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 Objections
Claim 2 is objected to because of the following informalities: line 4, recites the music appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 2 objected to because of the following informalities: line 7, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 3 is objected to because of the following informalities: line 8, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 3 is objected to because of the following informalities: line 14, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 3 is objected to because of the following informalities: line 16, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 3 is objected to because of the following informalities: line 19, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 5 is objected to because of the following informalities: line 7-8, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 6 is objected to because of the following informalities: line 5, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 9 is objected to because of the following informalities: line 4-5, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: line 8-9, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 11 is objected to because of the following informalities: line 8-9, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 14 is objected to because of the following informalities: line 3, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 15 is objected to because of the following informalities: line 8-9, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
Claim 18 is objected to because of the following informalities: line 3, recites “the music” appears to be a typo and should be “the predetermined music”. Appropriate correction is required.
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 1-18 rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) do not fall within at least one of the four categories of patent eligible subject matter because they’re directed to patent ineligible subject matter.
As per claim 1-18:
Claim 1 states, “A program causing a computer to function as: […]”
As per MPEP 2106.03:
Non-limiting examples of claims that are not directed to any of the statutory categories include:
Products that do not have a physical or tangible form, such as information (often referred to as “data per se”) or a computer program per se (often referred to as “software per se”) when claimed as a product without any structural recitations;
Thus the claims are considered to be directed towards patent ineligible subject matter.
Claims 19 and 20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim recite a mental process of generating an image of a different person synchronization a first person with a different person in synchronization with based on an action. This judicial exception is not integrated into a practical application because tying the actions to predetermined music do not impose any meaningful limits on carrying out the abstract idea. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. See MPEP 2106.
Regarding claim 19, An image processing apparatus comprising:
an image synchronization unit that generates, on a basis of an image in which a first person makes an action in accordance with predetermined music, an image in which a second person different from the first person makes an action in synchronization with the action of the first person.
MPEP 2106 III provides a flowchart for the subject matter eligibility test for product and processes. The analysis following the flowchart is as follows:
Step 1: Is the claim to a process, machine, manufacture or composition of matter?
Yes. The claim recites apparatus which is directed towards a machine.
Step 2A, Prong One: Does the claim recite an abstract idea, law of nature, or nature phenomenon?
Yes. It recites “An image processing apparatus comprising:
an image synchronization unit that generates, on a basis of an image in which a first person makes an action in accordance with predetermined music, an image in which a second person different from the first person makes an action in synchronization with the action of the first person.” An image in which a second person different from the first person makes an action in synchronization with the action of the first person. Synchronization can be directing another individual based upon an instance image/video along with music. This can be simple instruction card that shows a person doing a particular move that the user is supposed to do on a beat for example.
Regarding claim 20, the claim recites, “An image processing method comprising: generating, on a basis of an image in which a first person makes an action in accordance with predetermined music, an image in which a second person different from the first person makes an action in synchronization with the action of the first person.”
MPEP 2106 III provides a flowchart for the subject matter eligibility test for product and processes. The analysis following the flowchart is as follows:
Step 1: Is the claim to a process, machine, manufacture or composition of matter?
Yes. The claim recites a process.
Step 2A, Prong One: Does the claim recite an abstract idea, law of nature, or nature phenomenon?
Yes. It recites an image processing method comprising: generating, on a basis of an image in which a first person makes an action in accordance with predetermined music, an image in which a second person different from the first person makes an action in synchronization with the action of the first person. Synchronization can be directing another individual based upon an instance image/video along with music. This can be simple instruction card that shows a person doing a particular move that the user is supposed to do on a beat for example.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 1 is rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, because the claim purports to invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, but fails to recite a combination of elements as required by that statutory provision and thus cannot rely on the specification to provide the structure, material or acts to support the claimed function. As such, the claim recites a function that has no limits and covers every conceivable means for achieving the stated function, while the specification discloses at most only those means known to the inventor. Accordingly, the disclosure is not commensurate with the scope of the claim.
Claim 19 is rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, because the claim purports to invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, but fails to recite a combination of elements as required by that statutory provision and thus cannot rely on the specification to provide the structure, material or acts to support the claimed function. As such, the claim recites a function that has no limits and covers every conceivable means for achieving the stated function, while the specification discloses at most only those means known to the inventor. Accordingly, the disclosure is not commensurate with the scope of the claim.
Claim 20 is rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, because the claim purports to invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, but fails to recite a combination of elements as required by that statutory provision and thus cannot rely on the specification to provide the structure, material or acts to support the claimed function. As such, the claim recites a function that has no limits and covers every conceivable means for achieving the stated function, while the specification discloses at most only those means known to the inventor. Accordingly, the disclosure is not commensurate with the scope of the claim.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 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.
Preceding the rejections below, the examiner notes the claims as a whole have serious 112 issues that should be addressed. The examiner notes omitting any 112 or objection on the examiner’s part does not exclude them as redrafting of the claims may introduce or further point out other errors. The claims appear to be drafted with numerous errors and unclear language.
Claim 3 is unclear, lacks clarity and it is not possible to compare or contrast the language from the prior art. For this reason the claim is not rejected by the prior art and it will not be indicated as being allowable either. Under this rationale the depending claims will be not be rejected by prior art or indicated as allowable.
Claim 1 recites the limitation “an image” in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "an action" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the action" in line 6. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the action" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the image" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "an action" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the action" in line 6-7. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the action" in line 7-8. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "an image" in line 8. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "an action" in line 9. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the action" in line 9. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "an image" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the action" in line 5-6. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "a skeleton" in line 9-10. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "a movement" in line 10. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "an image" in line 11. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the action" in line 12. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "an image" in line 19. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "an action" in line 20. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the action" in line 21. There is insufficient antecedent basis for this limitation in the claim.
Claim 5 recites the limitation "the image" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 5 recites the limitation "an action" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 6 recites the limitation "the movement" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation "the movement" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the movement" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the movement" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 the last line “or moves” is unclear. What exactly is intended by ending the limitations with “or moves”? The preceding language already cites, “first person moves at a speed higher or lower than a predetermined speed” how one moves at a higher or lower than a predetermined speed or moves. This is unclear.
Claim 10 recites the limitation "the image" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "an action" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 recites the limitation "the actions" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 recites the limitation "actions" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "an image" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "an action" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "the action" in line 6. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "an image" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "an action" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "the action" in line 5. There is insufficient antecedent basis for this limitation in the claim.
35 USC § 112 6th
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
CLAIM INTERPRETATION
The claim limitations for claim 1-20, are considered to be specialized, and are considered to be specialized under the rationale that they would not be considered a standard function on any computing system, but are rather specific to the instant application.
The examiner notes the claim limitations meets each of the prongs of the 3-prong analysis detailed in MPEP 2181 (I).
Prong 1: The claimed “means” , “step”, or substitute for “means” that is a generic placeholder for performing claimed function. The first instance of such means/step type languages are detailed below in a claim number, line and quoted word format to aid in understanding what is considered to be means type language:
Claim 1, line 2 “an image synchronization unit”.
Claim 2, line 3 “a music synchronization unit”.
Claim 3, line 3, “a first skeleton information acquisition unit”, line 7, “a music feature amount acquisition unit”, line 9, “a second skeleton information acquisition unit”.
Claim 5, line 3, “a first feature amount acquisition unit”.
Claim 10, line 3, "a second feature amount acquisition unit".
Claim 11, line 3 “a synthesis unit”.
Claim 15, line 3 “a storage unit”.
Claim 19, line 2, “an image synchronization unit”.
Claim 20, line 2, “generating”.
Prong 2: Functional language such as, “for”, “configured to”, or “so that” is present in the claim language.
Prong 3: No “means” or “step” type language is present modified by sufficient structure, materials or acts for performing the claimed function.
The examiner notes that claims 2-18 inherit the 112 sixth interpretations from the claims from which they depend from.
The examiner further notes the specification possess an adequate algorithm.
The examiner further notes the structure, ¶253, “Note that the CPU1001 in Fig. 19 realizes any of the functions of the image separation unit 31, the main dancer synchronization unit 32, the sub-dancer synchronization unit 33, and the image synthesis unit 34 of Fig. 3, the functions of the main dancer synchronization unit 231, the 3D model synchronization unit 232, and the image synthesis unit 233 of Fig. 12, and the functions of the main dancer library generation unit 331, the 3D model synchronization unit 332, and the music feature amount extraction unit 333 of Fig. 15.” that is a specialized computer for the specialized functions.
The examiner notes that whether 35 U.S.C § 112(f) or 35 U.S.C. § 112 6th is invoked or not is controlled by the claim language, not by applicant’s intent or mere statements to the contrary.
An appropriate response to avoid interpretation under 35 U.S.C § 112(f) or 35 U.S.C. § 112 6th would be to amend the claim limitation to clearly recite a definite structure, material or act that entirely performs the recited function; or to present a sufficient showing that the claim limitation recites a structure, material or act that entirely performs the recited function.
An appropriate response to obtain interpretation under 35 U.S.C § 112(f) or 35 U.S.C. § 112 would be to amend the claim limitation to remove the structure, material or act that performs the recited function; or to present a sufficient showing that the claim limitation does not recite any structure, material or act that entirely performs the recited function.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1, 2, 14, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Challinor et al. (US 9,358,456 Bl).
Regarding claim 1, Challinor teaches a program causing a computer to function as (See col. 41 lines 58-60, “The above-described techniques can be implemented in
digital electronic circuitry, or in computer hardware, firmware, software, or in combinations of them.”):
an image […]unit that generates, on a basis of an image in which a first person makes an action in accordance with predetermined music, an image in which a second person different from the first person makes an action in […] with the action of the first person (See abstract, “Techniques for use with a game console and a camera system, the techniques include providing a first prompt to a first player to create and perform a dance move, receiving at the game console information from the camera system reflecting a position of the first player in response to the first prompt, generating, using the game console, a target frame using the received information relating to the first player, providing, using the audiovisual system connected to the game console, a second prompt to a second player to perform the dance move created by the first player, receiving at the game console information from the camera system reflecting a position of the second player in response to the second prompt, generating, using the game console, an input frame using the information relating to the second player, and comparing the input frame to the target frame to determine a comparison value.” See col. 3 line 16 – 63, “In general, in another aspect, embodiments of the disclosed subject matter can provide a method for use with a game console and a camera system, the method including providing, using an audiovisual system connected to the game console, a first prompt to a first player to create and perform a dance move, receiving at the game console information from the camera system reflecting a position of the first player in response to the first prompt, generating, using the game console, a target frame using the received information relating to the first player, providing, using the audiovisual system connected to the game console, a second prompt to a second player to perform the dance move created by the first player, receiving at the game console information from the camera system reflecting a position of the second player in response to the second prompt, generating, using the game console, an input frame using the information relating to the second player, and comparing, using the game console, the input frame to the target frame to determine a comparison value.
Embodiments of the disclosed subject matter can provide one or more of the following features. The method further includes generating a score based on the comparison value. The method further includes generating an image, using the game console, representing a position of the first player after the first prompt, and providing, using the audiovisual system connected to the game console, the second prompt using the image. The method further includes providing additional prompts to the first player to perform multiple repetitions of the dance move, and receiving at the game console information from the camera system reflecting positions of the first player during the multiple repetitions. The method further includes comparing, using the game console, the position of the first player during at least some of the multiple repetitions to determine an indication of similarity between the repetitions. The method further includes generating the target frame using a subset of the multiple repetitions. The subset includes a single repetition. The subset excludes a first one of the multiple repetitions. The method further includes providing, using the game console, a first portion of music while providing the first prompt, and generating the target frame as function of beats in the first portion of music. The method further includes providing, using the game console, a second portion of music while providing the second prompt, and generating the input frame as a function of the beats in the second portion of music. The first and the second portions of music are substantially similar. The method further includes displaying video feedback to the first player using at least some of the information from the camera system relating to the first player.”) but doesn’t explicitly disclose synchronization.
Challinor teaches synchronization (The examiner considers a higher score the degree of synchronization. This can be expressed as a score or expressed as word values. See col. 13 line 10 – 28. See col. 16 line 19 – 36, col. 37 line 42 – 57 and previous citations above.)
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Challinor in view of Challinor as synchronizing a first dancer to a second dancer as synchronizing dancing of a second dancer to a first according to known methods would have yielded predicable result. Furthermore, it would allow the second dancer to achieve mastery of dance move(s), as the better the second dancer is synchronized the first dancer the more accurate the second users dance moves are.
Regarding claim 2, Challinor teaches the program according to claim 1, causing a computer to further function as: a music synchronization unit that synchronizes the action of the first person with the music in the image in which the first person makes an action, wherein the image synchronization unit synchronizes the action of the first person synchronized with the music, with the action of the second person to generate an image in which the second person makes an action synchronized with the action of the first person (See abstract, See col. 3 line 16 – 63, col. 13 line 10 – 28. See col. 16 line 19 – 36, col. 37 line 42 – 57).
Regarding claim 14, the program according to claim 1 program wherein the actions made by the first person and the second person include actions of dancing in accordance with the music (See abstract, See col. 3 line 16 – 63, col. 13 line 10 – 28. See col. 16 line 19 – 36, col. 37 line 42 – 57).
Claim 19 and 20 recite similar limitations to that of claim 1 as rejected by the prior art used for claim 1, thus they are rejected under similar limitations to that of claim. The preamble of claim 19 and 20 are rejected by the citation (See col. 41 lines 58-60, “The above-described techniques can be implemented in digital electronic circuitry, or in computer hardware, firmware, software, or in combinations of them.”)
Claim(s) 4 is rejected under 35 U.S.C. 103 as being unpatentable over Challinor et al. (US 9,358,456 Bl) in view of Zhou et al. (US 20230260326 A1).
Regarding claim 4, Challinor teaches the program according to claim 2 wherein the music synchronization unit and the image synchronization unit (See abstract, See col. 3 line 16 – 63, col. 13 line 10 – 28. See col. 16 line 19 – 36, col. 37 line 42 – 57) but doesn’t explicitly disclose include a convolutional neural network (CNN).
Zhou teaches include a convolutional neural network (CNN) (¶12, ¶14, ¶15, ¶145).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Challinor in view of Zhou as applying a CNN would be a known technique (CNN) to a method/product/program/device to yield predicable results ready for improvement to yield predicable results.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT J CRADDOCK whose telephone number is (571)270-7502. The examiner can normally be reached Monday - Friday 10:00 AM - 6 PM EST.
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, Devona E Faulk can be reached at 571-272-7515. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT J CRADDOCK/Primary Examiner, Art Unit 2618