DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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
2. 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.
3. Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke § 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke § 112(f) except as otherwise indicated in an Office action.
4. Claim limitations “obtaining unit” and “setting unit” in claim 1 have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because they use a generic placeholder “unit” coupled with functional language “configured to” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier.
Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claim 1 has been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof.
However, a review of the specification does NOT appear to reveal structure corresponding to the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitations. The specification at Par. 36 describes the obtaining unit 110 as including image sensor unit 111, voice obtaining unit 112, distance sensor unit 113, and setting unit 114. It is not clear, for purposes of interpretation of the claim under 35 U.S.C. 112(f), as to whether all of these units fall within the scope of the claim, especially because the setting unit 114 is also listed separately in the claim. Furthermore, while the specification appears to describe sufficient structure corresponding to the other units 111-113, it does not appear that sufficient structure is disclosed corresponding to the setting unit 114. Accordingly, claim 1 is rejected under section 112(a) and (b), as detailed below.
It is noted that claim limitations “analyzing unit” and “control unit” in claim 1 are NOT interpreted under section 112(f), as a processor configured to function as these units, thereby providing a preceding structural modifier.
5. If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112 , sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
Claim Rejections - 35 USC § 112
6. The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
7. Claims 1-17 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. As detailed above claim 1 recites limitations that invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, and have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof. However, the specification does not appear to describe structure that is disclosed as corresponding to the claim “setting unit”. Accordingly, the claim contains subject matter which is not described in such a way as to convey that the inventor had possession of the claimed invention, and thus fail to comply with the written description requirement. Dependent claims 2-17 inherit the deficiencies of parent claim 1 through their dependencies, and are thus rejected for the same reasons.
8. 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.
9. Claims 1-17 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. As detailed above claim 1 recites limitations that invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, and have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof. However, the specification does not appear to describe structure that is disclosed as corresponding to this claimed setting unit. Furthermore, as detailed above it is not clear if the claimed obtaining unit encompasses all of the units described in Par. 36, and their equivalents Accordingly, the scope of the claimed invention is unclear since the claims and specification do not apprise the person of ordinary skill in the art what falls within, and outside of, the bounds of the invention. Dependent claims 2-17 inherit the deficiencies of parent claim 1 through their dependencies, and are thus rejected for the same reasons.
Claim Rejections - 35 USC § 102
10. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
11. Claims 1-7, 11 and 14-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dye et al. (US 2019/0342507 A1).
Regarding claims 1-7, 11 and 14-19, Dye discloses an image pickup apparatus (as per claim 1) and corresponding method (as per claim 18) and non-transitory computer readable medium (as per claim 19) including a display unit that superimposes and displays an image of a virtual three-dimensional avatar on a live view screen, the image pickup apparatus comprising:
an obtaining unit configured to obtain first elements including information about a user and his/her surroundings (see e.g. Par. 223-225 – camera application captures image/video of user and other objects within the user’s surroundings);
a setting unit configured to, in response to a user operation, set second elements including elements of the three-dimensional avatar, which change in response to communication with the user (modify avatar based on pose or facial expressions – Par. 239), and elements of the three-dimensional avatar, which do not change in response to the communication (avatar is made to look like user – Par. 237);
at least one processor; and
a memory coupled to the processor storing instructions that, when executed by the processor, cause the processor to function as:
an analyzing unit that performs analysis based on the first elements obtained by the obtaining unit and the second elements set by the setting unit; and
a control unit that performs control so as to reflect a result of the analysis on the live view screen and the image of the three-dimensional avatar that is superimposed and displayed on the live view screen (Par. 236 – manipulate avatar and other visual effects based on information from the obtaining unit) (as per claims 1, 18 and 19),
the obtaining unit obtains a voice of the user as the first element (Par. 477 – receiving user speaking information) (as per claim 2),
the obtaining unit obtains a distance between the user and the three-dimensional avatar as the first element (Par. 541) (as per claim 3),
the obtaining unit obtains at least one of a type, an amount of light, a color, a position of a light source of ambient light around the user, and the number of the light sources as the first elements (Par. 540) (as per claim 4),
the setting unit, in response to a user operation, further sets at least one of a type, an amount of light, a color, a position of a light source of virtual light that performs virtual lighting with respect to the three-dimensional avatar, and the number of the light sources (Par. 540) (as per claim 5),
the elements of the three-dimensional avatar, which do not change in response to the communication, include at least one of an age, a gender, an appearance, and a personality of the three-dimensional avatar (Par. 237), and the elements of the three-dimensional avatar, which change in response to the communication, include at least one of a facial expression, a pose, and a position of the three-dimensional avatar (Par. 239) (as per claim 6),
a sound output unit configured to output a spoken voice of the three-dimensional avatar, and wherein the control unit performs control so as to reflect information based on the analyzing unit in the spoken voice of the three-dimensional avatar outputted from the sound output unit (Par. 477) (as per claim 7),
the instructions, when executed by the processor, cause the processor to further function as a coordinate associating unit that associates an angle of view of the image pickup apparatus with coordinates within a virtual three-dimensional space, in which the three-dimensional avatar is modeled, and the analyzing unit, based on a position of a joint of the three-dimensional avatar in the virtual three-dimensional space, and the angle of view of the image pickup apparatus associated with the coordinates within the virtual three-dimensional space by the coordinate associating unit, analyzes whether or not a photo that the user has taken or a photo that the user is about to take is a photo in which the joint of the three-dimensional avatar is cut off (e.g. sticker which moves with lateral and rotational movement of user’s shoulder and determines whether the should is cut off – Par’s. 349-351) (as per claim 11),
the control unit performs a blurring processing with respect to the three-dimensional avatar that is superimposed and displayed on the live view screen according to a depth of field and an in-focus distance that have been determined by the image pickup apparatus (Par. 240) (as per claim 14),
the control unit reflects the at least one of the type, the amount of light, the color, the position of the light source of the ambient light, and the number of the light sources, which have been obtained by the obtaining unit, in lighting to the three-dimensional avatar that is superimposed and displayed on the live view screen (e.g. position of light source - Par. 331) (as per claim 15),
the control unit reflects the at least one of the type, the amount of light, the color, the position of the light source of the virtual light, and the number of the light sources, which have been set in response to the user operation, in lighting to the three-dimensional avatar that is superimposed and displayed on the live view screen (Par. 331) (as per claim 16),
the image pickup apparatus includes a first photographing mode, in which the three-dimensional avatar is superimposed and displayed on the live view screen, and a second photographing mode, in which the three-dimensional avatar is not superimposed and displayed on the live view screen (superimposition is optional – Par’s. 223, 225) (as per claim 17).
Claim Rejections - 35 USC § 103
12. 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.
13. The factual inquiries 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.
14. Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Dye et al. (US 2019/0342507 A1) in view of Kron 2008/0020361 A1).
Regarding claims 8-10, Dye does not appear to explicitly disclose, but Kron does disclose an analyzing unit, based on the first elements and the second elements, performs analysis of at least one or more of what and how much the user speaks to the three-dimensional avatar; a frequency of silence of the user, a volume of the voice of the user, and a speed at which the user speaks; the number of times speaking of the user overlaps with speaking of the three-dimensional avatar in a conversation; and a ratio of a speaking time of the user to a speaking time of the three-dimensional avatar (analysis of conversation with patient avatar, including for example amount of time waiting for patient to speak, and time spent listening to the patient – Par. 68) (as per claim 8),
the analyzing unit analyzes a quality of the communication between the user and the three-dimensional avatar based on the first elements and the second elements, and generates an analysis result that has been quantified (provide assessment based on captured data - Par. 68-69) (as per claim 9), and
the analyzing unit changes the analysis result depending on the elements of the three-dimensional avatar, which change in response to the communication, the first elements, and the analysis result (Par. 69) (as per claim 10).
It would have been obvious to one skilled in the art before the effective filing date of the invention to modify the teachings of Dye by analyzing and determining the quality of a user’s communication with an avatar based on these metrics, as taught by Kron, to obtain predictable results of using the system to train medical professionals to interact with patient.
15. Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Dye et al. (US 2019/0342507 A1) in view of Kristal et al. (US 2019/0259190 A1).
Regarding claims 12 and 13, Dye does not appear to explicitly disclose, but Dye does disclose instructions, when executed by the processor, cause the processor to further function as a quality evaluation generating unit that generates a quality evaluation with respect to a photographed image photographed by the image pickup apparatus (e.g. quality determination for purpose of determining if and which enhancements are needed – Par. 71), in which the three-dimensional avatar is superimposed and displayed on a real object, and the quality evaluation is generated by analyzing a color saturation (Par. 89) and a pose of an avatar in the photographed image (see e.g. Par. 108) (as per claim 12), and
the quality evaluation generating unit generates the quality evaluation with respect to a plurality of photographed images photographed by the image pickup apparatus, and generates comprehensive information that integrates all the generated evaluation information (based on “one or more” images – Par. 65) (as per claim 13).
It would have been obvious to one skilled in the art before the effective filing date of the invention to modify the teachings of Dye by performing quality evaluation of the photographed image with respect to color saturation of the image and a pose of the user’s avatar, as suggested by Kristal, to obtain predictable results of determining if enhancements to the photograph are necessary.
Conclusion
16. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See attached PTO-892.
17. Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER EGLOFF whose telephone number is (571)270-3548. The examiner can normally be reached on Monday - Friday 9:00 am - 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Xuan Thai can be reached at (571) 272-7147. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Peter R Egloff/
Primary Examiner, Art Unit 3715
