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 .
35 USC § 101
The claims are directed to the abstract idea of recommending an item for purposes of sale; however, the claims recite additional elements related to displaying a suggested item in a digital image. These additional elements provide an improved interface that improves the functioning of the computer. Core Wireless Licensing S.A.R.L. V. LG Elecs., 125 USPQ2d 1436 (Fed. Cir. 2018). These additional elements constitute limitations that meaningfully limit the scope of the abstract idea so as to integrate it into a practical application. Accordingly, the claims are directed to statutory subject matter.
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application Publication 2019/0378204 A1 (hereinafter “Ayush”).
With respect to claim 1, Ayush discloses
“A method comprising”: Ayush, abstract;
“obtaining, by a computing device, a digital image depicting a physical environment”; Ayush ¶ 0005 (digital image of real-world object in real world environment is obtained from camera);
“displaying, by the computing device, the digital image”; Ayush ¶ 0005 (digital image is displayed in augmented reality interface);
“removing, by the computing device, an object depicted at a location within the digital image”; Ayush ¶ 0005 (real world object is replaced with recommended object in augmented reality interface);
“identifying, by the computing device, an aspect of the removed object and at least one learned style attribute based on user data”; Ayush ¶¶ 0005, 0041, 0058 (style similarity is determined);
“determining a set of candidate objects based on the at least one learned style attribute”; Ayush ¶ 0005 (objects are filtered to select stylistically similar objects);
“locating, by the computing device, a prospective object by filtering the set of candidate objects based on the aspect”; Ayush ¶ 0005 (objects are filtered to select stylistically similar objects);
“configuring, by the computing device, the prospective object for display based on the location within the digital image”; Ayush ¶ 0005 (recommended object is displayed as an overlay); and
“displaying, by the computing device, the digital image as having the configured prospective object”. Ayush ¶ 0005 (recommended object is displayed as an overlay).
With respect to claims 2 and 11, Ayush discloses
“further comprising using a predictive algorithm to determine the at least one learned style attribute based on the user data”. Ayush ¶¶ 0022, 0024, 0041, 0043, 0054 (stylistically similar items are identified by machine learning model).
With respect to claim 3, Ayush discloses
“wherein the predictive algorithm is based on a model trained, by machine learning, on the user data”. Ayush ¶¶ 0022, 0024, 0041, 0043, 0054 (stylistically similar items are identified by machine learning model).
With respect to claims 4 and 15, Ayush discloses
“wherein the at least one learned style attribute includes at least one of an object type, color, pattern, texture, material, or style”. Ayush ¶ 0005 (color or style).
With respect to claims 5 and 14, Ayush discloses
“wherein the user data includes session history data, a user preference, demographic information, user input, user content, user characteristics, or combinations thereof”. Ayush ¶¶ 0005, 0027 (user data includes session data relating to captured image).
With respect to claim 6, Ayush discloses
“wherein the filtering the set of candidate objects based on the aspect includes filtering out a plurality of candidate objects that have the aspect”. Ayush ¶ 0042 (objects can be filtered based on having or not having a particular style or color).
With respect to claim 7, Ayush discloses
“further comprising determining the set of candidate objects from a database of listings of objects available for purchase”. Ayush ¶¶ 0027, 0028, 0030, 0034 (objects are filtered from product database to recommend objects for purchase).
With respect to claim 8, Ayush discloses
“wherein the removing the object is responsive to receiving user input indicating removal of the object”. Ayush ¶ 0056 (user can select items to be replaced).
With respect to claim 9, Ayush discloses
“wherein the identifying the aspect of the removed object is based on determining that one or more remaining objects depicted within the digital image do not have the aspect of the removed object”. Ayush ¶ 0042 (e.g., aspect is based e.g. on overall stylistic similarity or overall color compatibility; removed item may be incompatible with other objects).
With respect to claim 10, Ayush discloses
“A computing device comprising”: Ayush ¶¶ 0004, 0045;
“a processing system”; Ayush ¶¶ 0004, 0045; and
“a computer-readable storage medium having instructions stored thereon that, responsive to execution by the processing system, causes the processing system to perform operations including”: Ayush ¶¶ 0004, 0045.
Claim 10 is otherwise rejected on the same basis as claim 1.
With respect to claim 12, Ayush discloses
“wherein the filtering the plurality of candidate objects for the aspect is based on an association between the removed object and a remaining object of one or more remaining objects depicted within the digital image learned by the model trained by machine learning”. Ayush ¶ 0042 (e.g., aspect is based e.g. on overall stylistic similarity or overall color compatibility).
With respect to claim 13, Ayush discloses
“wherein the identifying the aspect of the removed object includes generating a vector representation of the removed object from the model trained by machine learning, the vector representation indicative of the aspect of the removed object”. Ayush ¶¶ 0027, 0028, 0030 (style, color, and other features of object are vector representation used in identifying aspect of removed object).
With respect to claim 16, Ayush discloses
“One or more computer-readable storage media comprising instructions stored thereon that, responsive to execution by one or more processors, causes the one or more processors to perform operations comprising”: Ayush ¶¶ 0004, 0045.
Claim 16 is otherwise rejected on the same basis as claim 1.
With respect to claim 17, Ayush discloses
“wherein the identifying the aspect of the removed object and at least one learned style attribute uses a model trained by machine learning”. Ayush ¶¶ 0022, 0024, 0041, 0043, 0054 (stylistically similar items are identified by machine learning model).
With respect to claim 18, Ayush discloses
“wherein the model is trained on the user data, the user data including session history data, a user preference, demographic information, user input, user content, user characteristics, or combinations thereof”. Ayush ¶¶ 0005, 0027 (user data includes session data relating to captured image).
With respect to claim 19, Ayush discloses
“wherein the configuring the prospective object for display includes learning an aesthetic location for the display of the prospective object within the digital image based on the model trained by machine learning”. Ayush ¶ 0141 (machine learning model can select location and orientation of object).
With respect to claim 20, Ayush discloses
“wherein the aesthetic location includes at least one of a relative size, a relative orientation, and a relative distance to one or more remaining objects depicted within the digital image”. Ayush ¶ 0141 (machine learning model can select location and orientation of object).
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 1-19 of U.S. Patent Number 12,159,303 B2 (hereinafter “Belavy”). Although the claims at issue are not identical, they are not patentably distinct from each other because while claims 1-20 are broader than claims 1-19 of Belavy, claims 1-20 are anticipated by claims 1-19 of Belavy.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
ANONYMOUS, "IKEA launches new Al-powered, digital experience - IKEA", retrieved from https:/Awww.ikea.com/us/en/newsroom/corporate- news/ikea-aunches-new-ai-powered-digital-experience-empowering-customers-to-create-lifelike- room-designs-pub58c94890 on 2023-08-29, 4 pages (listed on applicant's information disclosure statement filed August 29, 2023 in parent application 17/584,684) (hereinafter 'Ikea") discloses removing objects from virtual rooms and replacing such items with other items. Ikea, pages 2-3.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ETHAN D CIVAN whose telephone number is (571)270-3402. The examiner can normally be reached Monday-Thursday 8-6:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeffrey A Smith can be reached at (571) 272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ETHAN D. CIVAN
Primary Examiner
Art Unit 3688
/ETHAN D CIVAN/Primary Examiner, Art Unit 3688