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.
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Claims 2-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,688,170. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant limitations are contained in the more detailed patented claims as mapped below.
Regarding claim 2, ‘170 discloses one or more computing devices comprising: one or more processors; and one or more computer-readable media storing computer-executable instructions that, when executed, cause the one or more processors to perform acts comprising (claim 1 lines 1-5): receiving sensor data generated by a sensor in an environment, the sensor data identifying an item (claim 1 lines 6-7); receiving image data generated by the camera within the environment (claim 1 lines 8-13); analyzing the image data (claim 1 line 14) to identify a hand of a user holding the item (claim 6 lines 15-17); and updating virtual-cart data associated with the user identifier to indicate an item identifier associated with the item (claim 1 lines 18-20).
Claims 3-21 are similarly analyzed to claims 2-20 of ‘170.
Claims 2-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,148,218. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant limitations are contained in the more detailed patented claims as mapped below.
Regarding claim 2, ‘218 discloses one or more computing devices comprising: one or more processors; and one or more computer-readable media storing computer-executable instructions that, when executed, cause the one or more processors to perform acts comprising (claim 1 lines 1-5): receiving sensor data generated by a sensor in an environment, the sensor data identifying an item (claim 1 lines 6-7); receiving image data generated by the camera within the environment (claim 1 lines 10-12); analyzing the image data (claim 2 lines 5-9) to identify a hand of a user holding the item (claim 6 lines 15-17); and updating virtual-cart data associated with the user identifier to indicate an item identifier associated with the item (claim 1 lines 18-20).
Claims 3-21 are similarly analyzed to claims 2-20 of ‘170.
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.
Claims 2-21 are rejected under 35 U.S.C. 103 as being unpatentable over Glaser et al. US 2018/0240180 (hereinafter “Glaser”, cited in the IDS) in view of Shmueli US 20210027360.
Regarding claim 2, Glaser discloses one or more computing devices comprising: one or more processors; and one or more computer-readable media storing computer-executable instructions that, when executed, cause the one or more processors to perform acts comprising (see paragraph 0020 system and method for contextually aware customer item entry with a virtual cart, paragraph 0132 discloses that the system and methods can be embodied with one or more processors)
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:receiving sensor data generated by a sensor in an environment, the sensor data identifying an item (item entry system 100 accompanies the customer during the customers shopping experience and can be an item scanning device such as a barcode reader, see paragraphs 0033-0034)
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; receiving image data generated by the camera within the environment, the image data representing at least one of the item or the sensor (see above paragraphs 0035 and 0076-0077, and 0079 the environmental sensing system 200 can get contextual data from an environment using a camera to improve the accuracy or performance of detecting item selection and assess the validity of the virtual cart, see also paragraph 0057)
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; analyzing the image data
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; and updating virtual-cart data associated with the user identifier to indicate an item identifier associated with the item (see paragraph 0029).
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Glaser does not explicitly disclose identifying a hand of a user holding the item.
Shmueli discloses a wearable device for monitoring hand actions in automated stores (see paragraphs 0002-0003)
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Specifically Shmueli disclose that an image 302 may be captured and it may be used to identify a hand holding an object to determine that a person intends to purchase the item (see paragraph 0163)
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Glaser and Shmueli are analogous art because they are from the same field of endeavor of autonomous shopping applications.
Before the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to combine Glaser and Shmueli to identify a hand of the user holding an item. The motivation would be to determine that the user has an intent to purchase the item and updating the cart accordingly thus making the system more accurate to selected items.
Regarding claim 3, Shmueli discloses receiving second image data generated by the camera, the second image data generated by the camera prior to the first image data; analyzing the second image data to identify an empty hand of the user; and wherein the updating comprises updating the virtual-cart data based at least in part on identifying the empty hand of the user and identifying the hand of the user holding the item (see above paragraph 0163 where an empty hand image and hand holding an item image are used continuously to select which items have been chosen by a user).
Regarding claim 4, as argued above Glaser discloses determining, based at least in part on receiving the sensor data, a portion of the environment associated with the sensor, and wherein the determining the camera comprises determining the camera associated with the portion of the environment (see paragraphs 0076-0077 and 0079, it is obvious if not inherent that the tracking of the user would involve determining the cameras out of the system of cameras that best capture the item or the user scanning the item).
Regarding claims 5, the determining the camera comprises determining prior to the analyzing that the camera has a field-of-view (FOV) that includes the sensor (this is not explicitly disclosed by Glaser, however it is implicit in the processing of Glaser, the IES 100 works in cooperation with a computer vision monitoring system 210 that can track the location of a customer, detect and identify items near a customer, detect item selection events, identify items that were selected, identify a customer etc., for example the adding of an item to a cart may be detected through a smartcart 120 which can trigger the visual processing of images at and leading up to the time when the item was added, see paragraphs 0076-0077, further note paragraph 0079 discloses the imaging system comprises a set of image capture devices and collects image data within the environment and that some or all of the cameras may be moved, panned, zoomed to acquire varied perspective views, thus although not explicitly disclosed it would be obvious if not inherent that in tracking the individual with the system 200 would find at least one camera with a field of view that would allow for capturing the item that the user is selecting, see also paragraph 0106 which discloses that the IES may be tracked through the shopping environment using remote cameras distributed in the shopping environment as part of the CV monitoring system, and that the IES can be tracked, the motivation would be to use the tracking to determine the best cameras out of the set of cameras to obtain the images in the environment where the shopper is located).
Regarding claim 6, determining the camera comprises determining, from multiple cameras within the environment, the camera having the FOV of the sensor (see paragraphs 0076-0077 and 0079, as stated above it is obvious if not inherent that the tracking of the user would involve determining the cameras out of the system of cameras that best capture the item or the user scanning the item).
Regarding claim 7, Glaser discloses determining a user identifier associated with the user holding the item, and wherein the updating the virtual-cart data comprises updating virtual-cart data associated with the user identifier (see above paragraph 0020 the virtual cart is associated with a tracked customer, and paragraph 0028-0029 the system can automatically charge an account of a customer, thus in order to charge the user their identifying numbers [account number, etc.] must be known, further note that paragraph 0076 discloses identifying a customer to access customer profile data).
Regarding claim 8, the receiving the sensor data generated by the sensor comprises receiving scan data generated by a scanning device that scanned visual indicia associated with the item (see paragraph 0034 copied above, bar code reader) .
Regarding claim 9, Glaser discloses receiving data indicating a first time at which the sensor generated the sensor data, and wherein the analyzing comprises analyzing image data generated by the camera after the first time and within a threshold amount of time of the first time (see above paragraphs 0033-0035 where the computer vision system augments the data that is captured by the IES system, the computer vision system can use video which captures images at a frame rate thus inherently would involve a threshold amount of time).
Regarding claim 10, Glaser discloses determining, based at least in part on receiving the sensor data, a volume of interest (VOI) within the environment relative to the sensor; and the analyzing comprises analyzing at least a portion of the image data corresponding to the VOL (see paragraph 0058 the computer vision inspection system includes an internal inspection system that functions to inspect items entered in an item receptacle 122, the item receptacle is a volume of interest).
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Regarding claim 11, Glaser discloses determining, based at least in part on receiving the sensor data, a volume of interest (VOI) within the environment relative to the sensor (see paragraph 0035 above, the computer vision system tracks the user and captures images of the environment of the user which is a volume of interest); the analyzing comprises analyzing at least a portion of the image data corresponding to the VOI ; the identifying comprises identifying at least a portion of the user after the portion of the user enters the VOI (see paragraph 0058).
Regarding claim 12, Glaser discloses determining, based at least in part on receiving the sensor data, a volume of interest (VOI) within the environment relative to the sensor (see paragraph 0058); the analyzing comprises analyzing at least a portion of the image data corresponding to the VOI (see paragraph 0098) ; the identifying comprises identifying at least a portion of the user within the VOI (see paragraph 0098); and the one or more computer-readable media further store computer-executable instructions that, when executed, cause the one or more processors to perform an act comprising identifying the item within the VOI (see paragraph 0098).
Claims 13-20 are similarly analyzed to claims 2-9.
Claim 21 is similarly analyzed to claim 12.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN B STREGE whose telephone number is (571)272-7457. The examiner can normally be reached M-F 9-5 (PST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chan Park can be reached at (571)272-7409. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN B STREGE/ Primary Examiner, Art Unit 2669
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