DETAILED ACTION
Claim Rejections - 35 USC § 112
Claims 1-20 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.
Regarding Claim 1, the limitation “at an electronic device” renders the claim indefinite, as it is unclear how displays and input devices would be “at” the electronic device. For purposes of examination the indefinite limitation has been deemed to claim “an electronic device”, e.g., delete “at”.
Regarding Claims 1, 14 and 18, the limitation “consumption of the first object” lacks proper antecedent basis. The claim previously recites, twice, the initiation of consumption of an object, but never the actual consumption of the first object.
Regarding Claims 2, 15 and 19, the limitation “a first object” renders the claim indefinite. “A first object” is already recited in the independent claims 1, 14, and 18, therefore, it is unclear if a “first object” in claims 2, 15 and 19 are the same first objects as set forth in claims 1, 14 and 18.
Regarding Claim 5, 6, and 13, the limitation “the initiation of the consumption” lack proper antecedent basis. The claims previously recite “initiation consumption”, which is written in a grammatically different manner. For purposes of examination the indefinite limitation has been deemed to claim the same initiation of consumption – the clarify the issue the initiation of consumption should be written in the same manner in each claim.
Regarding Claims 7 and 9, the limitation “predetermined score” renders the claims indefinite, because a score is a single value. For purposes of examination the indefinite limitation has been deemed to claim the score being with a particular range or threshold.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Each of Claims 1-20has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1-20 recites at least one step or instruction for analyzing the consumption of an object based on a sound print and/or images based on certain conditions, which is grouped as a mental process under the 2019 PEG or a certain method of organizing human activity under the 2019 PEG. Accordingly, each of Claims 1-20 recites an abstract idea.
Specifically, Claims 1, 14 and 20 recites based on a first criteria, capturing audio input of consumption of an object, and if a prediction satisfies a second criteria, analyze images of the object. (observation, judgment or evaluation, which is grouped as a mental process under the 2019 PEG);
Further, dependent Claims 2-13 and 15-19 merely include limitations that either further define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed.
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Step 2A, Prong 2
The above-identified abstract idea in each of independent Claims 1, 14 and 20 (and their respective dependent Claims 2-13 and 15-19) is not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claims 1, 14 and 20), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use. More specifically, the additional elements of: displays, input devices, electronic devices, processors and memories are generically recited computer elements in independent Claims1, 14 and 20 (and their respective dependent claims) which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea identified above in independent Claims 1, 14 and 20 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer (e.g., displays, input devices, electronic devices, processors and memories as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1, 14 and 20 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claims 1, 14 and 20 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B
None of Claims1-20 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: displays, input devices, electronic devices, processors and memories The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Accordingly, in light of Applicant’s specification, the claimed term displays, input devices, electronic devices, processors and memories is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the displays, input devices, electronic devices, processors and memories. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1-20 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the Claims 1-20 are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself, or (ii) providing a technical solution to a problem in a technical field. None of Claims 1-20 provides meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1, 14 and 20 (and their dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1-20 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1-20 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1-20 are not patent eligible and rejected under 35 U.S.C. 101.
Examiner notes that if the initiated process in the last step of the claims is amended to recite that the process entails activating one of the cameras as recited in [0040] and [0041] of the instant application, the 35 U.S.C. 101 rejection would be overcome, although, there are other claim amendments that may overcome the rejection.
Allowable Subject Matter
Claims 1-20 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is an examiner’s statement of reasons for allowance:
Claims 1, 14 and 18 and their respective dependent claims are allowable over the prior art of record, once the 35 U.S.C. 101 and 112(b) rejections are resolved.
US 20210249116 A1 to Connor discloses an electronic device in communication with one or more displays ([0063] “indicator light”) and one or more input devices ([0056] “a camera 202 on the eyewear frame which records food images when activated; and a chewing sensor 203 on the eyewear frame which detects when the person eats, wherein the camera is activated to record food images when data from the chewing sensor indicates that the person is eating”):
in accordance with a determination that one or more first criteria are satisfied, using a subset of the one or more input devices, determining a user of the electronic device is initiating consumption of a first object ([0056] “the camera is activated to record food images when data from the chewing sensor indicates that the person is eating” and [0048] “one or more cameras can start recording images when they are triggered by food consumption detected by analysis of data from one or more sensors” e.g., the subset being the chewing sensor/microphone, the first criteria being data indicating eating, and the first object being food); and
in response to determining that the user of the electronic device is initiating consumption of the first object ([0056] “the camera is activated to record food images when data from the chewing sensor indicates that the person is eating”):
capturing, using the one or more input devices, audio of the consumption of the first object ([0058] “a chewing sensor can be a microphone or other sonic energy sensor which detects chewing and/or swallowing sounds during eating”); and
obtaining a first prediction of the first object based on images ([0049] “Pictures taken by an imaging member can be automatically analyzed in order to estimate the types and quantities of food which are consumed by a person”), including:
initiating a process to analyze one or more images of the first object captured by the electronic device ([0049] “Pictures taken by an imaging member can be automatically analyzed in order to estimate the types and quantities of food which are consumed by a person.”).
Connor discloses the claimed invention as set forth and cited above except for expressly disclosing obtaining a first prediction of the first object based on a sound print of the first object included in the audio (Connor obtains a food prediction from images, not from sound and the sound is used only to detect that eating occurs, it is not used to predict which food), and in accordance with a determination that the first prediction of the first object satisfies one or more second criteria, initiating a process to analyze one or more images of the first object captured by the electronic device (Connor does disclose the image-analysis act, but the trigger condition is not disclosed, i.e., the image analysis in Connor is the primary identification method, fired by eating detection, not “in accordance with a determination that the first [sound-based] prediction satisfies… second criteria”); and
US 11568760 B1 to Meier discloses a an electronic device in communication with one or more displays (col. 4, ll. 13-15 “display may be part of a head-mounted display”) and one or more input devices (col. 3, ll. 49 to col. 4, ll. 2 “Electronic device 1100 may include…. microphone 1110… camera 1120”):
in accordance with a determination that one or more first criteria are satisfied, using a subset of the one or more input devices, determining a user of the electronic device is initiating consumption of a first object (Claim 1 “obtain audio data for the chewing session captured by the microphone; determine frequency and amplitude data in the audio data; and detect the chewing noise based on the frequency and amplitude data”; col. 5, ll. 35-36 “detecting the chewing noise may indicate the beginning of a chewing session”; and the device runs as the low-power primary col. 8, ll. 21-22 “may be detected in a low power mode”; e.g., subset = the microphone; the “first criteria = a chewing noise detected from frequency/amplitude; “initiating consumption” = the beginning of a chewing session); and
in response to determining that the user of the electronic device is initiating consumption of the first object (Claim 1 “in response to detecting the chewing noise, triggering operation of a camera”) (col. 8, ll. 13-15 “the detection of the beginning of the chewing session may trigger operation of the camera”):
capturing, using the one or more input devices, audio of the consumption of the first object (Claim 1 “obtaining audio data for the chewing session captured by the microphone”) (col. 3, ll. 52-53 “microphone 1110 may detect a chewing noise from a user during a chewing session”); and
obtaining a first prediction of the first object based on a sound print of the first object included in the audio (col. 8, ll. 32-35 “the calorie counter module 1170 may estimate the food product based on the frequency and amplitude data determined from the audio data in 315”), including:
initiating a process to analyze one or more images of the first object captured by the electronic device (Claim 1 “obtaining, by the camera, image data capturing a food product; identifying the food product based on the image data and the audio data, wherein the food product is identified using both the frequency and amplitude data and the image data”).
Meier discloses the claimed invention as set forth and cited above except for expressly disclosing obtaining in accordance with a determination that the first prediction of the first object satisfies one or more second criteria, initiating a process to analyze one or more images of the first object captured by the electronic device – Meier turns their camera on based on chewing detection, it does not condition image analysis on the audio prediction.
Therefore, the step of in accordance with a determination that the first prediction of the first object satisfies one or more second criteria, initiating a process to analyze one or more images of the first object captured by the electronic device renders the claims allowable over the prior art of record.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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/SEAN P DOUGHERTY/ Primary Examiner, Art Unit 3791
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