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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 09/26/2024 has been considered by the examiner and made od record in the applicant file.
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.
Claim 1 is rejected under 35 U.S.C. 112(b) because the phrase “as a result of comparison by the comparison means” lacks proper antecedent basis. The term “comparison means” has been removed from the claim by amendment but is still referenced in the final limitation.
Appropriate correction is required.
Claims 2-4 depend from claim 1 and are similar rejected under 35 U.S.C. 112(b) for their dependency.
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) 1-5, 7, and 8 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The limitations, under their broadest reasonable interpretation, cover mental process (concept performed in a human mind, including as observation, evaluation, judgment, opinion, organizing human activity and mathematical concepts and calculations). The independent claims 1 and 7-8 recite a business operation assistance system. This judicial exception is not integrated into a practical application because the steps do not add meaningful limitations to be considered specifically applied to a particular technological problem to be solved. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the steps of the claimed invention can be done mentally and no additional features in the claims would preclude them from being performed as such except for the generic computer elements at high level of generality (i.e., processor, memory).
According to the USPTO guidelines, a claim is directed to non-statutory subject matter if:
STEP 1: the claim does not fall within one of the four statutory categories of invention (process, machine, manufacture or composition of matter), or
STEP 2: the claim recites a judicial exception, e.g. an abstract idea, without reciting additional elements that amount to significantly more than the judicial exception, as determined using the following analysis:
STEP 2A (PRONG 1): Does the claim recite an abstract idea, law of nature, or natural phenomenon?
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application?
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
Using the two-step inquiry, it is clear that the independent claims 1 and 7-8 are directed to an abstract idea as shown below:
STEP 1: Do the claims fall within one of the statutory categories? YES. Independent claims 1 and 7-8 are directed to an apparatus or process.
STEP 2A (PRONG 1): Is the claim directed to a law of nature, a natural phenomenon or an abstract idea? YES, the claims are directed toward a mental process (i.e. abstract idea).
With regard to STEP 2A (PRONG 1), the guidelines provide three groupings of subject matter that are considered abstract ideas:
Mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations;
Certain methods of organizing human activity – fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions); and
Mental processes – concepts that are practicably performed in the human mind (including an observation, evaluation, judgment, opinion).
Independent claims 1 and 7-8 comprise a mental process that can be practicably performed in the human mind (or generic computers or components configured to perform the method) and, therefore, an abstract idea.
Regarding independent claim(s) 1 and 7-8: the limitations recite:
acquiring an image including a product shelf; (Certain methods of organizing human activity; a person using a digital camera can acquire the image);
generating a first image group information item including a plurality of the images; (mental process including observation and evaluation, and can be done mentally in the human mind; a person can assign attributes to items in the images)
comparing the first image group information item with a second image group information item including a reference image; (mental process including observation and evaluation, and can be done mentally in the human mind; a person can look at a the images and assigned attributes and make a comparison);
and
making a notification in a case where the image group information items are different as a result of the comparing. (mental process including observation and evaluation, and can be done mentally in the human mind; a person can produce a notification/alert based on the results of the comparison).
These limitations, as drafted, comprise a simple process that, under their broadest reasonable interpretation, covers performance of the limitations in the mind or by a human. The Examiner notes that under MPEP 2106.04(a)(2)(III), the courts consider a mental process (thinking) that “can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same).
As such, a person could mentally determine that the information in the instant images is also contained within the reference image(s). The mere nominal recitation of acquiring the image does not take the limitations out of the mental process grouping. Thus, the claims recite a mental process.
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application? NO, the claims do not recite additional elements that integrate the judicial exception into a practical application.
With regard to STEP 2A (prong 2), whether the claim recites additional elements that integrate the judicial exception into a practical application, the guidelines provide the following exemplary considerations that are indicative that an additional element (or combination of elements) may have integrated the judicial exception into a practical application:
an additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to affect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
While the guidelines further state that the exemplary considerations are not an exhaustive list and that there may be other examples of integrating the exception into a practical application, the guidelines also list examples in which a judicial exception has not been integrated into a practical application:
an additional element merely recites the words “apply it” (or an equivalent) with the judicial exception, or merely includes instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea;
an additional element adds insignificant extra-solution activity to the judicial exception; and
an additional element does no more than generally link the use of a judicial exception to a particular technological environment or field of use.
Independent claims 1 and 7-8 do not recite any of the exemplary considerations that are indicative of an abstract idea having been integrated into a practical application. Independent claims 1 and 7-8 disclose one or more memories and processors and a computer readable storage medium, which are generic computer components and/or insignificant pre/post-solution extra activity that do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea in an apparatus.
These limitations are recited at a high level of generality (i.e. as a general action or change being taken based on the results of the acquiring step) and amounts to mere post solution actions, which is a form of insignificant extra-solution activity. Further, the claims are claimed generically and are operating in their ordinary capacity such that they do not use the judicial exception in a manner that imposes a meaningful limit on the judicial exception. Accordingly, even in combination, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea.
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception? No, the claims do not recite additional elements that amount to significantly more than the judicial exception.
With regard to STEP 2B, whether the claims recite additional elements that provide significantly more than the recited judicial exception, the guidelines specify that the pre-guideline procedure is still in effect. Specifically, that examiners should continue to consider whether an additional element or combination of elements:
adds a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present; or
simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present.
Independent claim(s) 1 and 7-8 do not recite any additional elements that are not well-understood, routine or conventional. The use of a generic computer elements are routine, well-understood and conventional process that is performed by computers. The use of memories, processors, and a computer readable storage medium, as claimed in claims 1 and 7-8 is routine, well-understood and conventional in the art.
Thus, since independent claims 1 and 7-8 are: (a) directed toward an abstract idea, (b) do not recite additional elements that integrate the judicial exception into a practical application, and (c) do not recite additional elements that amount to significantly more than the judicial exception, it is clear that independent claims 1 and 7-8 are not eligible subject matter under 35 U.S.C 101.
Regarding claim 2: the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process. The limitation(s): wherein a case where the image group information items are different includes at least one of cases:(a) where a number of the images included in the first image group information item is different from a number of the reference images included in the second image group information item;(b) where there is a predetermined or more difference between an imaging range of the image included in the first image group information item and an imaging range of the reference image included in the second image group information item; and(c) where there is a structural difference between the product shelf included in the first image group information item and the product shelf included in the second image group information item are mental processes including observation and evaluation, and can be done mentally in the human mind.
Regarding claim 3: the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process. The limitation(s): notify at least a photographer in the case (a) where a number of the images included in the first image group information item is different from a number of the reference images included in the second image group information item, or in the case (b) where there is a predetermined or more difference between an imaging range of the image included in the first image group information item and an imaging range of the reference image included in the second image group information item; and notify at least an analyst in the case (c) where there is a structural difference between the product shelf included in the first image group information item and the product shelf included in the second image group information item are mental processes including observation and evaluation, and can be done mentally in the human mind.
Regarding claim 4: the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process. The limitation(s): in the case (b) where there is a predetermined or more difference between an imaging range of the image included in the first image group information item and an imaging range of the reference image included in the second image group information item, distinguishably notify a difference between an imaging range of the image included in the first image group information item and an imaging range of the reference image included in the second image group information item are mental processes including observation and evaluation, and can be done mentally in the human mind.
Regarding claim 5: the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process. The limitation(s): the reference image is determined based on a photographing date and time of the image are mental processes including observation and evaluation, and can be done mentally in the human mind.
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.
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, 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Chaubard et al (US 2018021494 A1 - cited in IDS) in view of Schwartz (US 20170178060 A1 – cited in IDS).
Regarding Claim 1, Chaubard et al. teaches a business operation assistance system comprising; one or more memories storing instructions; and one or more processors configured to execute the instructions to: acquire an image including a product shelf; (¶0022-0024: teaches a business operation assistance system including a product shelf, wherein a shopper client device captures images of product shelves or store display areas.) generated a first image group information item including a plurality of the images; (¶0022: teaches generating a first image group information item including a plurality of images by receiving multiple images captured at substantially the same time that together capture a contiguous portion of the store.) compare the first image group information item with a second image group information item including a reference image; (¶0022-0023: teaches comparing the first image group information item with a second image group information item including reference images by comparing the multiple captured images to a set of associated reference images representing a similar area of the store. ¶27: Teaches comparing captured images to reference images to determine a shopper’s location to a planogram to determine which products should be present, and determining whether products are out of stock or incorrectly stocked based on the comparison. ¶28: teaches comparing bounding boxes corresponding to empty shelf areas with price tag information to identity products associated with the empty shelf regions.)
Chaubard et al. is silent on the remaining limitations of Claim 1. However, Schwartz teaches comparing an image and a planogram to determine a difference and providing a corrective action to a user or back-end system based on the determined difference. Teaches notifying a user based upon the result of a comparison that identifies a difference (¶0112).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the system of Chaubard et al. to provide the user notification taught by Schwartz in response to the determined comparison differences because doing so would have informed a user of detected discrepancies requiring corrective action, thereby improving the efficiency of retail shelf monitoring by enabling prompt correction of shelf conditions. The modification merely applies the known technique of providing user notifications based on detected differences to known image comparison system of Chaubard et al. and would have yielded predictable results.
Claim 7 recites a method with steps corresponding to the elements of the system recited in Claims 1. Therefore, the recited steps of this claim are mapped to the proposed combination in the same manner as the corresponding elements in its corresponding system claim.
Claim 8 recites a computer-readable storage medium storing a program with instructions corresponding to the steps recited in Claim 1. Therefore, the recited programming instructions of this claim are mapped to the proposed combination in the same manner as the corresponding steps in its corresponding method claim.
Allowable Subject Matter
Claim(s) 2-5 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims, and if the above 101 and 112 rejections were overcome.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAVEN S. JONES whose telephone number is (571)272-7759. The examiner can normally be reached M-Th 7:00a.m. - 5:00p.m..
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/RAVEN SIMONE JONES/Examiner, Art Unit 2665
/Stephen R Koziol/Supervisory Patent Examiner, Art Unit 2665
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