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 .
35 USC § 101
The claims are directed to a sales method, which is a Certain Method of Organizing Human Activities. MPEP § 2106.04(a). The limitations relating to analyzing and identifying visual effects, however, impose meaningful limits on the scope of the abstract idea so as to integrate it into a practical application. See applicant’s amendment in parent application 17/362,796 filed October 19, 2023, pages 10-11. The claims are therefore directed to statutory subject matter.
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.
Claims 1-7, 11-14, and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication 2019/0244272 A1 (hereinafter “Lee”) in view of U.S. Patent Application Publication 2019/0266660 A1 (hereinafter “Wang”).
With respect to claims 1, 13, and 17, Lee discloses
“A computer-implemented method comprising”: Lee, abstract;
“obtaining, by one or more computing devices, product data associated with one or more products”; Lee ¶ 0004 (selection of makeup products and product information for each selection are obtained);
“selecting, by at least one computing device of the one or more computing devices, a visual effect of the at least one corresponding visual effect”; Lee ¶¶ 0020, 0022 (virtual makeup is applied to makeup user interface to display cosmetic effects); and
“generating, by at least one computing device of the one or more computing devices, a modified version of user content by applying the visual effect to the user content”. Lee ¶¶ 0020, 0022 (virtual makeup is applied to modify user content).
Lee discloses the application of virtual makeup, Lee ¶¶ 0018, 0034, but does not explicitly disclose analyzing product data to determine makeup effects. Wang discloses
“determining, by at least one computing device of the one or more computing devices, at least one object associated with a use of the one or more products by applying a first image analysis technique to the product data”; Wang ¶¶ 0036, 0045 (cosmetic product is recognized); and
“identifying, by at least one computing device of the one or more computing devices and using a second image analysis technique, at least one corresponding visual effect being applied in the product data to a region including the at least one object”. Wang ¶¶ 0036, 0045 (makeup effect is identified using any number of image analysis techniques).
Both Lee and Wang relate to makeup selection. Lee, abstract; Wang, abstract. It would have been obvious to one of ordinary skill in the art at the time of filing to include the makeup effect analysis feature as taught by Wang in the method of Lee with the motivation of assisting users to select makeup products. Wang ¶ 0003.
With respect to claim 2, Lee discloses
“further comprising: determining, by at least one computing device of the one or more computing devices, a product that corresponds to the visual effect”; Lee ¶¶ 0020, 0022 (virtual makeup is applied to makeup user interface to display cosmetic effects); and
“generating, by at least one computing device of the one or more computing devices, a list of products that includes the product, each product in the list of products corresponding to at least one visual effect enabled to modify the user content”. Lee ¶ 0004 (selected products are listed in digital signature).
With respect to claim 3, Wang discloses
“further comprising: displaying, on at least one computing device of the one or more computing devices, the list of products, each product in the list of products being associated with respective product information comprising one of at least an identifier, pricing information, a rating, one or more reviews, image content, video content, audio content, or availability information”. Wang, fig. 11 (each product is shown with associated information, such as name and price).
With respect to claim 4, Wang discloses
“further comprising: determining, by at least one computing device of the one or more computing devices, a plurality of classifications of products”; Wang ¶ 0034 (products can be classified in any manner, such as by type of product, such as lipstick, eyeshadow, etc. or by general appearance, such as pink or red);
“determining, by at least one computing device of the one or more computing devices, first visual effects of a first number of products included in a first classification of the plurality of classifications”; Wang ¶ 0034 (e.g., visual effects of different colored lipsticks); and
“determining, by at least one computing device of the one or more computing devices, second visual effects of a second number of products included in a second classification of the plurality of classifications”. Wang ¶ 0034 (e.g., visual effects of different types of products of the same color).
With respect to claim 5, Wang discloses
“further comprising: determining, by at least one computing device of the one or more computing devices, a first number of visual effects options corresponding to the first visual effects, the first visual effects modifying a first appearance related to a first object”; Wang ¶ 0034 (e.g., lipstick modifies appearance of lips); and
“determining, by at least one computing device of the one or more computing devices, a second number of visual effects options corresponding to the second visual effects, the second visual effects modifying a second appearance related to a second object that is different from the first object”. Wang ¶ 0034 (e.g., eyeshadow modifies appearance of eyes).
With respect to claim 6, Wang discloses
“wherein the first visual effects modify at least one of color, shade, brightness, shape, texture or size of a first facial feature and the second visual effects modify at least one of color, shade, brightness, shape, texture or size of a second facial feature”. Wang ¶ 0034 (e.g., lipstick modifies color of lips and eyeshadow modifies shade of area of face around eyes).
With respect to claim 7, Wang discloses
“wherein the first visual effects modify at least one of color, shade, brightness, shape, texture or size of a region proximate to a first facial feature and the second visual effects modify at least one of color, shade, brightness, shape, texture or size of a region proximate to a second facial feature”. Wang ¶ 0042 (e.g., lipstick modifies lips and blush modifies skin proximate to lips).
With respect to claim 11, Wang discloses
“wherein identifying the visual effect applied to the region that includes the at least one object comprises detecting facial features using one of at least a template matching technique, a neural network technique, or a Fisher linear discriminant technique, a maximal rejection classifier technique, a support vector machine technique, an edge filtering technique, an edge detection technique”. Wang ¶¶ 0034-0038 (visual effect is identified using standard techniques, such as edge detection).
With respect to claim 12, Wang discloses
“wherein implementing the first image analysis technique comprises implementing an object recognition technique, and wherein implementing the second image analysis technique comprises detecting features comprising one of at least edges, lighting changes, color changes, shape changes, or size changes”. Wang ¶¶ 0034-0038 (visual effect is identified using standard techniques, such as edge detection and color and size changes).
With respect to claim 14, Wang discloses
“wherein the one or more non-transitory computer-readable storage media include additional computer-readable instructions that, when executed by the one or more hardware processors, cause the one or more hardware processors to perform additional operations comprising: determining a product that corresponds to the visual effect based on metadata related to the product data, the metadata being provided by a service provider that aggregates information corresponding to a number of products, by a manufacturer of one or more products, or by a seller of the one or more products”. Wang ¶ 0034 (metadata include labels applied to product, such as lipstick or eyeshadow and pink or red).
With respect to claim 18, Wang discloses
“wherein the one or more non-transitory computer-readable storage media include additional computer-readable instructions that, when executed by the one or more hardware processors, cause the one or more hardware processors to perform additional operations comprising: displaying a first user interface of a client application associated with the one or more products, the first user interface including additional user content and a first number of visual effects options corresponding to a first classification of products; and displaying a second user interface of the client application, the second user interface including the additional user content and a second number of visual effects options corresponding to a second classification of products”. Wang ¶¶ 0034-0038 (multiple preview windows can be displayed showing the effects of different shades of lipsticks or the application of either lipstick or eyeshadow, etc.).
With respect to claim 19, Wang discloses
“wherein the one or more non-transitory computer-readable storage media include additional computer-readable instructions that, when executed by the one or more hardware processors, cause the one or more hardware processors to perform additional operations comprising: modifying a first appearance of a first object included in the additional user content according to a first visual effect related to a first visual effects option included in the first number of visual effects options to produce a first modified version of the additional user content; and modifying a second appearance of a second object included in the additional user content according to a second visual effect related to a second visual effects option included in the second number of visual effects options to produce a second modified version of the additional user content”. Wang ¶¶ 0034-0038 (multiple preview windows can be displayed showing the effects of different shades of lipsticks or the application of either lipstick or eyeshadow, etc.).
Claims 8-10, 15, 16, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Lee in view of Wang as applied to claims 1-7, 11-14, and 17-19 above, and further in view of Merothiya, S., “Shaping the Future of Beauty Brands with Augmented Reality” Jun. 19, 2019 (https://www.srijan.net/resources/blog/shaping-future-beauty-brands-augmented-reality” (listed on applicant’s information disclosure statement filed March 7, 2024 in parent application 18/598,538) (hereinafter “Merothiya”).
With respect to claim 8, Lee and Wang do not explicitly disclose augmented reality. Merothiya discloses
“wherein: the first visual effects include a first visual effect that corresponds to first augmented reality content that applies the first visual effect in relation to the first object included in the user content; and the second visual effects include a second visual effect that corresponds to second augmented reality content that applies the second visual effect in relation to the second object included in the user content”. Merothiya, page 2 (e.g., Sephora allows user to try on combinations of different products using augmented reality).
Lee, Wang, and Merothiya relate to makeup selection. Lee, abstract; Wang, abstract; Merothiya, pages 1-2. It would have been obvious to one of ordinary skill in the art at the time of filing to include the augmented reality feature as taught by Merothiya in the method of Lee/Wang with the motivation of assisting users to select makeup products online. Merothiya, pages 1-2.
With respect to claim 9, Merothiya discloses
“further comprising obtaining, by at least one computing device of the one or more computing devices, modified user content that includes the first visual effect applied in relation to the first object and the second visual effect applied in relation to the second object”. Merothiya, page 2 (e.g., Sephora includes visual effects relating to multiple products).
With respect to claim 10, Merothiya discloses
“further comprising: obtaining, by at least one computing device of the one or more computing devices, a message that includes the modified version of the user content; and sending, by at least one computing device of the one or more computing devices, the message to a client device of a recipient of the message, the message being accessible via an instance of a client application executed by the client device of the recipient”. Merothiya, page 2 (modified content is sent to user device).
With respect to claim 15, Wang discloses
“wherein the one or more non-transitory computer-readable storage media include additional computer-readable instructions that, when executed by the one or more hardware processors, cause the one or more hardware processors to perform additional operations comprising: determining a measure of similarity between the additional object included in the user content and the at least one object associated with the product”; Wang ¶¶ 0034, 0035 (e.g., closeness of shades of several different lipsticks); and
“determining that the additional object and the at least one object are similar based on determining that the measure of similarity is at least a threshold measure of similarity”. Wang ¶¶ 0034, 0035 (e.g., lipstick is determined to be close enough to a particular color to display for user to choose desired shade).
Merothiya discloses
“analyzing the user content using one or more image analysis techniques to determine an additional object included in the user content”; Merothiya, page 2 (“All of this is made possible by several significant developments around facial recognition, feature tracking and computer vision. These combine to create the advanced AR applications that almost all global beauty brands are currently investing in”); and
“implementing augmented reality content with respect to the additional object to apply the visual effect to at least one of the additional object or a region proximate to the additional object”. Merothiya, page 2 (augmented reality is implemented to display each object).
With respect to claim 16, Merothiya discloses
“wherein the one or more non-transitory computer-readable storage media include additional computer-readable instructions that, when executed by the one or more hardware processors, cause the one or more hardware processors to perform additional operations comprising: making social networking content that includes the modified version of the user content accessible to one or more contacts of a user of a client application associated with the one or more products”. Merothiya, page 3 (“Brands like L’Oreal are using AR to strengthen their digital platforms and engage with millennials and Gen-Z on social platforms of their choice. As a result of this digital engagement, L’Oreal reported 50% revenues from online product sales in certain markets.”)
With respect to claim 20, Merothiya discloses
“wherein: the first user interface includes a magnified version of a first portion of the additional user content that includes the first object; and the second user interface includes a magnified version of a second portion of the additional user content that includes the second object”. Merothiya, page 3 (Neutrogena or Clinique app allows user to view close up images of skin; close-ups are magnified).
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent Number 12,400,256 B2 (hereinafter “Luo”). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims are anticipated by (and broader than) and therefore obvious over the claims of Luo.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ETHAN D CIVAN whose telephone number is (571)270-3402. The examiner can normally be reached Monday-Thursday 8-6:30.
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, Jeffrey A Smith can be reached at (571) 272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
ETHAN D. CIVAN
Primary Examiner
Art Unit 3688
/ETHAN D CIVAN/Primary Examiner, Art Unit 3688
Prosecution Insights