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 .
Claims 1-14 are pending.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are “user information acquiring unit,” “item information acquiring unit,” “prediction condition acquiring unit,” “prediction unit,” “output unit,” “avatar generation unit,” “reference movement acquiring unit,” and “evaluation unit” in claims 1-13.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 3-8 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.
Claim 3 recites the acquisition of “exercise data obtained by the user performing the predetermined exercise” followed by a prediction of user movement “based on the exercise data . . . even though the user has not actually performed the predetermined exercise.” The metes and bounds of the claim are unascertainable as a prediction cannot be based on exercise data obtained by a user performing a predetermined exercise when that predetermined exercise was not performed by the user. For the purposes of examination, the claim is interpreted as if “even though the user has not actually performed the predetermined exercise” was deleted.
Claim 4-8 depend on claim 3, inherit its deficiencies without providing sufficient clarifying language, and thus are also rejected.
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 1-14 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 1 recites acquiring item information related to characteristics of a predetermined wearable item; acquiring prediction condition information related to a situation in which a predetermined exercise is performed; predicting a user state as if the user had worn the wearable item and performed the predetermined exercise in the situation, even though the user has not actually performed the predetermined exercise, based on the physical information, the item information, and the prediction condition information; and outputting information related to the user state, which is an abstract
idea reasonably categorized as a mental process (i.e., observation and evaluation of observed information).
The additional elements unencompassed by the abstract idea include an information acquiring unit, an item information acquiring unit, a prediction condition acquiring unit, a prediction unit, and an output unit. These additional elements fail to integrate the abstract idea into a practical application because the additional elements merely serve as generic computer components on which the abstract idea is implemented. See MPEP 2106.05(f).
The claim does not include limitations sufficient, either alone or in combination, to
amount to significantly more than the claimed abstract idea because the aforementioned additional elements merely serve as generic computer components on
which the abstract idea is implemented. See MPEP 2106.05(f).
Claims 2-11 describe further observation and evaluation of data and thus further describe the abstract idea. The claims add the additional elements of an avatar generation unit, reference movement acquiring unit, and evaluation unit which fail to integrate the abstract idea into a practical application or amount to significantly more than the claimed abstract idea because the aforementioned additional elements merely serve as generic computer components on which the abstract idea is implemented. See MPEP 2106.05(f).
Claim 12 recites acquiring physical information of a user; acquiring item information related to characteristics of predetermined wearable items; acquiring prediction condition information related to a situation in which a predetermined exercise is performed; predicting, based on the physical information, the item information, and the prediction condition information, user states for the respective predetermined wearable items as if the user had worn the wearable items and performed the predetermined exercise in the situation, even though the user has not actually performed the predetermined exercise; generating evaluation information regarding the predetermined wearable items based on the predicted user states for the respective predetermined wearable items; generating recommendation information indicating one of the predetermined wearable items for the user to wear based on the evaluation information regarding the predetermined wearable items and outputting the recommendation information, which is an abstract idea reasonably categorized as a mental process (i.e., observation and evaluation of observed information).
The additional elements unencompassed by the abstract idea include a user information acquiring unit, an item information acquiring unit, a prediction condition acquiring unit, a prediction unit, an evaluation unit, a recommendation unit, and an output unit. These additional elements fail to integrate the abstract idea into a practical application because the additional elements merely serve as generic computer components on which the abstract idea is implemented. See MPEP 2106.05(f).
The claim does not include limitations sufficient, either alone or in combination, to
amount to significantly more than the claimed abstract idea because the aforementioned additional elements merely serve as generic computer components on
which the abstract idea is implemented. See MPEP 2106.05(f).
Claim 13 describes further observation and evaluation of data and thus further describes the abstract idea.
Claim 14 recites acquiring item information related to characteristics of a predetermined wearable item; acquiring prediction condition information related to a situation in which a predetermined exercise is performed; predicting a user state as if the user had worn the wearable item and performed the predetermined exercise in the situation, even though the user has not actually performed the predetermined exercise, based on the physical information, the item information, and the prediction condition information; and outputting information related to the user state, which is an abstract
idea reasonably categorized as a mental process (i.e., observation and evaluation of observed information).
The claim consists entirely of an abstract idea and includes no additional elements to evaluate.
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)(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 1-3, 9, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Astrom (WO 2012/036620 A1).
As per claim 1, Astrom discloses a virtual fitting apparatus comprising:
a user information acquiring unit configured to acquire physical information of a user (Astrom Capturing Step 220.);
an item information acquiring unit configured to acquire item information related to a characteristic of a predetermined wearable item (Astrom p. 8 lines 1-9. Tensile stress properties of specified garment.);
a prediction condition acquiring unit configured to acquire prediction condition information related to a situation in which a predetermined exercise is performed (Astrom p. 9 lines 1-6. Predefined common postures.);
a prediction unit configured to predict, based on the physical information, the item information, and the prediction condition information, a user state as if the user had worn the wearable item and performed the predetermined exercise in the situation, even though the user has not actually performed the predetermined exercise (Astrom Simulating Step 260.); and
an output unit configured to output information related to prediction condition used to predict the user state (Astrom Rendering Step 280.).
As per claim 2, Astrom discloses the virtual fitting apparatus according to claim 1, further comprising an avatar generation unit configured to model an avatar based on the physical information and reflects the predicted user state onto the avatar, wherein the output unit is configured to output the avatar (Astrom Rendering Step 280.).
As per claim 3, Astrom discloses the virtual fitting apparatus according to claim 2, wherein:
the user information acquiring unit is further configured to acquire exercise data obtained by the user performing the predetermined exercise (Alstrom p. 9 lines 3-6.);
the virtual fitting apparatus further comprises a reference movement acquiring unit configured to acquire reference movement information defining a standard movement of a person performing the predetermined exercise (Astrom p. 9 lines 1-6. Predefined common postures.);
the prediction unit is configured to predict, based on the item information, the exercise data, and the reference movement information, a user movement as if the user had worn the wearable item and performed the predetermined exercise, even though the user has not actually performed the predetermined exercise (Astrom Simulating Step 260.);
and the avatar generation unit is configured to generate the avatar to represent the user movement (Astrom Rendering Step 280.).
As per claim 9, Astrom discloses the virtual fitting apparatus according to claim 1, further comprising an evaluation unit configured to generate evaluation information on the predetermined wearable item based on the user state, wherein the output unit is further configured to output the evaluation information (Alstrom Simulating/Rendering Steps 260-280, p. 8 lines 1-9. Renderings of after avatar generated based on clothing properties and user positions demonstrate how clothing will fit and look after break in.).
As per claim 14, Astrom discloses a virtual fitting method comprising:
acquiring physical information on a user (Astrom Capturing Step 220.);
acquiring item information related to characteristics of a predetermined wearable item (Astrom p. 8 lines 1-9. Tensile stress properties of specified garment.);
acquiring prediction condition information related to a situation in which a predetermined exercise is performed (Astrom p. 9 lines 1-6. Predefined common postures.);
predicting a user state as if the user had worn the wearable item and performed the predetermined exercise in the situation, even though the user has not actually performed the predetermined exercise, based on the physical information, the item information, and the prediction condition information (Astrom Simulating Step 260.); and
outputting information related to the user state (Astrom Rendering Step 280.).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 10, 12, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Astrom (WO 2012/036620 A1) in view of Bleicher (US 11,763,365 B2).
As per claim 10, Astrom discloses the limitations of claim 9 as discussed above. Astrom does not explicitly disclose, however, Bleicher discloses wherein:
the user information acquiring unit is further configured to acquire preference information related to a preference of the user regarding wearable items to wear (Bleicher c2, l11-13.); and
the evaluation unit is further configured to generates the evaluation information further based on the preference information (Bleicher c2, l14-25. Avatar and profile data matched to product data to make item recommendations and generate avatar.).
Both Astrom and Bleicher involve personalizing clothing fits to a user based on the user’s body. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add Bleicher’s features to Astrom with the motivation to better generate personalized product recommendations (Bleicher c1, l 59.).
Furthermore, all of the claimed elements were known in the prior art of Astrom and Bleicher and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art before the effective filing date of the claimed invention.
As per claim 12, Astrom discloses a user information acquiring unit configured to acquire physical information of a user (Astrom Capturing Step 220.);
an item information acquiring unit configured to acquire item information related to characteristics of predetermined wearable items (Astrom p. 8 lines 1-9. Tensile stress properties of specified garment.);
a prediction condition acquiring unit configured to acquire prediction condition information related to a situation in which a predetermined exercise is performed (Astrom p. 9 lines 1-6. Predefined common postures.);
a prediction unit configured to predict, based on the physical information, the item information, and the prediction condition information, user states for the respective predetermined wearable items as if the user had worn the wearable items and performed the predetermined exercise in the situation, even though the user has not actually performed the predetermined exercise (Astrom Simulating Step 260. Set of garments may be selected by client for simulation.)
Astrom does not explicitly disclose, however, Bleicher discloses an evaluation unit configured to generate evaluation information regarding the predetermined wearable items based on the predicted user states for the respective predetermined wearable items; a recommendation unit configured to generate recommendation information indicating one of the predetermined wearable items for the user to wear based on the evaluation information regarding the predetermined wearable items; and
an output unit configured to output the recommendation information (Bleicher c2, l14-25. Avatar and profile data matched to product data to make item recommendations and generate avatar.).
Both Astrom and Bleicher involve personalizing clothing fits to a user based on the user’s body. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add Bleicher’s features to Astrom with the motivation to better generate personalized product recommendations (Bleicher c1, l 59.).
Furthermore, all of the claimed elements were known in the prior art of Astrom and Bleicher and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art before the effective filing date of the claimed invention.
As per claim 13, Astrom in view of Bleicher discloses the limitations of claim 12 as discussed above. Astrom does not explicitly disclose, however Bleicher discloses wherein: the user information acquiring unit is further configured to acquire preference information related to a preference of the user regarding wearable items (Bleicher c2, l11-13.); and the evaluation unit generates the evaluation information based on the preference information in addition to the predicted user states for the respective predetermined wearable items (Bleicher c2, l14-25. Avatar and profile data matched to product data to make item recommendations and generate avatar.).
Both Astrom and Bleicher involve personalizing clothing fits to a user based on the user’s body. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add Bleicher’s features to Astrom with the motivation to better generate personalized product recommendations (Bleicher c1, l 59.).
Furthermore, all of the claimed elements were known in the prior art of Astrom and Bleicher and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art before the effective filing date of the claimed invention.
Novelty/Nonobviousness
Claims 4-8 and 11 overcome the prior art of record and would be allowable but for rejections under 35 USC §§ 101 and 112.
Conclusion
The prior art made of record and not relied upon is considered pertinent to
Applicant's disclosure. Please see PTO-892.
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JEFF ZIMMERMAN
Supervisory Patent Examiner
Art Unit 3628
/JEFF ZIMMERMAN/Supervisory Patent Examiner, Art Unit 3628