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.
Claims 1-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11, 15-20 and 23-26 of U.S. Patent No. 12,198,403 (hereinafter ‘403). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Current Application ‘403
Claim 1:
extract one or more features from an image or video;
select a set of rules from a plurality of sets of rules based on a source of the image or video, the set of rules indicating a set of expected features;
compare the one or more extracted features to the set of rules to generate a performance score for the image or video based on a difference between the one or more features and the set of expected features; and
store an association between the performance score and the image or video.
Claim 1:
executing, by one or more processors, a neural network to extract one or more features from an image or video;
selecting, by the one or more processors, a benchmark from a plurality of benchmarks based on a source of the image or video, the benchmark indicating a set of expected features;
comparing, by the one or more processors, the one or more extracted features to the benchmark to generate a performance score for the image or video based on a difference between the one or more features and the set of expected features; and
generating, by the one or more processors, a record identifying the performance score for the image or video.
Current Application ‘403
Claim 10:
extract one or more features from an image or video;
select a set of rules from a plurality of sets of rules based on a category corresponding to the set of rules, the set of rules generated based on a plurality of images or videos each corresponding to the category;
compare the one or more extracted features to the set of rules to generate a performance score for the image or video based on a difference between the one or more features and the set of rules; and
store an association between the performance score and the image or video.
Claim 10:
executing, by one or more processors, a neural network to generate a performance score for a video or image based on one or more features of the image or video;
generating, by the one or more processors, a benchmark from one or more images or videos selected based on a similarity between the one or more features of the image or video and features of the one or more images or videos;
comparing, by the one or more processors, the performance score to the benchmark to generate a benchmark score for the image or video; and
generating, by the one or more processors, a record indicating the benchmark score for the image or video.
Current Application ‘403
Claim 16:
extract one or more features from an image or video;
generate a set of rules from one or more images or videos selected based on a similarity between the one or more features of the image or video and features of the one or more images or videos;
compare the one or more extracted features to the set of rules to generate a performance score for the image or video based on a difference between the one or more features and the set of rules; and
store an association between the performance score and the image or video.
Claim 15:
executing, by one or more processors, a neural network to extract one or more features from an image or video;
selecting, by the one or more processors, a benchmark from a plurality of benchmarks based on a category corresponding to the benchmark, the benchmark generated based on a plurality of images or videos each corresponding to the category;
comparing, by the one or more processors, the one or more extracted features to the benchmark to generate a performance score for the image or video based on a difference between the one or more features and the benchmark; and
generating, by the one or more processors, a record identifying the performance score for the image or video.
Claim 2 of the current application corresponds to claim 2 of ‘403.
Claim 3 of the current application corresponds to claim 3 of ‘403.
Claim 4 of the current application corresponds to claim 4 of ‘403.
Claim 5 of the current application corresponds to claim 5 of ‘403.
Claim 6 of the current application corresponds to claim 6 of ‘403.
Claim 7 of the current application corresponds to claim 7 of ‘403.
Claim 8 of the current application corresponds to claim 8 of ‘403.
Claim 9 of the current application corresponds to claim 9 of ‘403.
Claim 11 of the current application corresponds to claim 16 of ‘403.
Claim 12 of the current application corresponds to claim 11 of ‘403.
Claim 13 of the current application corresponds to claim 18 of ‘403.
Claim 15 of the current application corresponds to claim 20 of ‘403.
Claim 17 of the current application corresponds to claim 17 of ‘403.
Claim 18 of the current application corresponds to claim 23 of ‘403.
Claim 19 of the current application corresponds to claim 24 of ‘403.
Claim 20 of the current application corresponds to claim 25 of ‘403.
Claim 21 of the current application corresponds to claim 26 of ‘403.
Allowable Subject Matter
Claims 1-20 would be allowed provided that the Double Patenting Rejection is overcome.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLOTTE M BAKER whose telephone number is (571)272-7459. The examiner can normally be reached Mon - Fri 8:00-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JENNIFER MEHMOOD can be reached at (571)272-2976. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLOTTE M BAKER/Primary Examiner, Art Unit 2664
01 October 2026
