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 .
Election/Restrictions
Newly amended claims 1-8 and 21 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claims 1-8 and 21 are directed toward the intended use of a first device to attribute the items to the identified customers who ordered the items. Newly amended claims 9-20 are directed toward a method and non-transitory medium wherein the customer association data includes object descriptors indicating spatial location data of the first customer and the second customer within a field of view of an image capture device at a location.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 1-8 and 21 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03. New Claim 21 has been examined below for compact prosecution.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Interpretation
Applicant’s Specification, ¶ 28, discloses that “Product identifiers” identify menu items being offered for sale by a merchant restaurant.
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 1-3, 5-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,134,022. Although the claims at issue are not identical, they are not patentably distinct from each other because: “the product information includes product identifiers based on images of the items” and “assigning, by the processor, the first item included in the order to a first sub-receipt” in the issued patent claims, is similar to: “the customer association data includes spatial location data of the identified customers within a field of view of an image capture device at the location; generate sub-receipts by correlating the plurality of product identifiers with the customer association data” and also similar to newly amended limitations, including “wherein the customer association data includes object descriptors indicating spatial location data of the first customer and the second customer within a field of view of an image capture device at a location”, in the present application. The application claims are 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). Claims 7, 15 and 19 of the issued patent also teach matching “incoming image data to the plurality of product identifiers, and based on the one or more captured images and the customer association data, product information; and sending, by the first device and to a transaction terminal, the product information”). New Claim 21 further includes “wherein the tag or label comprises a barcode, a QR barcode, or an RFID tag” which is a well-known and obvious limitation that is disclosed by the specification of U.S. Patent No. 10,134,022.
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) 9-21 is/are rejected under 35 U.S.C. 103 as being obvious over Zadeh et al., US 20180204111 A1.
9. A method, comprising:
generating, by a first device, a plurality of product identifiers based on one or more captured images, (see Zadeh, ¶ 1335 “the objects have to be recognized, first (by object or pattern recognition module), as what they are, and then they can be categorized or classified (by tags or flags), with comments, text, or identifiers superimposed or attached to the image file.”);
receiving, by the first device, customer association data, the customer association data identifying a first customer associated with one or more first items in the one or more captured images, (see Zadeh, ¶ 1249-51, “Removal Of Ambiguities…other identifiers or distinguishing parameters, such as her middle name, middle initial, age, social security number, address, father's name, husband's name, neighbor's name, friend's name, graduation date from high school, name of high school, nickname, pictures, tags on pictures, voice sample, fingerprint chart, other biometrics, or employee ID number, to remove the ambiguity”);
wherein the customer association data includes object descriptors indicating spatial location data of the first customer and the second customer within a field of view of an image capture device at a location, (see Zadeh, ¶ 2033 customer finding correlations, ¶ 2034 identifying people, ¶ 2041 identifying objects such as a beer bottle, ¶ 1891-93 “Look for Expected Objects”, ¶ 1329 items purchased, and ¶ 2430 at store).
generating, by the first device, based on training an imaging model to match incoming image data to the plurality of product identifiers, and based on the one or more captured images and the customer association data, product information, (see Zadeh, ¶ 114, new algorithms, methods, and systems for artificial intelligence, soft computing, and deep/detailed learning/recognition, e.g., image recognition (e.g., for action, gesture, emotion, expression, biometrics, fingerprint, facial, OCR (text), background, relationship, position, pattern, and object); and
sending, by the first device and to a transaction terminal, the product information, (see Zadeh, ¶ 1317, 2201, “the current best price or option available”, “for marketing or sales purposes, at the store front”).
The following features in Claim 9 et cetera, are not expressly disclosed in the Zadeh reference, but they are strongly suggested in the reference. Zadeh does not explicitly disclose identifying a second customer associated with one or more second items in the one or more captured images. However, Zadeh does teach that “In one embodiment, it (i.e. the system) determines a partial matching of an object…for all people recognized in the still image or video frame, (see Zadeh, ¶ 2216)(emphasis added). Under the Broadest Reasonable Interpretation, “all people” is considered to include a second person, or even more people, ordering food and/or drinks at a table.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Zadeh to match the claim language, since the modifications would require neither undue experimentation nor risk of unexpected results. This motivation to modify the primary reference is applied to all claims rejected below herein by reference.
10. The method of claim 9, wherein the product information is generated by analyzing the one or more captured images using an object recognition technique, (see Zadeh, ¶ 2200, “show 2D or 3D images of shelves and objects or services for sale or offer, for user to visit and select or review”).
11. The method of claim 9, wherein the product information is generated based on metadata associated with the one or more captured images being passed through the imaging model, (see Zadeh, ¶ 2014, “the GPS data or location data or time data or metadata, associated with a picture in a phone or camera, are used for data for Z-web for that picture”).
12. The method of claim 9, wherein the object descriptors are based on a location of a seat, a customer, a table, or tableware within the field of view of the image capture device, (see Zadeh, ¶ 2040, “One can also search using a query for the album, e.g. using a text, to find an object. One example is to find out that, for the identified person in video, what kind of food or drink does he like? Those could be found through the other objects in frames (nearby) in video, e.g. on or near the person's desk or in his hand, holding the drink or bottle”).
13. The method of claim 9, wherein the one or more captured images include a plurality of captured images, the method further comprising: generating a plurality of product identifiers based on the plurality of captured images, (see Zadeh, ¶ 2770, “Search Based On Image…a search query is made based on images or parts of a video, e.g., by user selecting one or more objects/persons from the image or part of video”).
14. The method of claim 13, wherein the plurality of product identifiers includes information identifying one or more degrees of confidence, (see Zadeh, ¶ 2430, “based on the context and preference, e.g. based on percentage, ranking, fuzzy membership, or fuzzy descriptor, e.g. “85 percent”). A percentage is a measure of a degree of confidence.
15. The method of claim 9, wherein the product information includes: one or more additional product identifiers based on the one or more captured images; and one or more object descriptors based on the customer association data, (see Zadeh, ¶ 2054, “from a picture of food plate, the system extracts the objects and recognizes them…for a specific person”).
16. The method of claim 9, wherein the one or more captured images are captured at a table, the method further comprising: generating a user interface by the first device that displays the one or more captured images and corresponding product identifiers; associating the table with specific customers present at the table based on the one or more captured images; and receiving user input through the user interface to confirm or correct the product identifiers and customer associations before sending the product information to the transaction terminal, (see Zadeh, ¶ 2054, “from a picture of food plate, the system extracts the objects and recognizes them”).
21. (Withdrawn) wherein the object descriptors are based on a tag or label positioned proximate to a particular item of the items in the one or more captured images, wherein the tag or label comprises a barcode, a QR barcode, or an RFID tag that is detected by the image capture device and associated with a captured image of the one or more captured images, and wherein the tag or label is associated with a seat, a table, tableware, or a customer associated with an order for the particular item, (See Zadeh, ¶ 2430 “In one embodiment, the system has one or more cameras at the physical store, tracking and analyzing the customer, e.g. for identification and analysis, e.g. based on face, way of walking, emotion, GPS data, smart phone ID, RFID tag, credit card ID, driving license ID, store card ID, coupon ID, or any other ID mechanisms, with store's database, getting the preferences or taste for the user, e.g. in coordination with rules database, styles database, and habits database”)(emphasis added).
As per remaining claims 17-20, these claims contain the same or similar features as claims 8-16 rejected above, and therefore the above rejections are applied against the remaining claims herein by reference.
Response to Arguments
Applicant's arguments filed 7/29/26 have been fully considered but they are not persuasive for the reasons provided above.
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 RUSSELL S GLASS whose telephone number is (571)272-7285. The examiner can normally be reached M-F, 9-5.
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, FLORIAN ZEENDER can be reached at 571-272-6790. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUSSELL S GLASS/Primary Examiner, Art Unit 3627
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