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
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.
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. Specifically, see claim 1 which recites means for scanning.
If Applicant does not intend for this limitation to be interpreted under § 112(f), Applicant is advised to amend the claim to recite sufficient structure (e.g., "a robotic arm configured to scan the video camera past the surface...") or to present a sufficient showing that the claim limitation recites sufficient structure to perform the claimed function so as to avoid interpretation under § 112(f).
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 claim 1-14 of U.S. Patent No. 12039441. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the present application are more broad than the patent.
Claim 1 recites the same subject matter of claim 1 of the patent except it is missing the fused score portion.
Regarding claims 2-5, they are identical to claims 2-5 of the patent.
Regarding claims 6, see claim 1 and 6 of the patent.
Regarding claims 7 and 9-12, they are identical to claims 7 and 9-12 of the patent.
Regarding claim 8, see the analysis of claim 1.
Regarding claims 9-12, these are identical to claims 9-12 of the patent.
Regarding claim 13, see claim 8 and 13 of the patent.
Regarding claim 14, see claim 14 of the patent.
Claim Rejections - 35 USC § 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.
Claim(s) 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Jahanshahi (US 2017/0343481 A1) in view of Canon (WO 2018/216629 A1, English translation).
Regarding claim 1, Jahanshahi teaches a system for detecting cracks in a surface, the system comprising: a video camera (abstract, pars. 7-8 and 46 and figure 1);
means for scanning the video camera past the surface while filming with the video camera to produce a video of the surface that contains successive frames wherein individual frames of overlapping consecutive pairs of the successive frames have overlapping areas and a crack that appears in a first individual frame of a consecutive pair of the successive frames also appears in at least a second individual frame of the consecutive pair (see prs. 46-47, 75, 89 and figures 1 and 20);
and a parametric data fusion scheme implemented on a processing device (see Jahanshahi pars 89-91 and figure 20 which teaches identify cracks)
to identify cracks in the individual frames (Jahanshai pars. 91-93)
Canon teaches a fully convolutional network (FCN) architecture implemented on a processing device, the FCN architecture being configured to analyze at least some of the individual frames of the video to generate crack score maps for the individual frames (see pages 3-4 and 14, “in order to obtain the crack position….” Also see page 9 last paragraph to the first paragraph of page 10. Also see figures 9-11);
and operable to fuse crack scores of the crack score maps of the individual frames (see Jahanshahi par. 90-91 and Canon pages 3-4 and 14).
It would have been obvious prior to the effective filing date of the invention to one of ordinary skill in the art to include in Jahanshai the ability to have a full FCN architecture as taught by Canon. The reason is to allow a more efficient overall design.
Regarding claim 2, see par. 75 of Jahanshahi.
Regarding claim 3, see applicant’s own admitted prior that HD video is well known in background section.
Regarding claim 4, see pars. 73-74 and 91 of Jahanshai.
Regarding claim 5, see pars. 77 and 110 of Jahanshai (training).
Regarding claim 6, see pars. 89-91 and figure 20-21 of Jahanshai and pages 3 and 14 of Canon.
Regarding claim 7, see pars. 46 and 75 of Jahanshai.
Regarding claim 8, claim 8 recites a method comprising substantially the same steps as the system of claim 1. See the rejection of claim 1 above.
Regarding claim 9, see the rejection of claim 2.
Regarding claim 10, see the rejection of claim 3.
Regarding claim 11, see the rejection of claim 4.
Regarding claim 12, see the rejection of claim 5.
Regarding claim 13, see the rejection of claim 6.
Regarding claim 14, see pars 2-3 and 75 of Jahanshai.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HADI AKHAVANNIK whose telephone number is (571)272-8622. The examiner can normally be reached 9 AM - 5 PM Monday to Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Henok Shiferaw can be reached at (571) 272-4637. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HADI AKHAVANNIK/ Primary Examiner, Art Unit 2676
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