DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2026 February 13, which is a supplemental response to and supersedes the response of 2026 January 26, has been entered.
Claims amended: 1, 14, 20
Claims cancelled: none
Claims added: none
Claims currently pending: 1-20
Response to Arguments
Applicant, in the first paragraph, presents opening remarks regarding the disposition of the claims and the amendments to the claims. As no specific argument is raised in this/these section(s) with respect to the instant application, no rebuttal is required.
Applicant, in the “CLAIM REJECTIONS UNDER 35 U.S.C. § 112(a)” section, argues that the claim amendments, which remove the “unsupported language”, render the previously presented grounds of rejection moot. Examiner agrees and has withdrawn the grounds of rejection.
Applicant, in sub-section I of the “CLAIM REJECTIONS UNDER 35 U.S.C. § 101” section, argues that the “eye tracking” feature is “not mere data gathering, but a specific technical implementation using specialized hardware”. This argument is unpersuasive as the “technical implementation” is devoid of “technical” details of the hardware and/or software used to implement the generically cited “eye-tracking”. The claims, as currently written, state a type of data (i.e., “eye-tracking”) that is gathered by “a wearable device comprising the augmented reality glasses” and a goal of determining “if a prospective client likes a product”. The claim construction relies upon the capabilities of one of ordinary skill in the art at the time the invention was filed to implement the hardware and software solution. That is, the elements of the construction must be well-understood, routine, and conventional. The determination that a user “likes a product” based on “where the prospective client is looking”, is not a technical problem. Any retail salesperson would understand that a user perusing a particular product may be interested in said product. Absent novel technical details, alone, or in combination, this construction amounts to mere data gathering using generic computing hardware.
Applicant then argues that creating an “increased immersive scenario” is a “technical improvement” and not “merely a business improvement”. The claims, as currently written, tracking where the client is looking in order to determine a user’s interest in a product in order to present the user with “at least one marketing action”. It is unclear where and how this “at least one marketing action” is presented to the user. Furthermore, the use of the “eye tracking” to “create an increased immersive scenario” appears to be based on “optimizing a resolution” in the are the user is viewing. However, this technique is known as foveated rendering and was well-understood, routine, and conventional before the effective filing date of the instant application. Therefore, this amounts to extra-solution activity that does not render the claims into eligible subject matter under 35 U.S.C. § 101.
Applicant, in the “third” and “fourth” paragraphs, asserts that the combination of machine learning scoring and A/B testing is a “specific technical implementation, not merely an abstract concept”. This argument is also unpersuasive, as the techniques involved are well-understood, routine, and conventional techniques. Merely instantiated “machine learning” is akin to stating a problem and applying “mathematics”. Machine learning is a class of algorithms that, while newly popularized, has been around since at least the 1980’s. Without novel details of the application of specific machine learning algorithms, the claims do not amount to more than invoking techniques that were well-understood, routine, and conventional before the effective filing date of the instant application.
Applicant, in sub-section II of the “CLAIM REJECTIONS UNDER 35 U.S.C. § 101” section, argues that features of the claims represent significantly more than the abstract idea. First, Applicant asserts that the use of Quantum Computing is significantly more than the abstract idea. Examiner notes that the usage of quantum computing, as currently invoked in the claims, is done at a high level of generality and does not specify a specific arrangement of components that provide a performance improvement. Rather, the claims rely on an assertion that using quantum computers performs calculations “faster”. That is, the performance improvement is due to simply swapping out a conventional computer for a quantum computer; a step that amounts to no more than stating “apply it”. Simply instantiating quantum computing without some element that requires its usage is little more than employing a buzzword technology. Second, Applicant leans on the “Wearable Device with Eye Tracking” as providing significantly more than the abstract idea. The use of these technologies is specified at a high level of generality. This usage, at a high level of generality, of a variety of technologies, no matter how numerous, in the pursuit of “personalization and effectiveness of marketing strategies” does not render the claims into eligible subject matter. Using the technologies together does not improve each of the technologies separately. Third, Applicant asserts that “real time personalization using 360 degree data input represents a specific technical implementation”. Examiner disagrees to this notion as simply gather data in a “360 degree” manner does not amount to significantly more. This is abundantly clear from the claims that only seem to contain a “wearable device” that is “augmented reality glasses”, but nothing more specific to enable this “360 degree” manner, leading the Examiner to conclude that this is simply a gathering of data from camera on the wearable device, which is well-understood, routine, and conventional in the art. Fourth, Applicant asserts that the newly amended language related to A/B Testing represents significantly more than the abstract idea. As discussed in the grounds of rejection presented herein, the use of A/B Testing was also well-understood, routine, and conventional and actually predates the broad use of computer based advertising. As such, the grounds of rejection under 35 U.S.C. § 101 is herein maintained, albeit updated to reflect Applicant’s amendments to the claims.
Applicant, in sub-section III of the “CLAIM REJECTIONS UNDER 35 U.S.C. § 101” section, lists 6 features from the claimed invention and then asserts, “This ordered combination creates a technical system that generates increase immersive scenarios based on eye tracking analysis, which is a technical improvement to the user interface”. This argument is repetitious from those advanced above. Applicant has not indicated how the combination of elements combines to provide a technical improvement. Rather, Applicant’s argument appears to be addressed to the particular element of “eye tracking” and how this element, allegedly, “is a technical improvement”. This argument is unpersuasive in view of the updated grounds of rejection under 35 U.S.C. § 101 that discusses how the element of eye tracking to create foveated rendering was well-understood, routine, and conventional before the effective filing date of the instant invention. The grounds of rejection under 35 U.S.C. § 101 is herein maintained, albeit updated to reflect Applicant’s amendments to the claims.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994)
The disclosure of the prior-filed application, Application No. 17/180166, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. The independent claims pertain to at least “quantum-based techniques” which did not appear in the parent application (17/180,166) but were introduced in this continuation-in-part. Additional concepts present in the claims herein that are not found in the parent application include: AR/VR, holograms, Internet of Things (IoT), multi-sequential marketing, environmental data, biometric recognition, psychographic data, visual recognition, etc. Therefore, the claimed invention is only granted priority to the effective filing date of the instant application and not any parent application(s).
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 1-20 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.
Step 1: Claims 1-20 are directed towards a method. Claims 14-19 and 20 are directed towards systems. Thus, these claims, on their face, are directed to one of the statutory categories of 35 U.S.C. § 101.
Step 2A - Prong One: As 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(s) recites a judicial exception; that is, whether the claim(s) set forth or describe a law of nature, natural phenomenon, or abstract idea.
Claim 1 is presented here as a representative claim for specific analysis (The underlined claim terms here are interpreted as additional elements beyond the abstract idea and are further analyzed under Step 2A - Prong Two):
A method for optimization and personalization of marketing actions using cloud, hybrid, and quantum-based computing techniques, the method comprising:
establishing a quantum computer performing quantum computations based on exploitation of collective properties of quantum states including superposition and entanglement,
iteratively selecting, from a pool of prospective clients, at least one subgroup of the prospective clients based on predetermined criteria;
performing at least one marketing action on a prospective client in the pool of prospective clients, the prospective client recognized using biometric recognition,
the biometric recognition including at least one of biometric authentication or biometric tracking;
performing eye-tracking with a wearable device comprising augmented reality glasses to ensure real-time data user-specific personalization due to accessing a 360 degree data input on the prospective client, the augmented reality glasses providing real time data user specific personalization by individualizing each message for the prospective client;
performing eye-tracking with augmented reality glasses to understand where the perspective client is looking in an augmented reality environment and to analyze user behavior to determine if the prospective client likes a product, the analyzing what and where the prospective client is looking being used to create an increased immersive scenario, the eye-tracking optimizing a resolution of what the prospective client sees in the augmented reality environment and saves computing resources by rendering high definition content only where the prospective client is looking in the augmented reality environment,
while feeding a profile of the prospective client from a website using a Java Script;
and the at least one marketing action based on psychographic data including social pressures influencing the prospective client's behavior, the prospective client's maturity, preferences of family members associated with the prospective client, the prospective client's interests, hobbies, emotional triggers, lifestyles, activities, opinions, personality traits, health condition, implied needs, expressed needs, nutrition, habits, including using visual recognition to infer personality traits and assess sentiment of the prospective client;
in response to the at least one marketing action, receiving a feedback from the prospective client belonging to the at least one subgroup of the prospective clients;
using the feedback for prediction of the prospective client's interactions, use the feedback to identify the prospective client as a frequent customer, a baby boomer, a millennial, or a social traffic user, and use the feedback to select recommendations for content personalized for the prospective client;
scoring, by a machine learning technique including a reinforcement learning neural network, the feedback received from the prospective client;
and based on the scoring of the feedback, modifying the at least one marketing action until the at least one marketing action is optimized for the prospective client;
a portion of data in qubit form, the qubit having the superposition and entanglement properties and the machine learning technique including an A/B test, the A/B test comprising iteratively testing groups of prospective clients with different marketing actions and determining response rates to identify target prospective clients.
The claims here are based on the recitation of an abstract idea (i.e. recitation other than the additional elements delineated here with underlining and further addressed per Step 2B - Prong Two). The claims recite the abstract idea of selecting marketing messages based on data associated with a prospective client and modifying marketing messages based upon feedback received from previous marketing messages which is found within falls within 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. Refer to MPEP 2106.04(a)(2) II. A-C.
The Remaining Claims: The analysis of claim 1 is applicable to the additional independent claims 14 and 20 as these additional claims comprise alternate embodiments that implement the same steps of the method of the claim analyzed above. Claim 20 represents a concatenation of the contents of claims 14 and some of its dependents.
The dependent claims reiterate the same abstract idea with further embellishments: Claims 2-4, and 15 describe applying the abstract idea to a list of several modern computing technology areas, but this is no more than to generally linking the use of the abstract idea to a particular technological environment or field of use (MPEP 2106.05(h)). Claims 5-10, 12, 16-18, and 19 further describe the abstract idea in that these claims contain input data used for optimization of marketing messages. Claims 11 and 13 link the use of the abstract idea to the technological environment of biometric recognition. Therefore, the identified claims fall within the subject matter groupings of abstract ideas enumerated in MPEP 2106.04(a)(2).
Therefore, the identified claims fall within the subject matter groupings of abstract ideas enumerated in MPEP 2106.04(a)(2). Thus, the analysis proceeds to Prong Two to evaluate whether the claim integrates the abstract idea into a practical application.
Step 2A - Prong Two: As per MPEP 2106.04.II.A.2, Prong Two determines if the claim(s) recite additional elements that integrate the judicial exception into a practical application.
As for the additional elements of: a wearable device, using cloud, hybrid, and quantum-based computing techniques, improving a speed of the quantum computations compared to computations using a classical computer, by a machine learning technique, and a portion of data in qubit form, the qubit having superposition and entanglement properties, all steps performed by a quantum processing unit having a quantum circuit model. It would have been readily apparent to one having ordinary skill in the art (PHOSITA) at the time the invention was filed that the additional elements represent generic computing devices. Quantum computers as show on page14 and in at least section 1.5 et. seq. of Nielsen et al.'s introductory text on the subject: "Quantum Computation and Quantum Information". Therein, the authors describe how superposition and entanglement are fundamental to quantum computing. Therefore, Applicant's argument is unpersuasive as the claimed invention merely invokes quantum computers and claims an intended effect or use thereof. The additional element(s) are simply utilized as generic computing tools to implement the abstract idea, functioning as mere instructions to apply the exception as noted in MPEP 2106.05(f).
As for the additional elements of: biometric recognition, biometric authentication, biometric tracking, or an eye-tracking camera; eye-tracking; visual recognition; a wearable device comprising augmented reality glasses; a profile of the prospective client from a website using a Java Script. The gathering of data represents insignificant extra-solution activity that comprises mere data gathering. The gathering of data represents insignificant extra-solution activity that comprises mere data gathering. The additional element(s) represent insignificant extra-solution activity incidental to the primary process or product that are merely a nominal or tangential addition to the claim as noted in MPEP 2106.05(g).
As for the additional element(s) of: optimizing a resolution of what the prospective client sees in the augmented reality environment and saves computing resources by rendering high definition content only where the prospective client is looking in the augmented reality environment and the A/B test comprising iteratively testing groups of prospective clients with different marketing actions and determining response rates to identify target prospective clients. The additional element(s) represent insignificant extra-solution activity incidental to the primary process or product that are merely a nominal or tangential addition to the claim as noted in MPEP 2106.05(g).
Furthermore, the claims appear to be a solution to a commercial/business problem of optimization of marketing messages/communications. The claims, as currently written, seek to solve a business problem, but amount to a method of solving the business problem and using “apply it” with a variety of computer elements claimed at a high level of generality.
The ordered combination of these additional elements amounts to generally linking the use of the abstract idea to a particular technological environment or field of use (MPEP 2106.05(h)). The ordered combination offers nothing more than employing a generic configuration of computer devices and computer functions. The claims do not amount to a practical application, similar to how limiting the abstract idea in Flook to petrochemical and oil-refining industries was insufficient.
Step 2B: As per MPEP 2106.05, the additional elements are analyzed, both individually and in combination, to determine whether an "inventive concept" is furnished by an element or combination of elements that is recited in the claim in addition to (beyond) the judicial exception, and is sufficient to ensure that the claim, as a whole, amounts to significantly more than the judicial exception itself. The analysis under Step 2B does not consider the elements describing the abstract ideas that are set forth above in Step 2A. Instead, the analysis only assesses the claim limitations other than the invention's use of the ineligible concepts to which the claims are directed. The court's precedent has consistently employed this same approach, and as a matter of law, narrowing or reformulating an abstract idea does not add "significantly more" to it. BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281 (Fed. Cir. 2018).
As for the additional element(s): a Java Script represents 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) and is well-understood, routine and conventional as discussed in at least 0088 et. seq. of Jalili (Pub. #: US 2015/0324867 A1).
As for the additional element(s): at least one sensor comprising a retinal scanner, a pupil-dilation sensor, or an eye-tracking camera; a wearable device comprising augmented reality glasses; eye-tracking; and visual recognition. These elements represent means of determining user properties similar to 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) (optical character recognition) and represents well-understood, routine, and conventional features as indicated by Osterhout et al. (Pub. #: US 2014/0063054 A1) by disclosing that such sensors are available from multiple companies in at least 0460 et. seq.
As for the additional element(s): optimizing a resolution of what the prospective client sees in the augmented reality environment and saves computing resources by rendering high definition content only where the prospective client is looking in the augmented reality environment: The additional element(s) represent insignificant extra-solution activity incidental to the primary process or product that are merely a nominal or tangential addition to the claim as noted in MPEP 2106.05(g). The use of “Foveated rendering” in the presentation of data in an augmented or virtual reality headset to “reduce the rendering workload” was well-understood, routine, and conventional in the art at the time the invention was filed. See “Foveated rendering”, Wikipedia, archived on 2021 June 01, indicating that a headset featuring foveated rendering was presented 2014.
As for the additional element(s): the A/B test comprising iteratively testing groups of prospective clients with different marketing actions and determining response rates to identify target prospective clients. The additional element(s) represent insignificant extra-solution activity incidental to the primary process or product that are merely a nominal or tangential addition to the claim as noted in MPEP 2106.05(g). The use of A/B testing (a.k.a., split or bucket testing) is a technique applicable for testing advertisement messaging to users that was well-understood, routine, and conventional in the art at the time the invention was filed. See Thomas et al. (Pub. #: US 2018/0276718 A1) that describes newly developed advertisements to be “typically evaluated using an A/B testing methodology” (Thomas:0004).
The ordered combination of steps is doing nothing more than using computers as tools, which means the ordered combination of steps does not add any meaningful improvements in a technical field or meaningfully limit the use of the abstract idea to a particular technical environment beyond generally linking the use of the judicial exception to a particular technological environment or field of use (MPEP 2106.05(h)). Therefore, taking these limitations as an ordered combination adds nothing that is not already present when the elements are taken individually and the claims here fail to contain an additional element(s) or combination of additional elements that can be considered to be significantly more that the abstract idea.
Potentially Allowable Subject Matter
Claim(s) 1-20, as currently written, have overcome the prior art. However, the grounds of rejection under 35 U.S.C. § 101 are currently pending and represent a barrier to allowability. If and when the rejection under 35 U.S.C. § 101 has been overcome, there will be further search and consideration of the claims at that point.
The independent claims of the present invention recite systems and method of using a quantum computer for performing a marketing action based on numerous factors, including those determined using eye-tracking, psychographic data, visual recognition and applying a machine learning technique to score feedback received in response to the marketing action, using the score to modify the marketing action.
Examiner sets forth the following references as being representative of Applicant's inventive concept:
Paiement et al. (Pub. #: US 2022/0156797 A1): Paiement describes methods for providing personalized content using machine learning, A/B testing and feedback on past content.
Hatfield et al. (Pub. #: US 2022/0122096 A1): Hatfield describes methods in a virtual reality environment for tracking a user's gaze in order to determine the user's sentiment towards a product.
Samadani (Pub. #: US 2017/0367633 A1): Samadani discloses a system of eye-tracking to help in diagnosing schizophrenia or bipolar disorders.
Michael A. Nielsen and Isaac L. Chuang, in "Quantum computation and quantum information", describes the use of quantum computers and their application with various algorithms.
Ramer et al. (Pub. #: US 2011/0258049 A1): Ramer teaches iteratively updated user data with a user's responses/behaviors, selecting a subgroup of potential clients based on an advertiser's criteria, and sending advertisements to the groups of users.
Kays et al. (JP2010182287A) discloses a system that uses visual recognition to determine a user's current state and outputting content on a user interface based on a machine learning analysis of the user data.
Bova et al., in "Commercial applications of quantum computing", describe future predictions of the uses of quantum computing technology.
Singh et al., in "The Quantum way of Cloud Computing", describe the combination of quantum computing with cloud computing.
Wang et al., in “Foveated rendering: A state-of-the-art survey”, describe research into foveated rendering, covering a period beginning in 1990.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SCOTT SNIDER whose telephone number is (571)272-9604. The examiner can normally be reached M-W: 9:00-4:30 Mountain (11:00-6:30 Eastern).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Waseem Ashraf can be reached at (571)270-3948. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SCOTT SNIDER/Examiner, Art Unit 3621