DETAILED ACTION
Claims 1-20 are pending in this application. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,599,937 and 12,125,095. Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of patented claims anticipate the pending claims.
Reasons for Patent Eligibility
The claims are patent eligible because they constitute significantly more than that abstract idea and integrate the abstract idea into a practical application. The claims recite additional elements including a device, a computer network, a garment model database, a garment simulation module, at least one processor, simulated forces, at least one derivative component, and a display of the device. Together these additional elements integrate the abstract idea of determining the look and fit of a garment (Specification ¶0003) into a practical application that utilizes the recited hardware and improves 3-dimensional display technology. The claims add other meaningful limitations beyond generally linking the use of the judicial exception to a particular environment to transform the judicial exception into patent eligible subject matter. The claims are not the mere instructions to apply the abstract idea on a computer because the claims recite details as to how the solution is accomplished, do not merely invoke computers as a tool to perform an existing process, and the claims apply to a particular application in the specific field of modeling physical dimensions and attributes digitally. There is no evidence that the claim recitations are well-understood, routine, and conventional. The claims do not recite insignificant extra-solution activity because the limitations are core to the solution of the invention as described in the specification. In consideration of all the factors the claims recite patent eligible subject matter.
Reasons for Allowability Over the Prior Art
The prior art includes Feld, US PG Pub 2001/0026272 A1, which teaches a system and method for simulating virtual wear articles on virtual models but does not teach to determine simulated forces acting on the garment model based on the positioning of the body model for two different sizes of the garment. Feld is directed to simulating virtual clothing on a virtual model whereby a user can store pre-loaded or download wear articles from a vendor. Feld also provides a virtual model bank system where virtual models are stored. Feld then displays a model together with wear articles in a superimposed manner. However, the cited portions of Feld do not allow the draping of a garment for sale from a first database with a second garment selected from a user's own wardrobe for two different sizes on a body model of the user. Vandergriff et al., US PG Pub 2008/0255920 A1, teaches a virtual sizing system and method but does not cure the deficiencies noted above.
Non-patent literature Jevšnik, Simona, et al. teaches evaluation of a garment fit model using AHP, but does not teach based on the simulated forces for the two different sizes, generating a fit map that conveys at least one derivative component associated with the two different sizes and based on the fit map, determining a recommended size. The examiner further emphasizes the claims as a whole and hereby asserts that the totality of the evidence fails to set forth an appropriate rationale for further modification of the evidence at hand to arrive at the claimed invention. The combination of features as claimed would not have been obvious to one of ordinary skill in the art as combining various references from the totality of the evidence to reach the combination of features as claimed would require a substantial reconstruction of Applicant’s claimed invention relying on improper hindsight bias.
It is thereby asserted by the examiner that, in light of the above and in further deliberation over all of the evidence at hand, that the claims are allowable over the prior art as the evidence at hand does not anticipate the claims and does not render obvious any further modification of the references to a person of ordinary skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER B SEIBERT whose telephone number is (571)272-5549. The examiner can normally be reached Monday - Thursday.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeff 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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/CHRISTOPHER B SEIBERT/Primary Examiner, Art Unit 3688