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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3, 6-11, 14-16 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2 and 4 of U.S. Patent No.9384422. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application claims 1-3, 6-11, 14-16 and 20 are obvious in view of the allowed claims 1, 2 and 4 of the US9384422.
Appl # 18887992 US9384422
Claim 1
Claims 1+2+4
Claim 2
Claims 1+2+4
Claim 3
Claims 1+2+4
Claim 6
Claims 1+2+4
Claim 7
Claims 1+2+4
Claim 8
Claims 1+2+4
Claim 9
Claims 1+2+4
Claim 10
Claims 1+2+4
Claim 11
Claims 1+2+4
Claim 14
Claims 1+2+4
Claim 15
Claims 1+2+4
Claim 16
Claims 1+2+4
Claim 20
Claims 1+2+4
Claims 1, 8 and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2 and 6 of U.S. Patent No.11449719. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application claims 1, 8 and 15 are obvious in view of the allowed claims 1, 2 and 6 of the US11449719.
Appl # 18887992 US11449719
Claim 1
Claims 1+2+6
Claim 8
Claims 1+2+6
Claim 15
Claims 1+2+6
Claims 1-12, 15-16 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 and 5 of U.S. Patent No.12131342. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application claims 1-12, 15-16 and 20 are obvious in view of the allowed claims 1-3 and 5 of the US12131342.
Appl # 18887992 US12131342
Claim 1
Claim 1
Claim 2
Claim 1
Claim 3
Claims 1+2
Claim 4
Claim 1
Claim 5
Claim 1
Claim 6
Claim 1+3
Claim 7
Claim 1
Claim 8
Claim 1
Claim 9
Claim 1
Claim 10
Claim 1
Claim 11
Claim 1+3
Claim 12
Claim 1+5
Claim 15
Claim 1
Claim 16
Claim 1
Claim 20
Claim 1
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-11, 14-16 and 20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Homma et al. (US8898581) hereafter Homma.
1. Regarding claim 1, Homma discloses a system (figs 1-8 and 14-15, col 3 lines 33 through col 5 line 14 shows and discloses a system) comprising:
one or more processors (fig 15, col 22 lines 15 -35 shows and discloses one or more processors 201); and
a non-transitory computer-readable medium storing instructions that, when executed by the one or more processors, cause the system to perform operations (fig 15, col 22 lines 15 -35 shows and discloses ROM 202 or a storing section 208 which includes a hard disk storing programs to be executed by the CPU 201 meeting the above claim limitations) comprising:
receiving a first image of a first item that is to be listed for sale on an online marketplace, the first item associated with a product category of the online marketplace (figs 1-5, col 6 lines 16 through col 7 lines 12, col 8 lines 63-67 shows and discloses the user display section 43a showing receiving the first image of a first item (clothing) that is to be listed for sale on an online marketplace by the online shop server 231-23n, the first item associated with a product category of the online marketplace (fig 2 and col 4 lines 40 through col 5 lines 14 shows and discloses the datastore of the shop server storing the first item images associated with the product category (i.e cute dresses, adult -style dresses, cute camisole etc.) meeting the above claim limitations);
extracting one or more visual features of the first image (figs 5, 7-8 and col 12 lines 58 through col 13 lines 5 shows and discloses extracting one or more visual features of the first image, examiner notes that the specifics of “extracting i.e who, how and what features are extracted” are not required by the current claim); and
providing an output indicating a likelihood of a user engaging in a desired user behavior in relation to the first item based at least in part on the one or more visual features of the first image and user behavior data associated with the product category (figs 4, 5, 14, col 7 lines 51 through col 8 lines 56 shows and discloses the user providing an output (i.e feedback) indicating a likelihood of a user engaging in a desired user behavior (fig 5 shows the user fit labels with circle and unfit label with a X indicating a likelihood of a user engaging in a desired user behavior) in relation to the first item (dress) based at least in part on the one or more visual features of the first image (images as seen in fig 5) and user behavior data associated with the product category (i.e the shop servers generate the classifier on the basis of the part preference information (i.e user feedback data) and searches the product desired by the user based on the generated classifier (i.e the product category) meeting the above claim limitations).
2. Regarding claim 2, Homma disclose the system of claim 1, wherein the instructions are further executable by the one or more processors to cause the system to perform operations comprising: determining a first score value associated with the first image based at least in part on the one or more visual features of the first image, wherein the output indicating the likelihood of the user engaging in the desired user behavior in relation to the first item is based at least in part on the first score value (fig 5 and col 7 lines 51 through col 8 lines 56 shows and discloses determining a first score value associated with the first image (i.e determining fit label value or first score value) based at least in part on the one or more visual features of the first image (as seen in fig 5 shown as circle), wherein the output indicating the likelihood of the user engaging in the desired user behavior in relation to the first item is based at least in part on the first score value (i.e fit label value or first score value as seen in fig 5 shown as circle meeting the above claim limitations, examiner notes that the specifics of “a first score value” are not required by the current claim).
3. Regarding claim 3, Homma discloses the system of claim 2, wherein the instructions are further executable by the one or more processors to cause the system to perform operations comprising: receiving a second image of the first item (figs 4-5 col 7 lines 51 through col 8 lines 56 shows receiving a second image of the first item (dress)); determining a second score value associated with the second image based at least in part on one or more additional visual features of the second image (figs 4-5 col 7 lines 51 through col 8 lines 56 determining a second score value (i.e the unfit label score value from the user) associated with the second image based at least in part on one or more additional visual features of the second image (figs 5, 7-8 and col 12 lines 58 through col 13 lines 5 shows and discloses extracting one or more visual features of the second image)); comparing the first image and the second image based at least in part on the first score value and the second score value; and providing, via the output, a recommended order for arranging the first image and the second image within a product listing for the first item on the online marketplace (figs 4-5 col 7 lines 51 through col 8 lines 56 shows and discloses user fit labels with circle (first score value) and unfit label with a X (second score value) indicating a likelihood of a user engaging in a desired user behavior) in relation to the first item (dress) based at least in part on the one or more visual features of the first images and the second images (images as seen in fig 5) and user behavior data associated with the product category (i.e the shop servers generate the classifier on the basis of the part preference information (i.e user feedback data labels scores (i.e comparing the first score and the second score value)) and searches the product desired by the user based on the generated classifier (i.e the product category) meeting the above claim limitations).
4. Regarding claim 4, Homma discloses the system of claim 1, wherein the instructions are further executable by the one or more processors to cause the system to perform operations comprising: identifying a second image of a second item listed for sale on the online marketplace, the second item associated with the product category (fig 5 shows the second images listed for sale on the online market place); and comparing the first image and the second image based at least in part on a first score value associated with the first image a second score value associated with the second, wherein the output indicating the likelihood of the user engaging in the desired user behavior in relation to the first item is further based on the comparing (figs 4-5 col 7 lines 51 through col 8 lines 56 shows and discloses user fit labels with circle (first score value) and unfit label with a X (second score value) indicating a likelihood of a user engaging in a desired user behavior) in relation to the first item (dress) based at least in part on the one or more visual features of the first images and the second images (images as seen in fig 5) and user behavior data associated with the product category (i.e the shop servers generate the classifier on the basis of the part preference information (i.e user feedback data labels scores (i.e comparing the first score and the second score value)) and searches the product desired by the user based on the generated classifier (i.e the product category) meeting the above claim limitations).
5. Regarding claim 5, Homma disclose the system of claim 4, wherein: the first score value is determined based at least in part on the one or more visual features of the first image; the second score value is determined based at least in part on one or more additional visual features of the second image; and the user behavior data associated with the product category pertains to the second image (figs 4-5 col 7 lines 51 through col 8 lines 56 shows and discloses user fit labels with circle (first score value) and unfit label with a X (second score value) indicating a likelihood of a user engaging in a desired user behavior) in relation to the first item (dress) based at least in part on the one or more visual features of the first images and the second images (images as seen in fig 5, figs 5, 7-8 and col 12 lines 58 through col 13 lines 5 shows and discloses extracting one or more visual features of the first image and the second image) and user behavior data associated with the product category (i.e the shop servers generate the classifier on the basis of the part preference information (i.e user feedback data labels scores (i.e comparing the first score and the second score value)) and searches the product desired by the user based on the generated classifier (i.e the product category) pertaining to the second image (desired preferences) meeting the above claim limitations).
6. Regarding claim 6, Homma discloses the system of claim 1, wherein the output further indicates a ranking of the first image as compared to other images of items within the product category (figs 4-5 shows wherein the output further indicates a ranking of the first image as compared to other images of items within the product category).
7. Regarding claim 7, Homma discloses the system of claim 1, wherein the desired user behavior is the user purchasing the first item when the first image is used as a representation of the first item on the online marketplace (figs 4-5 shows the desired user feedback (i.e fit and unfit labels to the images) from the shop servers (i.e online market place) that are the representations of the first item (dress) that the user wants to purchase meeting the claim limitations).
8. Claim 8 is a corresponding method claim of claim 1. See the corresponding explanation of claim 1.
9. Claim 9 is a corresponding method claim of claim 4. See the corresponding explanation of claim 4.
10. Claim 10 is a corresponding method claim of claim 5. See the corresponding explanation of claim 5.
11. Regarding claim 11, Homma discloses the method of claim 9, further comprising: providing, via the output, an indication of a ranking of the first image relative to the second image, wherein the ranking is based at least in part on the first score value and the second score value (figs 4-5 col 6 lines 16-58, col 7 lines 51 through col 8 lines 56 shows and discloses user fit labels with circle (first score value) and unfit label with a X (second score value) indicating a likelihood of a user engaging in a desired user behavior) in relation to the first item (dress) based at least in part on the one or more visual features of the first images and the second images (images as seen in fig 5) and user behavior data associated with the product category (i.e the shop servers generate the classifier on the basis of the part preference information (i.e user feedback data labels scores (i.e comparing the first score and the second score value)) and searches the product desired by the user based on the generated classifier (i.e the product category) pertaining to the second image (desired preferences) and ranks the results (as seen in figs 4-5, col 6 lines17-58) based on the first score value and the second score value meeting the above claim limitations).
12. Regarding claim 14, Homma discloses the method of claim 8, wherein the one or more visual features of the first image comprise at least one of a display type used to display the first item in the first image, a background of the first image, a contrast of the first image, and lighting of the first image (figs 4-5 shows the display of the first item (dress) in the image and also a background of the first image (in figs 4-5) meeting the claim limitations).
13. Claim 15 is s corresponding non-transitory computer-readable medium claim of claim 1. See the corresponding explanation of claim 1. Homma shows and discloses non-transitory computer readable medium (fig 15, col 22 lines 15 -35 shows and discloses ROM 202 or a storing section 208 which includes a hard disk storing programs to be executed by the CPU 201 meeting the above claim limitations).
14. Regarding claim 16, Homma discloses the non-transitory computer-readable medium of claim 15, wherein the instructions are further executable by the processor to cause the system to perform operations comprising: identifying a second image of a second item listed for sale on the online marketplace (fig 5 shows the second images listed for sale on the online market place); determining a first score value associated with the first image based at least in part on the one or more visual features of the first image; determining a second score value associated with the second image based at least in part on one or more additional visual features of the second image (figs 4-5 col 7 lines 51 through col 8 lines 56 shows and discloses user fit labels with circle (first score value) and unfit label with a X (second score value) indicating a likelihood of a user engaging in a desired user behavior) in relation to the first item (dress) based at least in part on the one or more visual features of the first images and the second images (images as seen in fig 5) and user behavior data associated with the product category (i.e the shop servers generate the classifier on the basis of the part preference information (i.e user feedback data labels scores (i.e comparing the first score and the second score value)) and searches the product desired by the user based on the generated classifier (i.e the product category) meeting the above claim limitations); ranking the first image relative to the second image based at least in part on the first score value and the second score value; and providing, via the output, the ranking of the first image relative to the second image (figs 4-5 shows wherein the output further indicates a ranking of the first image as compared to other images of items within the product category which is based on the fit (first score) and the unfit (second score) meeting the above claim limitations).
15. Regarding claim 20, Homma disclose the non-transitory computer-readable medium of claim 15, wherein the instructions are further executable by the processor to cause the system to perform operations comprising: determining at least one score value associated with the first image based at least in part on the one or more visual features of the first image, wherein the output indicating the likelihood of the user engaging in the desired user behavior in relation to the first item is based at least in part on the at least one score value (figs 4-5 col 7 lines 51 through col 8 lines 56 shows and discloses user fit labels with circle (first score value) and unfit label with a X (second score value) indicating a likelihood of a user engaging in a desired user behavior) in relation to the first item (dress) based at least in part on the one or more visual features of the first images and the second images (images as seen in fig 5) and user behavior data associated with the product category (i.e the shop servers generate the classifier on the basis of the part preference information (i.e user feedback data labels scores (i.e comparing the first score and the second score value)) and searches the product desired by the user based on the generated classifier (i.e the product category) meeting the above claim limitations).
Examiner's Note: Examiner has cited particular figures, and paragraphs in the references as applied to the claims above for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested for the applicant, in preparing the responses, to fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner. Examiner also cites references in PTO892 but not relied on, which are relevant and pertinent to the applicant’s disclosure, and may also be reading on the claims and claimed limitations. Applicant is advised to consider the references in preparing the response/amendments in-order to expedite the prosecution.
Allowable Subject Matter
Claims 13 and 17-19 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAYESH PATEL whose telephone number is (571)270-1227. The examiner can normally be reached IFW Mon-FRI.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrew Bee can be reached at 571-270-5183. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAYESH A PATEL/Primary Examiner, Art Unit 2677
/JAYESH PATEL/
Primary Examiner
Art Unit 2677
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