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 .
Double Patenting
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).
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).
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.
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.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,118,510. Although the claims at issue are not identical, they are not patentably distinct from each other because the present claim set is broader and the differences would be obvious. See the below table with specific regard to claim 1:
Instant Application
U.S. Patent No. 12,118,510
Claim 1:
A retail product container comprising:
a display case door, wherein the display case door of the retail product container is movable from an open position to a closed position, and wherein when in the closed position, one or more retail products physically contained in the retail product container are blocked from viewability from outside the retail product container;
customer-detecting hardware comprising one or more customer-facing cameras mounted on the display case door of the retail product container configured to monitor customer presence;
inventory-taking hardware comprising:
at least one camera mounted on a back of the display case door facing the one or more retail products physically contained in an internal storage volume of the retail product container, wherein the at least one camera is triggered by a door motion to capture images at a predetermined interval during a door operation; and
a controller in communication with the retail product container, wherein the controller is configured to control a display secured on the display case door of the retail product container such that the display provides a planogram relating to the retail products physically contained in the internal storage volume of the retail product container based on inventory taken by the controller using the inventory-taking hardware of the retail product container, and wherein the controller is configured to display promotions on the display based on what is detected by the controller using the customer-detecting hardware.
Claim 1:
A retail product container comprising:
a display case door comprising an insulated panel assembly, and a door frame extending about and secured to a peripheral edge of the insulated panel assembly;
a non-transparent display which prohibits viewing of an internal storage volume of the retail product container and is secured on the display case door of the retail product container, wherein the display case door of the retail product container is movable from an open position to a closed position, and wherein when in the closed position, one or more retail products physically contained in the retail product container are blocked from viewability from outside the retail product container, wherein the non-transparent display comprises an LCD panel with one or more touch zones;
customer-detecting hardware comprising one or more customer-facing cameras mounted on the display case door of the retail product container configured to monitor customer presence;
inventory-taking hardware comprising:
at least one camera mounted on a back of the display case door facing retail products physically contained in the internal storage volume of the retail product container, wherein the at least one camera is housed within an empty bezel space between the non-transparent display and the door frame, and wherein the at least one camera is triggered by a door motion to capture images at a predetermined interval during a door operation, and
at least one sensor disposed inside the retail product container to monitor the door motion during the door operation; and
a controller in communication with the retail product container, wherein the controller is configured to control the non-transparent display of the retail product container such that the non-transparent display provides a planogram relating to the retail products physically contained in the internal storage volume of the retail product container based on inventory taken by said controller using the inventory-taking hardware of the retail product container, wherein the controller is configured to control the non-transparent display of the retail product container to display current pricing information regarding products physically contained in the internal storage volume of the retail product container, wherein the current pricing information is dictated by the controller, wherein the controller is configured to detect customers using the customer-detecting hardware, and wherein the controller is configured to display promotions on the non-transparent display of the retail product container based on what is detected by the controller using the customer-detecting hardware, wherein the controller uses the inventory-taking hardware to capture at least one image of the internal storage volume when the display case door is opened.
Claim Rejections - 35 USC § 101
The claims overcome 35 U.S.C. 101 since the claims are not directed to an abstract idea as the claims include limitations that are indicative of integration into a practical application (Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception). Specifically, the structural hardware elements of the claimed invention, such as the display case door blocking viewability, customer detecting hardware mounted to the door comprising a camera, the inventory taking hardware comprising a camera on the inside of the door facing the internal products that’s triggered by door motion, and a controller connected to display the planogram based on the inventory taken all combine to form an unconventional arrangement of known elements, much like that of BASCOM. The unconventionality is further detailed by the display of the planogram, as the door specifically blocks the contents of the container, and therefore there would be no reason to show the planogram if the door was able to be seen through.
Novel/Non-0bvious Subject Matter
Claims 1-20 as currently written are allowable over prior art. However, the rejection under non-statutory double patenting is currently pending and represent a barrier to allowability. Examiner notes that any amendments made to the claims in an attempt to correct pending rejections could drastically alter the claim scope and could open up the possibility of prior art being applied in a future action. The filing of an e-Terminal disclaimer is believed to be capable of overcoming the rejection.
Artwohl (U.S. Pub No. 2012/0285089) teaches product cooling containers that display data on the doors to consumers who approach. Artwohl, however, does not teach each and every limitation recited in the independent claim language.
Breitenbach (U.S. Pub No. 2011/0173082) teaches inventory taking hardware that dictates prices of the contents of a physical container. Breitenbach, however, does not teach each and every limitation recited in the independent claim language.
Hutton (U.S. Pub No. 2018/0053226) teaches a transparent display on the front door of a product container that has adjustable opacity. Hutton, however, does not teach each and every limitation recited in the independent claim language.
Seeley (U.S. Pub No. 2014/0126829) teaches a wine cabinet that displays prices on the front door. Seeley, however, does not teach each and every limitation recited in the independent claim language.
Guzzone (U.S. Pub No. 2016/0027231) teaches a vending machine cooler cabinet with functionality to display advertisements. Upon a user approach, the front will display information about the contents of the vending machine. Guzzone, however, does not teach each and every limitation recited in the independent claim language.
None of the prior art of record, alone or in combination, teaches each and every limitation of the claimed invention, specifically the exact elements of inventory taking, in the way it is taken, how the inventory taking is activated, the display of the planogram based on the taken inventory on the retail product container, the display being non-transparent, along with the customer detecting hardware to display promotions. There is no prior art that teaches each and every limitation of the invention asa whole in combination with one another. Further, while many of the elements above might be obvious based on various prior art references, the number of references that would be needed to reach Applicant’s invention would reach beyond the scope of obviousness. Therefore, Examiner finds the independent claims to be novel and non-obvious over the prior art of record.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The following references have been cited to further show the state of the art with respect to retail cabinets in relation to advertisement display, planogram building, or inventory taking:
U.S. Pub No. 2013/0144432 to Canter
U.S. Pub No. 2002/0161598 to Kim
WO 2017/127035 to Morlevi
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL BEKERMAN whose telephone number is (571)272-3256. The examiner can normally be reached 9PM-3PM EST M, T, TH, F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, WASEEM ASHRAF can be reached at (571) 270-3948. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL BEKERMAN/Primary Examiner, Art Unit 3621