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 .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-5 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more.
According to the USPTO guidelines, a claim is directed to non-statutory subject matter if:
STEP 1: the claim does not fall within one of the four statutory categories of invention (process, machine, manufacture or composition of matter), or
STEP 2: the claim recites a judicial exception, e.g. an abstract idea, without reciting additional elements that amount to significantly more than the judicial exception, as determined using the following analysis:
STEP 2A (PRONG 1): Does the claim recite an abstract idea, law of nature, or natural phenomenon?
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application?
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
Using the two-step inquiry, it is clear that Claims 1-5 are directed to an abstract idea as shown below:
STEP 1: Do the claims fall within one of the statutory categories (i.e. process, a computer readable medium, i.e. a system)? YES. Claims 1-5 are directed to an apparatus.
STEP 2A (PRONG 1): Is the claim directed to a law of nature, a natural phenomenon or an abstract idea? YES, the claims are directed towards an abstract idea – mental process.
With regard to STEP 2A (PRONG 1), the guidelines provide three groupings of subject matter that are considered abstract ideas:
- Mathematical concepts — mathematical relationships, mathematical formulas or equations, mathematical calculations;
- Certain methods of organizing human activity — fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations
- Mental processes – concepts that are practicably performed in the human mind (including an observation, evaluation, judgement, opinion).
The claim(s) recite(s):
Regarding Claim 1, the claim recites an image measuring apparatus comprising:
a mounting table on which a measurement object is placed (see step 2A prong 2 – insignificant extra solution activity);
an image capturing unit disposed opposite the mounting table and captures an image of the measurement object (see step 2A prong 2 – insignificant extra solution activity/ mere data gathering step);
a memory unit that stores at least the shape of the measurement object and the measurement method corresponding to the measurement object, associated with each other (mental process including observation, evaluation, and judgement and can be done practically in the human mind or by a human using pen and paper); and
a control unit that controls the image measuring apparatus (see step 2A prong 2 – additional element using a computer as a tool to perform an abstract idea), wherein the control unit comprises:
a placement judging unit that judges whether or not the measurement object is placed on the mounting table in a state ready for measurement based on the image captured by the image capturing unit (mental process including observation, evaluation, and judgement and can be done practically in the human mind); and
a measurement performing unit that selects a measurement method corresponding to the measurement object based on the shape of the measurement object appearing in the image and performs the measurement, when the placement judging unit judges that the measurement object is placed in a state ready for measurement (mental process including observation, evaluation, and judgement and can be done practically in the human mind or by a human using pen and paper).
Regarding Claim 2, the claim recites the image measuring apparatus according to claim 1, wherein the placement judging unit constantly monitors changes in the image acquired from the image capturing unit, detects whether the image has changed from a fluctuating state to a stationary state, and determines that the measurement object has been placed in a state ready for measurement if the measurement object appears in the image in the stationary state in a state ready for measurement (mental process including observation, evaluation, and judgement and can be done practically in the human mind), and
wherein the measurement performing unit divides the measurement into several measurement processes and performs the measurement processes sequentially, each time the measurement process is executed, the measurement performing unit determines whether or not an interrupt termination event is received, and if an interrupt termination event is received, terminates the measurement in progress (mental process including observation, evaluation, and judgement and can be done practically in the human mind. Examiner notes a human mentally estimating a measurement can be interrupted).
Regarding Claim 3, the claim recites the image measuring apparatus according to claim 1, wherein the measurement performing unit performs measurement for each measurement object when multiple measurement objects appear in the image acquired from the image capturing unit (mental process including observation, evaluation, and judgement and can be done practically in the human mind).
Regarding Claim 4, the claim recites the image measuring apparatus according to claim 2, wherein the memory unit stores the shape and measurement method for multiple types of measurement objects correspondingly (mental process including observation, evaluation, and judgement and can be done practically in the human mind or by a human using pen and paper), and when several types of measurement objects appear in the image acquired from the image capturing unit, the measurement performing unit selects the measurement methods corresponding to the respective measurement objects based on the shape of the respective measurement objects and performs the measurements (mental process including observation, evaluation, and judgement and can be done practically in the human mind).
Regarding Claim 5, the claim recites the image measuring apparatus according to claim 1, wherein the placement judging unit continuously monitors changes in the image acquired from the image capturing unit and detects whether or not the image has changed from a fluctuating state to a stationary state (mental process including observation, evaluation, and judgement and can be done practically in the human mind), and determines that the measurement object has been placed in a state ready for measurement if the measurement object appears in the image in the stationary state ready for measurement (mental process including observation, evaluation, and judgement and can be done practically in the human mind).
These limitations, as drafted, is a simple process that, under their broadest reasonable interpretation, covers performance of the limitations in the mind or by a human. The Examiner notes that under MPEP 2106.04(a)(2)(III), the courts consider a mental process (thinking) that “can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same). The mere nominal recitation that the various steps are being executed by a device/in a device (e.g. processing unit) does not take the limitations out of the mental process grouping.
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application? NO, the claims do not recite additional elements that integrate the judicial exception into a practical application.
With regard to STEP 2A (prong 2), whether the claim recites additional elements that integrate the judicial exception into a practical application, the guidelines provide the following exemplary considerations that are indicative that an additional element (or combination of elements) may have integrated the judicial exception into a practical application:
an additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to affect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses 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.
While the guidelines further state that the exemplary considerations are not an exhaustive list and that there may be other examples of integrating the exception into a practical application, the guidelines also list examples in which a judicial exception has not been integrated into a practical application:
an additional element merely recites the words “apply it” (or an equivalent) with the judicial exception, or merely includes instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea;
an additional element adds insignificant extra-solution activity to the judicial exception; and
an additional element does no more than generally link the use of a judicial exception to a particular technological environment or field of use.
Claims 1-5 do not recite any of the exemplary considerations that are indicative of an abstract idea having been integrated into a practical application.
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception? NO, the claims do not recite additional elements that amount to significantly more than the judicial exception.
With regard to STEP 2B, whether the claims recite additional elements that provide significantly more than the recited judicial exception, the guidelines specify that the pre-guideline procedure is still in effect. Specifically, that examiners should continue to consider whether an additional element or combination of elements:
adds a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present; or
simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present.
Claims 1-5 do not recite any additional elements that are not well-understood, routine or conventional.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Shimizu (US 6816609 B1) in view of Tsutsumi (CN111753837A).
Regarding Claim 1, Shimizu teaches an image measuring apparatus comprising:
a mounting table on which a measurement object is placed ([abstract]: images of a plurality of workpieces placed on a stage are captured using a CCD camera);
an image capturing unit disposed opposite the mounting table and captures an image of the measurement object ([abstract]: images of a plurality of workpieces placed on a stage are captured using a CCD camera, see Fig. 1 camera unit 18 opposite to the stage 13);
a memory unit that stores at least the shape of the measurement object and the measurement method corresponding to the measurement object, associated with each other ([0021]: device recognizes a shape element of a measurement object image in a measurement section, and selectively executes a suitable measurement program according to the results of recognition processing, [0015]: as described above, a part program is composed by storing information of a measurement procedure for one sample, taught by an operator, as well as information on a workpiece position, shape, and so on, …a part program file can be pre-stored in the program memory 39, so that a desired part program can be later designated, using the part program window section 106, by selecting a desired program from a plurality of part programs stored in the memory 39); and
a control unit that controls the image measuring apparatus ([0008]: main image measuring program executed in the CPU), wherein the control unit comprises:
a measurement performing unit that selects a measurement method corresponding to the measurement object based on the shape of the measurement object appearing in the image and performs the measurement ([0015]: as described above, a part program is composed by storing information of a measurement procedure for one sample, taught by an operator, as well as information on a workpiece position, shape, and so on, …a part program file can be pre-stored in the program memory 39, so that a desired part program can be later designated, using the part program window section 106, by selecting a desired program from a plurality of part programs stored in the memory 39),
Shimizu does not explicitly teach a placement judging unit that judges whether or not the measurement object is placed on the mounting table in a state ready for measurement based on the image captured by the image capturing unit; and,
performs the measurement, when the placement judging unit judges that the measurement object is placed in a state ready for measurement.
Tsutsumi teaches a placement judging unit that judges whether or not the measurement object is placed on the mounting table in a state ready for measurement based on the image captured by the image capturing unit ([pg. 8, paragraph 6]: discrimination unit 33 detects that the commodity S is placed on the weighing table 21a of the weighing device 2 based on the target image data output from the input unit 32. Specifically, the discrimination unit 33 detects that the product S is placed based on the difference (background difference) between the target image data output from the input unit 32 and the base image (background image) stored in advance, [pg.8, paragraph 7]: determination unit 33 determines whether the placement of the product S has been stabilized, for example, by the inter-frame difference method of continuous target image data); and,
performs the measurement, when the placement judging unit judges that the measurement object is placed in a state ready for measurement ([pg. 8, paragraph 7]: when it is determined that the placement of the product S has been stabilized, the determination unit 33 determines the product S based on the image in the target image data determined to be stable).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to have modified the teachings of Shimizu to include the teachings of Tsutsumi by including a judgement of whether or not an object is stable before performing a measurement of an object. Doing so would improve the accuracy of the measurement.
Regarding Claim 2, the Shimizu and Tsutsumi combination teaches the image measuring apparatus according to claim 1. Shimizu teaches
wherein the measurement performing unit divides the measurement into several measurement processes and performs the measurement processes sequentially ([0049]: invention may also comprise an automatic workpiece exchanger for automatically exchanging workpieces. This enables unmanned successive operations, [0050]: correlate each of a plurality of measurement sections in a plurality of sections to each of a plurality of measurement objects, set a measurement condition to each of the plurality of measurement sections, and measure for each of the plurality of measurement sections according to the measurement condition), each time the measurement process is executed, the measurement performing unit determines whether or not an interrupt termination event is received, and if an interrupt termination event is received, terminates the measurement in progress ([0028]: tolerance comparison result may preferably be expressed as "pass" for within tolerance, "fail" for out of tolerance, and "error" for incapable measurement…a process to apply upon error or failure may preferably include "retry" in addition to default "skip to the next". "Halt part program" may also be an alternative).
In addition, Tsutsumi teaches wherein the placement judging unit constantly monitors changes in the image acquired from the image capturing unit, detects whether the image has changed from a fluctuating state to a stationary state ([pg. 8, paragraph 7]: the determination unit 33 determines whether the placement of the product S has been stabilized, for example, by the inter-frame difference method of continuous target image data), and determines that the measurement object has been placed in a state ready for measurement if the measurement object appears in the image in the stationary state in a state ready for measurement ([pg. 8, paragraph 7]: when it is determined that the placement of the product S has been stabilized, the determination unit 33 determines the product S based on the image in the target image data determined to be stable).
Regarding Claim 3, the Shimizu and Tsutsumi combination teaches the image measuring apparatus according to claim 1. In addition, Shimizu teaches wherein the measurement performing unit performs measurement for each measurement object when multiple measurement objects appear in the image acquired from the image capturing unit ([abstract]: In this machine and method for measuring a plurality of workpieces, images of a plurality of workpieces placed on a stage are captured using a CCD camera. The images are processed by a computer system whereby the workpieces are measured).
Regarding Claim 4, the Shimizu and Tsutsumi combination teaches image measuring apparatus according to claim 2. In addition, Shimizu teaches wherein the memory unit stores the shape and measurement method for multiple types of measurement objects correspondingly ([0015]: as described above, a part program is composed by storing information of a measurement procedure for one sample, taught by an operator, as well as information on a workpiece position, shape, and so on, …a part program file can be pre-stored in the program memory 39, so that a desired part program can be later designated, using the part program window section 106, by selecting a desired program from a plurality of part programs stored in the memory 39), and when several types of measurement objects appear in the image acquired from the image capturing unit, the measurement performing unit selects the measurement methods corresponding to the respective measurement objects based on the shape of the respective measurement objects and performs the measurements ([0021]: the processing device may preset a measuring program for each shape to be executed for every shape element. The processing device recognizes a shape element of a measurement object image in a measurement section, and selectively executes a suitable measurement program according to the results of recognition processing).
Regarding Claim 5, the Shimizu and Tsutsumi combination teaches the image measuring apparatus according to claim 1. In addition, Tsutsumi teaches wherein the placement judging unit continuously monitors changes in the image acquired from the image capturing unit and detects whether or not the image has changed from a fluctuating state to a stationary state, and determines that the measurement object has been placed in a state ready for measurement if the measurement object appears in the image in the stationary state ready for measurement ([pg.8, paragraph 6]: discrimination unit 33 detects that the commodity S is placed on the weighing table 21a of the weighing device 2 based on the target image data output from the input unit 32. Specifically, the discrimination unit 33 detects that the product S is placed based on the difference (background difference) between the target image data output from the input unit 32 and the base image (background image) stored in advance, [pg. 8, paragraph 7]: determination unit 33 determines whether the placement of the product S has been stabilized, for example, by the inter-frame difference method of continuous target image data…when it is determined that the placement of the product S has been stabilized, the determination unit 33 determines the product S based on the image in the target image data determined to be stable).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE VAZ whose telephone number is (703)756-4685. The examiner can normally be reached Monday-Friday 9:00-5:00pm.
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/JANICE E. VAZ/Examiner, Art Unit 2667
/MATTHEW C BELLA/Supervisory Patent Examiner, Art Unit 2667
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