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 therefore, subject to the conditions and requirements of this title.
Claim(s) 1-18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The limitations, under their broadest reasonable interpretation, cover mental process (concept performed in a human mind, including observation, evaluation, judgment, opinion, organizing human activity and mathematical concepts and calculations). The independent claim(s) 1, 7 and 13 recite a method, a CRM and a system. This judicial exception is not integrated into a practical application because the steps do not add meaningful limitations to be considered specifically applied to a particular technological problem to be solved .The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the steps of the claimed invention can be done mentally and no additional features in the claims would preclude them from being performed as such except for the generic computer elements at high level of generality (i.e., processor, memory).
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 the independent claims 1, 7 and 13 are directed to an abstract idea as shown below:
STEP 1: Do the claims fall within one of the statutory categories? YES. Independent claims 1, 7 and 13 are directed to a method, CRM and system.
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 toward a mental process (i.e. abstract idea).
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; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions); and
Mental processes – concepts that are practicably performed in the human mind (including an observation, evaluation, judgment, opinion).
Independent claims 1, 7 and 13 comprise a mental process that can be practicably performed in the human mind (or generic computers or components configured to perform the method) and, therefore, an abstract idea.
Regarding independent claim(s) 1, 7 and 13: the limitations recite:
[curating said received videos into video clips containing said facial expressions, said audio information, and said gestural demonstrations] (mental process including observation and evaluation, and can be done mentally in the human mind)
[receiving a label of an emotion for each curated video clip; assigning said label of emotion to said each curated video clip with its received label of emotion] (mental process including observation and evaluation, and can be done mentally 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).
As such, a person could mentally view videos on a computer, cut or edit videos into smaller clips and assign emotion labels to those video clips. The mere nominal recitation that the various steps are being executed by a generic computer component(s), for example, processor, device, memory, etc. does not take the limitations out of the mental process grouping. Thus, the claims recite a mental process.
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.
Independent claims 1, 7 and 13 do not recite any of the exemplary considerations that are indicative of an abstract idea having been integrated into a practical application. Independent claims 1, 7 and 13 disclose, for example, electronic device, memory, processor and a non-transitory computer-readable storage medium and insignificant pre/post solution activities of receiving videos and storing labeled video clips, which are generic computer components and/or insignificant pre/post-solution extra activity that do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea in a method, CRM and system.
These limitations are recited at a high level of generality (i.e. as a general action or change being taken based on the results of the acquiring step) and amounts to mere post solution actions, which is a form of insignificant extra-solution activity. Further, the claims are claimed generically and are operating in their ordinary capacity such that they do not use the judicial exception in a manner that imposes a meaningful limit on the judicial exception. Accordingly, even in combination, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea.
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.
Independent claim(s) 1, 7 and 13 do not recite any additional elements that are not well-understood, routine or conventional. The use of a generic computer elements are routine, well-understood and conventional process that is performed by computers.
Thus, since independent claims 1, 7 and 13 are: (a) directed toward an abstract idea, (b) do not recite additional elements that integrate the judicial exception into a practical application, and (c) do not recite additional elements that amount to significantly more than the judicial exception, it is clear that independent claims 1, 7 and 13 are not eligible subject matter under 35 U.S.C 101.
Regarding claim 2: the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process. The limitation(s): [wherein said label of emotion for said each curated video clip is received from one or more users who are not demonstrating said emotion] are mental processes including observation and evaluation, and can be done mentally in the human mind.
Regarding claim 3: the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process. The limitation(s): [wherein said label of emotion is assigned to said each curated video clip to identify one of seven emotions.] are mental processes including observation and evaluation, and can be done mentally in the human mind.
Regarding claim 4: the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process. The limitation(s): [wherein said seven emotions comprise angry, disgusted, fearful, happy, neutral, sad, and surprised.] are mental processes including observation and evaluation and can be done mentally in the human mind.
Regarding claim 5: the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process. The limitation(s): [wherein said emotion portrayal database is used to train a machine learning model to identify emotions from inputted video clips] are insignificant pre/post-solution extra activity of generating data.
Regarding claim 6: the additional limitations do not integrate the mental process into practical application or add significantly more to the mental process. The limitation(s): [wherein said emotions in said videos containing said facial expressions, said audio information, and said gestural demonstrations are demonstrated by non-actors] are insignificant pre/post-solution extra activity of generating data.
Claims 7-12 recite limitations that are similar to that of claims 1-6, respectively. Therefore, claims 7-12 are directed to an abstract idea without significantly more.
Claims 13-18 recite limitations that are similar to that of claims 1-6, respectively. Therefore, claims 13-18 are directed to an abstract idea without significantly more.
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.
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.
Claim(s) 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over “The Indian Spontaneous Expression Database for Emotion Recognition” by Happy et al. (hereinafter ‘Happy’) in view of “Multimodal Database of Emotional Speech, Video and Gestures” by Sapinski et al. (hereinafter ‘Sapinski’).
In regards to claim 1, Happy teaches a computer-implemented method for developing an emotion portrayal database that improves training machine learning models to identify emotions, comprising: (See Happy Abstract, Happy teaches establishing a database of emotional videos.)
receiving videos containing facial expressions, audio information,
curating said received videos into video clips containing said facial expressions, said audio information,
receiving a label of an emotion for each curated video clip; assigning said label of emotion to said each curated video clip with its received label of emotion; and storing said each curated video clip with its assigned label of emotion in said emotion portrayal database. (See Happy Section 3.6 and Section, Happy teaches assigning emotional labels to each videos and storing them in the database as ground truth.)
However, Happy does not expressly teach videos containing facial expressions, audio information, and gestural demonstrations of individuals demonstrating emotions.
Sapinski teaches videos containing facial expressions, audio information, and gestural demonstrations of individuals demonstrating emotions. (See Sapinski Section 4, Sapinski teaches videos containing facial, audio and gesture information.)
It would have been obvious before the effective filing date of the claimed invention to one of ordinary skill in the art to modify Happy to capture videos with facial, audio and gesture information as taught by Sapinski. The determination of obviousness is predicated upon the following findings: One skilled in the art would have been motivated to modify Happy in this manner because/in order to be able to determine emotions non-verbally using gestures.
Further, one skilled in the art could have combined the elements as described above by known method with no change in their respective functions, and the combination would have yielded nothing more than predictable results.
Therefore, it would have been obvious to combine Happy with Sapinski to obtain the invention as specified in claim 1.
In regards to claim 2, Happy and Sapinski teach all the limitations of claim 1. Happy also teaches wherein said label of emotion for said each curated video clip is received from one or more users who are not demonstrating said emotion. (See Happy Section 3.6).
In regards to claim 3. Happy and Sapinski teach all the limitations of claim 1. Happy also teaches wherein said label of emotion is assigned to said each curated video clip to identify one of seven emotions. (See Happy Section 4.).
In regards to claim 4, Happy and Sapinski teach all the limitations of claim 3. Happy also teaches wherein said seven emotions comprise angry, disgusted, fearful, happy, neutral, sad, and surprised. (See Happy Section 4.).
In regards to claim 5, Happy and Sapinski teach all the limitations of claim 1. Happy wherein said emotion portrayal database is used to train a machine learning model to identify emotions from inputted video clips. (See Happy Section 5).
In regards to claim 6, Happy and Sapinski teach all the limitations of claim 1. Happy teaches wherein said emotions in said videos containing said facial expressions, said audio information, and said gestural demonstrations are demonstrated by non-actors. (See Happy Section 3.8).
Claims 7-12 and 13-18 recite limitations that similar to that of claims 1-6, respectively. Therefore, claims 7-12 and 13-18 are rejected similarly as claims 1-6, respectively.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to UTPAL D SHAH whose telephone number is (571)272-5729. The examiner can normally be reached M-F: 7:30-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Vu Le can be reached at (571) 272-7332. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/UTPAL D SHAH/Primary Examiner, Art Unit 2668
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