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 .
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.
Claim 1 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) “models” which are merely computational processes for the input data (image); and wherein the calculation of the optimized parameters is purely a mathematical equation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity (also they are written passively; as the model is trained to “extract” and does not actually do any extracting). The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there is no structure in the claim except an “apparatus” and this is well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Claim 2 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) “models” which are merely computational processes for the input data (image); and wherein the calculation of minimizing the difference between images is purely a mathematical calculation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity (also they are written passively; as the model is trained to do the step, not explicitly doing the step). The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there is no structure in the claim except an “apparatus” and this is well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Claim 3 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) “models” which are merely computational processes for the input data (image); and wherein the calculation of minimizing the difference between images is purely a mathematical calculation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity (also they are written passively; as the model is trained to do the step, not explicitly doing the step). The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there is no structure in the claim except an “apparatus” and this is well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Claim 4 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) “models” which are merely computational processes for the input data (image); and wherein the predicting is purely a mathematical calculation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity (also they are written passively; as the model is trained to do the step, not explicitly doing the step). The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there is no structure in the claim except an “apparatus” and this is well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Claim 5 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) a mathematical equation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there is no structure in the claim except an “apparatus” and this is well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Claim 6 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) a mathematical equation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there is no structure in the claim except an “apparatus” and this is well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Claim 7 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) “models” which are merely computational processes for the input data (image); and wherein the indicating is purely a mathematical calculation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity (also they are written passively; as the model is trained to do the step, not explicitly doing the step). The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there is no structure in the claim except an “apparatus” and this is well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Claim 8 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) a mathematical equation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there is no structure in the claim except an “apparatus” and this is well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Claim 9 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) a mathematical equation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there is no structure in the claim except an “apparatus” and this is well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Claim 10 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an Abstract Idea without significantly more. The claim(s) recite(s) “models” which are merely computational processes for the input data (image); and wherein the calculation of the optimized parameters is purely a mathematical equation. This judicial exception is not integrated into a practical application because the data gathering steps required to use the optimization equation do not add a meaningful limitation to the method as they are insignificant extra-solution activity (also they are written passively; as the model is trained to “extract” and does not actually do any extracting). The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the “computing device”, “one or more processors”, and “memory” are well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Double Patenting
Non-Statutory Obviousness-Type Double Patenting: Rejection Based on Anticipation Analysis
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 §§ 706.02(l)(1) - 706.02(l)(3) 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.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,112,571 B2. It is clear that all the elements of the application claim 1 are to be found in patent claim 1 (as the application claim 1 fully encompasses patent claim 1). The difference between the application claim 1 and the patent claim 1 lies in the fact that the patent claim includes many more elements and is thus much more specific. Thus, the invention of claim 1 of the patent is in effect a “species” of the “generic” invention of the application claim 1. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since application claim 1 is anticipated by claim 1 of the patent, it is not patentably distinct from claim 1 of the patent.
Claim 2 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 12,112,571 B2. It is clear that all the elements of the application claim 2 are to be found in patent claim 2 (as the application claim 2 fully encompasses patent claim 2). The difference between the application claim 2 and the patent claim 2 lies in the fact that the patent claim includes many more elements and is thus much more specific. Thus, the invention of claim 2 of the patent is in effect a “species” of the “generic” invention of the application claim 2. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since application claim 2 is anticipated by claim 2 of the patent, it is not patentably distinct from claim 2 of the patent.
Claim 3 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of U.S. Patent No. 12,112,571 B2. It is clear that all the elements of the application claim 3 are to be found in patent claim 3 (as the application claim 3 fully encompasses patent claim 3). The difference between the application claim 3 and the patent claim 3 lies in the fact that the patent claim includes many more elements and is thus much more specific. Thus, the invention of claim 3 of the patent is in effect a “species” of the “generic” invention of the application claim 3. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since application claim 3 is anticipated by claim 3 of the patent, it is not patentably distinct from claim 3 of the patent.
Claim 4 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,112,571 B2. It is clear that all the elements of the application claim 4 are to be found in patent claim 1 (as the application claim 4 fully encompasses patent claim 1). The difference between the application claim 4 and the patent claim 1 lies in the fact that the patent claim includes many more elements and is thus much more specific. Thus, the invention of claim 1 of the patent is in effect a “species” of the “generic” invention of the application claim 4. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since application claim 4 is anticipated by claim 1 of the patent, it is not patentably distinct from claim 1 of the patent.
Claim 5 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,112,571 B2. It is clear that all the elements of the application claim 5 are to be found in patent claim 1 (as the application claim 5 fully encompasses patent claim 1). The difference between the application claim 5 and the patent claim 1 lies in the fact that the patent claim includes many more elements and is thus much more specific. Thus, the invention of claim 1 of the patent is in effect a “species” of the “generic” invention of the application claim 5. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since application claim 5 is anticipated by claim 1 of the patent, it is not patentably distinct from claim 1 of the patent.
Claim 6 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,112,571 B2. It is clear that all the elements of the application claim 6 are to be found in patent claim 1 (as the application claim 6 fully encompasses patent claim 1). The difference between the application claim 6 and the patent claim 1 lies in the fact that the patent claim includes many more elements and is thus much more specific. Thus, the invention of claim 1 of the patent is in effect a “species” of the “generic” invention of the application claim 6. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since application claim 6 is anticipated by claim 1 of the patent, it is not patentably distinct from claim 1 of the patent.
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.
Claim 10 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,112,571 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of the US Patent has all the limitations within claim 10 of the current Application except a “computing device”, “memory”, and “one or more processors” which do not add more to be patentably distinct because they are well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d).
Allowable Subject Matter
Claims 1-10 are would be allowable if the 35 USC 101 rejections and the Double Patenting Rejections (where made) were overcome.
The following is a statement of reasons for the indication of allowable subject matter: Gupta (Gupta et al., US 2022/0215580 A1) teaches a neural network-based (machine learning models include neural networks) ([0003] and [0019]) key point training apparatus (an apparatus with keypoint extraction machine learning model) (Abstract) comprising: a key point model (keypoint extraction machine learning model) ([0017]) trained (the system 100 trains the keypoint extraction machine learning model 110) (Fig. 1; [0018]) to extract key points from an input image (to extract keypoints, and keypoint locations, from the input image 102) (Fig. 1; [0017-0019]); and an image reconstruction model (a refinement (i.e., image reconstruction) neural network 130) (Fig. 1; [0027]) trained (wherein the refinement neural network 130 can be trained by the system) (Fig. 1; [0064]) to reconstruct the input image with the key points output by the key point model as the input (wherein the refinement neural network 130 is trained using the keypoints by measuring the error between the target image 144 and the reconstruction 210 of the target image 144) (Figs. 1 and 2; [0059-0061], [0066], [0080], and [0091-0092]). However, none of the prior art, either alone or in combination teaches each and every limitation within the claim language, and thus the claims are allowable over the prior art.
Contact
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J VANCHY JR whose telephone number is (571)270-1193. The examiner can normally be reached Monday - Friday 9am - 5pm.
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/MICHAEL J VANCHY JR/Primary Examiner, Art Unit 2666 Michael.Vanchy@uspto.gov