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 Interpretation
Claims 14, 20 are considered as independent claims because they simply refer to other claims as a matter of short-hand drafting technique.
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “one or more computing nodes” in claim 13, “the client device is configured to” in claim 15.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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(s) 14, 20 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Claims 14, 20 do not fall within at least one of the four categories of patent eligible subject matter because claims 14, 20 are directed to a “computer program element with instructions” without being stored on a non-transitory computer-readable medium. The software computer program per se does not fall within a statutory category.
The examiner suggests amending the claim(s) to recite a “non-transitory computer-readable medium” storing a computer program or equivalent. Any amendment to the claims should be commensurate with its corresponding disclosure.
Claim Rejections - 35 USC § 112
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.
Claims 1-14, 16-20 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.
Claim 1 recites the limitations: "the sample coating formulation(s)" in line 6, “the adjusted sample coating formulation(s)” in lines 10-11. There is insufficient antecedent basis for this limitation in the claim.
Dependent claim 3 recites a “method according to claim,” but fails to refer to a claim from which it depends. Thus, “the digital representation of the adjusted sample coating” in line 2 lacks antecedent basis.
Dependent claims are likewise rejected. Claims that incorporate by reference rejected claim limitations are also likewise rejected.
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-8, 12-17, 19-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by THOMAS (US 2016/0019208).
As to claim 1, THOMAS discloses a computer-implemented method for determining at least one adjusted sample coating to match the appearance of a reference coating said method comprising:
(i) providing to a computer processor via a communication interface (para. 0029)
a digital representation of the sample coating containing appearance data of the sample coating and the sample coating formulation(s) (para. 0010-0024),
a digital representation of the reference coating containing appearance data of the reference coating (para. 0010-0024),
a digital representation of an adjusted sample coating containing appearance data of the adjusted sample coating and optionally the adjusted sample coating formulation(s) (para. 0010-0024), and
a digital representation of a visual assessment of the sample coating containing at least one human-perceived attribute assigned to the sample coating by a human observer (para. 0010-0024) (ii) determining with the computer processor if the adjusted sample coating improves at least one human-perceived attribute assigned to the sample coating based on the digital representations provided in step (i) (para. 0028, 0032); and
(iii) optionally providing the result of the determination of step (ii) via a communication interface (0029, 0033)
As to claim 2, THOMAS discloses the method according to claim 1, wherein the appearance data includes reflectance data, color space data, shortwave values, longwave values, DOI values, texture parameters (para. 0024, 0030).
As to claim 3, THOMAS discloses the method according to claim, wherein providing the digital representation of the adjusted sample coating includes calculating with a further computer processor an adjusted sample coating formulation based on the digital representation of the reference coating and the sample coating (para. 0007-0024, 0029), calculating appearance data based on the calculated adjusted sample coating formulation (para. 0007-0024, 0029), and providing the calculated color data and optionally the adjusted sample coating formulation as digital representation of the adjusted sample coating via the communication interface (para. 0007-0024, 0029).
As to claim 4, THOMAS discloses the method according to claim 1, wherein the human-perceived attribute is a deviation of the sample coating from the reference coating with respect to lightness and/or darkness and/or color and/or texture and/or gloss and/or clearcoat appearance (para. 0024, 0030, 0032).
As to claim 5, THOMAS discloses the method according to claim 1, wherein providing the digital representation of the visual assessment of the sample coating includes providing a user interface on the screen of a display device allowing the user to select at least one perceived deviation of the sample coating from the reference coating with respect to lightness and/or darkness and/or color and/or texture and/or gloss and/or clearcoat appearance (para. 0007-0024, 0029, 0030),
detecting a user input being indicative of selecting at least one perceived deviation of the sample coating from the reference coating (para. 0007-0024, 0029),
generating the digital representation of the visual assessment of the sample coating by assigning at least one human-perceived attribute to the sample coating based on the detected user input (para. 0007-0024, 0029), and
providing the generated digital representation of the visual assessment via the communication interface (para. 0007-0024, 0029).
As to claim 6, THOMAS discloses the method according to claim 5, wherein the user interface further allows the user to select an overall rating for the sample coating layer (para. 0011, 0024, 0028, 0029, 0045).
As to claim 7, THOMAS discloses the method according to claim 6, wherein assigning at least one human-perceived attribute to the sample coating based on the detected user input includes mapping the deviation(s) associated with the detected user input to respective human-perceived attribute(s) (para. 0007-0024, 0029, 0032).
As to claim 8, THOMAS discloses the method according to claim 1, wherein step (ii) includes (ii-1) determining appearance data difference(s) based on the provided digital representations of the sample coating and the reference coating (para. 0007-0024, 0029), (ii-2) determining whether at least one human-perceived attribute can be mapped to the determined appearance data difference(s) (para. 0007-0024, 0029), and (ii-3) in accordance with the determination that at least one human-perceived attribute can be mapped to the determined appearance difference(s), determining if the adjusted sample coating improves at least one human-perceived attribute assigned to the sample coating or in accordance with the determination that at least one human-perceived attribute cannot be mapped to the determined color difference(s), proceeding to optional step (iii) and/or further steps (para. 0007-0024, 0029).
As to claim 12, THOMAS discloses the method according to claim 1, further comprising a step (iv) of providing the digital representation of the adjusted sample coating via the communication interface in accordance with the determination that the adjusted sample coating improves at least one human-perceived attribute assigned to the sample coating (para. 0007-0024, 0029), or determining at least one further sample coating based on the provided digital representation of the reference coating and providing the determined further sample coating(s) via the communication interface in accordance with the determination that the adjusted sample coating does not improve at least one human-perceived attribute assigned to the sample coating (para. 0007-0024, 0029, 0032).
As to claims 13-15, 20, these claims recite features similar to those discussed above. Therefore, they are rejected for reasons similar to those discussed above.
As to claim 15, THOMAS discloses client device for generating a request to determine at least one adjusted sample coating to match the appearance of a reference coating, wherein the client device is configured to provide a digital representation of a sample coating, a digital representation of a reference coating and a digital representation of a visual assessment of the sample coating to a server device (para. 0007-0024, 0029).
As to claim 16, THOMAS discloses the method according to claim 1, wherein the method for determining at least one adjusted sample coating to match the appearance of a reference coating is performed during vehicle repair (para. 0002, 0042, 0045, 0046).
As to claim 17, THOMAS discloses the method according to claim 1, wherein the method is for determining at least one adjusted sample coating to match the appearance of a reference coating during vehicle repair para. 0002, 0042, 0045, 0046).
As to claim 19, THOMAS discloses the method according to claim 2, wherein texture parameters corresponds to sparkle characteristics and/or coarseness characteristics, texture images or a combination thereof (para. 0024, 0030).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over THOMAS (US 2016/0019208) in view of Gibson (US 2006/0181707).
As to claim 17, THOMAS is silent regarding wherein the color space data comprises CIEL*a*b* values or CIEL*C*h* values.
Gibson teaches wherein the color space data comprises CIEL*a*b* values or CIEL*C*h* values (para. 0040).
It would have been obvious to one of ordinary skill in the art to incorporate THOMAS’s teachings into Gibson since doing so would merely combine prior art elements according to known methods to yield predictable results, and improve color appearance accuracy.
Allowable Subject Matter
Claims 9-11 would be allowable if rewritten 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 and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: The prior art discloses the claim limitations discussed above, but fails to disclose the combined features required by dependent claim 9.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Krawciw discloses a computer system for comparing complex coating mixtures with sparkle color can receive at least one image of a target coating. The computer system calculates a sparkle color distribution of the at least one image of the target coating, wherein the sparkle color distribution represents a relative number of sparkle points of one color compared to a number of sparkle points of one or more other colors in a measured area.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHUOC TRAN whose telephone number is (571)272-7399. The examiner can normally be reached 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Vu Le can be reached at 571-272-7332. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHUOC TRAN/Primary Examiner, Art Unit 2668
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