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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 21, 29 and 35 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In particular, the limitation “execute the first AI model based on a second image of the product to detect, based on a failure to detect a second label in the first image” is not clear. First, the claims fail to specify what the first AI model is detecting in a second image. Second, the limitation “based on a failure to detect a second label in the first image” implies that “a second label” is being detected by one of the AI models. However, the claims do not recite detecting a second label. It is for these reasons claims 21, 29 and 25 are considered indefinite.
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, 29 and 35 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 8 and 15, respectively, of U.S. Patent No. 11,544,509. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 21, 29 and 35 of the current application are anticipated by claims 1, 8 and 15 of the patent no. ‘509. In particular, the both the current application and the patent recite two images of products on shelves, compare the photos to see if they include the same product and link the results.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 21, 29 and 35 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US PgPub. No. 2020/0005225 by Chaubard (hereinafter ‘Chaubard’).
In regards to claim 21, Chaubard teaches an apparatus comprising: interface circuitry; machine-readable instructions; and at least one processor circuit to be programmed by the machine-readable instructions to: (See Chaubard Figure 9, Chaubard teaches a system comprising memory and processor.)
execute a first artificial intelligence (Al) model based on a first image of a product to detect a first label, the first label defined by a first bounding box; (See Chaubard Figure 4, Steps 405, Chaubard teaches first images of product with bounding boxes for region of interest.)
execute a second Al model based on the first bounding box to classify the first label; (See Chaubard Paragraph [0027]-[0029], Chaubard teaches identifying products in first and second image.)
execute the first Al model based on a second image of the product to detect, based on a failure to detect a second label in the first image; (See Chaubard Figure 4, Steps 425, Chaubard teaches second images of product with bounding boxes for region of interest.)
execute the second Al model to classify the second label; and (See Chaubard Paragraph [0027]-[0029], Chaubard teaches identifying products in first and second image.)
cause association of the first label and the second label with the product. (See Chaubard paragraph [0028]-[0029], Chaubard teaches associating labels in the first and second images with out-of-stock notifications.)
Claims 29 and 35 recite limitations that are similar to that of claim 21. Therefore, claims 29 and 25 are rejected similarly as claim 21.
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.
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.
Claims 22-24, 27, 30, 31, 33, 36, 37 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over US PgPub. No. 2020/0005225 by Chaubard (hereinafter ‘Chaubard’) in view of “Faster R-CNN: Towards Real-Time Object Detection with Region Proposal Network” by Ren et al. (hereinafter ‘Ren’).
In regards to claim 22, Chaubard teaches all the limitations of claim 21.
However, Chaubard does not expressly teach wherein one or more of the at least one processor circuit is to generate the first bounding box based on a first anchor, and detect the first label based on the first bounding box having a confidence value that exceeds a confidence threshold.
Ren teaches wherein one or more of the at least one processor circuit is to generate the first bounding box based on a first anchor, and detect the first label based on the first bounding box having a confidence value that exceeds a confidence threshold. (See Ren Section 3.1.1, Ren teaches bounding boxes based on anchors.)
It would have been obvious before the effective filing date of the claimed invention to one of ordinary skill in the art to modify Chaubard to include the two-stage object detection network as taught by Ren. The determination of obviousness is predicated upon the following findings: One skilled in the art would have been motivated to modify Chaubard in this manner in order to be able efficiently and accurately detect objects in images.
Further, one skilled in the art could have combined the elements as described above by known method with no change in their respective functions, and the combination would have yielded nothing more than predictable results.
Therefore, it would have been obvious to combine Chaubard with Ren to obtain the invention as specified in claim 22.
In regards to claim 23, Chaubard and Ren teach all the limitations of claim 22. Ren also wherein one or more of the at least one processor circuit is to: generate the first anchor at a first location in the first image; generate a second anchor at a second location in the first image; and remove the second anchor based on an intersection of union (IOU) value between the first and second locations exceeding a threshold IOU value. (See Ren Section 3.1.2, Ren teaches IOU for anchors.)
In regards to claim 24, Chaubard and Ren teach all the limitations of claim 21. Ren also teaches wherein one or more of the at least one processor circuit is to classify the first label based on a likelihood value output by the second AI model. (See Ren Figure 1.)
In regards to claim 27, Chaubard and Ren teach all the limitations of claim 21. Ren also teaches wherein the first AI model is based on a region proposal network architecture and the second AI model is based on a convolutional neural network architecture. (See Ren Section 3).
Claims 30, 31 and 33 recite limitations that are similar to that of claims 22, 24 and 27, respectively. Therefore, claims 30, 31 and 33 are rejected similarly as claims 22, 24 and 27, respectively.
Claims 36, 37 and 39 recite limitations that are similar to that of claims 22, 24 and 27, respectively. Therefore, claims 36, 37 and 39 are rejected similarly as claims 22, 24 and 27, respectively.
Allowable Subject Matter
Claims 25, 26, 28, 32, 34, 38 and 40 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
In regards to claims 25, 26, 32 and 38, the prior art does not teach or suggest “wherein the first label corresponds to a first nutritional category and the second label corresponds to a second nutritional category.”
In regards to claims 28, 34 and 40, the prior art does not teach or suggest “wherein one or more of the at least one processor circuit is to: train the second AI model based on a first set of training images; test the second AI model based on a second set of training images; and retrain the second AI model based on a third set of training images, the retraining based on the second AI model failing to satisfy a threshold accuracy value; and based on satisfying threshold accuracy value of the second AI model, execute the second AI model based on the first bounding box.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to UTPAL D SHAH whose telephone number is (571)272-5729. The examiner can normally be reached M-F: 7:30-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Vu Le can be reached on (571) 272-7332. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/UTPAL D SHAH/Primary Examiner, Art Unit 2668
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