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 .
Claims 1-20 are currently pending in U.S. Patent Application No. 19/016,118 and an Office action on the merits follows.
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 1-16 and 18 are rejected on the grounds of nonstatutory double patenting as being unpatentable and/or obvious over one or more claims of:
1) U.S. Patent No. US 12,228,790 to parent Application No. 17/570,426 - DIV of
(Now Abandoned) Application No. 16/731,247 - DIV of
U.S. Patent No. US 10,545,311 to great-grandparent Application No. 15/545,050.
Although the claims at issue are not identical, they are not patentably distinct from each other because claims of reference anticipate and/or render obvious independent claim(s) of the instant application. Reference may be made to the limitation mappings/table presented below in view of representative claim 1 of the ‘790 PN. Reference may also be made to Double Patenting rejections as found in the corresponding Non-Final Office Action (mailed 02/03/2023) for the parent application listed above. Review was also made for that Advisory Action (for parent App. No. 17,570,426) mailed 10/24/2023 as it concerns NSDP rejections, in view of Applicant’s remarks/assertions that 1) concerns regarding undue term extension are speculative because Examiner has not presented any showing for how the instant application, if sharing a same EFD as the parent, will necessary incur a PTA otherwise extending the term in question, and 2) the second grounds/rationale with reference to MPEP § 804(II)(B) is similarly unfounded because Examiner has no evidence to suggest that Applicant has or intends to reassign one or more of the related Patents, thereby posing a (not foreclosing any/all) risk of harassment by multiple assignees. The recent ARP decision in Ex parte Baurin Appeal 2024-002920 (ARP Aug. 6, 2026) (precedential) (Application No. 17/135,529) affirms that the second (anti-harassment rationale) is a sufficient standalone basis, absent future guidance from the Federal Circuit re. e.g. In re: Ablynx N.V., Appeal No. 26–1333 (sub nom Ex parte Baumeister). See https://www.uspto.gov/sites/default/files/documents/rh2024-002920_arp__final.pdf
In the interest of compact prosecution, Examiner requests the filing of a Terminal Disclaimer for the instant application. The conflicting claims are not patentably distinct from each other for the following reasons:
• Instant claims and claims of reference recite common subject matter, and recite the open ended transitional phrase “comprising” which does not preclude any additional elements recited by claims of reference;
• Language/terminology of instant claim(s) constituting minor/slight variations from the claims of reference, if/where present (e.g. ‘a contrast distribution’ vs. ‘distribution information’, ‘more intensively’ vs. ‘more strongly’, etc.,), require interpretations under Broadest Reasonable Interpretation and/or plain meaning definitions (MPEP 2173.01 and 2111.01) not inconsistent with supporting disclosure and equivalent to/met by language of the reference claims in view of that corresponding/shared Specification. While the disclosure of reference may not be used as prior art (Double Patenting concerns the claims of reference), portions of the specification which provide support for reference claims may also be examined and considered when addressing the scope of claim(s) of reference and the issue of whether an instant claim defines an obvious variation or falls within the scope of an invention claimed in the claim(s) of reference. See MPEP 804 with reference to In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970). Instant claim(s) recite generating that same distribution information Mdiff based on (a) differences of contrast Mcon and (b) image shift (disparity) amounts Mdis, and further require Mdiff generated such that each of the recited shift amounts Mdis is “used in accordance with a respectively corresponding one of the differences in contrast” – which is satisfied at least given that shared (j, i) index for each associated term in that supporting disclosure associated with the reference claim(s). From col 20 of US 12,228,790 B2:
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Examiner further notes that review of Applicant’s Specification as filed does not appear to suggest that the claims as now recited, concern e.g. a select embodiment where the recited shift amounts are used in accordance with respectively corresponding differences in contrast, as opposed to/distinguished from any alternative embodiment that does not require this same correspondence between Mdis and Mcon (e.g. based on some difference in indexes (j, i) – even setting Mdis to a 0 value in select instances doesn’t establish non-correspondence), in view of any supporting disclosure identifying the manner in which such a use in accordance with corresponding values, vs. non-corresponding values, realizes some distinct improvement that would then suggest the newly recited language constitutes a non-obvious improvement over the claims of reference.
Instant Claims 19/016,118
Claims of Reference US 12,228,790 B2
Claim 1
An image processing method comprising:
Claim 1
An image processing method comprising:
acquiring a plurality of viewpoint images;
acquiring a plurality of viewpoint images;
generating, by a processing unit, distribution information related to an image shift based on
generating, by a processing unit, distribution information (Mdiff) related to an image shift based on
(a) differences of contrast between the plurality of viewpoint images and
(a) differences of contrast between the plurality of viewpoint images (Mcon) and
(b) image shift amounts between at least two of the plurality of viewpoint images,
(b) an image shift amount between at least two of the plurality of viewpoint images (Mdis)
wherein the distribution information is generated so that each of the image shift amounts is used in accordance with a respectively corresponding one of the differences of contrast; and
* see the 2nd bullet above with reference to Equation 9, in view of that common index (j,i) between each of the associated values, in further view of that note as to how the accompanying language “wherein the distribution information is generated so that (a) the image shift amount is used in response to the differences of contrast being lower than a threshold and (b) the image shift amount is not used in response to the differences of contrast not being lower than the threshold;” is not understood to be directed to a competing/mutually exclusive embodiment involving a ‘non-correspondence’ between the two values in view of any disclosed improvement related thereto, or any distinct embodiment/ improvement related to the instant language serving to suggest the instant claims involve a non-obvious improvement over the claims of reference --- even for instances that Mdis is set to 0 (‘not used’) (e.g. [0089]) based on Mcon compared to a threshold, Mdis values are used in accordance with corresponding Mcon values sharing the same (j,i) index.
outputting or recording the distribution information by the processing unit,
wherein at least one of the following conditions is satisfied: (1) the processing unit
comprises a processor, and (2) the processing unit comprises a circuit, and
wherein the distribution information is output or recorded for performing processing
using the distribution information.
outputting or recording the distribution information by the processing unit, wherein the distribution information is output or recorded for performing image processing, and
wherein at least one of the following conditions is satisfied: (1) the processing unit comprises a processor, and (2) the processing unit comprises a circuit.
Dependent claim correspondence is as illustrated concisely below:
Instant Claims 19/016,118
Claims of Reference US 12,228,790 B2
Claim 1
Claim 1
Claim 2 (a) concerns each image of the plurality
Claim(s) 2/5
Claim 3 processing more intense/stronger in area with small diff vs large
Claim(s) 11
Claim 4 processing = sharpening, smoothing or combination
Claim(s) 10/28
Claim 5 further generating image shift amount distribution Mdis (S3) or defocus amount distribution in alternative (e.g. by scaling Mdis by a ‘transformation coefficient’ i.a.w aperture value, exit pupil distance, or the like – see pgpub at [0121])
Claim 17, see also claim 1 of US 10,545,311 B2
Claim 6 processing for sharpening more intensively
Claim 11 (in further view of alternative ‘or’ language for the case of intervening instant claim 5)
Claim 7 processing for smoothing more intensively
Claim 12 (see note above re. ‘or’)
Claim 8 sharpening for area w/small difference, smoothing for area w/large difference
Claim 13 (see note above re. ‘or’)
Claim 9 processing is for modifying saturation
Claim 14/32
Claim 10 synthesis image is made (S7 of Fig. 9)
Claim(s) 9/6 see also claim 8 of US 10,545,311 B2
Claim 11 contrast distribution larger in an area of high brightness vs. low
Claim 2
Claim 12 contrast distribution larger in an area with small contrast difference
Claim(s) 6
Claim 13 processing more intense/stronger for large contrast distribution vs. small
Claim(s) 9, 12, 13
Claim 14 a contrast distribution is stored
Claim 7
Claim 15 Mdis is generated in an area (for (j,i)) where a contrast distribution is GTE threshold
Claim 3
Claim 16 Mdis is stored
Claim(s) 1/7
Claim 17 synthesis image is generated by multiplying a weighting coefficient by every viewpoint image
Intentionally omitted from DP rejection
Claim 18 viewpoint images acquired by an imaging element
Claim 16
Claim(s) 19-20 generate modified viewpoint images by expanding (sharpening parallax) or reducing (smoothing parallax) (see Restriction Requirement mailed 10/30/2018 for great-grand parent 15/545,050, non-elected (with traverse arguing nominal search burden is outweighed by Applicant’s interest in not having to obtain separate patents) Group 2).
Intentionally omitted from DP rejection, for what constitutes a “linking claim” see MPEP 809.03, however see also that 04/01/2021 Non-Final Office Action rejecting claim 19 (set filed 03/24/2021) for grand-parent Application No. 16/731,247 (Now Abn), in view of Tsubaki (JP-2003209858-A) as applied.
Eligibility Analysis - 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.
The prosecution history associated with parent Application (17/570,426) suggests the manner in which the instant claims are directed to statutory subject matter, as opposed to any exception that is an Abstract Idea falling at least under the mathematical calculation/operations grouping – with an understanding that the claim(s) as recited actually require ‘performing processing using the distribution information’ (so as to generate/produce at least one new/modified image - S5), and that the final ‘wherein…’ limitation is not to be construed as intended use bearing no patentable weight (see MPEP § 2111.04 – identifying the manner in which a “wherein” clause’s impact on claim scope depends on case specific facts), given the context of Applicant’s supporting disclosure. Stated differently, even if can be asserted that a Prong One analysis finds the recited ‘generating, by a processing unit, distribution information…’ to be calculating Mdiff on the basis of (a) differences of contrast Mcon and (b) image shift amounts Mdis (and thus drawable to primarily an Abstract Idea that is calculating Mdiff), the fact that this calculated information is used for subsequent processing to produce one or more improved/ focus adjusted images, in the context of an image pickup apparatus as disclosed which may further be a particular machine as described in MPEP 2106.05(b), likely serves for integration at Prong Two of Step 2A. Stated differently further, the final processing using that output distribution information serves to ensure a fact pattern and legal analysis more analogous to that of Diamond v. Diehr, 450 U.S. 175 (1981), as compared to Gottschalk v. Benson, 409 U.S. 63 (1972). As was previously indicated by the Examiner, if instead the final ‘wherein’ is not weight bearing, and it can be argued that no subsequent processing need actually occur based on that calculated distribution information (but instead the calculated value(s) are simply ‘stored’/‘output’ – post-solution outputting that is nominal or tangentially related, or otherwise well known, see (1)-(3) of 2106.05(g)), then the fact that the ‘processing unit’ performs the associated generating/calculation is not dispositive in view of the ‘apply it’ considerations of 2106.05(f) (generic computer processor for implementing the exception serves to neither preclude the calculation in question from being drawn to that corresponding Abstract Idea grouping, nor itself serves for integration at Prong Two of 2A or ‘significantly more’ at 2B). In other words, if the final ‘wherein’ is intended use, the only other ‘additional element’ for consideration at Prong Two of 2A, and 2B (in conjunction with that viewpoint image ‘acqui[sition]’ constituting necessary pre-solution data gathering 2106.05(g)), is the manner in which the calculating in question is performed on/by the recited ‘processing unit’ (which alone is likely insufficient for integration at Prong Two of 2A and/or 2B) even if said processing unit comprises at least one of 1) ‘a processor’ or 2) ‘a circuit’ (language previously conceded by the Examiner as being structure sufficient to perform the associated function, and accordingly any reviewing authority would likely find the first rebuttable presumption not overcome, even considering ‘unit’ is identified nonce/means alternative terminology in MPEP 2181 (at Prong A) and ‘processing’ is arguably functional in nature less structural – see also Mass. Inst. of Tech., 462 F.3d at 1355-1356, 80 USPQ2d at 1332 (the court found the recitation of "aesthetic correction circuitry" sufficient to avoid pre-AIA 35 U.S.C. 112, paragraph 6, treatment because the term circuit, combined with a description of the function of the circuit, connoted sufficient structure to one of ordinary skill in the art).
In conjunction with similar Prong Two of Step 2A and/or 2B findings, that Prong One analysis associated with the parent Application remains applicable to the instant claims as recited. Reference may be made to the various analysis from the July 17, 2024 PEG https://www.uspto.gov/sites/default/files/documents/2024-AI-SMEUpdateExamples47-49.pdf identifying limitations being drawn to the mathematical concepts Abstract Idea grouping (mathematical relationships, formulas or equations, and/or calculations) – e.g. Example 47 claim 2 step(s) (b) (at page 7 describing the recited ‘discretizing’ as encompassing a mathematical concept e.g. rounding data values (that may also be performed mentally)) and (c) (interpreted so as to include mathematical calculations such as performing backpropagation and gradient descent algorithm(s)), in addition to Example 48 claim(s) 1 and 2 steps (b) (a ‘converting’ involving a mathematical operation using an STFT), (c) (determining (‘using’ a DNN) an ‘embedding’ on the basis of an explicitly recited formula), and (e) (‘applying binary masks’), and Example 48 claim 3 step(s) (c) (clustering using a k-means clustering algorithm) and (d) (binary masking clusters) - (see e.g. page 23 of the 2024 PEG).
MPEP 2106.04(a)(2)(C):
A mathematical calculation is a mathematical operation (such as multiplication) or an act of calculating using mathematical methods to determine a variable or number, e.g., performing an arithmetic operation such as exponentiation. There is no particular word or set of words that indicates a claim recites a mathematical calculation. That is, a claim does not have to recite the word "calculating" in order to be considered a mathematical calculation. For example, a step of "determining" a variable or number using mathematical methods or "performing" a mathematical operation may also be considered mathematical calculations when the broadest reasonable interpretation of the claim in light of the specification encompasses a mathematical calculation.
Updated guidance regarding Subject Matter Eligibility analysis affirms and is consistent with that guidance in effect during the prosecution of the parent application mentioned above. The most recent SME Memo(s) are available at: https://www.uspto.gov/patents/laws/examination-policy/subject-matter-eligibility
To include that 08/04/2025 memo affirming analysis set forth in the 2024 PEG ( https://www.uspto.gov/sites/default/files/documents/memo-101-20250804.pdf ) and most recently Appeals Review Panel (ARP) Decision in Ex Parte Desjardins, Appeal No. 2024-00567, Application No. 16/319,040 (designated precedential on November 4, 2025). https://www.uspto.gov/sites/default/files/documents/memo-desjardins.pdf
In view of the abovementioned considerations Subject Matter Eligibility Analysis concludes similar to that/those analysis presented in the prosecution history of parent Application No. 17/570,426 (finding the claims directed to statutory/eligible subject matter) – however Applicant is advised that if Applicant understands that final processing to be optional/intended use, Applicant may consider amendment more explicitly requiring that final processing to be performed with the recited distribution information, so as to ensure that said processing is an ‘additional element’ for consideration at e.g. Prong Two of Step 2A.
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 11 is 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.
Claim 11 recites the limitation "with a high brightness of the synthesis image" in line 3. There is insufficient antecedent basis for this limitation in the claim. Basis for a synthesis image is established in claim 10, however claim 11 depends directly on claim 1.
Allowable Subject Matter
Claim(s) 1-20 would be allowable if rewritten to overcome (or otherwise overcome – see above re. Terminal Disclaimer) Double Patenting rejections, in addition to any/those rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph (i.e. to claim 11), set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. References of record fail to serve in any obvious combination teaching/ suggesting each and every limitation as required by the instant claims, and reasons for allowance are apparent from the record(s) associated with parent Application No. 17/570,426 (US 12,228,790 B2) in particular. See MPEP § 1302.14.
Examiner’s search identifies newly identified Takahashi et al. US 2010/0220178 A1 – which arguably discloses/suggests ‘distribution information’ equivalent under BRI (even if not equivalent to Mdiff for reasons identified herein) – see Fig. 6 optimum adjustment amount information produced at section 17, for use by parallax amount adjustment section 18 – that is based in part on a plurality of shift/disparity/adjustment amounts (as output from 13) between view-point (left and right eye) images (Fig. 6 output from section 11) wherein said amounts correspond (Fig. 6 see information from section 13 passed to difference calculation section 14) to differences of brightness between left and right viewpoint images. While Examiner understands that an intra-image difference in brightness/intensity may itself serve as a contrast (Applicant’s disclosure supports the same see e.g. pgpub at [0109]), and/or indicative of an intra-image contrast distribution (distribution broadly requiring distinction in the spatial domain – i.e. per pixel, per image region, ‘map’ etc.,), Takahashi fails to fairly teach/suggest any inter-image contrast distribution, that is a difference of contrast values (distinct from brightness/intensity itself) between (inter-) a/the plurality of viewpoint image equivalents.
A similar deficiency/distinction was conceded by the Examiner in the Response to Arguments/Remarks section at page 3 of the Non-Final Rejection mailed 01/02/2024 for parent Application 17/570,426 re. Kusaka et al. (JP 2008015754A) as previously applied.
Kawai et al. (US 2015/0185585 A1) of record, explicitly discloses calculating a contrast distribution between view point image equivalents 58a and 58b ([0237]) so as to set split line 63 at a position characterized by the largest contrast (if not the most out-of-focus position ([0234]) then the ‘easiest position to be focused’ ([0238])), however it remains unclear to the Examiner as to how such a teaching may serve in any permissible/obvious modification to a base reference/disclosure of e.g. Takahashi, and why any modification as required for arriving at the claimed invention as a whole, would have actually been obvious to (absent clear motivation) one or ordinary skill in the art, before Applicant’s effective filing date. At best Kawai evidences the manner in which a contrast distribution pertaining to two complementary views (58a and 58b) may serve in readily identifying a position in a split image 61 equivalent, that may be “the easiest position to be focused” ([0237]).
Takahashi et al. (US 2010/0220178 A1) Fig. 6 reproduced for context/reference:
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Additional References
Prior art made of record and not relied upon that is considered pertinent to applicant's disclosure:
Additionally cited references (see attached PTO-892) otherwise not relied upon in any rejection(s) above have been made of record in view of the manner in which they evidence the general state of the art.
Inquiry
Any inquiry concerning this communication or earlier communications from the examiner should be directed to IAN L LEMIEUX whose telephone number is (571)270-5796. The examiner can normally be reached Mon - Fri 9:00 - 6:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chan Park can be reached on 571-272-7409. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/IAN L LEMIEUX/Primary Examiner, Art Unit 2669
Prosecution Insights