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.
Claim 1-20 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7, 13, 16, 17, and 19 of U.S. Patent No. 11,887,270 and claims 1-9 and 16-20 of U.S. Patent No. 12,217,382. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the current application are broader than the claims of the conflicting patents, as mapped out in the table below.
Current application 18/999,366
Conflicting patent 11,887,270
Conflicting patent 12,217,382
1
1
1
2
2
2
3
1
4
4
1
3
5
3
5
6
6
6
7
6
6
8
4
7
9
5
8
10
7
9
11
7
9
12
1
1
13
13
16
14
13
16
15
16
17
16
17
18
17
19
19
18
16
3 (This claim is directed to a method; however, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to use the “processors” recited in the parent method claim as an image processing system for “constructing a multi-scale representation of the native resolution image, the multi-scale representation including the native resolution image and the one or more resized variants.”.)
19
16
20
20
7 (This claim is directed to a method; however, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to use the “processors” recited in the parent method claim as an image processing system to “align the set of spatially encoded patches across scales, patch locations from all scales are mapped to a same grid”.)
7 (This claim is directed to a method; however, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to use the “processors” recited in the parent method claim as an image processing system to “align the set of spatially encoded patches across scales, patch locations from all scales are mapped to a same grid”.)
Allowable Subject Matter
Claims 1-20 would be allowable if rewritten or amended to overcome the double patenting rejection(s) set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter: the prior art of record, individually or in combination, does not disclose or suggest in claims 1 and 15: “applying, by one or more processors, a set of scale embeddings to a set of spatially encoded image patches to capture scale information associated with a native resolution image and at least one resized variant of the native resolution image to form a set of input tokens; and creating, by one or more processors, an image representation according to the set of input tokens.”
The closest prior art of record is noted as follows:
Zhang et al. (Multi-Scale Vision Longformer: A New Vision Transformer for High-Resolution Image Encoding, 27 May 2021, arXiv, Pages 1-18), as cited in the IDS filed 23 December 2024. This reference falls short, as the applicant argues on pages 7-8 of the Remarks filed on 22 August 2023 in U.S. application no. 17/787,699.
Chen et al. (CrossViT: Cross-Attention Multi-Scale Vision Transformer for Image Classification, 22 August 2021, arXiv, Pages 1-12), as cited in the IDS filed 23 December 2024.
Contact
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN S LEE whose telephone number is (571)272-1981. The examiner can normally be reached 11:30 AM - 7:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrew Bee can be reached at (571)270-5183. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Jonathan S Lee/Primary Examiner, Art Unit 2677
Prosecution Insights