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
This final Office action is in response to applicant’s communication received on December 31, 2025, wherein claims 1-22 are currently pending.
Response to Arguments
Applicant's arguments have been fully considered but they are geared towards the newly amended claims with newly added limitations. The newly amended claims with the newly added limitations are considered for the first time in the rejection below.
Double Patenting:
The Applicant has not argued the double patenting rejection.
35 USC §101 discussion:
Applicant’s remarks have been considered but Examiner respectfully disagrees.
In the newly amended claims the newly added limitations are geared towards using obtained abstract information to further analyze and manipulate the abstract information (also heavily using mathematical concepts). For example, the newly added limitations of “a normalization constraint such that take-rates across the multiple purchasing choices sum to one for a given sales environment… including, for each calculation path, computing an error value between a predicted demand value produced by the demand rule and a corresponding historical reference value from the sales history, and updating a forecast parameter in the partitioning rule and associated demand and marketing rule parameters based on the error value so as to minimize prior forecast error across a multi-dimensional error space…minimizing prior forecast error stored in memory via an optimization service that updates a forecast parameter for each calculation path…the choice matrix being a multi-dimensional data structure that provides a static characterization, for each product, time period, and purchasing choice, of how demand is influenced by changes in a sales environment of the forecasting application…the marketing matrix being a multi-dimensional data structure that provides a static characterization, for each product, time period, and marketing attribute, of how demand is influenced by changes in a marketing environment…planogram data specifying a position for the product in a store, the planogram data generated based on the forecast and suitable for causing a store management system to position inventory according to the specified position (decision-making using abstract diagram)” are clearly geared towards using abstract information in abstract steps (comparing, analyzing, and using mathematical concept – in forecasting and predicting) to get abstract results. The claims then uses this results in making sales determinations and sales decision-making in a retail setting. The claims do not show any improvement in technology and/or technical environment itself and is geared to information exchange and information analysis. The focus of the claims is simply to use computers and a familiar network as a tool to perform abstract processes (discussed above) involving simple information exchange. Carrying out abstract processes involving information exchange is an abstract idea. See, e.g., BSG, 899 F.3d at 1286; SAP America, 898 F.3d at 1167-68; Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1261-62 (Fed. Cir. 2016). And use of standard computers and networks to carry out those functions—more speedily, more efficiently, more reliably—does not make the claims any less directed to that abstract idea. See Alice Corp., 573 U.S. at 222-25; Customedia, 951 F.3d at 1364; Trading Techs. Int'l, Inc. v. IBG LLC, 921 F.3d 1084, 1092-93 (Fed. Cir. 2019); SAP America, 898 F.3d at 1167; Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1314 (Fed. Cir. 2016); Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353, 1355 (Fed. Cir. 2016); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367, 1370 (Fed. Cir. 2015); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014). Applicant’s claims show abstract steps of information exchange and also through significant use of mathematical concepts – e.g. calculations, forecasting (predictive modeling/analysis), using matrices), and use the resulting obtained information for further information analysis and decision-making (in retail sales and marketing environment). In the currently amended claims, the abstract idea is performed by a generic/general-purpose computer/processor/computing components in an “apply-it” fashion (merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea). See MPEP §2106.05(f).
Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words “apply it” (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do “‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’”. Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983. See also 573 U.S. at 224, 110 USPQ2d at 1984. The current application’s additional elements are generic computer and computing elements/components (for example, “systems,” “processors,” “applications (software),” “memories,” “instructions (generally stated – possible software/algorithm),” (claims 1-19); “processors,” “system,” “applications (software),” (claims 20); and “computer-readable medium/media,” “systems,” “applications (software),” “instructions (generally stated – possible software/algorithm),” “processors,” (claim 21)) which are recited at a high level of generality performing generic computer functions. The additional elements stated/recited in the current Applicant’s claims amount to mere instructions to apply the abstract idea on the above stated generic computer and computing elements/components. See Alice Corp., 573 U.S. at 225-26, 110 USPQ2d at 1984. The Supreme Court also discussed this concept in an earlier case, Gottschalk v. Benson, 409 U.S. 63, 70, 175 USPQ 673, 676 (1972), where the claim recited a process for converting binary-coded-decimal (BCD) numerals into pure binary numbers. The Court found that the claimed process had no meaningful practical application except in connection with a computer. Benson, 409 U.S. at 71-72, 175 USPQ at 676. The claim simply stated a judicial exception (e.g., law of nature or abstract idea) while effectively adding words that “apply it” in a computer. Id. Applicant’s current claimed abstract idea is not integrated into a practical application and also do not recite an improvement to another technology or technical field, an improvement to the functioning of the computer itself, or meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment.
In more detail, Applicant’s independent claims recite first receiving abstract information (purchasing choice calendar, a marketing calendar, and a sales history); then manipulating and analyzing information in an abstract fashion by using mathematical concepts, comparing information, and organizing information (which can be done without a computer – and the steps themselves show no need for any technology) – where the steps show “generating parameters of a partitioning rule for a product, wherein the parameters define a shift in demand between multiple purchasing choices available for the product, the parameters including a multi-choice environment take rate for each one of the multiple purchasing choices and a single-choice environment demand for the product; decomposing the partitioning rule by partitioning out multiple calculation paths based on the purchasing choice calendar, each calculation path including a demand rule; generate an updated demand rule for each of the multiple calculation paths, each updated demand rule based on the purchasing choice calendar, the marketing calendar, the sales history, the included demand rule, and the parameters; forecasting one of demand and sales for multiple user choices for purchasing the product, the forecast based on one or more of the updated demand rules.” Next the resulting information is produced/displayed for human decision-making on product placement (“position the product in a store based on the forecast”). The only technical elements (additional) presented are, for example, “systems,” “processors,” “applications (software),” “memories,” “instructions (generally stated – possible software/algorithm),” (claims 1-19); “processors,” “system,” “applications (software),” (claims 20); and “computer-readable medium/media,” “systems,” “applications (software),” “instructions (generally stated – possible software/algorithm),” “processors,” (claim 21). These are all generic/general-purpose computers and/or computing elements/components/devices/etc., used in a “apply-it” fashion (just saying the abstract idea is done/applied on a computer or computing environment – but the idea can be done without a computer or computing environment). Applicant previously stated that the added limitation of “position the product in a store based on the forecast” should overcome the §101. However, this step is a human action step and decision-making. The idea that is claimed that leads to someone (person) to position is abstract in nature and is not necessarily embed in technology (uses computing components in an “apply it” fashion) – and the abstract idea decision is implemented physically in a physical store. This is clearly organizing human activities (as explained below and in the rejection). As stated before, the claims are geared towards purchasing choices and retail forecasts by receiving abstract information (e.g. calendar, marketing, sales history, etc.,), and using the abstract information to generate more information regarding demand and various choices (analysis and manipulation of data/information including mathematical calculations), and providing information for predicting/forecasting (further mathematical analysis) and decision making. The claims are geared towards accessing and obtaining information/data (the information itself is abstract in nature – e.g. occupation, time, tasks, industries), data analysis and manipulation to determine more data/information (significant mathematical concepts are used), and providing/displaying this determined data (create more abstract information for further decision making).
As stated above the use of general-purpose/generic computer and computing components/devices is only post-solution/extra-solution activity (used in an “apply it” fashion) with no details provided. The steps are geared to data/information analysis and to position products in a store. No technology is actually required to make the forecasting/predictions as, according to the specification, the forecasting/prediction steps are all abstract in nature. They are mostly step that can be done without a computer and are also mathematical in nature – although the specification does not provide a detailed algorithm (only as an extra-solution/post-solution activity and the step could be done without the generic/general-purpose device). Overall, the claims clearly encompass organizing human activities (fundamental economic principles or practices in product purchasing and forecasting/predicting in retail/sales environment) and using mathematical concepts. The claimed invention clearly uses mathematical steps to analyze and determine further data (see Applicant’s claims and Specification using mathematical/numerical data/information for forecasting and predicting). The idea of gathering/obtaining/receiving information, using such data/information for further analyzing by comput[ing] (mathematical), forecast[ing], generat[ing], decompos[ing], partition[ing] (dividing), pric[ing] (and incentives), offer[ing], optimiz[ing], update[ing], position[ing], produc[ing], plan[ing], calulat[ing], shar[ing] (information), creat[ing],, update[ing], etc., (including limitations in the dependent claims), is an abstract concept the abstraction further similar to Versata Development Group, Inc. v. SAP America, Inc., 793 F.3d 1306, 115 U.S.P.Q.2d 1681 (Fed. Cir. 2015), TLI Communications LLC v. AV Automotive LLC, (Fed Cir. May 17, 2016), OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 115 U.S.P.Q.2d 1090 (Fed. Cir. 2015), Content Extraction and Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 113 U.S.P.Q.2d 1354 (Fed. Cir. 2014), and Digitech Image Techs., LLC v Electronics for Imaging, Inc., 758 F.3d 1344, 111 U.S.P.Q.2d 1717 (Fed. Cir. 2014) all of whose claims were held ineligible. The steps recited in the claims further merely employ algorithmic (mathematical and other-generic) relationships to manipulate existing information to generate additional information. The claimed invention also represents using mathematical algorithms/relationships to aggregate/generate data from combining datasets (MPEP 21060.4; also See 2019 Revised Patent Subject Matter Eligibility Guidance – Federal Register, Vol. 84, Vol. 4, January 07, 2019). As stated before, if a claims limitation, under its broadest reasonable interpretation, covers the performance of the limitation as 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 scheduling, social activities, teaching, and following rules or instructions), then it falls within the “organizing human activities” grouping of abstract ideas. (MPEP 2106.04; also See 2019 Revised Patent Subject Matter Eligibility Guidance – Federal Register, Vol. 84, Vol. 4, January 07, 2019, pages 50-57). And in this case the claims are fundamental economic principles or practices in product purchasing and forecasting/predicting in retail/sales environment. If a claims limitation, under its broadest reasonable interpretation, covers the performance of the limitation as mathematical relationships, mathematical formulas or equations, mathematical calculations then it falls within the Mathematical concepts grouping of abstract ideas. (MPEP 2106.04; and also See 2019 Revised Patent Subject Matter Eligibility Guidance – Federal Register, Vol. 84, Vol. 4, January 07, 2019, pages 50-57). Accordingly, since Applicant's claims fall under both mathematical concepts grouping and organizing human activities grouping, the claims recite an abstract idea.
Additionally, the claims as a whole do not integrate the recited judicial exception into a practical application. It should be noted that a “claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” MPEP 2106.04(d) and also see Memorandum (2019 Subject Matter Guidance), Section 111(A)(2). The U.S. Supreme Court has described “the concern that drives this exclusionary principle [i.e., the exclusion of abstract ideas from patent eligible subject matter] as one of pre-emption.” Alice, 573 U.S. at 216. However, characterizing preemption as a driving concern for patent eligibility is not the same as characterizing preemption as the sole test for patent eligibility. As the courts have explained, “[t]he Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability,” and “[f]or this reason, questions on preemption are inherent in and resolved by the § 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice, 573 U.S. at 216). And, although “preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.” Id. Moreover, “[w]here a patent’s claims are deemed only to disclose patent ineligible subject matter under the [Alice/Mayo] framework . . ., preemption concerns are fully addressed and made moot.” Id.; see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63 (Fed. Cir. 2015), cert, denied, 136 S. Ct. 701 (2015)(“[T]hat the claims do not preempt all price optimization or may be limited to price optimization in the e-commerce setting do not make them any less abstract.”). Further, Appellant’s claims are different from those claims that the Courts have found to be patent eligible by virtue of reciting technological improvements to a computer system. See, e.g., DDR Holdings, 773 F.3d at 1249, 1257 (holding that claims reciting computer processor for serving “composite web page” were patent eligible because “the claimed solution is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks”); Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017) (holding that claims directed to “an improved computer memory system” having many benefits were patent eligible). In McRO1, the Federal Circuit concluded that the claim, when considered as a whole, was directed to a “technological improvement over the existing, manual 3-D animation techniques” through the “use [of] limited rules . . . specifically designed to achieve an improved technological result in conventional industry practice.” McRO, 837 F.3d at 1316 (McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1303 (Fed. Cir. 2016)). Specifically, the Federal Circuit found that the claimed rules allowed computers to produce accurate and realistic lip synchronization and facial expressions in animated characters that previously could only be produced by human animators; and the rules were limiting because they defined morph weight sets as a function of phoneme sub-sequences. McRO, 837 F.3d at 1313. The present situation is not like the one in McRO where computers had been unable to make certain subjective determinations, e.g., regarding morph weight and phoneme timings, which could only be made prior to the claimed invention by human animators. The Background section of one of the patents at issue in McRO, Rosenfeld (US Patent 6,307,576 B1; issued Oct. 23, 2001), includes a description of the admitted prior art method and the shortcomings associated with that prior method. See McRO, 837 F.3d at 1303-06. There is no comparable discussion in Appellant’s Specification or elsewhere of record. This judicial exception is not integrated into a practical application because the claims and specification recite generic computer and computing elements/components (for example, “systems,” “processors,” “memories,” “instructions (generally stated – possible software/algorithm – “applications (software),”),” (claims 1-19); “processors,” “system,” (claims 20); and “computer-readable medium/media,” “systems,” “instructions (generally stated – possible software/algorithm),” “processors,” (claim 21)) which are recited at a high level of generality performing generic computer functions. (See 2019 Revised Patent Subject Matter Eligibility Guidance – Federal Register, Vol. 84, Vol. 4, January 07, 2019, page 53-55). The generic/general-purpose computers and/or computing components/elements/etc., limitations (shown above) are no more than mere instructions to apply the judicial exception (the above abstract idea) using generic computer components and/or generic computing elements. It is not enough, however, to merely improve abstract processes by invoking a computer merely as a tool. Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1364 (Fed. Cir. 2020). The focus of the claims is simply to use computers and a familiar network as a tool to perform abstract processes (organizing human activities, mental activities, and mathematical concepts) involving simple information exchange. Carrying out abstract processes involving information exchange is an abstract idea. See, e.g., BSG, 899 F.3d at 1286; SAP America, 898 F.3d at 1167-68; Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1261-62 (Fed. Cir. 2016). And use of standard computers, computing components/devices/etc.,, and networks to carry out those functions—more speedily, more efficiently, more reliably—does not make the claims any less directed to that abstract idea. See Alice Corp., 573 U.S. at 222-25; Customedia, 951 F.3d at 1364; Trading Techs. Int'l, Inc. v. IBG LLC, 921 F.3d 1084, 1092-93 (Fed. Cir. 2019); SAP America, 898 F.3d at 1167; Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1314 (Fed. Cir. 2016); Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353, 1355 (Fed. Cir. 2016); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367, 1370 (Fed. Cir. 2015); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014). Accordingly, the additional elements do not integrate the abstract idea in to a practical application because it does not impose any meaningful limits on practicing the abstract idea – i.e. they are just post-solution/extra-solution activities.
Further, as the Federal Circuit has explained, a “claim for a new abstract idea is still an abstract idea.” Synopsis, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016). Even assuming the technique claimed was “[groundbreaking, innovative, or even brilliant,” that would not be enough for the claimed abstract idea to be patent eligible. See Ass ’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013).
The claims further utilize a processors, databases, and other generic computing components/devices without any improvement to the functioning of the devices themselves. see Enflsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016) (“[W]e find it relevant to ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea ... the focus of the claims is on the specific asserted improvement in computer capabilities (i.e., the self-referential table for a computer database) or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.”). The claims do not recite an additional element or elements that reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field. See Alice, 573 U.S. at 222 (“In holding that the process was patent ineligible, we rejected the argument that ‘implement[ing] a principle in some specific fashion’ will ‘automatically fal[l] within the patentable subject matter of § 101.”’ (Alterations in original) (quoting Parker v. Flook, 437 U.S. 584, 593 (1978))).
To be a patent-eligible improvement to computer functionality, the courts have required the claims to be directed to an improvement in the functionality of the computer or network platform itself. In Ancora Techs. Inc. v. HTC America, Inc., for example, the CAFC held that claims directed to storing a verification structure in computer memory were directed to a non-abstract improvement in computer functionality because they improved computer security. 908 F.3d 1343, 1347–49 (Fed. Cir. 2018). The CAFC determined the claims addressed the “vulnerability of license authorization software to hacking” and were thus “directed to a solution to a computer-functionality problem.” Id. at 1349. Likewise, in Finjan, Inc. v. Blue Coat System, Inc., the CAFC held that claims to a “behavior-based virus scan” provided greater computer security and were thus directed to a patent eligible improvement in computer functionality. 879 F.3d 1299, 1304–06 (Fed. Cir. 2018). In Data Engine Techs. LLC v. Google LLC, the CAFC held patent eligible claims reciting “a specific method for navigating through three-dimensional electronic spreadsheets” because the claimed invention “improv[ed] computers’ functionality as a tool able to instantly access all parts of complex three-dimensional electronic spreadsheets.” 906 F.3d 999, 1007–08 (Fed. Cir. 2018); see also Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1359–63 (Fed. Cir. 2018) (holding patent eligible claims reciting an improved user interface for electronic devices that improved the efficiency of the electronic device, particularly those with small screens”). And in SRI Int’l, Inc. v. Cisco Sys. Inc., the CAFC held patent eligible claims directed to an improved method of network security “using network monitors to detect suspicious network activity…generating reports of that suspicious activity, and integrating those reports using hierarchical monitors.” 930 F.3d 1295, 1303 (Fed. Cir. 2019). The CAFC concluded that the “focus of the claims was on the specific asserted improvement in computer capabilities,” namely “providing a network defense system that monitors network traffic in real-time to automatically detect large-scale attacks.” Id. at 1303–04.
The CAFC has consistently stated that it is not enough, however, to merely improve a fundamental practice or abstract process by invoking a computer merely as a tool. For example, in Affinity Labs. of Texas, LLC v. DIRECTV, LLC, the CAFC held that claims to a method of providing out-of-region access to regional broadcasts were directed to an abstract idea. 838 F.3d 1253, 1258 (Fed. Cir. 2016). The CAFC determined the claims were not a patent-eligible improvement in computer functionality because they simply used cellular telephones “as tools in the aid of a process focused on an abstract idea.” Id. at 1262; see also In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016) (holding ineligible claims reciting concrete physical components merely as “a generic environment in which to carry out the abstract idea of classifying and storing digital images in an organized manner”). Likewise, in Intellectual Ventures I LLC v. Capital One Bank (USA), the CAFC held that claims reciting a system for providing web pages tailored to an individual user were directed to an abstract idea. 792 F.3d 1363, 1369–70 (Fed. Cir. 2015). The CAFC held that “claiming the improved speed or efficiency inherent with applying the abstract idea on a computer” was insufficient to render the claims patent eligible as an improvement to computer functionality. Id. at 1367, 1370; see also Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715–16 (Fed. Cir. 2014) (holding that displaying an advertisement in exchange for access to copyrighted material is an abstract idea). And in SAP Am., Inc. v. InvestPic, LLC, the CAFC held patent ineligible claims directed to “selecting certain information, analyzing it using mathematical techniques, and reporting or displaying the results of the analysis.” 898 F.3d 1161, 1167–68 (Fed. Cir. 2018). The CAFC determined the claims were focused not on a physical-realm improvement to computers as tools but rather an improvement in wholly abstract ideas. Id. at 1168. The CAFC has also held that improving a user’s experience while using a computer application is not, without more, sufficient to render the claims directed to an improvement in computer functionality. For example, in Trading Techs. I, the CAFC held patent ineligible claims directed to a computer-based method for facilitating the placement of a trader’s order. Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1092–93 (Fed. Cir. 2019) (Trading Techs. I). Although the claimed display purportedly “assist[ed] traders in processing information more quickly,” the CAFC held that this purported improvement in user experience did not “improve the functioning of the computer, make it operate more efficiently, or solve any technological problem.” Id.; see also Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1381, 1384–85 (Fed. Cir. 2019) (Trading Techs. II) (holding that claims “focused on providing information to traders in a way that helps them process information more quickly” did not constitute a patent-eligible improvement to computer functionality). In sum, “software can make non-abstract improvements to computer technology just as hardware improvements can.” Enfish, 822 F.3d at 1335. But to be directed to a patent-eligible improvement to computer functionality, the claims must be directed to an improvement to the functionality of the computer or network platform itself. See, e.g., id. 1336–39; DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257–59 (Fed. Cir. 2014). Thus, this inquiry “often turns on whether the claims focus on ‘the specific asserted improvement in computer capabilities…or, in-stead, on a process that qualifies as an “abstract idea” for which computers are invoked merely as a tool.’” Finjan, 879 F.3d at 1303 (quoting Enfish, 822 F.3d at 1335–36). Against this background, Applicant’s claims are not directed to a practical application and are not patent eligible as they are only directed to making predictions by merely manipulating collected data/information where the manipulation of data is also mathematical in nature (abstract) (see detailed discussion above).
Accordingly, the claims do not integrate the judicial exception into a practical application. See MPEP 2106.04(d) and also see Memorandum, Section 111(A)(2) (Prong Two: If the Claim Recites a Judicial Exception, Evaluate Whether the Judicial Exception Is Integrated Into a Practical Application).
Furthermore, under step 2B, the recitations of the core inventive steps amount to little more than reciting that the computer system applies the abstract idea. These activities as claimed by the Applicant are all well-known and routine tasks in the field of art – as can been seen in the specification of Applicant's application and/or the specification of the below cited art and/or also as noted in the court cases in §2106.05 in the MPEP. As stated in the most recent guidelines provided by the office, “Simply appending well-understood routines and conventional activities previously known to the industry, specifies a high level of generality…” (MPEP 2106.05; 2019 Revised Patent Subject Matter Eligibility Guidance - Federal Register, Vol. 84, Vol. 4, January 07, 2019, pages 50-57). The elements in combination (or alone) do not provide any material drawn to something significantly more than the claimed method of organizing these known activities. The claims require no more than a generic computer to perform generic computer functions. Additionally, the claims simply gather data and describe the data by reciting, very generally, steps or organizing information through mathematical relationships. The steps further merely employ mathematical relationships to manipulate existing information to generate additional information. Applicant's claimed steps represent activities that could be performed by a human but are simply performed on a general purpose computer instead. The elements included in the claimed invention could, under broadest reasonable interpretation, be performed without a machine. Applicant is directed to the following references: Digitech Image., LLC v. Electronics for Imaging, Inc.(U.S. Patent No. 6,128,415); and (2) MPEP 2106.05 and 2019 Revised Patent Subject Matter Eligibility Guidance - Federal Register, Vol. 84, Vol. 4, January 07, 2019, pages 50-57, Gottschalk v. Benson. The focus of the claims is on collecting information, analyzing it (some heavily mathematically), and outputting results of the analysis/calculations (for further decision making, forecasting/predictions, and analysis). Information as such is intangible. See Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 451 n.12 (2007); Bayer AG v. Housey Pharm., Inc., 340 F.3d 1367, 1372 (Fed. Cir. 2003). The Court of Appeals for the Federal Circuit (CAFC) have also treated analyzing information by steps people go through in their minds, or by mathematical algorithms as essentially mental processes within the abstract-idea category. See, e.g., TLI Commc’ns, 823 F.3d at 613; Digitech, 758 F.3d at 1351; Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011); SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1333 (Fed. Cir. 2010). Here, the claims are clearly focused on the combination of those abstract-idea processes. The advance they purport to make is a process of gathering and analyzing information of a specified content, then outputting/displaying the results, and not any particular assuredly inventive technology for performing those functions. They are therefore directed to an abstract idea.
Abstract ideas are excluded from patent eligibility based on a concern that monopolization of the basic tools of scientific and technological work might impede innovation more than it would promote it. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. It should be noted the limitations of the current claims are performed by the generically recited computers. The elements included in the claimed invention could, under broadest reasonable interpretation, be performed without a machine. Applicant is directed to the following references: (1) MPEP 2106.05 and 2019 Revised Patent Subject Matter Eligibility Guidance - Federal Register, Vol. 84, Vol. 4, January 07, 2019, pages 50-57, Digitech Image., LLC v. Electronics for Imaging, Inc.(U.S. Patent No. 6,128,415); and (2) MPEP 2106.05 and also 2019 Revised Patent Subject Matter Eligibility Guidance - Federal Register, Vol. 84, Vol. 4, January 07, 2019, pages 50-57, Gottschalk v. Benson.
The claims do not recite an improvement to another technology or technical field, an improvement to the functioning of the computer itself, or meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment. The core limitations require no more than a generic computer to perform generic computer functions. see Alice Corp., 134 S. Ct. at 2360 and buySAFE, Inc. v. Google, Inc. 754 F.3d 1350, 1355 (and also please refer to MPEP 2106.05, 2106.04(d) and “July 2015 Update: Subject Matter Eligibility, page 7” for a listing of computer functions found by the courts to be well-understood, routine and conventional and the 2019 Subject Matter Guidance Federal Register, Vol. 84, Vol. 4, January 07, 2019). It should be noted the limitations of the current claims are performed by the generically recited computers. Limiting the claims to the particular technological environment of predicting/forecasting and making purchasing decisions (demand determination, etc.,) using generic computers is, without more, insufficient to transform them into patent-eligible applications of the abstract idea at their core. See Alice, 134 S. Ct. at 2358; Mayo, 132 S. Ct. at 1294; Bilski v. Kappos, 561 U.S. 593, 610–11 (2010); Diamond v. Diehr, 450 U.S. 175, 191 (1981); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014). Merely selecting information, by content or source, for collection, analysis/manipulation, and display (or use for further decision making) does nothing significant to differentiate a process from ordinary mathematical analysis, whose implicit exclusion from § 101 undergirds the information-based category of abstract ideas. Simply requiring the selection and manipulation of information—to provide a “humanly comprehensible” amount of information useful for users, by itself does not transform the otherwise-abstract processes of information collection and analysis. See Electric Power Group v Alstom S.A. (Fed Cir, 2015-1778, 8/1/2016). The claims recite using known and/or generic computing devices and software. For the role of a computer in a computer implemented invention to be deemed meaningful in the context of this analysis, it must involve more than performance of "well-understood, routine, [and] conventional activities previously known to the industry." Alice, at 2359 (quoting Mayo, 132 S. Ct. at 1294 (internal quotation marks and brackets omitted)). These activities as claimed by the Applicant are all well-known and routine tasks in the field of art – as can been seen in the specification of Applicant's application (for example, see Applicant’s specification at, 0069-0072 [general purpose computers/servers/networks/etc., and computing components/devices], 0073 [specifically states that “description above includes example systems, methods, techniques, instruction sequences, and/or computer program products that embody techniques of the present disclosure…[h]owever, it is understood that the described disclosure can be practiced without these specific details”]) and/or the specification of the below (and in the PTO-892) cited art and/or also as noted in the court cases in §2106.05 in the MPEP. Further, "the mere recitation of a generic computer cannot transform a patent ineligible abstract idea into a patent-eligible invention." Alice, at 2358. None of the hardware offers a meaningful limitation beyond generally linking the system to a particular technological environment, that is, implementation via computers. The claims at issue here do not require an arguably inventive device or technique for displaying information, unlike the claims at issue in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014) (at JMOL stage finding inventive concept in modification of conventional mechanics behind website display to produce dual-source integrated hybrid display). Nor do the claims here require an arguably inventive distribution of functionality within a network, thus distinguishing the claims at issue from those in Bascom, 2016 WL 3514158, at *6 (at pleading stage finding sufficient inventive concept in “the installation of a filtering tool at a specific location, remote from the end users, with customizable filtering features specific to each end user”). The claims in this case do not include any requirement for performing the claimed functions of gathering, analyzing/calculating, and outputting/displaying by use of anything but entirely conventional, generic technology. See Electric Power Group v Alstom S.A. (Fed Cir, 2015-1778, 8/1/2016). The claims therefore do not state an arguably inventive concept in the realm of application of the information-based abstract ideas. None of the hardware offers a meaningful limitation beyond generally linking the system to a particular technological environment, that is, implementation via computers. Viewed as a whole, the claims do not purport to improve the functioning of the computer itself, or to improve any other technology or technical field. Use of an unspecified, generic computer does not transform an abstract idea into a patent-eligible invention. Thus, the claim does not amount to significantly more than the abstract idea itself. See Alice Corp. v. CLS Bank Int'l, 110 USPQ2d 1976 (U.S. 2014).
The dependent claims (also included in the discussion above) further define the independent claims and merely narrow the described abstract idea, but not adding significantly more than the abstract idea (included and detailed in the discussion above – and also see rejection below).
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 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.
Claims 1-22 of current application 17/228,576 (hereinafter ‘576) are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 10,977,673 (hereinafter ‘673). Although the claims at issue are not identical, they are not patentably distinct from each other because the independent claims of the current application 17/228,576 are just broader than the claims presented in Pat. No. 10,977,673. The claimed concepts in the current application ‘576 are fully encompassed by Patent ‘673. For example, independent claims 1, 20, and 21 of ‘673 fully encompass the current application’s (‘576) claims 1, 20, and 21. Furthermore, the dependent claims of current application ‘576 (claims 2-19) are also fully encompassed by claims 2-19 of Pat. ‘673. See exemplary Table 1. Additionally, one of ordinary skill in the art would have recognized the slight differences between the claim language/limitations of the corresponding claims as being directed towards intention, non-functional and non-structural field-of-use language, slight variations in terminology, or obvious variants of claim elements, and therefore these claims are not patentably distinct from one another despite these slight differences. The Applicant may have reworded some of the limitations of the independent and dependent claims but the concepts claimed in the current application are all also presented in the claims of patent ‘673.
Table 1 (exemplary):
17/228,576 (current application)
Pat. No. 10,977,673
Claims 1, 20, 21
Claims 1, 20, 21
Claims 2-19
Claims 2-19
The claimed concepts in the current application ‘576 is fully encompassed by Patent ‘673.
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 1-22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Note: The above §101 discussion under the “Response to Arguments” section is incorporated and applied in this rejection.
The claimed invention is directed to an abstract idea of retail forecasting without significantly more. The claims recite steps for forecasting by accessing/obtaining/receiving data, data analysis to determine more data, mathematical analysis and manipulations of the data and information (parameters and using the parameters for calculations) to create models (demand rule/models and then using the mathematical concepts/models to forecast), and providing/displaying the determined data (mostly mathematical results) on the graphical user interfaces/displays/etc. In the newly amended claims the newly added limitations are towards using obtained abstract information to further analyze and manipulate the abstract information (through abstract steps of information exchange and also through significant use of mathematical concepts – e.g. calculations, forecasting (predictive modeling/analysis), using matrices), and use the resulting obtained information for further information analysis and decision-making (in retail sales and marketing environment). As also stated above, the claims are geared towards purchasing choices and retail forecasts by receiving abstract information (e.g. calendar, marketing, sales history, etc.,), and using the abstract information to generate more information regarding demand and various choices (analysis and manipulation of data/information including mathematical calculations), and providing information for predicting/forecasting (further mathematical analysis) and decision making.
The limitations of the independent claims (1, 20, and 21) and dependent claims (2-19 and 22), under the broadest reasonable interpretation, covers methods of organizing human activity (fundamental economic principles or practices in product purchasing and forecasting/predicting in retail/sales environment) and mathematical concepts (shown above) but for the recitation of generic computer components. That is, but for the recitation of generic/general-purpose computers and computing components/elements/etc., (for example, “systems,” “processors,” “memories,” “applications (software),” “instructions (generally stated – possible software/algorithm),” (claims 1-19); “system,” “applications (software),” (claims 20); and “computer-readable medium/media,” “systems,” “instructions (generally stated – possible software/algorithm),” “applications (software),” “processors,” (claim 21)) in the context of the claims, the claim encompasses obtaining data, data analysis to determine more data, and providing/displaying this determined data. The claimed invention further uses mathematical steps to analyze and determine further data. If a claims limitation, under its broadest reasonable interpretation, covers the performance of the limitation as 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 scheduling, social activities, teaching, and following rules or instructions), then it falls within the “organizing human activities” grouping of abstract ideas. (See MPEP 2106.04 and also see 2019 Revised Patent Subject Matter Eligibility Guidance – Federal Register, Vol. 84, Vol. 4, January 07, 2019, pages 50-57). If a claims limitation, under its broadest reasonable interpretation, covers the performance of the limitation as mathematical relationships, mathematical formulas or equations, mathematical calculations then it falls within the Mathematical concepts grouping of abstract ideas. (MPEP 2106.04 and also see 2019 Revised Patent Subject Matter Eligibility Guidance - Federal Register, Vol. 84, Vol. 4, January 07, 2019, pages 50-57). Accordingly, since Applicant's claims fall under both mathematical concepts grouping and organizing human activities grouping, the claims recite an abstract idea.
This judicial exception is not integrated into a practical application because the claims and specification recite generic components (for example, “systems,” “processors,” “memories,” “applications (software),” “instructions (generally stated – possible software/algorithm),” (claims 1-19); “system,” “applications (software),” (claims 20); and “computer-readable medium/media,” “systems,” “instructions (generally stated – possible software/algorithm),” “applications (software),” “processors,” (claim 21)) which are recited at a high level of generality performing generic computer functions. (See 2019 Revised Patent Subject Matter Eligibility Guidance – Federal Register, Vol. 84, Vol. 4, January 07, 2019, page 53-55). The generic/general purpose computer and computing components/elements/etc., (for example, “systems,” “processors,” “memories,” “applications (software),” “instructions (generally stated – possible software/algorithm),” (claims 1-19); “system,” “applications (software),” (claims 20); and “computer-readable medium/media,” “systems,” “instructions (generally stated – possible software/algorithm),” “applications (software),” “processors,” (claim 21)) terms/limitations are no more than mere instructions to apply the judicial exception (the above abstract idea) using generic computer components. Accordingly, the additional elements do not integrate the abstract idea in to a practical application because it does not impose any meaningful limits on practicing the abstract idea – i.e. they are just post-solution/extra-solution activities.
The independent claims and dependent claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims do not recite an improvement to another technology or technical field, an improvement to the functioning of the computer itself, or meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment. The claims recite using known and/or generic computing devices and software. For the role of a computer in a computer implemented invention to be deemed meaningful in the context of this analysis, it must involve more than performance of "well-understood, routine, [and] conventional activities previously known to the industry." Alice Corp. v. CLS Bank Int'l, 110 USPQ2d 1976 (U.S. 2014), at 2359 (quoting Mayo, 132 S. Ct. at 1294 (internal quotation marks and brackets omitted)). These activities as claimed by the Applicant are all well-known and routine tasks in the field of art – as can been seen in the specification of Applicant’s application (for example, see Applicant’s specification at, for example, ¶¶ 0069-0072 [general purpose computers/servers/networks/etc., and computing components/devices], 0073 [specifically states that “description above includes example systems, methods, techniques, instruction sequences, and/or computer program products that embody techniques of the present disclosure…[h]owever, it is understood that the described disclosure can be practiced without these specific details”]) and/or the specification of the below cited art and/or also as noted in the court cases in §2106.05 in the MPEP. Even the Applicant admits that the steps can be executed without the computers/servers/systems/etc., - i.e. admitting that the computers/servers/networks/etc., and computing components/devices are all non-ancillary. Further, "the mere recitation of a generic computer cannot transform a patent ineligible abstract idea into a patent-eligible invention." Alice, at 2358. None of the hardware offers a meaningful limitation beyond generally linking the system to a particular technological environment, that is, implementation via computers. Adding generic computer components to perform generic functions that are well‐understood, routine and conventional, such as gathering data, performing calculations, and outputting a result would not transform the claim into eligible subject matter. Abstract ideas are excluded from patent eligibility based on a concern that monopolization of the basic tools of scientific and technological work might impede innovation more than it would promote it. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims require no more than a generic computer to perform generic computer functions. The additional element(s) or combination of elements in the claim(s) other than the abstract idea per se amount(s) to no more than: (i) mere instructions to implement the idea on a computer, and/or (ii) recitation of generic computer structure that serves to perform generic computer functions that are well-understood, routine, and conventional activities previously known to the pertinent industry. Applicant is directed to the following citations and references: Digitech Image., LLC v. Electronics for Imaging, Inc.(U.S. Patent No. 6,128,415); and (2) Federal register/Vol. 79, No 241 issued on December 16, 2014, page 74629, column 2, Gottschalk v. Benson. Viewed as a whole, the claims do not purport to improve the functioning of the computer itself, or to improve any other technology or technical field. Use of an unspecified, generic computer does not transform an abstract idea into a patent-eligible invention. Thus, the claim does not amount to significantly more than the abstract idea itself. See Alice Corp. v. CLS Bank Int'l, 110 USPQ2d 1976 (U.S. 2014).
The dependent claims 2-19 and 22 (also addressed above) further define the independent claims and merely narrow the described abstract idea, but not adding significantly more than the abstract idea. Dependent claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements either individually or in combination are merely an extension of the abstract idea itself. The dependent claims further do not limit the claimed invention in such a away so as to direct the claimed invention to statutory subject matter – the claims merely further define/manipulate/analyze known type of [received/determined] abstract data/information, analyzes and compares this known type of data/information, and provides this determined information for further management and manipulation (for forecasting/predicting and abstract decision making). The dependent claims also merely recites post-solution/extra-solution activities (with generic/general-purpose computers and/or computing components/devices/etc.,). The limitations, as drafted, are a processes/concepts that, under its broadest reasonable interpretation, covers performance of the limitation in as organizing human activities (fundamental economic practices, managing personal behavior or relationships or interactions between people, and data organization)) and some limitations also cover mathematical concepts.
Claims not rejected under prior art but remain rejected under Double patenting and §101
As per the independent claims, the closet prior art are Faris et al., (US 2010/01386264) and Mirurak (US 7,130,807). Faris provides a business with the ability to be aware on a moment-to-moment basis of their historic, current and future operational states. The business system uses a dynamic data engine for the purposes of creating and displaying historic transactions, current stock levels and forecasted demand data in real-time. As the data is created and cast forward, the data retains attributes of the original transaction data. These attributes are configured and modified dynamically resulting in precise and managed demand forecast, budget and purchasing information. Any change in the raw data as a result of a business transaction is immediately reflected in the demand forecast; hence, the data is in a perpetual dynamic state. Faris, for example, discloses receiving, for at least one product of a plurality of products, at least one calendar, and a sales history, wherein the at least one calendar includes a plurality of different purchasing choices available for the at least one product over a calendar time period (for example see, ¶¶ 0009-0014 [provide dynamic updating of historic, current and forecast data as business transactions are undertaken thereby enabling a business to be continually aware of historic, current and future states…provide an electronic business system for dynamically creating and displaying historic, current and forecast data in real-time on a moment to moment basis…[stored] unit sales data…unit sales data and continuously updating said stored unit sales data…historical record of unit sales in said means for storing unit sales, wherein each product is uniquely represented by a multi-field product code each field being hierarchical], 0017 [flow of goods…determine supply], 0019-0026, 0055-0063 [graphical output, the user can drill-down to more specific product data in relation to a particular brand or model number of the product. More detailed product information is shown in FIG. 6 and includes: [0056] Product code, product image and description. [0057] Variants (for example, size) within the general product code. [0058] Variant percentage graph which is capable of being edited. [0059] Variant quantities. [0060] Graphical output selected from a curve source such as lineage or historic group. [0061] Previous financial year sales (LY), budget and forecast. [0062] Budget year to date (BYTD), actual sales year to date (YTD) and month to date sales (MTD). [0063] Forecast for the current financial year including budget (BGT), sale (Fcst), YTD data plus the balance of budget amounts for the rest of the year (FCST)], 0027 [changes]). However, Faris fails to discloses generating…parameters of the partitioning rule, wherein the parameters define a shift in demand between multiple purchasing choices available for the product, the parameters including a multi-choice environment take rate for each of the multiple purchasing choices and a single-choice environment demand for the product; decomposing…the partitioning rule by partitioning out multiple calculation paths based on…calendar, each calculation path including a demand rule; generating…updated demand rule for each of the multiple calculation paths…generate, by the forecasting application, a choice matrix based on the rule set and reflecting demand changes in a sales environment of the forecasting application; generating, by the forecasting application, a marketing matrix based on the rule set and reflecting demand changes in a marketing environment of the forecasting application…forecasting one of demand and sales for multiple user choices for purchasing a product, the forecast based on one or more of the updated demand rules. Mirurak further discusses generating retail forecasts (for example see, Abstract; col. 2, line 65 – col. 3, line 20 [plane for future demand…predict future demand…optimize supply and cost]; col. 21, lines 45-57), the system comprising: a processor; and a memory storing instructions that, when executed by the processor (figs 1-2; col. 9, lines 28-65++), cause the system to: receive a purchasing choice calendar, a marketing calendar, and a sales history (for example, see col. 131, line 40 – col. 132, line 25 [calendaring…events…products purchased, products looked at but not purchased…browsing habits…buying pattern]; col. 133, lines 1-57, col. 135, line 57 – col. 136, line 14 [marketing…market surveys]; col. 160, line 45 – col. 161, line 10; col. 249, line 35 – col. 250, line 53). Mirurak also briefly discusses taking demand shifts into account (col. 247, line 61 – col. 249, line 13 [administration…interactive marketing (shift in demand)]; col. 249, lines 15-34 [addresses the changes to the shift…make strategic decisions]). However, Mirurak fails to disclose the concept of generating…parameters of the partitioning rule, wherein the parameters define a shift in demand between multiple purchasing choices available for the product, the parameters including a multi-choice environment take rate for each of the multiple purchasing choices and a single-choice environment demand for the product; decomposing…the partitioning rule by partitioning out multiple calculation paths based on…calendar, each calculation path including a demand rule; generating…updated demand rule for each of the multiple calculation paths…generate, by the forecasting application, a choice matrix based on the rule set and reflecting demand changes in a sales environment of the forecasting application; generating, by the forecasting application, a marketing matrix based on the rule set and reflecting demand changes in a marketing environment of the forecasting application…forecasting one of demand and sales for multiple user choices for purchasing a product, the forecast based on one or more of the updated demand rules.
Additionally, given the specific ordered combination of the claim elements in the independent claims cannot be found in the prior art (including art cited in PTO-892) and can only be found in Applicant’s Specification. The prior art of record (including art cite on PTO-892) does not teach or suggest (the reference individually or in combination) Applicant’s current independent claims as a whole (it is the entire claimed concept described by the limitations collectively coming together that is not rejected under prior art (the core concept is shown in the claim as a whole — limitations organized in the specific form and coming together collectively to form the concept)). Furthermore, any combination of the cited references and/or additional references to teach all of the claim elements would not be obvious and would result in impermissible hindsight reconstruction.
As per the dependent claims, these claims depend on the independent claims above and incorporate the limitations thereof, and are therefore not rejected under prior art for at least the same rationale as applied to the independent claims above, and incorporated herein.
Note that all the claims are still rejected under Double patenting rejection and §101 rejection and are therefore not allowable.
Conclusion
The prior art made of record on the PTO-892 and not relied upon is considered pertinent to applicant's disclosure. For example, some of the prior art is as follows:
Marsten (US 8078489): Discusses identifying an optimum set of product configurations from a plurality of possible product configurations, wherein each product configuration has a plurality of features and each feature has a plurality of options, includes the steps of representing each of the possible product configurations as an ordered set or array of at least n-dimensions, each dimension of the array representing a predetermined one of the features, identifying a subset of valid product configurations, identifying which valid configurations are captured by other configurations through upgrades, conversions, or acceptance of different options, defining and solving an optimization model to identify the optimum set of valid product configurations based on a desired objective, such as to maximize profit, minimize cost, or maximizing coverage of customer demand, and then presenting the optimum set of valid product configurations that satisfy the desired objective.
McCauley et al., (US 2010/0306031): relates to a system and method for analyzing product roles. The system receives a listing of products for classification into roles. The system receives volume data for each item, as well as demand coefficient. Elasticity of the products may be determined from the demand coefficients. Product volumes and elasticities may then be compared against one another by graphing the product by its volume versus elasticity. From this comparison the products may be classified into one or more roles. These roles include image items, niche products, assortment completers, and profit drivers. The assortment completer role is populated with products which have high relative elasticity and low relative volume. Niche product role is populated with products which have low relative elasticity and low relative volume. The image item role is populated with products which have high relative elasticity and high relative volume. And lastly, the profit driver role is populated with products which have low relative elasticity and high relative volume. This comparison may also include generating an "image value" for the product.
Ng et al., (US 20090327037): Discusses configuring initial rule set. Initial Demand models are generated. A first optimization for inventory pricing may be received from the price optimization system. The first optimization uses the initial demand models and cost data. A markdown plan is generated by applying the initial rule set to the first optimization. The plan is implemented. Updated data may be received which mandates a re-optimization of the plan. Demand models are refreshed using the updated data. Initial rule set is updated by cross referencing plan history with the initial rule set and subtracting rule events that have previously occurred. A second optimization is received which uses the refreshed demand models and cost data. Then, the markdown plan is re-optimized by applying the updated rule set to the second optimization. The re-optimized markdown plan is reported, approved and implemented.
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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/GURKANWALJIT SINGH/ Primary Examiner, Art Unit 3625