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 .
Status of Claims
This office action is in response to arguments and amendments entered on May 14, 2026 for the patent application 18/83,920 originally filed on September 23, 2024. Claims 1-20 are cancelled. Claims 21, 35, 39 and 41 are amended. Claims 21-41 are pending. The first office action of May 1, 2026 is fully incorporated by reference into this Final Office Action.
Drawings
Regarding FIGS. 1-9, 37 CFR 1.84(a)(1), stated in part, normally requires black and white drawings. India ink, or its equivalent that secures solid black lines, must be used for drawings. In the present case, FIGS. 1-9 have very faint text and lines. Therefore, the failure to use solid black text and lines renders FIGS. 1-9 from complying with 37 CFR 1.84(a)(1).
Regarding FIGS. 1 and 6-9, 37 CFR 1.84(b)(1), stated in part, indicates that black and white photographs, including photocopies of photographs and clip art, are not ordinarily permitted in utility and design patent applications. The Office will accept photographs in utility and design patent applications, however, if photographs are the only practicable medium for illustrating the claimed invention. The photographs must be of sufficient quality so that all details in the photographs are reproducible in the printed patent. In the present case, FIGS. 1 and 6-9 contains screenshots/clip art that are not of sufficient quality so that all details in the screenshots are reproducible in the printed patent. Therefore, the use of screenshots/clip art lacking sufficient reproducible quality prevents FIGS. 1 and 6-9 from complying with 37 CFR 1.84(b)(1).
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 21-41 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 1 – “Statutory Category Identification”
Claim 21 is directed to “a computer-implemented method” (i.e. a process), claim 35 is directed to “a system” (i.e. a machine), and claim 39 is directed to “a non-transitory computer-readable medium” (i.e. a machine), hence the claims are directed to one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter). In other words, Step 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 1 “Abstract Idea Identification”
However, the claims are drawn to an abstract idea of “estimating a nutritional and caloric content of food,” in the form of “certain methods of organizing human activity,” in terms of managing personal behavior or relationships or interactions between people (including social activities, teaching and following rules or instructions), or reasonably in the form of “mental processes,” in terms of processes that can be performed in the human mind (including an observation, evaluation, judgement or opinion). Regardless, the claims are reasonably understood as either “certain methods of organizing human activity” or “mental processes,” which require the following limitations:
Per claim 21:
“acquiring…a color image and a depth frame image of a food item, the depth frame image comprising depth values representing distances between the depth-frame camera and respective surface points of the food item;
acquiring…orientation data comprising gravity vector data from a gravity sensor and angular rate data from a gyroscope;
determining…a gravity-aligned coordinate system by computing a rotation matrix from the gravity vector data and applying the rotation matrix to depth frame coordinates of the depth frame image, wherein the gravity- aligned coordinate system is referenced to a horizontal plane defined by the gravity vector data and is independent of an orientation at a time of capture, such that the three-dimensional volumetric measurement of the food item is computed in a physical-world reference frame rather than in a frame of reference;
identifying…a planar reference surface in the gravity-aligned coordinate system by applying a plane-fitting algorithm to a plurality of depth frame points corresponding to at least one of a table surface or a plate surface supporting the food item;
estimating…a three-dimensional volumetric measurement of the food item by computing, in the gravity-aligned coordinate system, a volume defined by food surface points above the identified planar reference surface;
identifying the food item by applying a trained machine learning classifier to at least the color image;
determining a caloric and nutritional estimate for the food item by querying a nutritional database using the identified food item and the estimated volumetric measurement; and
outputting the caloric and nutritional estimate…”
Per claim 35:
“…capture a color image and a depth frame image of a food item, the depth frame image comprising depth values representing distances between the depth-frame camera and surface points of the food item;
…provide gravity vector data and a gyroscope configured to provide angular rate data;
compute a rotation matrix from the gravity vector data and apply the rotation matrix to depth frame coordinates to establish a gravity-aligned coordinate system, wherein the gravity-aligned coordinate system is referenced to a horizontal plane defined by the gravity vector data and is independent of an orientation at a time of capture, such that the three-dimensional volumetric measurement of the food item is computed in a physical-world reference frame rather than in a frame of reference;
identify a planar reference surface in the gravity-aligned coordinate system by applying a plane-fitting algorithm to depth frame points corresponding to a table surface or a plate surface supporting the food item;
estimate a three-dimensional volumetric measurement of the food item by computing, in the gravity-aligned coordinate system, a volume of food surface points above the identified planar reference surface;
identify the food item by applying a trained machine learning classifier to at least the color image;
determine a caloric and nutritional estimate by querying a nutritional database using the identified food item and the estimated volumetric measurement; and
output the caloric and nutritional estimate…”
Per claim 39:
“receiving…a color image and a depth frame image of a food item, the depth frame image comprising depth values representing distances from the depth-frame camera to surface points of the food item;
Receiving…orientation data comprising gravity vector data from a gravity sensor and angular rate data from a gyroscope;
computing a gravity-aligned coordinate transformation by deriving a rotation matrix from the gravity vector data, wherein the gravity-aligned coordinate transformation references a horizontal plane defined by the gravity vector data and is independent of an orientation at a time of capture, such that the volumetric measurement of the food item is computed in a physical-world reference frame rather than in a frame of reference;
applying the gravity-aligned coordinate transformation to depth frame coordinates to reorient the depth frame such that the gravity vector is aligned with a vertical axis of the coordinate frame;
identifying a planar reference surface in the reoriented depth frame by applying a plane-fitting algorithm to depth frame points associated with a table or plate supporting the food item;
estimating a volumetric measurement of the food item by computing, in the reoriented depth frame, a volume of food surface points above the identified planar reference surface;
classifying the food item …to the color image;
querying a nutritional database using the classified food item and the estimated volumetric measurement to obtain a caloric and nutritional estimate; and
presenting the caloric and nutritional estimate…”
These limitations simply describe a process of data gathering and manipulation, which is partially analogous to “collecting information, analyzing it, and displaying certain results of the collection analysis” (i.e. Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016)). Hence, these limitations are akin to an abstract idea which has been identified among non-limiting examples to be an abstract idea. In other words, Step 2A, Prong 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 2 – “Practical Application”
Furthermore, the claims do not include additional elements that either alone or in combination are sufficient to claim a practical application because to the extent that, e.g., “a mobile computing device,” “a depth-frame camera of a mobile computing device,” “an inertial measurement unit of the mobile computing device,” “an inertial measurement unit comprising a gravity sensor,” “a processor of the mobile computing device,” "a non-transitory computer-readable medium storing processor-executable instructions,” “a user interface of the mobile computing device,” “a display of the mobile computing device,” and “a trained convolutional neural network,” are claimed, as these are merely claimed to generally link the use of a judicial exception to a particular technological environment or field of use. In other words, the claimed “estimating a nutritional and caloric content of food,” is not providing a practical application, thus Step 2A, Prong 2 of the subject-matter eligibility analysis is “No.”
Step 2B – “Significantly More”
Likewise, the claims do not include additional elements that either alone or in combination are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g. “a mobile computing device,” “a depth-frame camera of a mobile computing device,” “an inertial measurement unit of the mobile computing device,” “an inertial measurement unit comprising a gravity sensor,” “a processor of the mobile computing device,” "a non-transitory computer-readable medium storing processor-executable instructions,” “a user interface of the mobile computing device,” “a display of the mobile computing device,” and “a trained convolutional neural network,” are claimed, these are generic, well-known, and conventional elements. As evidence that these are generic, well-known, and a conventional elements (or an equivalent term), as a commercially available product, or in a manner that indicates that the additional elements are sufficiently well-known, the Applicant’s specification discloses these in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a), per MPEP § 2106.07(a) III (a). As such, this satisfies the Examiner’s evidentiary burden requirement per the Berkheimer memo.
Moreover, the elements of “a mobile computing device,” “a depth-frame camera of a mobile computing device,” “an inertial measurement unit of the mobile computing device,” “an inertial measurement unit comprising a gravity sensor,” are best described on page 12, lines 2-5 as follows:
“In one embodiment, depth information, the gravity sensor, and the gyroscope in the iPhone and other sophisticated mobile phones may be used. The depth frame in many iPhones and some other mobile phones provides information about the distance between the camera and the objects in the picture.”
These elements are reasonably interpreted as generic computer components as part of a generic computer that is commercially available which provides no details of anything beyond ubiquitous standard off-the-shelf equipment.
It is worth noting that the elements of “a processor of the mobile computing device,” "a non-transitory computer-readable medium storing processor-executable instructions,” “a user interface of the mobile computing device,” and “a display of the mobile computing device,” are insufficiently described in the written description of the specification as originally filed to provide any details as to what these elements actually consist of. At best, the Applicant’s claimed “a processor of the mobile computing device,” "a non-transitory computer-readable medium storing processor-executable instructions,” “a user interface of the mobile computing device,” and “a display of the mobile computing device,” are reasonably understood as further elements of “the mobile computing device,” that are reasonably interpreted as generic computer components as part of a generic computer that is also commercially available which provides no details of anything beyond ubiquitous standard off-the-shelf equipment.
Finally, the element of “a trained convolutional neural network,” is also insufficiently described in the written description of the specification as originally filed to provide any details as to what the element actually consists of. In fact, the term “neural,” is mentioned only three (3) times in the written description of the specification as originally filed, on what appears to be an appendix of the written description on page 12. As such, “a trained convolutional neural network,” is reasonably understood to be routine and conventional since no further information is provided to describe any innovation in its design or implementation. Therefore, the Applicant’s own specification discloses ubiquitous standard equipment that is (1) generic, routine, conventional, and/or commercially available; and (2) does not provide anything significantly more. Thus, Step 2B, of the subject-matter eligibility analysis is “No.”
In addition, dependent claims 21-34, 36-38 and 40-41 do not provide a practical application and are insufficient to amount to significantly more than the judicial exception. As such, dependent claims 21-34, 36-38 and 40-41 are also rejected under 35 U.S.C. § 101, based on their respective dependencies to claim 21, 35 or 39. Therefore, claims 21-41 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter.
Response to Arguments
The Applicant’s arguments filed on May 14, 2026 related to claims 21-41 are fully considered, but are not persuasive.
Drawing Objections
The Applicant respectfully argues “Applicant acknowledges that the Office Action requests drawing amendments under 37 CFR 1.84(a)(1) and 37 CFR 1.84(b)(1). Applicant will subsequently file a Supplemental Amendment with amended drawings when they are available.”
Therefore, the drawing objections are not withdrawn.
Rejection of Claims 21 through 41 under 35 U.S.C. § 101
1. Step 2A Prong 1: The Claims Are Not Directed to a Judicial Exception
The Applicant respectfully argues “The Examiner characterizes the alleged abstract idea as "estimating a nutritional and caloric content of food" and identifies it as either a method of organizing human activity or a mental process. The characterization is over-generalized and disregards the specific operations the claims recite on physical sensor data. The eligibility analysis must consider the claim as a whole and may not reduce a claim to a general concept while ignoring its specific recitations. See McRO, Inc. V. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1313 (Fed. Cir. 2016); Enfish, LLC V. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016); see also MPEP § 2106.04(a)(2).”
The Examiner respectfully disagrees. The rejection provided in the Non-Final office action mailed on May 1, 2026, and above in this Final office action, has considered the claims as a whole. As such, the argument is not persuasive.
The Applicant respectfully argues “Independent Claim 21 recites a sequence of operations on physical sensor outputs from a depth-frame camera and an inertial measurement unit. The recited operations include computing a rotation matrix from gravity vector data acquired by the gravity sensor, applying that rotation matrix to depth frame coordinates to establish a gravity-aligned coordinate system referenced to a horizontal plane defined by the gravity vector data and independent of the orientation of the mobile computing device at the time of capture, applying a plane-fitting algorithm to depth frame points corresponding to a table or plate surface to identify a planar reference surface in the gravity-aligned coordinate system, and estimating a three-dimensional volumetric measurement of the food item in that gravity-aligned coordinate system. A human cannot perform these operations mentally on physical sensor data. The operations are not organizing human activity in the sense contemplated by MPEP § 2106.04(a)(2)(II), which addresses fundamental economic practices, commercial interactions, managing personal behavior, and similar activities. The recited operations are specific computational and geometric transformations of physical sensor outputs.”
The Examiner respectfully disagrees. The abstract idea is related to teaching and following rules or instructions, which are categorized as “certain methods of organizing human activity.” Also, MPEP §2106 under “II. Certain Methods Of organizing Human Activity,” certain activity between a person and a computer (for example a method of anonymous loan shopping that a person conducts using a mobile phone) may fall within the "certain methods of organizing human activity" grouping. As applied in this case, a person interacting with a computer for “generating a photorealistic rendering of a cosmetic product,” reasonably constitutes identifying the Applicant’s claims as an abstract idea in the form of “certain methods of organizing human activity.”
With respect to mental processes, actual mental performance of the abstract idea is not required, Further, the MPEP § 2106.04(a)(2)(III)(C) states that “claims can recite a mental process even if they are claimed as being performed on a computer” and that “examiners should review the specification to determine if the claimed invention is described as a concept that is performed in the human mind and Appellant is merely claiming that concept performed 1) on a generic computer, or 2) in a computer environment, or 3) is merely using a computer as a tool to perform the concept. In these situations, the claim is considered to recite a mental process.” In the present case, the claim limitations perform steps that are performed on a generic computer and/or computer environment, and merely uses a computer as a tool to perform the concept. As such, the argument is not persuasive.
The Applicant respectfully argues “The Federal Circuit has consistently distinguished claims directed to specific technological techniques for processing physical sensor data from claims directed to abstract concepts of information collection and display. See Enfish, 822 F.3d at 1339 (claims directed to a specific improvement to the way computers operate are not abstract); McRO, 837 F.3d at 1313 through 14 (specific rules-based technique that improves a technological process is patent-eligible). Claim 21 falls within these precedents. The claim is not directed to estimating caloric content as a general concept. It is directed to a specific sensor-fusion technique that produces a quantitative volumetric measurement of a physical object in a physical-world reference frame, with caloric estimation as a downstream application of that measurement.”
The Examiner respectfully disagrees. The Applicant’s reliance on technological advancements that parallel EnFish or McRo are improper. Instead, the Applicant’s claims are performed on “a mobile computing device,” and are best described in the written description of the specification as originally filed on page 12, lines 2-5 as follows:
“In one embodiment, depth information, the gravity sensor, and the gyroscope in the iPhone and other sophisticated mobile phones may be used. The depth frame in many iPhones and some other mobile phones provides information about the distance between the camera and the objects in the picture.”
As such, no new advancements in technology are described. Therefore, the argument is not persuasive.
The Applicant respectfully argues “The Examiner's reliance on Electric Power Group, LLC V. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016), is misplaced. The claims in Electric Power Group recited gathering data from electric power grid sensors, analyzing the data, and displaying results, with no specific technique for the gathering, the analyzing, or the displaying steps. The Federal Circuit held those claims directed to the abstract idea of collecting, analyzing, and displaying information. Id. at 1353 through 54. The present claims, by contrast, recite a specific sensor-fusion-and-coordinate-transformation technique that solves a concrete technological problem. Depth-frame cameras output coordinates in the camera frame of reference. Volume measured in that frame is wrong when the camera orientation departs from horizontal. The claimed gravity-aligned coordinate system, derived from a rotation matrix computed from gravity vector data, solves that specific problem. Nothing in Electric Power Group reaches a claim that recites this kind of specific technological technique. Step 2A Prong 1 is therefore not satisfied. The claims are not directed to a judicial exception.”
The Examiner respectfully disagrees. The Applicant’s claimed steps of obtaining an image, implementing a neural network and a rendering engine and displaying the transformed image simply describe a process of data gathering and manipulation, is clearly analogous to “collecting information, analyzing it, and displaying certain results of the collection analysis” (i.e. Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016)). As such, the argument is not persuasive.
2. Step 2A Prong 2: The Claims Integrate Any Alleged Abstract Idea Into a Practical Application.
The Applicant respectfully argues “Even assuming the claims were directed to a judicial exception, the claims integrate the exception into a practical application by reflecting an improvement to a specific technological field. See MPEP §§ 2106.04(d), 2106.04(d)(1), 2106.05(a) (improvements to the functioning of a computer or to another technology or technical field).
The technological improvement recited in independent Claims 21, 35, and 39 is the gravity-aligned coordinate system derived from a rotation matrix computed from gravity vector data acquired by the inertial measurement unit. The coordinate system is referenced to a horizontal plane defined by the gravity vector data and is independent of the orientation of the mobile computing device at the time of capture. The amended language now states this property expressly in each independent claim. The technological improvement is concrete: the gravity-aligned coordinate system enables accurate three-dimensional volumetric measurement of a food item from a depth-frame image captured at an arbitrary device orientation, where conventional approaches that operate in the camera frame of reference produce inaccurate volume estimates as the camera departs from a horizontal orientation. The specification at page 12 identifies the technological problem and the inventive solution in plain terms: the gyroscope and gravity sensor provide information about the orientation of the camera; this information enables more accurate estimates of food volume, mass, and nutritional content; this approach is in contrast to approaches in which calorie apps use only two-dimensional RGB camera information, which can be fooled.
The Federal Circuit has held that claims reflecting a specific improvement to a technological field are eligible at Step 2A. See Enfish, 822 F.3d at 1339; Visual Memory LLC V. NVIDIA Corp., 867 F.3d 1253, 1259 through 60 (Fed. Cir. 2017). The Office's own guidance is consistent. MPEP § 2106.05(a) instructs that an improvement to another technology or technical field demonstrates a practical application. The amended claims expressly recite the technological effect of the gravity-aligned coordinate system, namely volumetric measurement computed in a physical-world reference frame rather than in a frame of reference of the depth-frame camera. The recited effect is an improvement in the technical field of computer-vision-based volumetric measurement using consumer-grade mobile depth-frame cameras.
The Examiner takes the position that the depth-frame camera, the inertial measurement unit, the processor, and the trained classifier are recited only to link the alleged abstract idea to a particular technological environment. The position cannot be reconciled with the structure of the claim. The depth-frame camera and the inertial measurement unit are not merely the environment in which an abstract idea is implemented. They are the source of the physical sensor data on which the claimed sensor-fusion-and-coordinate-transformation technique operates. The processor performs the rotation-matrix computation and the gravity-aligned coordinate transformation that are themselves the technological improvement. The hardware elements are integral to the claimed technique, not incidental to it. See MPEP § 2106.05(b).
Step 2A Prong 2 is satisfied. The claims integrate any alleged abstract idea into a practical application.”
The Examiner respectfully disagrees. The Applicant’s claims are not considered a “Practical Application,” because the claims do not provide any of the following:
An improvement in the functioning of a computer, or an improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
Applying or using 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, as discussed in MPEP § 2106.05(e).
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Furthermore, there are also several factors that reasonably explain that the Applicant’s claims are not indicative of integration into a practical application, which include:
Merely reciting the words "apply it" (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f);
Adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g); and
Generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
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Here, the Applicant’s claims are not providing any technological advancement as described in the first five bulleted factors and, as described above in the rejection, the Applicant’s claims are merely claimed to use a computer as a tool to perform an abstract idea and to generally link the use of a judicial exception to a particular technological environment or field of use. As such, the argument is not persuasive.
3. Step 2B: The Claims Recite an Unconventional Combination Amounting to Significantly More.
The Applicant respectfully argues “Even assuming the analysis proceeds to Step 2B, the claims recite an unconventional combination of elements amounting to significantly more than the alleged abstract idea. See Berkheimer V. HP Inc., 881 F.3d 1360, 1368 through 69 (Fed. Cir. 2018); MPEP § 2106.07(a).
The Examiner has stated, in the Allowable Subject Matter section of the Office Action, that Divakaran and Connor do not teach "determining, by a processor of the mobile computing device, a gravity-aligned coordinate system by computing a rotation matrix from the gravity vector data and applying the rotation matrix to depth frame coordinates of the depth frame image," as recited in Claims 21, 35, and 39. Office Action at 7. The Examiner further states that, but for the Section 101 rejection, Claims 21 through 41 would be allowable over the closest prior art of record. Id.
This finding is dispositive at Step 2B. The very element the Examiner identifies as absent from the closest prior art is the gravity-aligned coordinate transformation derived from gravity vector data. By the Examiner's own record, the element is not well-understood, routine, or conventional in the field of computer-vision-based food volumetric estimation. Under Berkheimer, the question of whether an element is well-understood, routine, and conventional must be supported by evidence in the record. 881 F.3d at 1368 through 69. The Examiner's prior-art findings constitute affirmative evidence on the present record that the gravity-aligned coordinate transformation is neither routine nor conventional. An element cannot simultaneously be characterized as routine and conventional for Section 101 purposes and as absent from the closest prior art of record for Sections 102 and 103 purposes. The internal inconsistency cannot stand.
The Examiner's separate Berkheimer evidence, namely the assertion that the depth-frame camera, IMU, processor, computer-readable medium, user interface, display, and convolutional neural network are sufficiently well-known that the specification need not describe them in particulars, is misdirected. None of these elements, taken individually, is the inventive contribution. The inventive contribution is the specific combination of these elements with the gravity-aligned coordinate transformation, which the Examiner has acknowledged is absent from the prior art. Even where individual hardware components are conventional, an unconventional combination of conventional elements amounts to significantly more under Step 2B. See Bascom Glob. Internet Servs., Inc. V. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016) (an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces). Step 2B is satisfied. The Section 101 rejection should be withdrawn.”
The Examiner respectfully disagrees. First, arguments with regard to a lack of prior art are best suited for arguing rejections under 35 U.S.C. §§ 102 and 103. The test for 35 U.S.C. § 101 subject-matter eligibility requires claims to be examined using the “two-part Mayo test” for determining subject-matter eligibility, as previously performed above. As such, the argument is not proper for facilitating a 35 U.S.C. § 101 subject-matter eligibility discussion.
Second, the Applicant is misconstruing the proper analysis under 35 U.S.C. § 101. The lack of prior art, clearing the claims of any 35 U.S.C. §§102 or 103 rejections, is not evidence of subject-matter eligibility under 35 U.S.C. §101.
Third, a prior art search is not necessary to resolve whether the additional element is a well-understood, routine, conventional activity because lack of novelty (i.e., not finding the element in the prior art) does not necessarily show that an element is well-understood, routine, conventional activity previously engaged in by those in the relevant field. In the present case, the Applicant’s claims merely recite a generic computer performing generic computer functions at a high level of generality which do not meaningfully limit the claims to amount to anything “significantly more.”
Finally, there are many cases where prior art was not present yet an abstract idea in and of itself was still at issue (i.e. Ultramercial, Inc. v Hulu, LLC (2014); buySAFE, Inc. v Google, Inc. (2014); and Planet Bingo, LLC v VKGS LLC (2014)).
Finally, Bascom is not on point, since the elements of “a mobile computing device,” “a depth-frame camera of a mobile computing device,” “an inertial measurement unit of the mobile computing device,” “an inertial measurement unit comprising a gravity sensor,” “a processor of the mobile computing device,” "a non-transitory computer-readable medium storing processor-executable instructions,” “a user interface of the mobile computing device,” “a display of the mobile computing device,” and “a trained convolutional neural network,” all reside within the “mobile computing device,” which was described in the written description of the specification as originally filed on page 12, lines 2-5 as follows:
“In one embodiment, depth information, the gravity sensor, and the gyroscope in the iPhone and other sophisticated mobile phones may be used. The depth frame in many iPhones and some other mobile phones provides information about the distance between the camera and the objects in the picture.”
As such, the Applicant has not invented a new “iPhone” or “other sophisticated mobile phone.” Therefore, no new advancements in technology are being claimed, the argument is not persuasive and the rejection under 35 U.S.C. § 101 is not withdrawn.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT P BULLINGTON whose telephone number is (313)446-4841. The examiner can normally be reached on Mon.-Fri. 8:00-4:00. 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, Peter Vasat, can be reached on (571) 270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Robert P Bullington, Esq./
Primary Examiner, Art Unit 3715
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