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
Claims 1, 3, 11, and 17 are amended and claims 2, 14-16 and 18-20 are cancelled. Claims 1, 3-13, and 17 filed April 1, 2026 are pending and are hereby examined.
Double Patenting
3. 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).
4. 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).
5. 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.
6. 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.
7. Claims 1, 3-13, and 17 are rejected on the ground of provisional nonstatutory double patenting as being unpatentable over claims 21-25, 28-31, 33-39, and 41 of U.S. Patent 10,339,495. In fact, the ‘495 patent is more detailed and more specific and encompasses almost all of the elements of the broader, current ‘187 application as seen below.
8. This is an obviousness nonstatutory double patenting rejection because although the conflicting claims are not identical, they are not patentably distinct from each other because the claimed limitations from the present application and U.S. Patent 10,339,495 above are significantly similar and the claimed features seem to be identical with various obvious alternate methods. The omission of an element with a corresponding loss of function is an obvious expedient. See In re Karlson, 136 USPQ 184 and Ex parte Rainu, 168 USPQ 375. For these reasons, claims 1, 3-13, and 17 of the instant application are not identical to claims 21-25, 28-31, 33-39, and 41 of U.S. Patent 10,339,495, but they are not patentably distinct.
Claim Rejections - 35 USC § 103
9. 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 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.
10. 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.
11. 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.
12. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
13. Claims 1 and 3-10 are rejected under 35 U.S.C. 103 as being unpatentable over Wiese et al (2013/0002422) in view of Siciliano et al (2014/0043162) and Siegel et al (US 2009/0248198).
14. Re Claim 1: Wiese discloses comprising:
a mechanism configured to move upon removal of one or more display products from the display management system (see [0019] and Fig. 1 describe product pusher device 500 and pushing member 510);
a sensor device configured to output motion data responsive to a motion of the pusher (see [0022-0023] and Fig. 2A sensor 610 detects movement of pusher member 510, possibly via movement of products in physical contact with pusher member 10);
a control circuit, configured to receive the motion data, wherein the control circuit, in response to the received motion data exceeding a threshold value, is further configured to communicate the received motion data to a remote processor (see [0024] and Fig. 2A, monitoring device 108, equivalent to control circuit, changes in state of switch may be detected by processor, and processor configured to analyze signals received via contact switch to determine product movement activity type, [0037] product movement activity template may define threshold number of products and threshold amount of time, if signals provided by sensor indicates product movement activity template is “true” then theft sweep event activity type may be determined, and pusher activity message may be transmitted to server, [0064] also discloses pusher activity manager 54 configured to determine if product movement activity type is a theft sweep event involving removal of at least threshold number of products within threshold duration of time based on representation of distance that pusher member has moved over period of time);
a non-transitory computer-readable medium comprising computer-executable instructions that when executed by the remote processor cause the remote processor to perform at least (see [0053] and Fig. 4 monitoring device 108 includes memory device 44 which may be non-transitory electronic storage device, and memory device 44 may be configured to store instructions for execution by processor 28):
calculate, from the motion data, a current position of the mechanism (see [0033] monitoring device 108 able to measure current pusher displacement distance relative to rest position);
and calculate, based on the position of the pusher, a number of products removed from the display management system (see [0031] and Fig. 2B sensor 610 may be positioned and configured to detect distance and direction that pusher member 510 has moved and processor may analyze sensor signals to determine, based on respective movement activity template, whether a product has been removed or inserted, and how many products have been removed or inserted);
and calculate, from the motion data, a product removal pattern from the display management system (see [0026] processor monitoring device 10 configured to determine any number of product movement activity types based on signal characteristics provided by sensor 610 including removal of product activity type, insertion of product activity type, and last product removed/out-of-stock activity type, thereby 3 patterns).
However, Wiese fails to explicitly disclose a remote processor. Meanwhile, Siciliano teaches:
a remote processor (see [0044, 0058] disclose remote computing device which inherently has remote processor).
From the teaching of Siciliano, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s teaching of a remote processor in order “… for monitoring inventory and aiding in theft prevention (see Siciliano Abstract).”
However, Wiese and Siciliano fail to disclose the following. Meanwhile, Siegel teaches comprising:
a front rail, the front rail configured to be removably-coupled to a display surface with a front rail length of the front rail parallel to a front edge of the display surface (see [0051-0054] and Figs. 3-5 discloses pair of rails 68, equivalent to front rail, front rail 64 includes base plate 122 and front wall 124, equivalent to front end of front rail);
a divider, the divider having a front end configured to be removably-coupled to the front rail, a back end, and a floor structure spaced between the front end and the back end along a divider length (see Fig. 5, each track unit 60 included divider 132 that separates product packages);
a coiled spring, the coiled spring having a first end coupled to the front end of the divider and a second end coupled to the pusher, wherein the coiled spring is configured to urge the pusher from the back end of the divider to the front end of the divider along the divider length (see Fig. 3, pusher 66 urged toward front wall 64 by means of coil spring 80).
From the teaching of Siegel, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s teaching of a remote processor, and Siegel’s disclosure of rails, a divider, and coiled spring in order for “inventory control, the prevention of out-of-stock situations, and the assessment of activity indicative of theft or accident… (see Siegel Abstract).”
15. Re Claim 3: However, Wiese fails to disclose the following. Meanwhile, Siciliano teaches wherein the sensor is a capacitive sensor, the capacitive sensor further comprising a capacitive circuit board configured to be positioned along the floor structure, wherein a signal output of the capacitive sensor is indicative of a position of the pusher on the floor structure (see [0054, 0064] and Figs. 3, 10 where sensor strip 90 may be capacitive, electrical contact on base of contact pad 92 of pusher 66 comprises first electrode, while sensor strip 90 may comprise series of second electrodes, with circuit upon circuit board determining capacitance between them to determine location of pusher 66). From the teaching of Siegel, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s teaching of a capacitive sensor in order for “inventory control, the prevention of out-of-stock situations, and the assessment of activity indicative of theft or accident… (see Siegel Abstract).”
16. Re Claim 4: However, Wiese fails to disclose the following. Meanwhile, Siciliano teaches wherein a signal output from the capacitive sensor is proportional to a capacitance value based upon an uncoiled length of the coiled spring along the capacitive circuit board (see [0054, 0064] and Figs. 3, 10 where sensor strip 90 may be capacitive, electrical contact on base of contact pad 92 of pusher 66 comprises first electrode, while sensor strip 90 may comprise series of second electrodes, with circuit upon circuit board determining capacitance between them to determine location of pusher 66). From the teaching of Siegel, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s teaching of a capacitive sensor in order for “inventory control, the prevention of out-of-stock situations, and the assessment of activity indicative of theft or accident… (see Siegel Abstract).”
17. Re Claim 5: Wiese discloses wherein communication between the control circuit and the remote processor is via a wireless network (see [0028] wireless transmission to server).
18. Re Claim 6: Wiese discloses wherein the wireless network utilizes an industrial, scientific and medical (ISM) radio band (see [0043, 0056] discloses different wireless networks and different bandwidths).
19. Re Claim 7: Wiese discloses wherein the non-transitory computer- readable medium further comprises computer-executable instructions that when executed by the remote processor further cause the remote processor to:
compare a previous position of the pusher to the current position;
and calculate, based on the comparison of the previous position to the current position, a depth of a product displayed in the display management system (see [0033] monitoring device 108 able to measure current pusher displacement distance relative to rest position, monitoring device 108 configured to divide current pusher displacement distance by number of products to determine product width).
20. Re Claim 8: Wiese discloses wherein the non-transitory computer- readable medium further comprises computer-executable instructions that when executed by the remote processor further cause the remote processor to: receive, in response to the motion data exceeding the threshold value, sensor data from a sensor (see [0022-0023] and Fig. 2A sensor 610 detects movement of pusher member 510, possibly via movement of products in physical contact with pusher member 10). However, Wiese fails to disclose a second sensor. Meanwhile, Siciliano discloses a plurality of sensors, or a second sensor (see [0043] sensors interface with display and inventory management, [0045] display terminal 124 and related sensors/electronics with display case 100 calculates updated number of cigarettes in stock). From the teaching of Siciliano, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s disclosure of a plurality of sensors in order “… for monitoring inventory and aiding in theft prevention (see Siciliano Abstract).”
21. Re Claim 9: Although Wiese discloses a camera [0052], it does not disclose the following. Meanwhile, Siciliano discloses a second sensor in communication with the control circuit, and wherein the second sensor is a camera (see [0043] sensors interface with display and inventory management, [0045] display terminal 124 and related sensors/electronics with display case 100 calculates updated number of cigarettes in stock, [0039] discloses a camera). From the teaching of Siciliano, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s disclosure of a plurality of sensors in order “… for monitoring inventory and aiding in theft prevention (see Siciliano Abstract).”
22. Re Claim 10: However, Wiese fails to disclose the following. Meanwhile, Siciliano teaches wherein the second sensor is a transceiver, and wherein the non-transitory computer-readable medium further comprises computer-executable instructions that when executed by the remote processor further cause the remote processor to: receive, via the transceiver, one or more pieces of biographic information from a mobile device carried by a person removing the one or more display products from the display management system (see [0060] smart phone communicates with display terminal about inventory status and alarm events, see [0050-0051] personnel identification using biometric devices such as a nametag, which would identify the name and gender of the person and approximate age). From the teaching of Siciliano, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s disclosure of a remote processor in order “… for monitoring inventory and aiding in theft prevention (see Siciliano Abstract).”
Meanwhile, Siegel discloses wherein the second sensor is a transceiver, and wherein the non-transitory computer-readable medium further comprises computer- executable instructions that when executed by the remote processor further cause the remote processor to: receive, via the transceiver, one or more pieces of biographic information from a mobile device carried by a person removing the one or more display products from the display management system in response to the motion data exceeding the threshold value (see [0046-0047] discloses transceiver). From the teaching of Siegel, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s disclosure of a remote processor and Siegel’s disclosure of a transceiver in order for “inventory control, the prevention of out-of-stock situations, and the assessment of activity indicative of theft or accident… (see Siegel Abstract).”
23. Claims 11-13 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Wiese et al (2013/0002422) in view of Siciliano et al (2014/0043162), and in further view of Phillips et al (2015/0091729).
24. Re Claim 11: Wiese discloses comprising:
… configured to be pivoted from a closed position to an open position to permit removal of one or more display products from the display management system (see [0019] and Fig. 1 describe product pusher device 500 and pushing member 510);
a sensor device including an accelerometer coupled to… and configured to output motion data responsive to a motion of the… (see [0022-0023] and Fig. 2A sensor 610 detects movement of pusher member 510, possibly via movement of products in physical contact with pusher member 10, [0062] accelerometer);
a transmitter circuit, configured to transmit the motion data to a remote processor and a non-transitory computer-readable medium comprising computer-executable instructions that when executed by the remote processor cause the remote processor to perform at least (see [0024] and Fig. 2A, monitoring device 108, equivalent to control circuit, changes in state of switch may be detected by processor, and processor configured to analyze signals received via contact switch to determine product movement activity type, [0037] product movement activity template may define threshold number of products and threshold amount of time, if signals provided by sensor indicates product movement activity template is “true” then theft sweep event activity type may be determined, and pusher activity message may be transmitted to server, [0064] also discloses pusher activity manager 54 configured to determine if product movement activity type is a theft sweep event involving removal of at least threshold number of products within threshold duration of time based on representation of distance that pusher member has moved over period of time, see [0053] and Fig. 4 monitoring device 108 includes memory device 44 which may be non-transitory electronic storage device, and memory device 44 may be configured to store instructions for execution by processor 28):
calculate, from the motion data, a current position of the mechanism (see [0033] monitoring device 108 able to measure current pusher displacement distance relative to rest position);
and calculate, from the motion data, a product removal pattern from the display management system (see [0031] and Fig. 2B sensor 610 may be positioned and configured to detect distance and direction that pusher member 510 has moved and processor may analyze sensor signals to determine, based on respective movement activity template, whether a product has been removed or inserted, and how many products have been removed or inserted);
and calculate, from the motion data, a product removal pattern from the display management system (see [0026] processor monitoring device 10 configured to determine any number of product movement activity types based on signal characteristics provided by sensor 610 including removal of product activity type, insertion of product activity type, and last product removed/out-of-stock activity type, thereby 3 patterns).
However, Wiese fails to explicitly disclose a remote processor. Meanwhile, Siciliano teaches:
a remote processor (see [0044, 0058] disclose remote computing device which inherently has remote processor).
From the teaching of Siciliano, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s teaching of a remote processor in order “… for monitoring inventory and aiding in theft prevention (see Siciliano Abstract).”
However, Wiese and Siciliano fail to disclose the following. Meanwhile, Phillips teaches:
wherein the mechanism is a flip window (see [0040] discloses a window). From the teaching of Phillips, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s disclosure of a remote processor and Phillips’s disclosure of a flip window in order for “… protecting retail display merchandise from theft… (see Phillips Abstract).”
25. Re Claim 12: Wiese discloses wherein the calculation of the product removal pattern further comprises an estimation of a number of products being removed from the display management system (see [0031] and Fig. 2B sensor 610 may be positioned and configured to detect distance and direction that pusher member 510 has moved and processor may analyze sensor signals to determine, based on respective movement activity template, whether a product has been removed or inserted, and how many products have been removed or inserted. To make these determinations, monitoring device 108 may first need to be calibrated for size of products that are being stocked in product pusher device 500. [0032] determines the current pusher displacement distance 700. [0033] provides monitoring device 108 with count of number of products currently stocked in product pusher device 500 and monitors the current pusher displacement distance by number of products to determine product width 710, hence the number of products). However, Wiese fails to explicitly disclose a product removal pattern. Meanwhile, Siciliano discloses a product removal pattern (see [0041] digital camera that detects colors and patterns unique to particular style of tobacco product in order to identify and detect when a tobacco product is removed from shelf 112). From the teaching of Siciliano, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s disclosure of a plurality of sensors in order “… for monitoring inventory and aiding in theft prevention (see Siciliano Abstract).”
26. Re Claim 13: Wiese discloses wherein if the calculation of the product removal pattern estimates that the number of products being removed is above a removal rate threshold, the computer-executable instructions further cause the remote processor to perform at least: identifying the product removal pattern as a potential attempted theft (see [0037] It discloses a threshold number of products and threshold amount of time, which inherently would give you the threshold rate, if signals provided by sensor indicates product movement activity template is “true” then theft sweep event activity type may be determined, and pusher activity message may be transmitted to server such as sending notifications. [0064] also discloses pusher activity manager 54 configured to determine if product movement activity type is a theft sweep event involving removal of at least threshold number of products within threshold duration of time based on representation of distance that pusher member has moved over period of time). However, Wiese fails to explicitly disclose a product removal pattern. Meanwhile, Siciliano discloses a product removal pattern (see [0041] digital camera that detects colors and patterns unique to particular style of tobacco product in order to identify and detect when a tobacco product is removed from shelf 112). From the teaching of Siciliano, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify Wiese’s wireless shelf pusher activity detection system with Siciliano’s disclosure of a plurality of sensors in order “… for monitoring inventory and aiding in theft prevention (see Siciliano Abstract).”
27. Re Claim 17: Wiese discloses wherein the non-transitory computer- readable medium further comprises computer-executable instructions that when executed by the remote processor further cause the remote processor to: automatically determine a zeroed position of the mechanism after removal a predetermined number of products from the display management system see [0033] monitoring device 108 able to measure current pusher displacement distance relative to rest position, where rest position is zeroed position).
Examiner Notes
28 The Examiner suggests clarifying what kind of mechanism and sensor device is being used, and exactly is motion data. The Examiner suggests incorporating the elements of claim 11 into claim 1, and vice versa. The Examiner suggests incorporating dependent claims 4 (dependent on 3 and 2), 5, 7, 9, 10, 13 (dependent on 12), and 17 together into the independent claims. The Examiner suggests filing a terminal disclaimer to help obviate the double patenting rejection.
29. Finally, the Examiner suggests incorporating more hardware from the Specification and any unique arrangements of hardware, unique hardware, or unique ways the hardware is communicating. The aforementioned claim suggestions, in combination together, is suggested to help advance prosecution forward, although further search, examination, and consideration is required.
Response to Arguments
30. Applicant's arguments filed 4/1/26 have been fully considered but they are not persuasive as the new claim amendments have been addressed above with respect to the 35 U.S.C. 103 rejection. However, with respect to the 35 U.S.C. 101 rejection, the new claim amendments and arguments overcome the rejection, therefore the 35 U.S.C. 101 rejection is hereby withdrawn.
Conclusion
31. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Chen et al (Mobile augmented reality for books on a shelf, NPL) is found to be the most pertinent NPL prior art.
32. 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).
33. 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
34. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FAWAAD HAIDER whose telephone number is (571)272-7178. The examiner can normally be reached Mon-Fri 8 AM to 5 PM.
35. 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.
36. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Florian Zeender can be reached on 571-272-6790. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/FAWAAD HAIDER/Primary Examiner, Art Unit 3627
Prosecution Insights