DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on/after Mar. 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Allowable Subject Matter
Claims 21-48 would be allowable if rewritten or amended to overcome the double patenting rejection(s) set forth in this Office action, or if a terminal disclaimer were to be timely filed and approved.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 21, claim 30, and claim 39, Applicant's representative specifically argued (see REMARKS/ARGUMENTS section of application 17/217,959; dated 30 Aug. 2023) that the “deriving a scale …” step of the independent claims is not taught, suggested, or disclosed by the cited prior art references of record. As argued previously, the references do not, individually or in combination, specifically teach, suggest, or disclose “deriving a geometric scale relative among all pixels of the [3-D] building model based on the matching [step previously-recited] …” when this limitation is considered in combination with the other instantly-recited limitations in the independent claim(s). Additionally, the Examiner notes that the instant application is a continuation of Application 15/025,132 (now Patent 11,004,259) as well as Application 17/217,959 (now abandoned). Although broader in scope in the instant application, it appears that the “deriving a geometric scale” step was among the reasons for allowance in Application 15/025,132 (Patent 11,004,259) as well.
Claims 22-29, 31-38, and 40-48 would be similarly allowable, for the same rationale stated above, as they depend from independent claims 21, 30, and 39, respectively.
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 21-22 and 30-31 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 and 11 of U.S. Patent No. 11,004,259. Although the claims at issue are not identical, they are not patentably distinct from each other because (see Table below).
Patent 11,004,259
Instant Application 18/928,935
Differences Explained (Bolded)
1. A method of measuring in a [3-D] building model, comprising:
21. A system for measuring in a [3-D] building model, the system comprising:
The preambles differ by the statutory category of invention (method => system).
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… processor(s); and memory storing instructions that, when executed by the … processor(s), cause the system to perform a method comprising:
The instant application recites general-purpose, well-known, and routine hardware elements to support the preamble reciting a system that performs the same method as recited in the patented claim.
The following limitations are repeated verbatim in both the patent and the instant application.
wherein the scaled [3-D] building model is a spatially accurate representation of the single building
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By omitting this limitation in the instant application, the claim has been broadened.
2. The method of claim 1, wherein the … architectural element(s) comprise windows.
22/31. The system of claim 21/30, wherein the … architectural element(s) comprise windows.
The claims, after their preambles (method => system), are repeated verbatim.
11. A method of measuring in a [3-D] building model, comprising:
30. A system for measuring in a [3-D] building model, the system comprising:
The preambles differ by the statutory category of invention (method => system).
(This cell intentionally left blank.)
… processor(s); and memory storing instructions that, when executed by the … processor(s), cause the system to perform a method comprising:
The instant application recites general-purpose, well-known, and routine hardware elements to support the preamble reciting a system that performs the same method as recited in the patented claim.
Claims 23 and 32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 11, respectively, of U.S. Patent No. 11,004,259 in view of Shenkar et al. (U.S. PG-PUB 2008/0221843, 'SHENKAR').
Regarding claim 23 and claim 32, U.S. Patent No. 11,004,259 discloses/recites the systems of claim 21 and claim 30; however, U.S. Patent No. 11,004,259 does not explicitly disclose that generating the [3-D] building model comprises: generating a [3-D] point cloud of the single building from the … ground-level images, which SHENKAR discloses (SHENKAR; ¶ 0134; “FIGS. 7A-7C are, respectively, a horizontal photograph, an oblique photograph [‘ground-level images’], and a laser scan point cloud, of a building taken by the [street-level data collector] …” ¶ 0205, 0213; ¶ 0238; “This solution is preferably applied to a street-level data subset collected along a driving path segment, which corresponds to one city-block 39. If needed, the initial registration results are re-processed to obtain more precise relative location and orientation of [street-level data collector] at the stop points by means of filtering and correlation of overlapping street-level photographs and laser point clouds.” ¶ 0240).
Before the effective filing date of the claimed invention, it would have been obvious to a person having ordinary skill in the art to modify U.S. Patent No. 11,004,259 of Hu et al. to include the generating a [3-D] point cloud of the single building from the … ground-level images of SHENKAR. The motivation for this modification is to provide a system and a method enabling a cost-effective, high-fidelity, [3-D] modeling of an urban environment (¶ 0002) by modeling individual buildings with a city block.
Claims 24-26, 28-29, 33-35, and 37-38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 11 of U.S. Patent No. 11,004,259 in view of SHENKAR and Janky et al. (U.S. PG-PUB 2011/0064312, 'JANKY').
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Regarding claim 24 and claim 33, U.S. Patent No. 11,004,259 combined with SHENKAR teaches the systems of claim 23 and claim 32; however, the combination does not explicitly disclose that matching at least two points of the [3-D] building model to corresponding roof pixels in the geo-referenced top-view orthogonal image comprises: matching at least two points of the [3-D] point cloud to corresponding pixels in the geo-referenced top-view orthogonal image, which JANKY discloses (JANKY; FIGS. 4A-4D, 5-6; ¶ 0075; “… satellite type aerial imagery is georeferenced [‘geo-referenced top-view orthogonal image’] with coordinates … Every identifiable feature in a satellite type aerial image, and possibly every pixel in an image pixel, may be georeferenced. … an engineering plan drawing or geographic information science drawing/map may georeference only selected surveyed building corners … Points 1-8 are annotated in image 505 and may be considered to be georeferenced. … it can be assumed that points 1 and 3 are georeferenced, such as by latitude, longitude, and elevation within image 505. Reference feature determiner 215 … notes the overlap of points 1 and 3 between image 405 and image 505 and uses these as common reference points shared between the images. … function(s) of reference feature determiner 215 [are] performed by a user …”).
Before the effective filing date of the claimed invention, it would have been obvious to a person having ordinary skill in the art to modify the systems of claim 23 and claim 32 of Hu et al. & SHENKAR to include the matching … points of the [3-D] point cloud to corresponding pixels in the geo-referenced top-view orthogonal image of JANKY. The motivation for this modification is to provide an image-based georeferencing system that includes a database (DB) of georeferenced images and a specialized image DB management system for processing selected/received images to geolocate and augment/annotate points within the received/selected images via comparison and correlation with existing georeferenced image information (e.g., from the image database). In this manner, embodiments described herein provide geospatial and geographic information system (GIS) and survey users access to precise geolocation of a large number of features/points of interest that can be identified in images (JANKY; ¶ [0029]).
Dependent claim 25 and claim 34 are substantially similar (‘points’ => ‘vertices’) to dependent claims 24 and claim 33; therefore, the same motivation(s) to combine references will be maintained.
Regarding claim 25 and claim 34, U.S. Patent No. 11,004,259 combined with SHENKAR and JANKY teach the system of claim 23 and claim 32, wherein matching at least two points of the [3-D] building model to corresponding roof pixels in the geo-referenced top-view orthogonal image comprises: matching at least two vertices of a planar surface of the [3-D] point cloud to corresponding pixels in the geo-referenced top-view orthogonal image (JANKY; FIGS. 4A-4D, 5-6; ¶ 0075; [See analysis of claim 34 above.]).
Dependent claim 26 and claim 35 are substantially similar (‘points’ => ‘vertices’) to dependent claims 25 and claim 34; therefore, the same motivation(s) to combine references will be maintained.
Regarding claim 26 and claim 35, U.S. Patent No. 11,004,259 combined with SHENKAR and JANKY teach the system of claim 21 and claim 30, wherein matching at least two points of the [3-D] building model to corresponding roof pixels in the geo-referenced top-view orthogonal image comprises: matching at least two vertices of a planar surface of the [3-D] building model to corresponding pixels in the geo-referenced top-view orthogonal image (JANKY; FIGS. 4A-4D, 5-6; ¶ 0075; [See analysis of claim 34 above. The Examiner asserts that a ‘building model’ is analogous to a point cloud, such that the point cloud represents the façades of said building.]).
Regarding claim 28 and claim 37, U.S. Patent No. 11,004,259 combined with SHENKAR and JANKY teach the system of claim 21 and claim 30, further comprising deriving rotation information of the [3-D] building model (JANKY; FIGS. 5-6; ¶ 0079; “… a picture is then taken with camera 120 and the z-coordinate height of camera location 409 is associated with a location on the line between points 3 and 6 that is horizontal to this line and directly (horizontally) in line with the GNSS adjusted height associated with the center of the image plane of camera 120. Next, … image rectification is performed via the rotation method whereby the image is rotated about the axis defined by the line from point 3 to point 6 until the top and bottom front edges of building 410 are perpendicular to the line between points 3 and 6 (as illustrated in FIG. 6).”) by matching at least two points of the [3-D] building model to corresponding pixels in the geo-referenced top-view orthogonal image (JANKY; ¶ 0075; “… satellite type aerial imagery is georeferenced with coordinates such as latitude and longitude … Every identifiable feature in a satellite type aerial image, and possible every pixel in an image pixel, may be georeferenced. … points 1-8 are annotated in image 505 and [are] georeferenced. … it can be assumed that points 1 and 3 are georeferenced, such as by latitude, longitude, and elevation [‘position information’] within image 505. Reference feature determiner 215, … notes the overlap of points 1 and 3 [‘matching … two points’] between image 405 and [aerial] image 505 [‘geo-referenced top-view orthogonal image’] and uses these as common reference points shared between the images.”).
Dependent claim 29 and claim 38 are substantially similar (‘rotation’ => ‘position’) to dependent claim 28 and claim 37; therefore, the same motivation(s) to combine references will be maintained.
Regarding claim 29 and claim 38, U.S. Patent No. 11,004,259 combined with SHENKAR and JANKY teach the system of claim 21 and claim 30, further comprising deriving position information of the [3-D] building model by matching at least two points of the [3-D] building model to corresponding pixels in the geo-referenced top-view orthogonal image (JANKY; FIGS. 5-6; ¶ 0075, 0079; [See the analysis of dependent claim 28 and claim 37 in the Office action above.]).
Claims 27 and 36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 11 of U.S. Patent No. 11,004,259 in view of SHENKAR and JANKY and Harper et al. (U.S. PG-PUB 2013/0179206, 'HARPER').
Regarding claim 27 and claim 36, U.S. Patent No. 11,004,259 combined with SHENKAR and JANKY teach the system of claim 21 and claim 30; however, the combination does not explicitly disclose generating an estimate report based on product information associated with the … architectural element(s) and based on the determined dimensions of the … architectural element(s), which HARPER discloses (HARPER; FIG. 12A; [See windows section, which are architectural element(s), with listed measurements.]).
Before the effective filing date of the claimed invention, it would have been obvious to a person having ordinary skill in the art to modify the system of claim 21 and claim 30 of Hu et al. & SHENKAR-JANKY to include the generating an estimate report based on product information associated with the … architectural element(s) and based on the determined dimensions of the … architectural element(s) of HARPER. The motivation for this modification is to provide a system for multi-verifiable, as-built construction modeling in which accurate, independently verifiable site maps, floorplan, exterior and interior elevations alongside detailed checklists for subcontractors, suppliers, and professional services can be generated for providing detailed written proposals, cost estimates and critical path timeline.
Claims 39-43 and 45-46 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 12,165,255. Although the claims at issue are not identical, they are not patentably distinct from each other because (see Table below).
Patent 12,165,255
Instant Application 18/928,935
Differences Explained (Bolded)
1. A method of generating measurements of a [3-D] building model, comprising:
39. A system for generating measurements of a [3-D] building model,
the system comprising:
The preambles differ by the statutory category of invention (method => system).
(This cell intentionally left blank.)
… processor(s); and
memory storing instructions that, when executed by the … processor(s), cause the system to perform a method comprising:
The instant application recites general-purpose, well-known, and routine hardware elements to support the preamble reciting a system that performs the same method as recited in the patented claim.
The remaining limitations in both patented claim 1 and instant application claim 39 are repeated verbatim.
Claims 2-5 and 6-7.
Claims 40-43 and 45-46.
The claims, after their preambles (method => system), are repeated verbatim.
Dependent claim 44 is substantially similar (‘points’ => ‘vertices’) to dependent claim 24; therefore, the same motivation(s) to combine references will be maintained as detailed in the Office action above.
Claim 44 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,165,255 in view of SHENKAR and JANKY.
Regarding claim 44, U.S. Patent No. 12,165,255 discloses/recites the system of claim 41; however, U.S. Patent No. 12,165,255 does not explicitly disclose/recite that matching first/second [3-D] pixels of the unscaled [3-D] building model to corresponding [2-D] pixels in the geo-referenced top-view orthogonal image comprises: matching first/second points of the [3-D] point cloud (SHENKAR; ¶ 0134; FIGS. 7A-7C; ¶ 0205, 0213, 0238, ¶ 0240; [See analysis of claims 24 and 33 in the Office action above.]) to corresponding [2-D] pixels in the geo-referenced top-view orthogonal image (JANKY; FIGS. 4A-4D, 5-6; ¶ 0075; [See analysis of claims 24 and 33 above.]).
Claims 47-48 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,165,255 in view of Ofek et al. (U.S. PG-PUB 2011/0286660, 'OFEK').
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Regarding claim 47, Hu et al. (U.S. Patent 12,165,255) previously claimed the method/system of claim 39; however, Hu et al. do not explicitly claim deriving rotation information of the [3-D] building model based on the matching, which OFEK discloses (OFEK; FIG. 25; ¶ 0085; “At block 2510, the 3D representation may be rotated to approximately align with an orientation of the object in the generally overhead view of the object. … the alignment may be exact, but may not need to be for the sake of the end task to be accomplished.”).
Before the effective filing date of the claimed invention, it would have been obvious to a person having ordinary skill in the art to modify the method/system of claim 39 of Hu et al. to include the deriving rotation information of the [3-D] building model based on the matching of OFEK. The motivation for this modification is to provide tools and/or techniques that can be applied to orienting a 3-D point cloud or 3-D model representation of objects with respect to their absolute orientations. Once oriented, camera locations of the point cloud's associated photographs may be correctly oriented with respect to a physical geography of the object. For example, a tool allows scaling and rotating a top view of a 3-D point cloud over a satellite or other overhead view of the actual object (OFEK; ¶ [0004]).
Regarding claim 48, Hu et al. (U.S. Patent 12,165,255) previously claimed the method/system of claim 39; however, Hu et al. do not claim deriving position information of the [3-D] building model based on the matching, which OFEK discloses (OFEK; FIG. 25; ¶ 0088; “At block 2512, the rotated and scaled 3D representation may be aligned with the object in the generally overhead view of the object in an x-y translation. This [is] accomplished by a `grab and move` motion with a [mouse] or may use direction controls such as movement control 802 in FIG. 8.”).
Before the effective filing date of the claimed invention, it would have been obvious to a person having ordinary skill in the art to modify the method/system of claim 39 of Hu et al. to include the deriving position information of the [3-D] building model based on the matching of OFEK. The motivation for this modification is to provide tools and/or techniques that can be applied to orienting a 3-D point cloud or 3-D model representation of objects with respect to their absolute orientations. Once oriented, camera locations of the point cloud's associated photographs may be correctly oriented with respect to a physical geography of the object. For example, a tool allows scaling and rotating a top view of a 3-D point cloud over a satellite or other overhead view of the actual object (OFEK; ¶ [0004]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN M COFINO whose telephone number is (303) 297-4268. The examiner can normally be reached Monday-Friday 10A-4P MT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kent Chang can be reached at 571-272-7667. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHAN M COFINO/ Examiner, Art Unit 2614
/KENT W CHANG/ Supervisory Patent Examiner, Art Unit 2614
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