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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1- 20 of US Patent No. 11790531. Although the claims at issue are not identical, they are not patentably distinct from each other.
The table below helps illustrate the double patenting rejection:
Claims 1 of Instance Application
Claim 1 of US Patent No. 11790531
A method comprising:
receiving an image that includes a depiction of a whole body of a user;
generating a segmentation of the whole body of the user based on the image;
receiving input that selects a visualization mode; and applying one or more visual effects corresponding to the visualization mode to the image based on the segmentation.
A method comprising: receiving, by one or more processors, a monocular image that includes a depiction of a whole body of a user; generating, by the one or more processors, a segmentation of the whole body of the user based on the monocular image; accessing a video feed comprising a plurality of monocular images received prior to the monocular image;
predicting, based on the plurality of monocular images received prior to the monocular image, the segmentation of the whole body of the user that is generated based on the monocular image;
smoothing the segmentation of the whole body generated based on the monocular image based on predicting the segmentation to provide a smoothed segmentation, the smoothing comprising comparing predicted one or more segmentations of whole bodies provided by a second deep neural network with the segmentation of the whole body, in the received monocular image, generated by a first deep neural network;
and applying one or more visual effects to the monocular image based on the smoothed segmentation
As seen from above, although the claims at issue are not identical, they are not patentably distinct from each other because the reference patent anticipates the claims of the instance application. Claims 2-20 are similarly rejected for at least the reasons above.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-20 of US Patent No. 12106486. Although the claims at issue are not identical, they are not patentably distinct from each other.
The table below helps illustrate the double patenting rejection:
Claim 1 of Instance Application
Claim 1 of US Patent No. 12106486
A method comprising:
receiving an image that includes a depiction of a whole body of a user;
generating a segmentation of the whole body of the user based on the image;
receiving input that selects a visualization mode; and applying one or more visual effects corresponding to the visualization mode to the image based on the segmentation.
A method comprising: receiving, by one or more processors, a monocular image that includes a depiction of a whole body of a user; generating a segmentation of the whole body of the user based on the monocular image by: generating the segmentation by a first machine learning model; and smoothing the segmentation by a second machine learning model that predicts a segmentation based on depiction of whole bodies in a plurality of monocular images received prior to the monocular image; receiving input that selects a visualization mode; and applying one or more visual effects corresponding to the visualization mode to the monocular image based on the segmentation.
As seen from above, although the claims at issue are not identical, they are not patentably distinct from each other because the reference patent anticipates the claims of the instance application. Claims 2-20 are similarly rejected for at least the reasons above.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1- 20 of US Patent No. 12205295. Although the claims at issue are not identical, they are not patentably distinct from each other.
The table below helps illustrate the double patenting rejection:
Claims 1 of Instance Application
Claims 1 and 2 of US Patent No. 12205295
A method comprising:
receiving an image that includes a depiction of a whole body of a user;
generating a segmentation of the whole body of the user based on the image;
receiving input that selects a visualization mode; and applying one or more visual effects corresponding to the visualization mode to the image based on the segmentation.
1) A method comprising: accessing a video comprising a plurality of images received prior to an image; predicting, by a first deep neural network based on the plurality of images of the video received prior to the image, a segmentation of a body depicted in the image; comparing predicted one or more segmentations of bodies provided by a second deep neural network with the segmentation of the body predicted by the first deep neural network; and smoothing the segmentation of the body depicted in the image based on comparing the predicted one or more segmentations of bodies with the segmentation of the body.
2) Further comprising: generating the segmentation of the body based on the image; and applying one or more visual effects to the image based on the smoothed segmentation.
As seen from above, although the claims at issue are not identical, they are not patentably distinct from each other because the reference patent anticipates the claims of the instance application. Claims 2-20 are similarly rejected for at least the reasons above.
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.
Claim(s) 1, 3, 12-13, 15-16, 18, 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Holzer et al. (US 20190116322).
Re claim 1, Holzer teaches a method comprising:
receiving an image that includes a depiction of a whole body of a user see abstract, live images of a person captured from a hand-held camera, using the image data of the live images, a skeleton of the person and a boundary between the person and the background), (see Fig. 10, in reference to [0149], image data including a person), and (see [0195], detection of skeleton locations and body segmentation locations in a single frame can be performed upon information received from only the single frame).
generating a segmentation of the whole body of the user based on the image (see Fig. 10, outline 1016) and (see [0152-0153], wherein input image from a single camera can be used with a deep neural network for segmentation) and (see [0261], segmentation performed per frame basis 1608).
receiving input that selects a visualization mode; and applying one or more visual effects corresponding to the visualization mode to the image based on the segmentation ([0040] In a third section, including FIGS. 9A, 9B, 10 and 11, entitled, “Skeleton Detection and Body Segmentation,” methods of i) detecting a person in an image, ii) determining an outline of the person, segmenting the image of the person from the background and iii) determining a skeleton of the person and position/pose of the skeleton, are described. Based upon this information, image effects, such as replacing a portion of the person's skeleton, can be performed with the image data), ([0139] In 960, the skeleton location information can be received by an augmented reality effects module. The AR effects module can be configured to use the skeleton location information to generate AR effects. The skeleton location information can be used to determine a location in the image where to add the effect in the image data. The AR effects module can also utilize information obtained from the segmentation module. Additional details of the skeleton detection module, the segmentation module, the AR effects module and their interactions are described below with respect to FIGS. 15, 16 and 17), ([0183] When a person or other object is detected, some initial segmentation can be performed. The initial segmentation can separate out the person from the background. Then, an augmented image can be generated where the real background (area in image surround the person) is replaced with a virtual scene and a visual effect to the person is added to the person and/or another object in the image. The effects can be attachments to the person, elements that cover portions (or all) of the body of the person (e.g., a spacesuit), or loosely attached effects (e.g. speech bubbles) (see e.g., FIG. 11). In one embodiment, a skeleton of a person determined via a skeleton detection routine (see, e.g., FIGS. 9A-11) can be used to anchor the effects to a person and provide a basis for replacing a portion of a person's body with an effect), and ([0184] During the preview stage the user can preview the effect live in the camera and as soon as the user decides to take a recording, the method can start saving various sensor data (e.g. camera images, IMU data, data derived from the visual camera stream, etc.) to method for later offline processing and viewing. Thus, the preview may only show a portion of an effect. In addition, during a preview stage, the effect can have less detail or a lower resolution than when the effect is rendered at a later stage, such as after off-line processing. An example of a preview and a previewing system is described below with respect to FIGS. 13 and 15).
Re claim 3, Holzer teaches claim 1. Furthermore, Holzer teaches applying one or more visual effects to the image based on a smoothed segmentation (see [0035], effects, such as wings) and (see [0143-0144], smoothing to reduce variation between frames, varying less frame by frame).
Re claim 12, Holzer teaches claim 1. Furthermore, Holzer teaches further comprising applying one or more visual effects to the image based on a segmentation border associated with a smoothed segmentation (see [0035], effects, such as wings), (see [0143-0144], smoothing to reduce variation between frames, varying less frame by frame), (abstract: Various embodiments of the present invention relate generally to systems and methods for analyzing and manipulating images and video. In particular, a multi-view interactive digital media representation (MVIDMR) of a person can be generated from live images of a person captured from a hand-held camera. Using the image data from the live images, a skeleton of the person and a boundary between the person and a background can be determined from different viewing angles and across multiple images. Using the skeleton and the boundary data, effects can be added to the person, such as wings. The effects can change from image to image to account for the different viewing angles of the person captured in each image), and ([0008] In one embodiment, a method can be generated on a mobile device including a processor, a memory, a camera, a plurality of sensors, a microphone and a touchscreen display. The method can be generally characterized as, 1) receiving via an input interface on the mobile device a request to generate a multi-view interactive digital media representation of an object, such as a person; 2) receiving live images from the camera on the mobile device as the mobile device moves along a trajectory wherein an orientation of the camera varies along the trajectory such that the object in the live images is captured from a plurality of camera views; 3) receiving a selection of an effect which modifies the object in the multi-view interactive digital media representation of the object; 4) for one or more images in the live images, generating an initial skeleton indicating a location of body parts of the object in the one or more images; 5) for the one or more images in the live images, generating an initial segmentation which includes a boundary between the object and a background; 6) for the one or more images in the live images, based upon the initial skeleton and the initial segmentation, generating a preview of the effect where the preview includes one or more augmented frames with the effect modifying the object; and 7) while live images are being selected and recorded for the multi-view interactive digital media representation, outputting the preview of the effect to the touchscreen display).
Re claim 13, Holzer teaches claim 1. Furthermore, Holzer teaches determining one or more device capabilities of a device used to capture the image; and selecting a segmentation model to generate the segmentation based on the one or more device capabilities (see [0112-0113], wherein the capabilities of a client device can allow processing to be performed solely on the client device or with aide of a server side, as well as capturing image data with capable mobile devices).
Re claim 15, Holzer teaches claim 1. Furthermore, Holzer teaches further comprising replacing a background of the r image with a different background or replacing portions of the user depicted in the monocular image with different visual elements (see Fig. 10, wherein a segmentation border is shown) and (see [0146-0148], augmenting people with effects and augmented background).
Claim 16 and 20claims limitations in scope to clam 1 and is rejected for at least the reasons above.
Claim 18 claims limitations in scope to claim 1 and is rejected for at least the reasons above.
Claim Rejections - 35 USC § 103
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 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 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) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holzer et al. (US 20190116322) in view of Mathy et al. (US 20170272651).
Re claim 14 Holzer teaches claim 1. Holzer does not explicitly teach applying a guided filter to improve segmentation quality of portions of a smoothed segmentations that are
within a specified number of pixels of edges of the smoothed segmentation.
However, Mathy teaches applying a guided filter to improve segmentation quality of portions of a smoothed segmentations that are within a specified number of pixels of edges of the smoothed segmentation (see [0117], [0125-0132], applying a guided filter for edge preservation, such as during post-processing).
Holzer and Marthy teaches claim 14. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Holzer’s image segmentation system to explicitly include a guided filter for edge preservation, as taught by Mathy, as the references are in the analogous art of machine learning for feature extraction such as segmentation of body parts. An advantage of the modification is that it achieves the result of edge preserving filters such as smoothing images.
Allowable Subject Matter
Claims 2, 4-11, 17, 19 are rejected under double patenting, and objected to as being dependent upon a rejected base claims, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims, and in view of a properly filed terminal disclaimer.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Peter Hoang whose telephone number is (571)270-1346. The examiner can normally be reached Monday-Friday 8:00 am - 5:00 pm PST.
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/PETER HOANG/ Primary Examiner, Art Unit 2616
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