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 .
Priority
This application is a 371 of PCT/JP2022/042167 filed November 14, 2022.
Claims Status
Claims 2, 8-9, 15, 17, 19-21 and 23 have been cancelled.
Claims 1, 3-7, 10-14, 16, 18, 22, and 24-25 are pending and stand rejected.
Amendment – Title
Applicant’s amendment to the title is acknowledged and accepted. The previous rejection is withdrawn.
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-7, 10-14, 16, 18, 22, and 24-25 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 1, claim 1 as amended now recites determine whether a difference between an RGB value of a pixel within a region and an RGB value of surrounding pixels within the region exceeds a threshold based on the image data of the plurality of displayed identical products.
The subject matter of the claim (recited above) does not conform to the disclosure in such a manner in which one of ordinary skill in the art would recognize that applicant actually had possession of at the time of the invention. The most pertinent portion of the disclosure is as follows:
[0028]: For example, the state estimation unit 102 may estimate the presence or absence of a flaw of an individual product by determining that a region of a pixel having an RGB value significantly different from those of surrounding pixels is a flaw based on information indicating the color of the pixel in the image region of the individual product. The estimation of the presence or absence of unevenness of the individual product and the estimation of the presence or absence of a flaw of the individual product may be performed by the extraction unit 103 described later.
The specification merely discloses, at a high level, that the flaw estimation is achieved by determining that a region of a pixel having an RGB value “significantly different” from those of surrounding pixels. Even assuming “significantly different” is analogous to a threshold, the specification provides no detail for how the determination of a “statistically different” RGB value is performed or any standard for what is considered “significantly different” so as to adequately support a difference between an RGB value of a pixel within a region and an RGB value of surrounding pixels within the region exceeds a threshold.
This disclosure does not convey adequate information to show that the inventor had possession of the claimed invention and is essentially a "black box" will not be sufficient.
Moreover, whether one of ordinary skill in the art could devise a way to accomplish these functions is not relevant to the issue of whether the inventor(s) has shown possession of the claimed invention. This is because the ability to make and use the invention does not satisfy the written description requirement if details of how a function (such as the claimed updating) is performed are not disclosed.
It is noted that this is not an enablement rejection. Applicant’s failure to sufficiently describe any algorithm, steps, or procedures taken to perform the claimed function raises questions as to whether Applicant truly had possession of this feature at the time of filing.
Dependent claims 3-7, 10-14, 16, 18, and 22 depend either directly or indirectly from independent claim 1. These claims are thereby rejected along with claim 1 by virtue of their dependency of claim 1.
Regarding claims 24 (method) and claim 25 (non-transitory CRM), claims 24-25 recite at least substantially similar concepts and elements as recited in claims 24-25 such that similar analysis of the claims would be readily apparent to one of ordinary skill in the art. As such, claims 24-25 are rejected under at least similar 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 1, 3-7, 10-14, 16, 18, 22, and 24-25 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (abstract idea) without significantly more.
Regarding claims 1, 3-7, 10-14, 16, 18, 22, and 24-25, under Step 2A claims 1, 3-7, 10-14, 16, 18, 22, and 24-25 recite a judicial exception (abstract idea) that is not integrated into a practical application and does not provide significantly more.
Under Step 2A (prong 1), and taking claim 1 as representative, claim 1 recites a device for estimating a state of products,
determine whether a difference between an RGB value of a pixel within a region and an RGB value of surrounding pixels within the region exceeds a threshold based on the image data of the plurality of displayed identical products;
estimate, based on the sensor information and the determination of whether the difference exceeds the threshold, an individual state of an individual product of each of the plurality of displayed identical products;
determine a reference value based on the individual states of the plurality of displayed identical products;
extract a specific product that is an individual product having an individual state deviating from the reference value, based on a comparison between the individual state of each of the plurality of displayed identical products and the reference value;
set a price of the specific product based on price information indicating a relationship between a price of the plurality of displayed identical products and the individual states of the plurality of displayed identical products, and the individual state of the specific product;
output specific product information relating to the specific product;
receive a price change request including a reason for change for the specific product for which the specific product information is output; and
set a modified price based on the price change request, the price information, the individual state of the specific product, and a predefined allowable price range.
These limitations recite ‘certain methods of organizing human activity’, such as by performing commercial interactions and/or fundamental economic principals or practices (see: MPEP 2106.04(a)(2)(II)). This is because claim 1 sets forth or describes estimating a state of a product, extracting a specific product that has a different state, outputting product information for the specific product. This represents the performance of a marketing or sales activities or behaviors, which is a commercial interaction and falls under organizing human activity. This also describes concepts relating to the economy and commerce that represent fundamental economic practices, which also fall under organizing human activity.
Accordingly, under step 2A (prong 1) claim 1 recites an abstract idea because claim 1 recites limitations that fall within the “Certain methods of organizing human activity” grouping of abstract ideas.
Alternatively, claim 1 can also be understood to recite limitations that set forth or describe “mental processes” that are performable in the human mind, or by pen and paper. This is because at least the following steps of claim 1 can be accomplished in the human mind, or using a physical aid such as pen and paper, and represent observations, evaluations or judgments (see: MPEP 2106.04(a)(2)(III)):
determine whether a difference between an RGB value of a pixel within a region and an RGB value of surrounding pixels within the region exceeds a threshold based on the image data of the plurality of displayed identical products;
estimate, based on the sensor information and the determination of whether the difference exceeds the threshold, an individual state of an individual product of each of the plurality of displayed identical products;
determine a reference value based on the individual states of the plurality of displayed identical products;
extract a specific product that is an individual product having an individual state deviating from the reference value, based on a comparison between the individual state of each of the plurality of displayed identical products and the reference value;
Notably, the courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation.
Accordingly, under step 2A (prong 1) claim 1 also recites an abstract idea because claim 1 recites limitations that fall within the “Mental processes” grouping of abstract ideas.
Under Step 2A (prong 2), the abstract idea is not integrated into a practical application. The Examiner acknowledges that representative claim 1 does recite additional elements, including a device comprising:
one or more memories storing instructions; and
one or more processors configured to execute the instructions to:, and,
acquire sensor information containing a plurality of displayed identical products.
Although reciting these additional elements, taken alone or in combination these elements are not sufficient to integrate the abstract idea into a practical application. This is because the additional elements of claim 1 are recited at a high level of generality (i.e. as generic computing hardware) such that they amount to nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea).
Secondly, the additional elements are insufficient to integrate the abstract idea into a practical application because the claim fails to (i) reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, (ii) implement the judicial exception with, or use the judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, (iii) effect a transformation or reduction of a particular article to a different state or thing, or (iv) applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
In addition to the above, acquire sensor information containing a plurality of displayed identical products represent little more than extra-solution activity (e.g. data gathering) that contributes only nominally or insignificantly to the execution of the claimed method (see: MPEP 2106.05(g)).
In view of the above, under Step 2A (prong 2), claim 1 does not integrate the recited exception into a practical application.
Under Step 2B, examiners should evaluate additional elements individually and in combination to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). In this case, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Returning to representative claim 1, taken individually or as a whole the additional elements of claim 1 do not provide an inventive concept (i.e. they do not amount to “significantly more” than the exception itself). As discussed above with respect to the integration of the abstract idea into a practical application, the additional elements used to perform the claimed process amount to no more than the mere instructions to apply the exception using a generic computer and/or no more than a general link to a technological environment.
Furthermore, the additional elements fail to provide significantly more also because the claim simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. For example, the additional elements of claim 1 utilize operations the courts have held to be well-understood, routine, and conventional (see: MPEP 2106.05(d)(II)), including at least:
receiving or transmitting data over a network,
storing or retrieving information from memory,
Even considered as an ordered combination (as a whole), the additional elements of claim 1 do not add anything further than when they are considered individually. In view of the above, representative claim 1 does not provide an inventive concept (“significantly more”) under Step 2B, and is therefore ineligible for patenting.
Regarding dependent claims 3-7, 10-14, 16, 18 and 22, dependent claims 3-7, 10-14, 16, 18 and 22 recite more complexities descriptive of the abstract idea itself, and at least inherit the abstract idea of claim 1. As such, claims 3-7, 10-14, 16, 18 and 22 are understood to recite an abstract idea under step 2A (prong 1) for at least similar reasons as discussed above.
Under prong 2 of step 2A, the additional elements of dependent claims 3-7, 10-14, 16, 18 and 22 also do not integrate the abstract idea into a practical application, considered both individually or as a whole. More specifically, elements such as a specific product sensor (claim 6-7), output means (claim 8), and superimpose or project information (claims 11-12) are recited only at a high level of generality (i.e. as generic computing hardware) such that they amount to nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea).
Lastly, under step 2B, claims 3-7, 10-14, 16, 18 and 22 also fail to result in “significantly more” than the abstract idea under step 2B. This is again because the claims merely apply the exception on generic computing hardware, generally link the exception to a technological environment, and append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. Even when viewed as an ordered combination (as a whole), the additional elements of the dependent claims do not add anything further than when they are considered individually.
In view of the above, claims 3-7, 10-14, 16, 18 and 22 do not provide an inventive concept (“significantly more”) under Step 2B, and are therefore ineligible for patenting.
Regarding claims 24 (method) and claim 25 (non-transitory CRM), claims 24-25 recite at least substantially similar concepts and elements as recited in claims 24-25 such that similar analysis of the claims would be readily apparent to one of ordinary skill in the art. As such, claims 24-25 are rejected under at least similar rationale.
Subject Matter Allowable Over the Prior Art
Claims 1, 3-7, 10-14, 16, 18, 22, and 24-25 remain rejected on other grounds but contain subject matter that is allowable over the prior art. Claim 1 has been amended to incorporate the subject matter from claim 9 with intervening claims 2 and 8, claim 9 previously objected to as a dependent claim allowable over the prior art. As amended, claim 1 now recites a combination of limitations culminating with set a modified price based on the price change request, the price information, the individual state of the specific product, and a predefined allowable price range. When taken together, the combination of limitations as now recited is not rendered obvious.
Response to Arguments
Applicant’s arguments with respect to the rejection under 35 USC 101 have been fully considered but are not persuasive.
Concerning Prong One generally, Applicant is reminded that Prong One asks does the claim recite an abstract idea, law of nature, or natural phenomenon? In Prong One examiners evaluate whether the claim recites a judicial exception, i.e. whether a law of nature, natural phenomenon, or abstract idea is set forth or described in the claim. As discussed in the above rejection, the claims clerly set forth or describe an abstract idea, such as the aforementioned commercial process (under certain methods of organizing human activity), with at least a portion of the limitation falling into the mental processes grouping of abstract ideas. The presence of additional elements in the claims does not negate the finding under Prong One. Additional elements are evaluation under Prong Two and Step 2B, as discussed further below.
The Examiner acknowledges that the claims have been amended to recite determine whether a difference between an RGB value of a pixel within a region and an RGB value of surrounding pixels within the region exceeds a threshold based on the image data of the plurality of displayed identical products. As discussed above, this feature forms part of the abstract idea – either as part of the commercial process itself or alternatively as a mental process including an evaluation, observation or judgment.
Even presuming arguendo this was not the case, this limitation amounts to nothing more than “apply it”, and does not amount to an improvement to the functioning of the computer itself or another technology or technical field.
When evaluating improvements, the specification must describe the invention such that the improvement would be apparent to one of ordinary skill in the art (MPEP 2106.04(d)(1)). If it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement (MPEP 2106.05(a)).
As filed, the specification provides no details that demonstrate that the limitation in question is (a) not performable in the human mind, and (b) sufficiently described in a way that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Neither the claims nor the specification provide any further description of how the determination is made, or how (from a technical perspective) the computer operates to perform determine whether a difference between an RGB value of a pixel within a region and an RGB value of surrounding pixels within the region exceeds a threshold.
Both the specification and the claims lack any restriction on how this operation is performed, merely employing generic computer components to accomplish the determination. The recitation of claim limitations that attempt to cover any solution to an identified problem with no restriction on how the result is accomplished and no description of the mechanism for accomplishing the result, does not integrate a judicial exception into a practical application or provide significantly more because this type of recitation is equivalent to the words “apply it”. (MPEP 2106.05(f)(1)).
In addition to paragraph 0028 (discussed above under the 35 USC 112(a) rejection), the Examiner observes the following statement in paragraph 0020:
“A known image recognition technique may be used to detect an individual product. For example, the state estimation unit 102 detects the contour of the individual product in the image. Then, the state estimation unit 102 estimates the individual state of each individual product based on the pixel information of each individual product.”
Here, the specification indicates that “known” image recognition techniques are used – not new improved techniques. It is also notable that paragraph 0020 is discussed relative to size estimation, though this serves to indicate that the invention lies in applying known techniques for performing the abstract idea.
There is also no citable portion that indicates that the invention is envisioned to improve upon the underlying technology for image recognition; rather, the invention employs such techniques to improve and/or expedite the abstract process for estimating a state of product to adjust price. Claiming the improved speed or efficiency inherent with applying the abstract idea on a computer” does not integrate a judicial exception into a practical application or provide an inventive concept (MPEP 2106.05(f)(2)).
The Examiner reiterates the lack of disclosure of how the image recognition is performed relative to the claimed function of determine whether a difference between an RGB value of a pixel within a region and an RGB value of surrounding pixels within the region exceeds a threshold, and any assertion that the image recognition is operating in a way that is not conventional in the art is not supported by the original disclosure. That is, the invention either utilizes what is known in the art or has failed the written description requirement under 35 USC 112(a).
Accordingly, the rejection under 35 USC has been maintained as provided above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Maru (US 2025/0054310) discloses using image processing for shelf management, such as identifying poor shelf conditions such as incorrectly stocked items, low stock items, or out of stock items. Though disclosing an RGB difference threshold, Maru does not teach or render obvious the combination of features as claimed. (see: 0068, 0238).
PTO form 892-U discusses using image analytics to monitor the contents and status of retail store shelves (see abstract). 892-U does not teach or render obvious the combination of features as claimed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM J ALLEN whose telephone number is (571)272-1443. The examiner can normally be reached Monday-Friday, 8:00-4:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anita Coupe can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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WILLIAM J. ALLEN
Primary Examiner
Art Unit 3625
/WILLIAM J ALLEN/Primary Examiner, Art Unit 3619
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