonstatutory double patenting rejections; (2) correction of the indefiniteness under 35 U.S.C. 112(b) (e.g., amending claims 8 and 9 to depend from claim 2; and (3) correction of the objection of the specification.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Antonellis (US Pub. No. 2004/0210621) An order optimization system and method is disclosed. According to the system and method, a device, such as a personal digital assistant or personal computer is in communication with an establishment computer. The system includes software and hardware capable of placing, transmitting, and receiving an order, tracking the location of the device, determining and predicting the availability of limiting resources, optimally assigning resources to the order, determining whether a triggering condition is satisfied, commanding the preparation of the order, commanding notification messages, tracking limiting resource usage, tracking implements used to prepare the order, and displaying order fulfillment status. (see abstract).
Kanago (US Pat. No. 6,512,988) A method and system of efficiently switching between a first test application that tests a first format and a second test application that tests a second format. First, a fast test application switching module (FTASM) is loaded into a program memory. The FTASM has a format independent portion (FIP) and at least two format dependent portions (FDPs) that are specific to the particular format to be tested. The FIP is configured to be compatible with each of the format dependent portions so that any of the format dependent portions can utilize the FIP to perform testing tasks. When a first format test request is received, the FIP activates the virtual instruments associated with the first format. Then, when a second format test request is received, the FIP de-activates the virtual instruments associated with the first format and activates the virtual instruments associated with the second format. A first mechanism is provided for maintaining a plurality of settings associated with while the format dependent portion is inactive. This mechanism also automatically applies these settings to the format dependent portion when the format dependent portion is activated. A second mechanism is provided for allowing a user to individually access a plurality of settings of a particular format dependent portion when the format dependent portion is not being executed. (see abstract).
Hartmaier et al. (US Pat. No. 5,978,672) A mobility extended telecommunications application and method of use which comprises an integrated wireless and wirelined network with central control and which has a programmed interface to translate between the different protocols of the wireless and the wirelined networks to allow for customized services to be furnished to said wireless network without the necessity of expensive switching and data handling devices. The application can be utilized between many networks and facilitates the utilization of the architecture of the wirelined network and the home location register of the wireless network for various applications on the wireless network. (see abstract).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANIBAL RIVERACRUZ whose telephone number is (571)270-1200. The examiner can normally be reached Monday-Friday 9:30 AM-6:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Hyung S Sough can be reached at 5712726799. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANIBAL RIVERACRUZ/Primary Examiner, Art Unit 2192
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