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 .
DETAILED ACTION
Status of Claims
1. This is a Final office action in response to communication received on 10/14/2025. Claims 1-20 are canceled. Claims 21, 26, 32 are amended. Claims 21-40 are pending examined herein.
Double Patenting Rejection
[Examiner’s Note: Being held in abeyance since the Applicant’s request on page 9 of the response filed 01/09/2025. Applicant will need to continue to make the same request in all subsequent responses to the office action.]
2. 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.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). The Applicant can resolve this rejection as follows:
– Amend the claim(s)
– Cancel the claim(s)
– File a proper terminal disclaimer
However,
– Declarations under 37 CFR 1.131 are NOT sufficient to overcome this rejection
This is an obviousness type double patenting rejection (ODP). Claims 21-40 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,901,765. Although the claims at issue are not identical, they are not patentably distinct from each other because the inventions remain the same and the obvious differences, when system claim 21 of instant application is compares with the system claim 1 of Patent No. US 10,901,765 are as follows:
21. (New) A system comprising: a first computing device associated with a first user; and a second computing device associed with a second user, wherein the first computing device is configured to: receive, via a first graphical user interface displayed on the first computing device and comprising a plurality of selectable icons, first user has completed a peer-to-peer activity associated with the first selectable icon by receiving, a a second graphical user interface displayed on the first computing device, data associated with a second user in a virtual line; first user has completed the peer-to-peer activity associated with the first selectable icon, determine a first updated position for the rst user in the virtual lineand second updated position for the second user in the virtual line; and transmit, to the second computing device associated with the second user, a notification of the second updated position for the second user in the virtual line (where strike-throughs denote omissions and underlined recitation note the obvious additions).
Thus, (1) the Applicant has broadened the recitation as apparent from the foregoing in instant application. The inventive concept still remains the same which is that of providing to one or more users who are awaiting in a queue/line an opportunity to engage in social interaction to improve/update position of the one or more users in the queue/line by engaging in one or more activities with their peer waiting the same line/queue as the one or more users. Therefore, the above noted differences would be obvious to a person having ordinary skill in the art (hereinafter PHOSITA) before the effective filling date of the invention. Motivation to modify would be to broaden the scope and to allow users awaiting in line to engage in social or peer-to-peer interactions. Only one patent can be issued per invention.
Claim Rejections - 35 USC § 101
3. 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 21-40 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Next using the 2019 Revised Patent Subject Matter Eligibility Guidances (hereinafter 2019 PEG) the rejection as follows has been applied.
Under step 1, per MPEP 2106.03, claims 21-25 are a system; claims 26-31 are a method; and claim 32-40 are a computing device. Thus, each claim 21-40, on its face, is directed to one of the statutory categories (i.e., useful process, machine, manufacture, or composition of matter) of 35 U.S.C. §101.
Under Step 2A Prong One, per MPEP 2106.04, 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. While the terms "set forth" and "described" are thus both equated with "recite", their different language is intended to indicate that there are two ways in which an exception can be recited in a claim. For instance, the claims in Diehr, 450 U.S. at 178 n. 2, 179 n.5, 191-92, 209 USPQ at 4-5 (1981), clearly stated a mathematical equation in the repetitively calculating step, and the claims in Mayo, 566 U.S. 66, 75-77, 101 USPQ2d 1961, 1967-68 (2012), clearly stated laws of nature in the wherein clause, such that the claims "set forth" an identifiable judicial exception. Alternatively, the claims in Alice Corp., 573 U.S. at 218, 110 USPQ2d at 1982, described the concept of intermediated settlement without ever explicitly using the words "intermediated" or "settlement."
Next, per 2019 PEG, to determine whether a claim recites an abstract idea in Prong One, examiners are now to: (I) Identify the specific limitation(s) in the claim under examination (individually or in combination) that the examiner believes recites an abstract idea; and (II) determine whether the identified limitation(s) falls within the subject matter groupings of abstract ideas enumerated in Section I of the 2019 PEG. If the identified limitation(s) falls within the subject matter groupings of abstract ideas enumerated in Section I, analysis should proceed to Prong Two in order to evaluate whether the claim integrates the abstract idea into a practical application.
(I) Claims 21-40, based on the abstract recitation (i.e. recitation other than the additional elements explicitly noted below per prong two and step 2B analysis), (II) the claims recite an abstract idea of allowing a plurality of users waiting in queue or line to engage in one or more peer-to-peer or social interaction or activities (e.g. offer to purchase a product) to allow them to coordinate a possible swap in their respective line/queue positions which is certain methods of organizing human activity.
The phrase "Certain methods of organizing human activity" applies to fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations)); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). Further, see MPEP 2106.04(a)(2) II. A-C.
Therefore, the identified limitations fall within the subject matter groupings of abstract ideas enumerated in Section I of 2019 PEG, thus analysis now proceeds to Prong Two in order to evaluate whether the claim integrates the abstract idea into a practical application.
Under Step 2A Prong Two, per MPEP 2106.04, prong two asks does the claim recite additional elements that integrate the judicial exception into a practical application? In Prong Two, examiners evaluate whether the claim as a whole integrates the exception into a practical application of that exception. If the additional elements in the claim integrate the recited exception into a practical application of the exception, then the claim is not directed to the judicial exception (Step 2A: NO) and thus is eligible at Pathway B. This concludes the eligibility analysis. If, however, the additional elements do not integrate the exception into a practical application, then the claim is directed to the recited judicial exception (Step 2A: YES), and requires further analysis under Step 2B (where it may still be eligible if it amounts to an ‘‘inventive concept’’).
Next, per 2019 PEG, Prong Two represents a change from prior guidance. The analysis under Prong Two is the same for all claims reciting a judicial exception, whether the exception is an abstract idea, a law of nature, or a natural phenomenon. Examiners evaluate integration into a practical application by: (I) Identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (II) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application, using one or more of the considerations laid out by the Supreme Court and the Federal Circuit.
Accordingly, the examiner will evaluate whether the claims recite one or more additional element(s) that integrate the exception into a practical application of that exception by considering them both individually and as a whole.
The claim elements in addition to the abstract idea, i.e. additional elements, as recited in claims 21-40 at least are a first computing device comprising a display and an imaging device, a second computing device comprising a display, a first GUI with selectable icons, a second GUI, personalized visuals/products displayed via AR and virtual line outputted on the first device display, and transmitting notification(s) and offer(s) (per claims 21, 26, and 32); a computing device comprising: one or more processors; and memory storing instructions that, when executed by the one or more processors (additionally per claim 32 components of the computing devices are claimed). Remaining claims, 22-25; 27-31; and 33-40 either recite the same additional elements as already noted above or do not recite any additional elements in which case note the prong one analysis as set forth above.
As would be readily apparent to a person having ordinary skill in the art (hereinafter PHOSITA), the additional elements are generic computing devices. The additional elements are simply utilized as generic tools to implement the abstract idea or plan as "apply it" instructions (see MPEP 2106.05(f)). The additional elements are generic as they are described at a high level of generality, for instance see at least as-filed figures 1, 2, and their associated description. Further, the claims appear to be implementing a commercial solution to a commercial problem, see at least as-filed spec. pg. 1 of 62 line 20-21. Similar to Affinity v DirecTV in which "The court rejected the argument that the computer components recited in the claims constituted an “inventive concept.” It held that the claims added “only generic computer components such as an ‘interface,’ ‘network,’ and ‘database,’” and that “recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” Id. at 1324-25 (citations omitted). The court noted that nothing in the asserted claims purported to improve the functioning of the computer itself or “effect an improvement in any other technology or technical field.” Mortgage Grader, 811 F.3d at 1325 (quoting Alice, 134 S. Ct. at 2359)." [similarly here use of such computing devices and their components is being made to facilitate the abstract idea as noted per prong one].
Further, merely sending/receiving information and captured image comprising data via an imaging device is merely insignificant extra solution activity which facilitates pre-solution activity such as data gathering (see MPEP 2106.05(g)) and also appears to confine the idea to a technical environment such as virtual environment where content is displayed in augmented reality which facilitates, at least note (i) receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network), see MPEP 2106.05 (g) and (h). Further the claimed process is similar to EPG collecting information (or receiving/selecting peer-to-peer activity), analyzing (or determining peer-to-peer activity is completed), and displaying certain results (transmitting GUI notifications with updated virtual line position).
Accordingly, viewed as a whole, these additional claim element(s) do not provide any additional element that integrates the abstract idea (prong one), into a practical application (prong two) upon considering the additional elements both individually and as a combination or as a whole as they fail to provide: an additional element that reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field; or an additional element that implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim; or an additional element that effects a transformation or reduction of a particular article to a different state or thing; or an additional element that applies or uses the judicial exception, again, in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception as explained above.
Thus, the abstract idea of allowing a plurality of users waiting in queue or line to engage in one or more peer-to-peer or social interaction or activities to allow them to coordinate a possible swap in their respective line/queue positions which is certain methods of organizing human activity (prong one) is not integrated into a practical application upon consideration of the additional element(s) both individually and as a combination (prong two).
Therefore, under step 2A, the claims are directed to the abstract idea, and require further analysis under Step 2B.
Under step 2B, per MPEP 2106.05, as it applies to claims 21-40, the Examiner will evaluate whether the foregoing additional elements analyzed under prong two, when considered both individually and as a whole provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). The abstract idea of allowing a plurality of users waiting in queue or line to engage in one or more peer-to-peer or social interaction or activities to allow them to coordinate a possible swap in their respective line/queue positions, which is certain methods of organizing human activity (prong one) - has not been applied in an eligible manner. The claim elements in addition to the abstract idea are simply being utilized as generic tools to execute "apply it" instructions as they are described at a high level of generality. Additionally, the abstract idea is intended to be merely carried out in a technical environment, however fail to contain meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment (Id. or note step 2A prong two).
Regarding insignificant solution activities such as (A)-(B) pre-solution activity e.g. data gathering, and (C) post-solution activity e.g. displaying/presenting content
As per (A) pre-solution activity e.g. data gathering note as follows: (i) receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014); (computer receives and sends information over a network), see MPEP 2106.05(h).
As per (B) electronically scanning or extracting data from a physical document, Content Extraction and Transmission, LLC v. Wells Fargo Bank, 776 F.3d 1343, 1348, 113 USPQ2d 1354, 1358 (Fed. Cir. 2014), (b) Berkheimer v. HP, Inc., 881 F.3d 1360, 125 USPQ2d 1649 (Fed. Cir. 2018), in which the patentee claimed methods for parsing and evaluating data using a computer processing system. The Federal Circuit determined that these claims were directed to mental processes of parsing and comparing data, because the steps were recited at a high level of generality and merely used computers as a tool to perform the processes. 881 F.3d at 1366, 125 USPQ2d at 1652-53, (c) US20120203613 Systems and methods for facilitating secure transactions "[0049] Irrespective, however, of the outlets through which a consumer may shop, a transaction may be facilitated by presentation of a Quick Response (QR) code. QR codes are known in the art and may be encoded with a variety of data, including text and uniform resource locators (URLs). In one embodiment, QR codes may contain up to 4,000 bytes of data—i.e., 4,000 characters. The data encoded in a QR code may also be encrypted. In different embodiments, a QR code may be encoded with a variety of data (as further described below)."; and (d) encoding and decoding image data (RecogniCorp) [similarly here machine readable marker and second data appears to be captured for user recognition and/or for carrying out a transaction]; and
As per (C) post-solution activity e.g. displaying/presenting/notify: (i) Affinity v DirecTV in which "The court rejected the argument that the computer components recited in the claims constituted an “inventive concept.” It held that the claims added “only generic computer components such as an ‘interface,’ ‘network,’ and ‘database,’” and that “recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” Id. at 1324-25 (citations omitted). The court noted that nothing in the asserted claims purported to improve the functioning of the computer itself or “effect an improvement in any other technology or technical field.” Mortgage Grader, 811 F.3d at 1325 (quoting Alice, 134 S. Ct. at 2359)" [similarly here user is notified of the updated position in virtual line upon completion of a peer-to-peer activity via interface or GUI].
Therefore the claims here fail to contain any additional element(s) or combination of additional elements that can be considered as significantly more and the claims are rejected under 35 U.S.C. 101 for lacking eligible subject matter.
Reason(s) for Withdrawal of Prior Art
4. The Prior Art references noted below are the closest to the claims, note as follows:
(a) Hess (U.S. Patent Number 8,510,163) discloses: (Hess: a representation of a virtual checkout queuing system 100 in accordance with principles of the present invention includes a retail establishment 102. The retail establishment 102 may be any place where retail activity can be conducted. Customers 122 may come and go to browse or shop at the retail establishment 102. A queuing system 106 can track the presence and location of customers 122, Col. 3, lines 18-27, Figs. 1, 3A-3D, 6-9, 11, 13-17, showing multiple virtual lines on a display device; Figs. 3A-3D, presenting multiple graphical user interfaces and a display device; Enqueuing a customer may be performed by storing an identifier of the customer into the data structure. When a customer at the head of the main checkout queue 602 is dispatched to a checkout counter, the customer may be dequeued from the main checkout queue and enqueued to one of the checkout counter queues 612. A notification is then communicated the customer's mobile device, informing the customer to proceed to the corresponding checkout counter 112, Col. 9, lines 4 i -49; teach virtual lines; Figs. 3A- 3D, presenting multiple graphical user interfaces and a display device; In accordance with principles of the present invention, customer C3 may offer to pay a certain amount of currency to customer C1 in order to swap positions with C i, Col. 6, lines i -3; If customer C1 accepts, then their respective positions in the checkout queue are reassigned as shown in FIG. 28, Col. 6, lines 3-5; in repositioning the user, the disclosure would teach and suggest determining a new position, as the disclosure would need to determine where the repositioning would occur to prior to performing the actual repositioning).
(b) Backer (U.S. Patent Application Publication No. 2011/0307547 A1) discloses: (Backer: para. [0032] and FIGs. 1, 3, and 6, elements 106 where an "individual-end device" can be a cell phone see elements 302-2, 302-4, 302-6. Para. [0046]; "An individual can be provided a custom vanity toll-free phone number to send requests to the queue managing system (i 02). An individual can request for a first available position in multiple virtual queues within a single entity or across multiple entities. Under a first available- queue mode, the individual will be assigned to multiple virtual queues within an entity or multiple queues across entities.'' Para. [0043] "An individual who wants to join a virtual queue can send a request to join a particular virtual queue via the individual-end device (106). An individual who wants to join multiple virtual queues can send a request to join multiple virtual queues via the individual-end device (106)."; paras. [0045] "An individual who has obtained a position in a virtual queue can send a request to swap positions with another individual who has also obtained a position in the virtual queue via the individual-end device (106). Such swap can involve one individual paying the other individual to swap positions. An individual who has obtained a position in a virtual queue can send requests for updated information regarding a particular virtual queue, such as average wait time, current position in the queue, current wait time, etc., via the individual-end device (106)." Para. [0047] details that when position or wait time changes, notifications can be automatic to the user's device, which teaches that in a swap situation, once the swap was completed both users' devices would receive updated information.).
(c) Herde (U.S. Patent Number 8,095,400) discloses: (Herde: col. 33, Ins. 45-col. 34, In. 23 details selectable avatars, where a user can click through and select an avatar, the user can also view other members and their information and avatars by clicking through them, all of which is delivered through multiple screens of a graphical user interface.; see also, col. 35, Ins. 10-38, for various interaction options depending on user level; col. 23, In. 12-25 "Matching queues colors may be used (as shown), so it may be intuitive to the user that one queue may be moving faster than the other, based on two exemplary factors: the slower queue 306 may have larger buckets 3i O relative to the faster queue 304 and the slower buckets 312 may move or be emptied slower. This speed may be apparent by having the color at the top of the fast queue likely matching the color somewhere in the middle of the slow queue, in an exemplary embodiment (as shown). Other queues such as, an exemplary guaranteed access, or other queue 308, may of course be provided. Further an indicator 302 may show where the user is presently in line, in an exemplary embodiment.").
(d) Davis (U.S. Patent 8,660,581) discloses: (Davis: The camera provides both still image and video stream capture that contributes to positioning, navigation and other location based services in a variety of ways. Both the still and video capture enable the device to read digital data encoded in surrounding objects, such as digital watermarks or bar codes. This digital data provides identification of the objects. In tum, this identification can be referenced in a database to provide associated information about the object itself as well as its context, such as its location and local 2D and 3D maps for navigation and related User Interface {UI} services providing feedback on location, orientation, Augmented Reality {AR}, para 0143).
(e) Hughes (U.S. Patent 8,109,819) discloses: (Hughes: This identification string can be used by the contest component, for example, to display a graphic image or other content included in the identified file. This anchor may require a user to find and click on the location of the tag in order to go to that hidden location. In this way the user searches for a target. Alternatively, the contest component may recognize the tag, and parse the string of data that is included in the tag, para 0088, Fig. 4; a reward for finding 5 keys and completing 5 puzzles may be a coupon to purchase a sports drink, points that can be accumulated for prizes, and so forth, para 0114).
(f) Barhydt (U.S. Patent Application Publication No. 2007/0244731) discloses: (Barhydt: In step 310, the offer is advertised and promoted, e.g., poster, web banner ads, etc. In step 315, the offer is opened to the public on the start time. In step 320, the virtual ticket entries are accepted from users, who are entered into the virtual line or queue by purchasing a virtual ticket. In step 325, the offer is closed to the public on the end date. In step 330, the real tickets are allocated to the user in the virtual line based on the chosen allocation policy. In step 335, users are notified of the allocation decision, and users who have been allocated real tickets are given an opportunity to purchase the real tickets. In step 340, users who have been allocated real tickets fulfill purchases of the real tickets. Where the fulfillment period expires in step 345, the remaining real tickets are allocated to users on the wait list, and these user are notified of the allocation in step 335, para 0070, Fig. 3).
(g) Backer2 (U.S. Patent 8,831,963) discloses: (Backer2: the queue-managing system (102) lets individuals post a message on a social network to indicate that they are joining a queue, with a link allowing their friends or followers to join them. In one embodiment, the link allows their friends to join the queue at the same position as the poster, expanding the party size accordingly, para 0070).
And, (h) XIAO (Pub. No.: US 2012/0158934) discloses allowing a user to initiate a swap in exchange for money, see Figs. 12A, 12B, and their associated disclosure.
However, the above noted references fail to, when considered both singularly and/or in combination, teach selection of a peer-to-peer activity associated with an icon out of plurality of peer-to-peer activities associated with their icons, wherein the peers are in a virtual line and upon completion of the peer-to-peer activity their updated positions are communicated to the peers’ devices via notifications when the claimed invention is properly construed as a whole. Furthermore, upon conducting an updated search the Examiner discovered generally relevant prior art references, however similarly to above noted references they too do not teach the above noted features. Thus, a prima facie case of obviousness could not be established using the above noted references. Therefore, claims overcome prior art based rejection.
Response to Applicant’s Remarks
5. Regarding “Double Patenting Rejection” it is being held in abeyance upon Applicant’s request.
Regarding “Rejections under 35 U.S.C. § 101” the Applicant’s arguments have been fully considered however they are unpersuasive. As per prong one the Examiner finds prong one arguments unpersuasive because (1) the Applicant argues in view of additional elements for instance computing device among others, however the analysis is based on abstract recitation and as such a PHOSITA when applying the BRI to the claims in light of the as-filed disclosure would squarely find that the claims indeed invoke (2) enumerated "Certain methods of organizing human activity" abstract idea grouping which further applies to fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations)); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). Further, see MPEP 2106.04(a)(2) II. A-C. Thus, the Applicant fails to delineate the claim recitation and note the highlighted sub-grouping which results in Applicant reaching an erroneous conclusion.
Next the Examiner finds the Applicant’s prong two arguments unpersuasive because (1) it seems the Applicants have incorporated non-precedential cases to support their arguments as well, however note that "Federal Circuit Rule 47.6(b) provides that an opinion designated as non-precedential "must not be employed or cited as precedent." The CAFC reasons that these opinions are essentially throw-away judgments that do not "significantly [add] to the body of law."" The Applicant argues in view of (a) “According to MPEP §2106.07(a), "Examiners should not go beyond those concepts that are similar to what the courts have identified as abstract ideas, and should avoid relying upon or citing nonprecedential decisions unless the facts of the application under examination uniquely match the facts at issue in the non-precedential decisions." As explained below, the facts of the application here match the facts at issue in Ex Parte Sakahashi and Applicant kindly requests reconsideration of the related arguments presented below.”; and (b) “Applicant notes the updated argument that the amended claims are similar to those in Ex Parle Sakahashi, where the Board reversed the Examiner's § 101 rejection of the claims finding that the claim "recites a specific improvement in a practical application" such that "the claimed system permits the combination of a 2D barcode with an image without impacting the utility of the 2D barcode." Specifically, in Ex Parte Sakahashi, the Board reversed the Examiner's § 101 rejection of the claims finding that the claim "recites a specific improvement in a practical application" such that "the claimed system permits the combination of a 2D barcode with an image without impacting the utility of the 2D barcode." Such an improvement is similarly recited herein. The claims recite "receive, from an imaging device of the first computing device, an image comprising first data and second data," "verify that the first data matches stored data," and "output, to a display of the first computing device and upon verifying that the first data matches stored data, a visualization that is personalized for the first user based on the second data, wherein the visualization comprises one or more products displayed via augmented reality." The specific improvement in a practical application can be found in Specification at least at p. 44, 11. 5-17:
According to some embodiments, activating the camera on the device may
allow the application to take a picture of a logo or mark defined by the
system. According to some embodiments, any pre-specified logo or image,
or any image surrounded by QR-type data in a border format may render
the logo or image a unique identifier to trigger content. Using recognition
processes the application may recognize the QR data border or image/logo
shapes, and if the data border is recognized or the shapes match the design
stored by the application, a confirmation message, image code, and the
geo-location of the FlagTag location may be sent to the backend servers.
Those servers may return information based on the FlagTag location and
content associated to the combination of the image recognized and the
FlagTag location. Some FlagTag pictures or logos can contain additional areas (locations
within the Flag Tag) that can be identified by the application and converted
into unique identifiers to provide personalized information associated to
the unique identifier recognized.”
However, it is apparent that facts here do not uniquely match based on the very limited excerpt from Sakahashi the Applicant has noted and attempted to correlate with the claimed language. Further, also as explained previously, there is a clear distinction between merely using the technology as “apply it” and improving it. Thus, contrary to the Applicant assertions nothing under prong two was evaluated in vacuum and the Applicant appears to have missed the underlined “Accordingly, viewed as a whole, these additional claim element(s) do not provide any additional element that integrates the abstract idea (prong one), into a practical application (prong two) upon considering the additional elements both individually and as a combination or as a whole as they fail to provide: an additional element that reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field; or an additional element that implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim; or an additional element that effects a transformation or reduction of a particular article to a different state or thing; or an additional element that applies or uses the judicial exception, again, in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception as explained above.
Thus, the abstract idea of allowing a plurality of users waiting in queue or line to engage in one or more peer-to-peer or social interaction or activities to allow them to coordinate a possible swap in their respective line/queue positions which is certain methods of organizing human activity (prong one) is not integrated into a practical application upon consideration of the additional element(s) both individually and as a combination (prong two).
Therefore, under step 2A, the claims are indeed directed to the abstract idea, and require further analysis under Step 2B.” Furthermore, the Examiner is well aware that well-understood, routine, or conventional is not part of prong two analysis, that is undertaken under step 2B, however it appears that the Applicant is equating “generic” to “well-understood, routine, or conventional” to somehow establish that the Examiner has erred in applying in prong two analysis. Rather generic is explained with such additional elements as executing “apply it” instruction to implement the abstract idea. Thus, the Applicant’s arguments against prong two are unpersuasive.
Lastly, regarding step 2B, the evaluation is that of additional element(s) singularly and in combination not the abstract recitation which the Applicant notes “The Step 2B analysis should include "[ e ]valuating additional elements to determine whether they amount to an inventive concept requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself" MPEP 2106.05.” However, once again the Applicant fails to delineate additional element(s) and abstract recitation which results in the Applicant reaching an erroneous conclusion that the claims somehow present significantly more which they do not as explained under step 2B. For instance, the Applicant without noting any additional elements notes the entire claim limitation and calls it features however as an e.g. note “present an indication for the first user to perform a peer-to-peer activity” this is presenting instructions to carry out an activity so that users can gain a benefit e.g. updated positions in line. This is an abstract idea based upon abstract recitation which is not part of step 2B evaluation, again, evaluation is that of additional elements and not features. Accordingly, note, “Regarding insignificant solution activities such as (A)-(B) pre-solution activity e.g. data gathering, and (C) post-solution activity e.g. displaying/presenting content
As per (A) pre-solution activity e.g. data gathering note as follows: (i) receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014); (computer receives and sends information over a network), see MPEP 2106.05(h).
As per (B) electronically scanning or extracting data from a physical document, Content Extraction and Transmission, LLC v. Wells Fargo Bank, 776 F.3d 1343, 1348, 113 USPQ2d 1354, 1358 (Fed. Cir. 2014), (b) Berkheimer v. HP, Inc., 881 F.3d 1360, 125 USPQ2d 1649 (Fed. Cir. 2018), in which the patentee claimed methods for parsing and evaluating data using a computer processing system. The Federal Circuit determined that these claims were directed to mental processes of parsing and comparing data, because the steps were recited at a high level of generality and merely used computers as a tool to perform the processes. 881 F.3d at 1366, 125 USPQ2d at 1652-53, (c) US20120203613 Systems and methods for facilitating secure transactions "[0049] Irrespective, however, of the outlets through which a consumer may shop, a transaction may be facilitated by presentation of a Quick Response (QR) code. QR codes are known in the art and may be encoded with a variety of data, including text and uniform resource locators (URLs). In one embodiment, QR codes may contain up to 4,000 bytes of data—i.e., 4,000 characters. The data encoded in a QR code may also be encrypted. In different embodiments, a QR code may be encoded with a variety of data (as further described below)."; and (d) encoding and decoding image data (RecogniCorp) [similarly here machine readable marker appears to be captured]; and
As per (C) post-solution activity e.g. displaying/presenting/notify: (i) Affinity v DirecTV in which "The court rejected the argument that the computer components recited in the claims constituted an “inventive concept.” It held that the claims added “only generic computer components such as an ‘interface,’ ‘network,’ and ‘database,’” and that “recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” Id. at 1324-25 (citations omitted). The court noted that nothing in the asserted claims purported to improve the functioning of the computer itself or “effect an improvement in any other technology or technical field.” Mortgage Grader, 811 F.3d at 1325 (quoting Alice, 134 S. Ct. at 2359)" [similarly here user is notified of the updated position in virtual line upon completion of a peer-to-peer activity via interface or GUI].
Therefore the claims here fail to contain any additional element(s) or combination of additional elements that can be considered as significantly more and the claims are rejected under 35 U.S.C. 101 for lacking eligible subject matter.”
Lastly, contrary to the Applicant’s assertion in view of a non-precedential case that Examiner genericizes the claim language, this is factually incorrect as the Examiner has provided evidence as noted above under step 2B. Thus, the Applicant appears to have ignored the rejection and presented arguments for sake of making arguments.
Therefore, the Examiner respectfully maintains the rejection as a proper 35 U.S.C. 101 rejection has been established contrary to the Applicant’s broad assertions.
Conclusion
6. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and all the references on PTO-892 Notice of Reference Cited should be duly noted by the Applicant as they can be subsequently used during prosecution, at least note
*previously noted
- US2013/0103486 see “virtualizes a physical queue in a retail establishment. Customers using this system have the ability to indicate they would like to pay now (i.e., enter the virtual queue) using a button on their mobile device, and then they continue shopping until the mobile device informs them to proceed to a checkout counter. In addition, the system implements features that address users waiting in the queue. One feature is about transactions within the queue. This means that customers can buy priority using their mobile device, while waiting. Another feature is targeted advertisement and recommendation of products, leading to increased impulsive purchases”
- US20130325575 see [0056] "The location identifier 506 may be used such that the value of a variable redemption value coupon may not be determined and/or distributed unless the consumer 102 (e.g., the payer device 116) is within a predetermined area.
For example, the value of a variable redemption value coupon may not be determined and/or may be withheld from the consumer 102 until the consumer is within a predetermined distance of the merchant 104, or is inside of a physical location of the merchant 104. Suitable methods for identifying the location of the consumer 102 (e.g., the payer device 116) will be apparent to persons having skill in the relevant art and may include scanning a machine-readable code (e.g., a bar code, a QR code, etc.) at the merchant 104 with the payer device 116, connecting the payer device 116 to a localized network (e.g., WiFi), receiving (e.g., by the payer device 116) an aural signal transmitted by a device at the merchant 104, reporting by a mobile communication network (e.g., cellular network), etc."
- US20130166398 see [0119] "According to a first additional aspect, a method for location dependent value tagging of products is provided comprising validating one or more producers of one or more products as being located within a predetermined product value area, generating at least one location dependent tag for each of the one or more products, wherein the at least one location dependent tag includes machine-readable information associated with a unique product identification code, a product position and product value area, and attaching the at least one location dependent tag to a corresponding product. According to the first additional aspect, the predetermined product value area comprises defining a geographical area that includes at least a physical location of a producer and one or more distances from the physical location of the producer, and wherein the predetermined product value area comprises defining a geographical area that includes at least a physical location of a producer and physical locations of one or more purchasers."
- US20150227998 see [0012] note "securing a transaction for the buying and selling of a position in a predetermine line comprises a computer having a user interface and a user positioning system; and a program product comprising machine-readable program code for causing, when executed, the computer to perform the following process steps: prompting a plurality of users for buyer exchange data or seller exchange data, wherein each exchange data comprises: at least one buyer position or at least one seller position in the predetermined line that are desired or held, and their respective buyer offer or seller offer for each position; and a buyer wait time and a seller wait time, respectively, regarding each position in the predetermined line that is desired or held, wherein the buyer wait time and the seller wait time by, at least in part, determining the respective user's physical proximity to the predetermined line, and wherein the buyer offer expires when the buyer wait time lapses, and wherein the seller offer expires when the seller wait time lapses; receiving said buyer exchange data or seller exchange data"
- see US20140343995 Electronic queuing systems and methods see “methods and systems of allowing entities to create virtual queues that correspond to actual queue in an electronic queue-managing system, and allowing individuals to join the virtual queues using electronic devices (e.g., cell phone technology, wireless network communication technology). The queue-managing system updates the virtual queues based on information from an entity. The queue-managing system also sends messages and notifications of updated status of the virtual queues to the user periodically, automatically or in response to the user's request.”
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.
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/DIPEN M PATEL/Primary Examiner, Art Unit