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 .
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, 3-6, 8-9, 11, 13-16, and 18-19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim recites determining assessment task for a particular participant to complete within an allocated amount of time, determining a time requirement value for the at least one of the assessment task, generating a pace visualization illustrating the level of progress by the current participant, providing the time requirement value back to the participants based on data from historical participants and determining the order of performance for the task and the pace visualization for the participants; receiving input from the current participation to blacklist one or more remaining task; removing each blacklisted task from the suggested order of performance and time allocation; updating the time requirement value for non-blacklisted task by increasing the time requirement value based on a redistribution of the remaining time among the non-blacklisted tasks.
The limitation of determining assessment task for a particular participant to complete within an allocated amount of time, determining a time requirement value for the at least one of the assessment task, generating a pace visualization illustrating the level of progress by the current participant, providing the time requirement value back to the participants and providing the order of performance for the task and the pace visualization for the participants, providing the time requirement value back to the participants, covers performance of the limitation in the mind but for the recitation of generic computer components, removing each blacklisted task from the suggested order of performance and time allocation; updating the time requirement value for non-blacklisted task by increasing the time requirement value based on a redistribution of the remaining time among the non-blacklisted tasks. That is, other than reciting “a display” and a “a processer coupled to the display” nothing in the claim element precludes the step from practically being performed in the mind. For example, but for the “by a processor” language, “determining” in the context of this claim encompasses the mental process of a human calculating the determining assessment task for a particular participant to complete within an allocated amount of time, determining a time requirement value for the at least one of the assessment task, providing the time requirement value back to the participants, thinking about a suggested order of performance for the remaining task to optimize a user’s performance and presenting the suggested ordering to the user and removing each blacklisted task from the suggested order of performance and time allocation; updating the time requirement value for non-blacklisted task by increasing the time requirement value based on a redistribution of the remaining time among the non-blacklisted tasks. For example, paragraph 90 of the specification shows that the time requirement value is determined. The calculation can be performed with the human mind or with a pen and a paper. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea.
The amendment of “wherein the time requirement is determined based on historical performance data associated with the at least one of the assessment tasks and the historical performance data for the at least one of the assessment tasks include data indicative of the amount of time required for historical participants to complete that task and obtain a defined successful task value for that task” are still directed to “Mental Processes” grouping of abstract ideas as these step can be done manually by a teacher observing the behavior of the past student behavior and measuring the amount of time that a student (or a group of student) takes to complete a task and thinking about the a scoring system or value to measure that particular task.
This judicial exception is not integrated into a practical application. In particular, the claim only recites a process and a display coupled to the processor or performing the method electronically. This recitation amounts no more than mere instructions to apply the exception using a generic computer component. For example, Applicant’s own specification describes these computer components to be generic computer components (see paragraph 40-41). Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional element of using a processor or electronic means to perform the step of: determining assessment task for a particular participant to complete within an allocated amount of time, determining a time requirement value for the at least one of the assessment task and providing the time requirement value back to the participants; amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. The claim is not patent eligible
Limitation of the dependent claims have been reviewed and do not ameliorate the rejection rationale of the independent claims. For example:
Claim 3-6, 8, 13-16 and 18 only provide limitations that further limit the abstract idea. For example, claim 3-5, 13-15 describes a historical data to be used in conjunction with the calculation of the time requirement. Claims 6, 8, 16 and 18 also delve into the calculation of the normalized value and adjust value based on the success rate of the other participants. The examiner takes the position that the same rejection rationale can be applied on these dependent claims. Accordingly, these dependent claims are rejected under the same rationale as the independent claims.
Claims 9-10, 19-20 appear to be directed to the use of the processor to either: display the result of the calculation using the display device or uses the processor to determine an ordering of the task. The examiner takes the position that the same rejection rationale can be applied on these dependent claims. Accordingly, these dependent claims are rejected under the same rationale as the independent claims.
Response to Arguments
The Applicant argued that the rejection under 35 U.S.C 101 on claims 1, 3-6, 8-9, 11, 13-16, and 18-19 are not warranted because the assessment is not based static schedules and requires real-time factors that can not be performed in the mind of the teacher. However, the MPEP states that performing mental processes that requires a computer can still be directed to a mental process. In this case, the rejection above already states that the mental process in the claim limitation are either done 1) on a generic computer, or done 2) in a computer environment, or 3) is merely using a computer as a tool to perform the concept. In these situations, the claim is considered to recite a mental process (see MPEP 2106.04(a)(2)).
The Applicant argues that paragraph 65, 66 and 107 of the specification provides a teaching of technological improvement associated with e-learning. Paragraph 65, 66 and 107 from the specification can be seen below:
“[0065] Assessment participants may deploy various time management strategies to encourage completion of all of the tasks 52 of the assessment module 50. One common strategy is to proportionally allocate an amount of time to spend on each assessment task 52 based upon the value of the assessment task 52. That is, a participant may prorate an amount of time to be spent on each question on an exam based upon the marks allocated to that question. However, this type of strategy may not take into account difficulties associated with each assessment task.
[0066] For example, some tasks 52 may be relatively easy and completed relatively quickly, yet be assigned a relatively high value. In contrast, some tasks 52 may have relatively low assigned value, yet be relatively difficult and require a relatively long amount of time to complete. In another example, a participant may have taken too long to answer a subset of the assessment tasks, and thereby has less time to allocate to the remaining assessment tasks. Alternatively, a participant may have completed a subset of the assessment tasks ahead of schedule and thereby have more time to allocate to the remaining tasks.
[00107] The visualization 71 also includes a pace visualization portion 82. The pace visualization portion 82 displays various data associated with the assessment module 50 and the current task 54a to a participant. The bar graph 84 displays the assessment tasks. As the assessment module 50 includes eight tasks, eight tasks are shown. Furthermore, the size of each task on the graph 84 is proportional to the task value associated with that task. That is, each of the Tasks 1 - 4 is worth half of Task 5 or Task 6, and each of the Tasks 5 and 6 is worth half of Task 7 or Task 8. This may allow a participant to determine relative value of each task to other tasks efficiently.”
The “improvements” analysis in Step 2A and 2B determines whether the claim pertains to an improvement to the functioning of a computer or to another technology without reference to what is well-understood, routine, conventional activity. The examiner notes that examples of improvement promulgated in the MPEP is very specific to tailored to improvement of the technical working of computer itself or another technology. For example, allowing a conventional Internet hyperlink protocol to dynamically produce a dual-source hybrid webpage, DDR Holdings, 773 F.3d at 1258-59, 113 USPQ2d at 1106-07; or a method that generates a security profile that identifies both hostile and potentially hostile operations, and can protect the user against both previously unknown viruses and "obfuscated code," which is an improvement over traditional virus scanning. Finjan Inc. v. Blue Coat Systems, 879 F.3d 1299, 1304, 125 USPQ2d 1282, 1286 (Fed. Cir. 2018) and improved, particular method of digital data compression, DDR Holdings, LLC. v. Hotels.com, L.P., 773 F.3d 1245, 1259, 113 USPQ2d 1097, 1107 (Fed. Cir. 2014); Intellectual Ventures I v. Symantec Corp., 838 F.3d 1307, 1315, 120 USPQ2d 1353, 1358 (Fed. Cir. 2016);. Paragraph 65, 66 and 107 appears to be directed to improve the test take ability to efficiently manage their time while taking an examination (see sentence of paragraph 66 and 107). It is arguable that the improvement suggested in paragraph 65, 66 and 107 of Applicant’s specification should be interpreted as an improvement to the abstract idea of managing a user’s time while taking an examination. As it is unclear from the MPEP and the precedential case that improvement to the test taking ability of a student; the Examiner takes the position that the rejection shall be maintained under 35 U.S.C 101.
With respect to Applicant’s argument that the current limitation is directed to a technology rooted solution to a computer network-centric problem; the Examiner notes that the argument is not commensurate to the scope of the claim limitation. As the claim itself is silent on any limitation directed to a “computer network” and the claim limitation can be performed without a computer network.
Conclusion
THIS ACTION IS MADE FINAL. 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 ROBERT J UTAMA whose telephone number is (571)272-1676. The examiner can normally be reached 9:00 - 17:30 Monday - Friday.
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/ROBERT J UTAMA/Primary Examiner, Art Unit 3715