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 . 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.
Information Disclosure Statement (IDS)
The information disclosure statement filed December 26, 2024, fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered. The foreign patent document “2024/005503 WO A1 2024-01-04 LULULAB INC.,” listed as item number 8 in the referenced IDS, has not been provided.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55. These papers have been placed of record in the file. A certified English translation is required but has not been filed. A certified English translation is necessary due to the large number of anticipatory intervening references that will otherwise be relied upon in future rejections.
Applicant cannot rely upon the certified copy of the foreign priority application to overcome a rejection because a translation of said application has not been made of record in accordance with 37 CFR 1.55. When an English language translation of a non-English language foreign application is required, the translation must be that of the certified copy (of the foreign application as filed) submitted together with a statement that the translation of the certified copy is accurate. See MPEP §§ 215 and 216.
Applicant is advised that a certified English translation of the foreign application must be submitted in order for applicant to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d). See 37 CFR 41.154(b) and 41.202(e) or 37 CFR 1.55 and MPEP § 201.15, respectively. Failure to provide a certified translation would result in no benefit being accorded for the non-English application.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
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 1-5 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
When considering subject matter eligibility under 35 U.S.C. 101, it must be determined whether the claim is directed to one of the four statutory categories of invention (i.e., process, machine, manufacture, or composition of matter) (step 1). If the claim does fall within one of the statutory categories, it must then be determined whether the claim is directed to a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea) (step 2A), and if so, it must additionally be determined whether the claim is a patent-eligible application of the exception (step 2B). Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347, 189 L. Ed. 2d 296, 2014 U.S. LEXIS 4303, 110 U.S.P.Q.2D (BNA) 1976, 82 U.S.L.W. 4508, 24 Fla. L. Weekly Fed. S 870, 2014 WL 2765283 (U.S. 2014); MPEP 2106.
Step 1:
In the instant case claims 1-5 are directed to a machine. All claims are therefore within statutory categories. See MPEP 2106.03, Eligibility Step 1.
Step 2A, Prong 1:
These claims also recite, inter alia,
“a skin type determination unit that obtains a facial image of a user and determines a skin type of the user on the basis of the obtained facial image; a product efficacy determination unit that determines product efficacy of each of products comprised in a product DB; a product determination unit that determines a product to be recommended to the user on the basis of the determined skin type and the determined product efficacy; and a recommendation list provision unit that generates a recommendation list for the user on the basis of the determined product.” Claim 1.
A careful analysis of the remaining limitations above results in the conclusion that each on its own recites an abstract idea and in combination they simply recite a more detailed abstract idea. The recited abstract idea falls within the grouping of abstract ideas described as certain methods of organizing human activity, for example commercial interactions (including advertising, marketing or sales activities or behaviors). See MPEP 2106.04(a); Eligibility Step 2A1. The claims must therefore be analyzed under the second prong of Eligibility Step 2 (Step 2A2; MPEP 2106.04(d)).
Step 2A, Prong 2:
In order to address prong 2 (MPEP 2106.04(d), Eligibility Step2A2) we must identify whether there are any additional elements beyond the abstract ideas and determine whether those additional elements (if there are any) integrate the abstract idea into a practical application. MPEP 2106.04(d), Eligibility Step 2A2. The only additional element in the present claims is a server. This additional element has been considered individually and in combination with the functions it performs, e.g., the server is broadly and generally recited as performing all steps in terms of the intended results of functionally nonspecific actions. This additional element does not integrate the judicial exception into a practical application because it amounts to no more than mere instructions to apply the exception using a generic computer component. The claim is otherwise entirely a recitation of abstract ideas. The substantive process is recited only by descriptions of abstract intended results of steps without indicating any particular operations performed by any device or structural element to perform the steps or otherwise obtain the intended results. The additional elements do not improve the functioning of any computer or other technology or technical field, they do not apply the judicial exception with or by use of a particular machine, they do not transform or reduce a particular article to a different state or thing, and they fail to apply or use the judicial exception beyond generally linking the use of the judicial exception to a particular technological environment. See MPEP 2106.05.
If the disclosure describes any improvements to the functioning of a computer or to any other technology or technical field this improvement would need to be identifiable as the subject matter appearing in the claims. An indication that the claimed invention provides an improvement can include a discussion in the specification that identifies technical improvements realized by the claim over the prior art. The disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. MPEP 2106.05(a).
Claim limitations can integrate a judicial exception into a practical application by implementing the judicial exception with or using it in conjunction with a particular machine or manufacture that is integral to the claim. A general purpose computer that applies a judicial exception by use of generic computer functions does not qualify as a particular machine. Ultramercial, Inc. v. Hulu, LLC, (Fed. Cir. 2014); MPEP 2106.05(b),(f). There are no particular machines or manufactures identified in the present claims. The sole element that is not abstract is identified generically and as broadly comprising units intended to perform the recited functions identified only by a description of the intended results of each unidentified activity, without reference to any particular or specific operations performed by any particularly identified machines, and without reference to its use in conjunction with any particular item of manufacture.
The claims do not affect the transformation or reduction of a particular article to a different state or thing. Changing to a different state or thing means more than simply using an article or changing the location of an article. A new or different function or use can be evidence that an article has been transformed. Purely mental processes in which data, thoughts, impressions, or human based actions are "changed" are not considered a transformation. MPEP 2106.05(c).
The claims do not apply or use the judicial exception in any other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment. As a result the claim as a whole appears to be a drafting effort designed to monopolize the exception. MPEP 2106.05(e),(h).
The additional elements have not been found to integrate the abstract idea into a practical application.
Step 2B:
Although the additional elements have not been found to integrate the abstract idea into a practical application the claims could still be eligible if they recite additional elements that amount to an inventive concept (“significantly more” than the judicial exception). MPEP 2106.05, Eligibility Step 2B.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the lone additional element of the claim is merely a prop supporting the intended use of the abstract idea on a computer. MPEP 2106.05(f). The claims invoke a server merely as a tool to perform an abstract process. Simply adding a general purpose computer or computer components after the fact to an abstract idea does not provide significantly more. MPEP 2106.05(f)(2); see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 2015 U.S. App. LEXIS 9721, 115 U.S.P.Q.2D (BNA) 1090 (Fed. Cir. 2015) (“relying on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible.”). The elements are recited at a high level of generality, merely implement abstract ideas using generic computers, and fail to present a technical solution to a technical problem created by the use of the surrounding technology. Limitations that amount to merely indicating a field of use or technological environment in which to apply a judicial exception do not amount to significantly more than the exception itself. See Ret. Capital Access Mgmt. Co. v. U.S. Bancorp, 611 Fed. Appx. 1007, 2015 U.S. App. LEXIS 14351 (Fed. Cir. 2015) (“It may be very clever; it may be very useful in a commercial context, but they are still abstract ideas,” said Circuit Judge Alan Lourie.). MPEP 2106.05(h).
Finally, it is reiterated that the remaining dependent claims 2-5 do not contribute any additional elements other than those already discussed and do not add "significantly more" to establish eligibility because they merely recite additional abstract ideas that further describe the data and manipulation of data used in implementing the abstract idea. A more detailed abstract idea is still abstract. PricePlay.com, Inc. v. AOL Adver., Inc., 627 Fed. Appx. 925, 2016 U.S. App. LEXIS 611, 2016 WL 80002 (Fed. Cir. Jan. 7, 2016) (in addressing a bundle of abstract ideas stacked together during oral argument, U.S. Circuit Judge Kimberly Moore said, "All of these ideas are abstract…. It’s like you want a patent because you combined two abstract ideas and say two is better than one.").
All of the above leads to the conclusion that additional claim elements do not provide meaningful limitations to transform the claimed subject matter into significantly more than an abstract idea. MPEP 2106.05; Eligibility Step 2B. As a result the claims are rejected under 35 USC 101 as being directed to non-statutory subject matter because they recite an abstract idea without being directed to a practical application, and they do not amount to significantly more than the abstract idea. MPEP 2106.05, supra..
Claims 1-5 are rejected as ineligible for patenting under 35 USC 101. The preceding analysis applies to all statutory categories of invention.
Claim Rejections - 35 USC § 102
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.
Claims 1 and 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Aarabi (Patent No.: US 9,760,935 B2).
Aarabi teaches all of the limitations of claim 1, for example Aarabi discloses determining skin type from a facial image, determining efficacy of cosmetic products in a database, and recommending cosmetic products to a user. Aarabi further discloses regarding
Claim 1. A product recommendation server for recommending a product suitable for a user, the server comprising: ● a skin type determination unit that obtains a facial image of a user and determines a skin type of the user on the basis of the obtained facial image (see at least Aarabi figs.22-23, 32-34, c10:25-30, 45-55 “reference to facial features herein includes any feature in a person's face, such, as eyes, lips, skin-tone, skin undertone, skin age, wrinkle levels, spots, and blemishes…. Statistics relating to the overall facial features that may be determined by the present invention include any of the following: a histogram of lip colors, average wrinkle level, average spots, level of dark circles under the eyes, level of crows feet, depth of smile lines, average skin-tone, average skin undertone, histogram of blush colors, histogram of cosmetic colors, or other statistics that, can be generated based upon an analysis of the images/video”); ● a product efficacy determination unit that determines product efficacy of each of products comprised in a product DB (see at least Aarabi figs. 23, 31, c3:10-15 “assessing the efficacy of skin care products by comparing images of the skin prior to and after use of said skin care product,” c6:1-5 “recommending one or more products to the user, based on a database of products reviewed in accordance with the multi-level statistical analysis”); ● a product determination unit that determines a product to be recommended to the user on the basis of the determined skin type and the determined product efficacy (see at least Aarabi abstract “generate an analysis that is the basis for recommendations for products and/or treatments provided to a user…. statistical analysis may be utilized by the invention to generate recommendations for products and/or treatments for the person shown in the images/video,” figs. 23, 31-33, c10:55-67 “generate product and/or treatment recommendations and user profile analysis may include the following steps: … (iii) detecting facial features or other facial characteristics from each of the video frames; (iv) determining statistics of the overall facial features; (v) recommending beauty products based on the obtained statistics by matching the user's statistics to a database of beauty product recommendations”); and ● a recommendation list provision unit that generates a recommendation list for the user on the basis of the determined product (see at least Aarabi figs.28-29, c5:10-15 “recommend one or more products to the user,” c7:40-45 “displays statistical user information and a recommendation of a product…. displays colour information and a product recommendation”).
Claim 5. The server of claim 1, wherein the product efficacy determination unit determines the efficacy of each of the products on the basis of at least one of target efficacy targeted by a product company, ingredient efficacy based on ingredient information, and efficacy based on review analysis (see at least Aarabi c6:1-5 “recommending one or more products to the user, based on a database of products reviewed in accordance with the multi-level statistical analysis”. Please note: The phrase "at least one of" precedes the recitation of alternative or optional limitations only one of which is required. Language claiming elements in the alternative is anticipated by the presence of any single alternative. Beyond that it does not result in any further limitation because it merely represents contingencies that are not required. Applicant is reminded that optional or conditional elements do not narrow the claims because they can always be omitted. See e.g. MPEP §2111.04 "Claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure."; and In re Johnston, 435 F.3d 1381,77 USPQ2d 1788, 1790 (Fed. Cir. 2006) ("As a matter of linguistic precision, optional elements do not narrow the claim because they can always be omitted.").).
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.
Claims 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over Aarabi (Patent No.: US 9,760,935 B2) in view of CHA YOUNG SHIN (KR 102175504 B1).
Aarabi teaches a) obtaining a facial image of a user, b) determining skin type from facial image, c) determining efficacy of cosmetic products, and d) recommending cosmetic products to a user, and discloses regarding
Claim 4. The server of claim 3, wherein the product determination unit determines second products with a preset score or higher among the first products as products to be recommended to the user on the basis of the calculated efficacy score of each of the products (see at least Aarabi c17:39-55 “The number of products/treatments recommended to a user may be determined by the system in a variety of manners. As one example, the number of products/treatments to be recommended to a user based upon photos may be set, so that only the number of products/treatments having the highest matches up to the set number of products/treatments to be recommended to a user will be recommended to a user. As another example, the system may recognize the products/treatments that have a particular match rate, such as a match of all statistics, or a match, of a percentage of number of statistics, or a match of a particular set of statistics, and only recommend the products/treatments that meet the threshold of match rate, percentage, or set of statistics to the user”).
Aarabi teaches all of the above as noted. Aarabi discloses a) obtaining user information, b) user information including skin type, c) determining efficacy of cosmetic products, and d) recommending cosmetic products to a user, but does not explicitly disclose wherein the skin type determination unit determines necessary efficacy required for the user on the basis of the determined skin type, the product determination unit determines first products having the necessary efficacy from the product DB, and the product efficacy determination unit calculates an efficacy score of each of the first products, and therefore does not explicitly disclose the limitations depending therefrom.
Cha Young Shin also teaches a) obtaining user information, b) user information including skin type, c) determining efficacy of cosmetic products, and d) recommending cosmetic products to a user, and further discloses regarding
Claim 2. The server of claim 1, wherein the skin type determination unit determines necessary efficacy required for the user on the basis of the determined skin type, the product determination unit determines first products having the necessary efficacy from the product DB, and the product efficacy determination unit calculates an efficacy score of each of the first products (see at least Cha Young Shin abstract “analyzes a target product based on the scores; a user analysis unit which analyzes physical characteristics of the user based on the user information, and selects appropriateness assessment items corresponding to the analyzed characteristics; and a product recommendation unit which extracts scores corresponding to the appropriateness assessment items among the scores of a large number of items calculated by the product analysis unit, calculates a user appropriateness score, and selects and recommends a product with an excellent user appropriateness score”).
Claim 3. The server of claim 2, wherein the product efficacy determination unit recognizes letters in ingredient images of each of the products, extracts ingredient information comprised in each of the products on the basis of the recognized letters, determines a weight for each of ingredients on the basis of types of the ingredients comprised in each of the products, order of listing of the ingredients listed in each of the products, and the number of the listed ingredients, and calculates the efficacy score on the basis of the weight for each of the ingredients (see at least Cha Young Shin abstract “calculates the content percentage of each ingredient and the scores of the preset ingredient analysis items,” p.4¶5 “receiving an image in which cosmetics are photographed in addition to text, the input unit 110 may extract cosmetic information from the received image through an image analysis algorithm,” ¶11 “product analysis unit 130 calculates the content percentage of each component and the score of the pre-set component analysis item by applying all the components of the target product (eg, cosmetics) to the template according to the marking order, and based on the calculated score The target product can be analyzed,” p.7¶2 “product recommendation unit 160 may present information such as a name of an ingredient to be included in a product and a blending ratio of each ingredient”).
Therefore it would have been obvious to one of ordinary skill in the art at the time of invention (for pre-AIA applications) or filing (for applications filed under the AIA ) to modify the method of Aarabi to include wherein the skin type determination unit determines necessary efficacy required for the user on the basis of the determined skin type, the product determination unit determines first products having the necessary efficacy from the product DB, and the product efficacy determination unit calculates an efficacy score of each of the first products, as taught by Cha Young Shin since the claimed invention is merely a combination of old elements and in the combination each element merely would have performed the same function as it did separately. One of ordinary skill in the art would have recognized that the results of the combination were predictable and would result in an improvement. This is because the level of ordinary skill in the art demonstrated by the references applied shows the ability to incorporate such features even from a variety of technical fields into methods and systems implemented using similar technological structures (i.e., generic computer and/or network hardware such as processors, servers, etc.). In this case the areas of technical endeavor are nonetheless similar and overlapping.
Applicant has not disclosed that the added feature solves any stated problem or is for any particular purpose beyond the performance of the functions they performed separately and since each element and its function are shown in the prior art the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself. It would therefore have been an obvious matter of design choice to include the feature from Cha Young Shin in the method of Aarabi. Furthermore the combination solved no long felt need. Incorporating cumulative known features is additionally obvious to one of ordinary skill in the art because doing so increases commercial use of a method by attracting users that previously might have chosen between one of the previously known methods.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
● CHO CHANG SOOK et al., KR 20240076913 A: an intervening reference that teaches the invention.
● PAI NAI CHIANG et al., KR 20180108376 A: teaches imaging face and recommending cosmetic.
● HWANG, Pub. No.: US 2022/0415015 A1: teaches recommending cosmetic based on "image that photographs the skin condition of a specific body part.... specific body part, any one of various body parts such as cheeks or forehead of the user's face, neck, arms, and legs may be included."
● YOON, Pub. No.: US 2024/0177213 A1: intervening reference, teaches ingredients and modification of ingredients responsive to skin conditions.
● Rousay, Pub. No.: US 2015/0356661 A1: teaches determining skin type from facial image, and cosmetic recommendations from a product database.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADAM LEVINE whose telephone number is (571)272-8122. The examiner can normally be reached Monday - Thursday 9am-7:30pm.
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/ADAM L LEVINE/Primary Examiner, Art Unit 3689 June 18, 2026
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