DETAILED ACTION
This nonfinal office action is in response to Applicant’s filing of Application No. 19/075,421. Claims 1-20 are pending and under examination.
Notice of Pre-AIA or AIA Status
2. The present application, filed on or after March 16, 2013, is being examined
under the first inventor to file provisions of the AIA .
Drawings
3. The drawings filed on March 11, 2025 are accepted.
Information Disclosure Statement
4. The Information Disclosure Statements filed on March 11, 2025 have been considered. An initialed copy of the Form 1449 is enclosed herewith.
.
Double Patenting
5. The non-statutory 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 claims at issue 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); and /n 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 a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321 (b).
The USPTO internet Web site contains terminal disclaimer forms which may be
used. Please visit http:/Awww.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based e-Terminal Disclaimer may be filled out completely online using web-screens. An e-Terminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about e-Terminal Disclaimers, refer to
http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-l.jsp.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1 and 8 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1 and 8 of U.S. Patent No. US 12/265,976). Although the conflicting claims are not identical, they are not patentably distinct from each other because it is well settled that the omission of an element and its function is an obvious expedient if the remaining elements perform the same function as before". in re Karlson, 136 USPQ 184 (CCPA 1963).
Claim Rejections - 35 USC§ 102
6. 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 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.
7. 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)(l) 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.
8. Claims 1-3, 6-10, 13-17, and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Adato et al (U.S. Publication No. 2019/0149725, hereinafter Adato).
Regarding claims 1, 8 and 15, Adato teaches a retail entity comprising a product display area defined by a planogram (Paragraph [0007]);
a retail entity comprising a product display area defined by a planogram (Paragraph [0014]) ;
eye tracking hardware installed and configured to Paragraphs ([0010 and 0115]):
track eye tracking data for one or more shoppers at a retail location (Paragraphs [0149 and 0764]);
a planogram analyzer comprising a server and configured to (Paragraphs [0010 and 0121]):
train a machine learning model to identify hot and dark shelf areas within the retail location (Paragraph [0136]);
generate, by the trained machine learning model, one or more recommendations for a planogram at the retail location (Fig. 32 A and Paragraph [0210]; and
alter the planogram based on the one or more recommendations (Paragraphs [0121]):
Regarding claims 2, 9 and 16, Adato further teaches wherein the eye tracking hardware comprises one or more of: shelf-mounted imaging sensors, shelf-edge cameras and IoT imaging devices, wherein the eye tracking hardware is configured to track eyeball movement, eyeball engagement, and eyeball lingering time of a shopper recommendations (Paragraphs [0018]):
Regarding claims 3, 10 and 17, Adato further teaches wherein the eye tracking hardware is further configured to:
differentiate between ghost shoppers and other shoppers, wherein the ghost shoppers are used by the retail location to determine one or more shopping habits of a customer (Paragraphs [0232]).
Regarding claims 6, 13 and 20, Adato further teaches further recites where the one or more recommendations comprise placement of one or more products to maximize profitability (Paragraphs [0235]).
Regarding claims 7 and 14, Adato further teaches wherein the machine learning model comprises an objective function (Paragraphs [0171]).
Claim Rejections - 35 USC § 103
9. 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.
10. Claims 4-5, 11-12 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Adato et al (U.S. Publication No. 2019/0149725, hereinafter Adato) in view of Nicolis (EP3696741 A1).
Regarding claims 4, 11 and 18, Adato fails to explicitly teach but Nicolis teaches
wherein a hot area within a shelf comprises a first place that the one or more shoppers looked on a particular shelf, an area on a shelf that the one or more shoppers spent a most time looking at or an area on a shelf where the one or more shoppers persist See Column 1, lines 24-44 of Nicolis. It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Adato to incorporate the teachings of Nicolis, since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
11. Claims 5, 12 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Adato et al (U.S. Publication No. 2019/0149725, hereinafter Adato) in view of Karmakar (US Publication No. 2019/0147463 A1).
Regarding claims 5, 12 and 19, Adato fails to explicitly teach but Karmakar teaches wherein the one or more recommendations comprise one or more horizontal facings and vertical facings. Note (Paragraph [0037]) of Karmakar. It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Adato to incorporate the teachings of Karmakar, since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Conclusion
12. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. As per attached PTO 892 form.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Romain Jeanty whose telephone number is (571) 272-6732. The examiner can normally be reached M.
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/Romain Jeanty/Primary Examiner, Art Unit 3624
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