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 .
Response to Arguments
Applicant’s amendments filed on 02/26/2026 do not overcome the rejection made under § 101.
Applicant's arguments filed with respect to the rejection made under § 101 have been fully considered but they are not persuasive because they only amount to a general allegation of patentability.
Applicant’s arguments with respect to claims 1-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Terminal Disclaimer hasn’t been received. Double Patenting Rejection is maintained.
Double Patenting
The non-statutory 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 non-statutory 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 non-statutory 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/ patent/patents-forms. The 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/process/file/efs/guidance/ eTD-info-I.jsp.
Claims 1, 11 and 20 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1, 11 and 20 of U.S. Patent No. 12086859. Although the claims at issue are not identical, they are not patentably distinct from each other. The difference between the application claims and the patent claims lies in the fact that the patent claim includes more elements and is thus more specific.
Instant claims 1, 11 and 20 fully “read-on” or are anticipated by reference claims 1, 11 and 20 of U.S. Patent No.12086859. This is a non-statutory, obviousness-type Double Patenting rejection with an anticipation analysis. See MPEP 804(II)(B)(1).
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 non-statutory subject matter (a judicial exception without significantly more). Claims are eligible for patent protection under § 101 if they are in one of the four statutory categories and not directed to a judicial exception to patentability. Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014). Claims 1-20, each considered as a whole and as an ordered combination, are directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claim 1 recites a method. Claim 11 recites a system. Claim 20 recites a non-transitory computer-readable media.
Step 2A, prong 1: Claim 1 recites the abstract idea of providing recommendations for products (see at least paragraph 1). This idea is described by the following steps:
obtaining an image of a scene;
determining values for visual properties of the image of the scene; and
identifying an item based on a relationship between the visual properties of the image of the scene and visual properties of at least one scene that includes the identified item.
Claims 11 and 20 recite equivalent limitations.
This idea falls into the certain methods of organizing human activity grouping of abstract ideas as it is directed towards commercial interactions including advertising, marketing or sales activities or behaviors (i.e., recommending products based on an image of a scene).
Step 2A, prong 2: Claims 1, 11 and 20 recite additional elements that fail to integrate the abstract idea into practical application.
Claim 1 recites a user device; claim 11 recites a memory and at least one processor; claim 20 recites a non-transitory, computer-readable media storing instructions that are executable by the one or more processors to cause the computing system to perform operations. However, these elements are generic computing components (see at least paragraph 070) that are simply used to perform operations that would otherwise be abstract (see MPEP2106.05(f)).
Step 2B: Claims 1, 11 and 20 fail to recite additional elements that amount to an inventive concept.
For the reasons identified with respect to Step 2A, prong 2, claims 1, 11 and 20 fail to recite additional elements that amount to an inventive concept. For example, use of 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 integrate a judicial exception into a practical application or provide significantly more (see MPEP 2106.05(g)).
Dependent Claims Step 2A:
The limitations of the dependent claims merely set forth further refinements of the abstract idea identified at step 2A—Prong One, without changing the analysis already presented. Additionally, for the same reasons as above, the limitations fail to integrate the abstract idea into a practical application because they use the same general technological environment and instructions to implement the abstract idea as the independent claims identified at step 2A—Prong Two.
Dependent Claims Step 2B:
The dependent claims merely use the same general technological environment and instructions to implement the abstract idea. These do not amount to significantly more for the same reasons they fail to integrate the abstract idea into a practical application. Moreover, the Specification also indicates this is the routine use of known components for the same reasons presented with respect to the elements in the independent claims above.
Thus, when considering the combination of elements and the claimed invention as a whole, the claims are not patent eligible.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 4-7, 11, 12, 14-17 and 20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Chaturvedi et al. (US 11126845).
Claim 1. Chaturvedi et al. (Chaturvedi) teaches a computer-implemented method of providing a comparative information visualization in augmented reality, the method comprising:
obtaining a digital image of a scene, the digital image having been captured by a user device (col. 5, lines 37-63);
determining values for visual properties of the digital image of the scene (col. 8, lines 18-28; col. 9, lines 14-40); and
identifying an item based on a relationship between the visual properties of the digital image of the scene and visual properties of at least one scene that includes the identified item (col. 12, lines 58-67; col. 11, lines 35-55).
Claim 2. Chaturvedi teaches said method, wherein the visual properties are associated with at least one of a room description or a product description (col. 11, lines 35-55).
Claim 4. Chaturvedi teaches said method, wherein the visual properties describe at least one of brightness, presence of certain colors or objects, contrast per pixel, RGB breakdown, saturation, percentage whitespace or blackspace (col. 10, lines 16-48).
Claim 5. Chaturvedi teaches said method, wherein determining the values for the visual properties of the digital image of the scene comprises measuring a value in the digital image of the scene corresponding to each of the visual properties of the digital image (col. 21, lines 29-55).
Claim 6. Chaturvedi teaches said method, wherein the values of the visual properties further comprise a weighting to assign the digital image of the scene different influence compared to other digital images (col. 21, lines 29-55).
Claim 7. Chaturvedi teaches said method, wherein the weighting is used to assign a digital image received from a social media platform greater or lesser influence compared to other digital images not received from a social media platform (col. 21, lines 29-55).
Claim 11. Chaturvedi teaches a system of providing a comparative information visualization in augmented reality, the system comprising:
a memory to store a digital image of a scene that was captured by a user device (col. 6, lines 24-54); at least one processor to:
determine values for visual properties of the digital image of the scene (col. 8, lines 18-28; col. 9, lines 14-40); and
identify an item based on a relationship between the visual properties of the digital image of the scene and visual properties of at least one scene that includes the identified item (col. 12, lines 58-67; col. 11, lines 35-55).
Claim 12. Chaturvedi teaches said system wherein the visual properties are associated with at least one of a room description or a product description (col. 5, lines 21-55)
Claim 14. Chaturvedi teaches said system, wherein the visual properties describe at least one of brightness, presence of certain colors or objects, contrast per pixel, RGB breakdown, saturation, percentage whitespace or blackspace (col. 10, lines 16-48).
Claim 15. Chaturvedi teaches said system, wherein determining the values for the visual properties of the digital image of the scene comprises measuring a value in the digital image of the scene corresponding to each of the visual properties of the digital image (col. 21, lines 29-55).
Claim 16. Chaturvedi teaches said system, wherein the values of the visual properties further comprise a weighting to assign the digital image of the scene different influence compared to other digital images (col. 21, lines 29-55).
Claim 17. Chaturvedi teaches said system, wherein the weighting is used to assign a digital image received from a social media platform greater or lesser influence compared to other digital images not received from a social media platform (col. 21, lines 29-55).
Claim 20. Same reasoning applied to claim 1.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 8-10, 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Chaturvedi in view of Hao et al. (US 10467507).
Claim 8. Chaturvedi teaches all the limitations of claim 8 except receiving an indication that a user likes the recommended merchant product.
Hao et al. (Hao) teaches a computer-implemented method for analyzing an image wherein the image analysis module may extract visual features from the images. A visual feature is a piece of information associated with an image that may be relevant for solving a computational task (e.g., identifying one or more subjects depicted in images, objects depicted in images, activities depicted in images geographical locations depicted in images, scenes depicted in images, events depicted in images, seasons depicted in images, etc.) (col. 10, lines 1-12). The feedback module may receive feedback data from the consumers. Consumers may provide feedback relevant to previously recommended and/or acquired items, preferences, interests, likes/dislikes, complaints, and general comments (col. 6, lines 60-67).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Chaturvedi to include receiving an indication that a user likes the recommended merchant product, as disclosed in Hao, because it would advantageously allow for the image scores to be adjusted and prompt the service provider to notify the user for a possible update of the image for the listing. Additionally, the consumer feedback data may be used as model retraining data, as taught by Hao (col. 2, lines 55-63).
Claim 9. Chaturvedi teaches said method further comprising increasing the probability that the recommended merchant product is also recommended to another digital image of a scene having similar visual properties (col. 12, lines 58-67; col. 11, lines 35-55). The motivation to combine Chaturvedi and Halo would be to recommend the types of items that correspond to items suitable for the physical environment, as taught by Chaturvedi (col. 2, lines 51-53).
Claim 10. Chaturvedi teaches said method further comprising adapting the value of one or more visual properties associated with the recommend product (col. 10, lines 16-48). The motivation to combine Chaturvedi and Halo would be to recommend the types of items that correspond to items suitable for the physical environment, as taught by Chaturvedi (col. 2, lines 51-53).
Claim 18. Same reasoning applied to claim 8.
Claim 19. Same reasoning applied to claim 10.
Claims 3 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Chaturvedi in view of Alon et al. (US 20210383115).
Claim 3. Chaturvedi teaches all the limitations of claim 3 except that the visual properties are associated with tags indicating at least one of a room description or a product description.
Alon et al. (Alon) teaches a computer-implemented method and system for 3D scene augmentation. The system may generate a semantic tag for the at least one identified object in the scanned scene. For example, “table,” “shelf,” and “chair” may be each be a semantic tag associated with the corresponding table, shelf, and chair objects that are identified in a scene [0505].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Chaturvedi to include that the visual properties are associated with tags indicating at least one of a room description or a product description, as disclosed in Alon, because it would advantageously identify a complementary object, insert a complementary object into a scene, and generate a hybrid scene based on a scan of a scene, as taught by Alon [0025]. Also, it would advantageously improve the products’ overall searchability and discoverability.
Clam 13. Same reasoning applied to claim 3.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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 MILA AIRAPETIAN whose telephone number is (571)272-3202. The examiner can normally be reached Monday-Friday 8:30 am-6:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeffrey A. Smith can be reached at (571) 272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MILA AIRAPETIAN/Primary Examiner, Art Unit 3688
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