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 .
Preliminary Amendment
The preliminary amendment to the abstract, specification, and claims filed on 3 October 2024 is accepted and entered.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed with this application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 3 October 2024 was received and the information disclosure statement has been considered by the examiner.
Drawings
The drawings are objected to under 37 CFR 1.83(a) because Fig. 1 fails to show the labels for the steps of the process as described in the specification. For example, the box A1 in Fig. 1 should be filled with text describing the step such as "Setting Up a Digital Camera". Any structural detail that is essential for a proper understanding of the disclosed invention should be shown in the drawing. MPEP § 608.02(d).
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Interpretation
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.
Therefore, claim 8 is interpreted as invoking 35 U.S.C. 112(f).
Claim 8 contains computer-implemented means-plus-function limitations. The structure for computer-implemented means-plus-function limitations is the combination of a general purpose computer and the algorithm which transforms it into a specific purpose computer, see MPEP 2181.II.B.
Claim 8 is interpreted to include the following:
A "means for" generating an average image stream
Structure:
A computer program which a person or ordinary skill in the art would understand to be performed on a computer, see [0083].
Algorithm:
Create a plurality of series of source stream images, [0059], each series of images separated by a step i.e. a sliding window, [0064].
Average the images of each series to generate a corresponding image of an average image stream, see [0065].
A "means for" generating a processed image stream
Structure:
A computer program which a person or ordinary skill in the art would understand to be performed on a computer, see [0083].
Algorithm:
Determine the difference between each pair of successive images of the average image stream. If the value of the difference lies between a lower threshold and a higher threshold, set the corresponding pixel of an image of the processed stream of images as the value of a first image of the pair of successive images. If the value of the difference is outside the threshold range then set the value to 0, see [0070]-[0073]. Wherein the lower threshold equals 0 and the higher threshold equals 1/((N1-1)*K), see [0076].
Claim Rejections - 35 USC § 112(b)
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 1-10 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.
Regarding claim 1, the phrase "such as" in line 2-3 renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Further regarding claim 1, claim 1 recites the limitation "this image" in line 11. There is insufficient antecedent basis for this limitation in the claim. No single image is established prior to this and therefore it is unclear what image is being referred to. For the purpose of examination the examiner interprets that claim as "more pixels of each of the images has a value"
Further regarding claim 1, claim 1 recites the limitation "the value" in line 12. It is unclear if "the value" refers to "a value" on line 11 or if it refers to a value of "a corresponding pixel" or if the two aforementioned values are actually the same value. For the purpose of examination, the examiner interprets line 12-14 to read "equal to a first value of a corresponding pixel of one of said two respective images of the averaged stream when the absolute value of the difference between the first value and a second value of a corresponding pixel of the other of said two respective images". Claims 2-10 depend on claim 1 and are rejected for failing to remedy the ambiguity of claim 1.
Regarding claim 2, the phrase "for example" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 3, the recited equation does not appear to serve the purpose of the invention and causes the metes and bounds of the claim to be unclear. Suppose for instance that N1 = 256, see applicant's specification [0079], and that K = 3, see applicant's specification [0059]. In that instance 1/((N1-1)*K) = 1/((256-1)*3) = 0.0013. This threshold is applied as an upper limit threshold to a difference between corresponding pixels of two subsequent images from the averaged image stream. Suppose there are two sets of three images, (A1, A2, A3, and B1, B2, B3), each set being the images of the source stream informing two subsequent images from the averaged image stream, IA and IB. Consider a corresponding pixel of IA and IB, PA and PB respectively. Therefore, PA is equal to an average of three corresponding pixel values from A1, A2, and A3 while PB is equal to an average of three corresponding pixel values from B1, B2, and B3. Suppose that PA is equal to V = (V + V + V)/3 wherein the corresponding pixel in each of A1, A2, and A3 was equal to the value V. Now suppose that the corresponding pixel of PB is a minimal, nonzero change from PA. Since pixel values are commonly understood to be whole numbers, PB would have a value of (V + V + (V ± 1))/3 = (V ± 0.33). The absolute value of a difference between PA and PB would then be |PA – PB| = |V – (V ± 0.33)| = 0.33. Therefore, the minimum absolute value difference between corresponding pixels of the average stream would be 0.33 which is greater than the threshold value 1/((N1-1)*K). This relationship holds out for all reasonable values of N1 and K. Therefore, all pixel values of the processed stream would have a value of 1) zero if they experienced any change whatsoever compared to subsequent images or 2) the corresponding pixel value if there was no change. In this case no physiological signal could be detected because the image would only present data on regions which experienced no change and cannot communicate the physiological signal. Therefore, the processed image stream would contain no "variations in the values of pixels" as recited in claim 1 causing claim 3 to contradict claim 1 making the metes and bounds of the claim unclear.
Regarding claim 4, claim 4 recites the limitation "the mean value" in line 2. There is insufficient antecedent basis for this limitation in the claim. Therefore, it is unclear what "the mean value" refers to. For the purpose of examination the examiner interprets the claim as "a mean value".
Further regarding claim 4, line 4 recites "whose value is different from zero". It is unclear what is the possessor of "whose value is different from zero". Is it the mean value, the pixels of the image, or the processed stream as a whole? For the purpose of examination, the examiner understands it as the pixel values of the processed stream which have values different than zero.
Regarding claim 6, the term "preferably" is a relative term which renders the claim indefinite. The term “preferably” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Further, a preference relies on whom it is preferable to which is not defined.
Further regarding claim 6, claim 6 recites the limitation "the pixel value" in line 2. There is insufficient antecedent basis for this limitation in the claim. Therefore, it is unclear what "pixel value" is being referred back to. For the purpose of examination the examiner understands the pixel as a pixel of an image captured by a polychrome camera.
Regarding claim 9, claim 9 recites the limitations of claim 1. Because of the dependency of claim 9 on claim 1 (by depending on claim 8 which depends on claim 1) this matter is already understood to be incorporated into the claim. Therefore, for each of the terms "a physiological parameter", "an individual", a "source stream", "a region of the individual's body", an "average stream", "a plurality of successive images", "a sliding window", a "processed stream", "a value", "a corresponding pixel", "a first threshold", and "a second threshold" it is unclear if they are referring to new terms or if they are referring to the terms found in claim 1. If they are referring to new terms, it is unclear any subsequent references to them preceded by "the" are referring to the new term or the term in claim 1. Further, all the rejections associated with claim 1 above apply to this claim. To correct this issue, the applicant should delete from claim 9 the matter that is a direct quote of claim 1 and simply rely on the rules of dependent claims for the matter of claim 1 to be incorporated into claim 9.
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 10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter.
Regarding claim 10, claim 10 does not fall within at least one of the four categories of patent eligible subject matter because it is directed to a program per se, see MPEP 2106.03.II. "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;".
Allowable Subject Matter
Claim 1 would be allowable if rewritten or amended 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.
Claims 2-10 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), 1st paragraph; 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph; and 35 U.S.C. 101 set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Regarding claim 1, the closest prior art, Mao et al. (US 20210365707 A1; hereafter, Mao) discloses a source stream of images of a region of an individual's body and obtaining an averaged stream of images by averaging a plurality of successive images selected by a moving sliding window. Yoshizawa et al. ( US 20220395186 A1; hereafter, Yoshizawa) discloses generating a process stream of images each obtained from respective successive images of the averaged stream so that one or more pixels has a value equal to a value when the absolute value of the difference between the corresponding pixels of the successive images is greater than a first threshold and less than a second threshold or equal to zero otherwise, and determining a physiological parameter from variation in the value of pixels in the images of the processed stream. The prior art does not disclose or reasonably suggest that the pixel has a value equal to the value of a corresponding pixel of one of said two respective images of the averaged stream. Specifically, Yoshizawa discloses that if the difference between the pixels of the successive images is within a threshold range to keep the value of the difference image and else make the value equal to zero. In contrast, the instant application causes the value to be of a corresponding pixel of the averaged image stream when the difference is within the threshold range.
The claim as a whole is non-obvious over the prior art including:
one or more pixels of this image has a value: equal to the value of a corresponding pixel of one of said two respective images of the averaged stream
Claims 2-10 are dependent on claim 1 and likewise contain allowable subject matter.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Mao et al. (US 20210365707 A1; hereafter, Mao) discloses analyzing a stream of images for various applications such as facial recognition.
Yoshizawa et al. ( US 20220395186 A1; hereafter, Yoshizawa) discloses a system for determining a physiological parameter by plethysmography.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA B CROCKETT whose telephone number is (571)270-7989. The examiner can normally be reached Monday-Thursday 8am-5pm.
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, John M Villecco can be reached at (571) 272-7319. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSHUA B. CROCKETT/Examiner, Art Unit 2661
/AARON W CARTER/Primary Examiner, Art Unit 2661
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