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 .
Status of the Claims
Claims 5-8, 12-15, 18-23 and 30-32 are pending. Claims 1-4, 9-11, 16-17 and 24-29 have been cancelled.
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.
Claims 12-15, 18-23, and 31-32 are 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.
Claims 12 and 18 recite “obtaining a first/second set of images by a second imaging sensor of a first/second pair of points in the 3D space”; “determining a relative orientation of the first imaging sensor and the second imaging sensor based on the first relative orientation of the eye with respect to the first imaging sensor, the second relative orientation of the eye with respect to the first imaging sensor, the first set of images of the first pair of points, the second set of images of the first pair of points, the first set of images of the second pair of points, and the second set of images of the second pair of points”, in claim 12; and “determining a relative orientation of the first imaging sensor with respect to the second imaging sensor based on the first relative orientation of the eye with respect to the first imaging sensor, the second relative orientation of the eye with respect to the first imaging sensor, the third relative orientation of the eye with respect to the first imaging sensor, the fourth relative orientation of the eye with respect to the first imaging sensor, the first set of images of the first pair of points, the second set of images of the first pair of points, the first set of images of the second pair of points, and the second set of images of the second pair of points”, in claim 18. After applying the broadest reasonable interpretation consistent with the specification to the claims, the metes and bonds of the claimed invention are not clear. The language of the claims is such that a person of ordinary skill in the relevant art would read it with more than one reasonable interpretation. For example, the “determining” steps use information from the first/second set of images of the first/second pair of points in evaluating the relative orientation of the first imaging sensor and the second imaging sensor. Simply reciting the use of these images in the evaluation encompasses all the cases that can be considered information in an image. Accordingly, the claims are indefinite.
Independent claims 31-32 are the corresponding computer program products to the methods recited in claims 12 and 18 respectively and are rejected under the same rationale.
Dependent claims 13-15 and 19-23 to not correct the deficiencies of their respective independent claims and are therefore rejected under the same rationale.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 5-8 and 30 are rejected under 35 U.S.C. 101 because the claimed limitations are directed to an abstract idea without significantly more.
Step 1: claims 5-8, 12-15 and 18-23 are directed to methods. Claims 30-32 are directed to computer program products comprising a non-transitory computer readable media. These are all statutory categories.
Independent Claims
Claims 5 and 30 recite a method comprising:
(a) obtaining an image of a pupil or limbus of a person’s eye by a first imaging sensor;
(b) determining a first relative orientation of the eye with respect to the first imaging sensor based on the image;
(c) determining a second relative orientation of the eye with respect to a second imaging sensor based on the first relative orientation and based on a relationship between the first imaging sensor and the second imaging sensor.
Step 2A, prong 1: Steps (b) and (c), as drafted, are processes that under the broadest reasonable interpretation, cover performance of the limitations in the mind but for the recitation of generic computer components. For example, the claims encompasses the user manually observing, evaluating and/or making a judgement from an obtained image of a pupil or limbus of a person’s eye about a first relative orientation of the eye with respect to the first imaging sensor. Further, the user can manually evaluate, observe, and/or make a judgement of a second relative orientation of the eye with respect to second imaging sensor based on the first relative orientation and a relationship between the first imaging sensor and the second imaging sensor. That is to say, the “determining” falls within the mental processes grouping of abstract ideas.
Step 2A, prong 2: The claims recite the additional element of step (a). This step amounts to mere data gathering which is added insignificant extra-solution activity to the judicial exception.
Even when viewed in combination, this additional element does not integrate the recited judicial exception into a practical application, and the claims are directed to the judicial exception.
Step 2B: As explained with respect to Step 2A, Prong 2, there is one additional element. The additional element of step (a) at best is mere data gathering which is added insignificant extra-solution activity to the judicial exception and cannot provide an inventive concept.
Dependent Claims
Step 2A, prong 1: Claims 6-8 further limit independent claim 5 with various “determining” steps that may be performed in the human mind (observing, evaluating and/or making a judgement). The “determining” falls within the mental processes grouping of abstract ideas.
Step 2A, prong 2: The claims do not recite any additional elements.
Step 2B: The claims do not recite anything that can amount to significantly more that the judicial exception.
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 5-8 and 30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 11573630 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because
Instant Application
U.S. Patent No. 11573630 B2
5. A method comprising:
obtaining an image of a pupil or limbus of a person's eye by a first imaging sensor;
determining a first relative orientation of the eye with respect to the first imaging sensor based on the image;
determining a second relative orientation of the eye with respect to a second imaging sensor based on the first relative orientation and based on a relationship between the first imaging sensor and the second imaging sensor.
6. The method of claim 5, further comprising:
determining the relationship based on at least three pairs of relative orientations of the eye, each pair comprising a third relative orientation of the eye with respect to the first imaging sensor obtained from an image obtained by the first imaging sensor of a pupil or limbus of the eye, and each pair comprising a fourth relative orientation of the eye with respect to the second imaging sensor obtained from an image obtained by the second imaging sensor of a point the eye is gazing at.
7. The method of claim 5, wherein determining the first relative orientation is further based on a relative position of a center of the eye with respect to the first imaging sensor.
8. The method of claim 5, further comprising determining a position of a point at which the eye is gazing at, in an image obtained by the second imaging sensor, based on the second relative orientation.
30. A computer program product comprising a non-transitory computer readable medium having instructions recorded thereon, the instructions when executed by a computer implementing the method of claim 5.
1. A method comprising:
obtaining a first three-dimensional (3D) line passing a geometrical center of a person's eye that is gazing at a point in a 3D space, based on a first relative orientation of the eye with respect to a first imaging sensor and a first relative position of a pupil or limbus of the eye with respect to the first imaging sensor; obtaining a second 3D line passing the geometrical center of the eye;
2. The method of claim 1, further comprising obtaining the first relative position of the pupil or limbus with respect to the first imaging sensor based on an image of the pupil or limbus obtained by the first imaging sensor.
determining a relative position of the geometrical center of the eye with respect to the first imaging sensor, based on the first 3D line and the second 3D line; and obtaining the first relative orientation of the eye with respect to the first imaging sensor based on a second relative orientation of the eye with respect to a second imaging sensor and based on a relative orientation of the first imaging sensor with respect to the second imaging sensor.
4. A method comprising:
obtaining an image of a pupil or limbus of a person's eye by an imaging sensor;
determining a relative orientation of the eye with respect to the imaging sensor based on the image;
obtaining a result of calibration based on at least three pairs of relative orientations of the eye, each pair comprising a first relative orientation of the eye with respect to a first imaging sensor obtained from an image obtained by the first imaging sensor of a pupil or limbus of the eye, and comprising a second relative orientation of the eye with respect to the first imaging sensor obtained from an image obtained by a second imaging sensor of a point the eye is gazing at;
adjusting the relative orientation of the eye with respect to the first imaging sensor based on the result of calibration.
1. … obtaining a first three-dimensional (3D) line passing a geometrical center of a person's eye that is gazing at a point in a 3D space, based on a first relative orientation of the eye with respect to a first imaging sensor and a first relative position of a pupil or limbus of the eye with respect to the first imaging sensor; obtaining a second 3D line passing the geometrical center of the eye; determining a relative position of the geometrical center of the eye with respect to the first imaging sensor, based on the first 3D line and the second 3D line;…
4. … comprising a second relative orientation of the eye with respect to the first imaging sensor obtained from an image obtained by a second imaging sensor of a point the eye is gazing at…
6. A computer program product comprising a non-transitory computer readable medium having instructions recorded thereon, the instructions when executed by a computer implementing the method of claim 1.
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 (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 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 5, 7-8 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Uscinski et al. (US 20180348861 A1) in view of Fayolle et al. (US 20170322430 A1).
Concerning claims 5 and 30, Uscinski et al. (hereinafter Uscinski) teaches a method comprising:
obtaining an image of a pupil or limbus of a person's eye by a first imaging sensor (fig. 4: inward-facing imaging camera 462; ¶0104: “The wearable system can obtain eye images using sensors (e.g., eye cameras) in the inward-facing imaging system 462”);
determining a first relative orientation of the eye with respect to the first imaging sensor based on the image (fig. 14A: step 1460; ¶0158: “…the wearable system can receive and store data indicating the user's eye gaze in association with the eye calibration target”, wherein the user’s eye gaze corresponds to the claimed “first relative orientation of the eye”). Not explicitly taught is the method, determining a second relative orientation of the eye with respect to a second imaging sensor based on the first relative orientation and based on a relationship between the first imaging sensor and the second imaging sensor.
Fayolle et al. (hereinafter Fayolle), in a similar field of endeavor, teaches a method of gaze tracking, wherein determining a second relative orientation of the eye with respect to a second imaging sensor based on the first relative orientation and based on a relationship between the first imaging sensor and the second imaging sensor (fig. 5: ¶0259; ¶0266: the second relative orientation of the eye is obtained with respect to a second imaging sensor (e.g., a second one of image-capturing apparatuses 120) based on a first relative orientation of the eye with respect to a first imaging sensor (e.g., a first one of image-capturing apparatuses 120) and based on a relationship between the first imaging sensor and the second imaging sensor (the positions and orientations of imaging-capturing apparatuses 120 are known)). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of Uscinski and Fayolle in order to enhance the tracking system for gaze direction.
Concerning claim 7, Uscinski in view of Fayolle teaches the method of claim 5. Fayolle further teaches the method, wherein determining the first relative orientation is further based on a relative position of a center of the eye with respect to the first imaging sensor (¶¶0265-0267: “The gaze direction is then given by the straight line joining the center of the cornea of the eye or the center of rotation of the eye and the center of the pupil of the eye”). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of Uscinski and Fayolle in order to determine a relative orientation of an eye based on a relative position of a center of the eye with respect to the imaging sensor. Such a modification allows the Uscinski invention the ability to carry out gaze direction determination in various tasks.
Concerning claim 8, Uscinski in view of Fayolle teaches the method of claim 5. Uscinski further teaches the method, comprising determining a position of a point at which the eye is gazing at, in an image obtained by the second imaging sensor, based on the second relative orientation (¶¶0155-0156).
Allowable Subject Matter
Claim 6 is 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.
Claims 12, 18 and 31-32 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Claims 13-15 and 19-23 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES M ANDERSON II whose telephone number is (571)270-1444. The examiner can normally be reached Monday - Friday 10AM-6PM.
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/James M Anderson II/Primary Examiner, Art Unit 2425