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 .
Response to Amendment
The Amendment filed on 2026 June 01 has been entered. The following is in reply to the Amendments and Arguments.
Claims amended: 1, 14, 20
Claims cancelled: none
Claims added: none
Claims currently pending: 1-20
Response to Arguments
Applicant, in “REMARKS”, and “STATUS OF THE CLAIMS” sections, presents opening remarks regarding the disposition of the claims and the amendments to the claims. In the “CLAIM AMENDMENTS” section, Applicant presents claim concepts and helpfully notes where Applicant believes support for the concepts is found within the Specification. As no specific argument is raised in this/these section(s) with respect to the instant application, no rebuttal is required.
Applicant, in the “The amended independent claims recite a technological solution to a technical problem” section, argues that the claims “address a technical problem arising in wearable augmented-reality display systems”. Examiner disagrees to this characterization and points directly to the title of the application, “Automatic Cloud, Hybrid, and Quantum-Based Optimization Techniques for Communication Channels” and the Abstract. Neither of these items mentions the use of augmented-reality and neither addresses the concept of “how to present individualized augmented-reality content through AR glasses while reducing rendering burden and conserving computing resources of the wearable device”. As for the latter concept, the technique employed herein is referred to as “foveated rendering” and is a well-understood, routine, and conventional technique employed in the artificial reality / augmented reality field, as discussed in the grounds of rejection under 35 U.S.C. § 101 presented herein. This same pattern is reflected in the claims, as amended. The invention is directed towards optimizing advertisement messages as performed using a variety of technologies, all of the technologies are utilized at a high level of generality.
Applicant, in the “Objective Evidence Submitted Under 37 C.F.R. § 1.132” section, refers to the Declaration of Matthieu Dejardins and summarizes the evidence presented therein. Examiner addresses the Declaration in the section following this “Response to Arguments” section.
Applicant, in the “Step 2A, Prong One” section, argues that the identified abstract idea is “incomplete” because the claimed invention “also requires feedback, including the retina gaze-derived data, scoring of that feedback using a reinforcement learning neural network, and updating the AR content presented by the AR glasses based on the scored feedback”. Examiner holds that these elements, though numerous, represent additional elements beyond the abstract idea. Each of these elements are specified at a high level of generality. The inquiry is to determine what the claim is directed to. Here, the claimed invention performs a “marketing action”, receives feedback to said marketing action, uses the feedback to select an additional personalized content (i.e., an additional “marketing action”). These steps represent the heart of the claimed invention (using claim 1 as the example). These steps comprise an abstract idea: selecting marketing messages based on data associated with a prospective client and modifying marketing messages based upon feedback received from previous marketing messages. Therefore, there is an abstract idea present within the claims as detailed in the grounds of rejection presented herein (and in the previous Office action).
Applicant, in the “Step 2A, Prong Two” section, argues that the claims are integrated into a practical application due to the “retina gaze-derived data” being “used in the operation of the AR display itself to control how the augmented reality content is rendered”. This argument is unpersuasive as the feature of foveated rendering is not integrated into the abstract idea, but is simply extra-solution activity. Wikipedia states, “Foveated rendering is a rendering technique which uses an eye tracker integrated with a virtual reality headset to reduce the rendering workload by greatly reducing the image quality in the peripheral vision (outside of the zone gazed by the fovea)”. This was a well-understood, routine, and conventional technique used in artificial/virtual reality displays at the time the invention was filed. The specification provides limited detail as to the use of “eye-tracking” to “optimize the resolution of what they see”. In fact, paragraph 00128, which is identified in Applicant’s remarks as providing support for this feature, contains only two sentences pertaining thereto: “Eye-tracking makes it possible to understand where a virtual reality user is looking, and optimize the resolution of what they see” and “Consequently, eye-tracking can save resources by putting high definition only where the user in virtual reality is looking”. This indicates that the foveated rendering of the claimed invention is not directly related to the optimization of the “marketing action”; thus, it is clear that this is extra-solution activity and that the activity was well-understood, routine, and conventional before the date the invention was filed. Applicant then argues that the “retina gaze-derived data is not collected for storage or later human interpretation”, but is “used by the claimed system to control selective high-definition rendering of the AR content”. The “eye-tracking” data is just data that is gathered. Its usage in the foveated rendering of the AR content is itself an additional element that, as discussed above and in the grounds of rejection presented herein, is well-understood, routine, and conventional. Applicant’s alleged improvements in the “operation of a wearable AR display by reducing rendering workload and conserving computing resources” are outside the abstract idea itself and were known benefits of foveated rendering. As such, they do not represent a practical application of the abstract idea.
Applicant, in the “Step 2B” section, refers to the identified additional elements and argues that the grounds of rejection “does not account for the amended claims as an ordered combination and does not address the objective factual evidence submitted with the Dejardins Declaration”. Examiner notes that the analysis under 35 U.S.C. § 101 presented in the grounds of rejection below has been updated to reflect Applicant’s amendments to the claims. Additionally, the Dejardins Declaration is addressed in the following section presented below. Applicant asserts that the ordered combination of elements would not be “routine or conventional”. Examiner disagrees to this characterization. The claimed invention invokes numerous elements (AR/VR headset which is wearable, eye-tracking, quantum computing, machine learning, biometric authentication, a website using a Java Script, etc.) in support of the improvement in generation of a “marketing action” and follow-on personalized content. While the elements are numerous, none of them, alone, or in combination, are specified at more than a high level of generality; that is, the claims invoke a series of technologies, in their expected and routine usage. For example, the “retina gaze-derived data indicating what and where the prospective client is looking in the augmented reality environment” for the purposes of selecting “recommendations for content personalized for the prospective client” does not represent more than mere data gathering. This particular feature is little more than performing as a salesperson/marketer viewing a customer to determine the customer’s interests with the equivalent of “apply it” using computing techniques which were well-understood, routine, and conventional at the time the invention was filed. Examiner points to paragraph 00128 of the specification that states: “By analyzing exactly what and where the user is looking, it may be possible to analyze user behavior, see if the user likes the product or not, and create and increased immersive scenario”. This appears to comprise nearly the entirety of the support for this feature. The claimed invention assumes that a user of ordinary skill in the art at the time the invention was filed would be able to implement, without undue experimentation, this concept. At a high level, Examiner agrees, and this supports the interpretation that this additional element was well-understood, routine, and conventional. The claimed invention additionally uses the eye-tracking to perform foveated rendering, but this feature does not affect the operation of the rest of the invention. The foveated rendering technique may “save resources”, but this is independent of the development of “marketing actions” and “content personalization”. These two features, like the remaining features of the claims do not create a combination that provides significantly more than the abstract idea itself. A claimed invention is not rendered into eligible subject matter simply by invoking numerous disparate technologies. Therefore, the grounds of rejection under 35 U.S.C. § 101 is herein maintained, albeit updated to reflect Applicant’s amendments to the claims.
Applicant does not present substantive arguments in support of the patentability of claims in the “No Disclaimers or Disavowals” and “CONCLUSION” sections. Therefore, said dependent claims stand rejected under the grounds of rejection presented herein.
Response to Declaration
The Declarant, in sections 1 and 2, introduces themselves and discusses their background in relation to the field of endeavor. The Declarant is the named inventor of the claimed subject matter in the instant application. The Declarant, in section 3, notes that they have reviewed the prior Office action and disagree to the findings therein. As no specific argument is presented in these sections, no specific rebuttal is presented herein.
The Declarant, in section 4 of the Declaration, describes a person of ordinary skill in the art as being “familiar with how AR rendering pipelines operate, how gaze data is captured and used in display systems, and the computational constraints of wearable devices” in addition to having “at minimum two or more years of practical experience” in a variety of areas that includes ‘augmented reality or virtual reality rendering systems’. Examiner takes no specific issue with these assertions.
The Declarant, in section 5 of the Declaration, characterizes the claimed invention as being “directed at a real and well-known technical challenge in wearable AR systems: resource-constrained rendering on a mobile, wearable device”. Examiner disagrees to this characterization as the claimed invention contains numerous elements aside from those directed at resource constraints in wearable AR systems. These elements include “performing at least one marketing action” based on a variety of factors including “biometric recognition”, “psychographic data”, “the prospective client’s interests, hobbies, emotional needs lifestyles, activities, opinions, personality traits, health condition, implied needs, expressed needs, nutrition, habits”. Additionally, the claimed invention receives feedback to the marketing action to classify a user as “a frequent customer, a baby boomer, a millennial, or a social traffic user” and using the feedback to “select recommendations for content personalized for the prospective client” as performed using “machine learning” and using “A/B test” and “quantum-based computing techniques”. Analyzing the claims, as a whole, leads to a finding that the claims are directed towards selecting marketing messages based on data associated with a prospective client and modifying marketing messages based upon feedback received from previous marketing messages. The “using the retina gaze-derived data to optimize a resolution of what the prospective client sees in the augmented reality environment and saves computing resources by rendering high-definition content of the augmented reality content only where the prospective client is looking in the augmented reality environment” represents extra-solution activity and is a technique that was well-understood, routine, and conventional before the effective filing date of the invention. This technique is called “foveated rendering” and was known in at least 2014 according to the Wikipedia article noted in the grounds of rejection under 35 U.S.C. § 101 presented herein. Assuming we agree with the Declarant, PHOSITA would have “at minimum two or more years of practical experience” in the relevant arts, which include “augmented reality or virtual reality rendering systems”. As noted below, the use of foveated rendering predates the effective filing date of the instant application (2021 June 22) by some 7 years. As such, the technique would have been known by PHOSITA, as defined by Declarant, at or before the effective filing date of the instant application.
Declarant, in section 6 of the Declaration, argues that “Rather, a POSITA would read the specification as disclosing a specific, hardware-grounded technical solution to the rendering and personalization problem”. Declarant then refers to paragraphs from the specification and describes the technologies that are included in the claimed invention. Finally, Declarant argues, “A POSITA would read it as a wearable-device rendering and control system that happens to be used in a marketing context”. Assuming arguendo, that the claimed invention represents a solution to “wearable-device rendering”, then the “marketing context” would not be required. Examiner holds that the claimed invention represents marketing techniques within a wearable augmented reality context and the techniques tying the invention to this context (i.e., primarily foveated rendering) are well-understood, routine, and conventional techniques. While the claimed invention invokes numerous technologies (e.g., quantum computing, machine learning, eye-tracking, wearable AR glasses, feedback to previous marketing actions), they are each specified with a high level of generality that does not represent more than instantiating the abstract idea within a technological environment.
Declarant, in section 7 of the Declaration, argues that the invention provides “First, higher perceptual quality where it matters”. Examiner again notes that the foveated rendering was a well-understood, routine, and conventional technique employed prior to the effective filing date of the invention. Furthermore, this feature is found to be extra-solution activity as noted in previous arguments and in the grounds of rejection presented herein. Tacking on numerous known technologies and techniques onto the core of the abstract idea does not render the claims subject matter eligible under 35 U.S.C. § 101.
Declarant, in section 7 of the Declaration, then argues that the invention provides “Second, more accurate behavioral intelligence from gaze data”. Applicant’s invention appears to be reliant upon scant description within the specification. Primarily within paragraph 00128, which states, in part: “By analyzing exactly what and where the user is looking, it may be possible to analyze user behavior, see if the user like the product or not, and create an increased immersive scenario”. This description relies entirely upon PHOSITA to know how to use “eye-tracking” (the term “gaze” appears absent from the specification) to “analyze behavior” to determine “if the user likes the product or not”. At this high level of generality, this feature amounts to little more than data gathering and is a step performed by many store salespersons upon watching a customer interact (i.e., view, hold, etc.) items within their store. As such, this feature amounts to data gathering using “eye-tracking” to add additional data into the user profile for the purposes of a “marketing action” and follow-up “content personalized for the prospective client”. The “eye-tracking” is so well-understood, routine, and conventional that the specification is silent as to the hardware (and software algorithm) that is used to perform said feature. Therefore, Examiner comfortably concludes that the eye tracking is mere data gathering as detailed in the grounds of rejection presented herein.
Declarant, in section 8 of the Declaration, argues that the technique of using “retina gaze-derived data to determine where the user is looking, confines high-definition rendering to the gaze region and uses reduced-fidelity rendering elsewhere” provides “Reduced Per-Frame Rendering Latency”. Examiner does not disagree that the use of “foveated rendering” provides improved performance in a wearable AR device. This was a well-understood, routine, and conventional technique prior to the effective filing date of the instant application. This is made clear in the previously cited Wikipedia article on the technique and by Wetzstein et al.’s article, “State of the Art in Perceptual VR Displays”. Wetzstein discusses the use of existing techniques, including “Foveated Rendering” (see especially section 2), stating, “Many researchers have proposed foveated rendering techniques to improve rendering performance for gaze-contingent displays”. That is, the technique was well-researched and numerous sub-techniques were available to PHOSITA. However, any alleged performance improvement is caused by application of this known technique to the marketing action that is the abstract idea itself. As claimed, the application of foveated rendering to the presentation of marketing actions does not render the abstract idea subject matter eligible because the invocation of foveated rendering represents extra-solution activity.
Declarant, in section 9 of the Declaration, argues that the claimed invention represents two sources of computational efficiency. The first alleged source of computational efficiency represents “gaze-controlled rendering efficiency” which are described in sections 7 and 8 of the Declaration. This feature has been discussed in the previous two paragraphs. The second alleged source of computational efficiency represents “reinforcement learning optimization efficiency”. Declarant argues that “A reinforcement learning model converges toward higher-quality content targeting with lower trial-and-error cost per interaction”. The use of machine learning (i.e., reinforcement learning) represents an algorithm for performing portions of the abstract idea and does not represent an improvement in the computer itself. Additionally, the invocation of machine learning techniques, as found in the claims, does not represent more than performing the abstract idea on a computer using well-understood, routine, and conventional techniques.
Declarant, in section 10 of the Declaration, argues that disparate “claim elements” capture the “Technological Improvements”. First, Declarant argues that because the “marketing action” is displayed on “AR glasses” renders the claimed invention to be on a “specific wearable hardware” that is not a “generic computer”. Examiner disagrees to this notion, as the displaying of the marketing action in an “AR display” merely “establishes the device context” (as noted by Declarant). That is, a marketing action is displayed on an AR headset. But an AR headset’s normal function is to display content to a user, and, as discussed above, the “foveated rendering” aspect was a well-known, routine, and conventional technique within the realm of augmented reality displays. Therefore, at best, the claims pertaining to AR displays, only ties the practice of the abstract idea to a “particular technological environment or field of use” (MPEP 2106.05(h)).
Declarant then argues that the “claim element” pertaining to optimization of resolution within the AR display based upon gaze-derived data provides a technological improvement and “saves computing resources”. As discussed above, foveated rendering was a well-understood, routine, and conventional technique in rendering content on AR/VR displays well before the claimed invention was filed. Additionally, the technique is extra-solution activity as the claimed are directed towards the abstract idea identified in the grounds of rejection presented herein, which is an optimization of marketing. Declarant has merely tacked on the foveated rendering technique in an effort to render the claims subject matter eligible under 35 U.S.C. § 101. This effort has not succeeded as the generation of a “marketing action” is largely independent of the technique of rendering optimization (i.e., foveated rendering). Examiner might be persuaded that the invention overcomes the grounds of rejection under 35 U.S.C. § 101, had the claimed invention been to the technique of foveated rendering itself. However, this is not the case here and the technique is merely an additional element that is extra-solution activity.
Declarant argues that the “Gaze data does not flow back to the system for storage alone” and that this data is used as feedback to the machine learning system. Examiner notes that the grounds of rejection under 35 U.S.C. § 101 is not based on a finding that the gaze data is merely stored in the system, but rather that the gathering of “eye-tracking” data is just that, data gathering. Neither the claims nor the specification provides detail as to the method/hardware for gathering said data. As such, the claimed invention assumes that PHOSITA would be able to gather this data using well-understood, routine, and conventional means. Therefore, the gathering of “eye-tracking” data is found to be an additional element akin to data gathering as discussed in the grounds of rejection presented herein. This data is added to the user profile data that is used by the machine learning model to optimize the “marketing action”. The claimed invention gathers a multitude of data and feeds it into a user profile. This is not fundamentally altered by gathering a known additional type of data.
Declarant further argues that a “reinforcement learning neural network” is not a “generic algorithm”, but rather a “specific machine learning architecture”. Examiner disagrees to this characterization as a “reinforcement learning neural network” is a class of algorithms and certainly not a “specific machine learning architecture”. Here, invoking a “reinforcement learning neural network” is akin to invoking calculus to solve a particular problem; greater detail is required as to how a Reinforcement Neural Network (RNN) is setup to solve the problem at hand (i.e., optimizing the marketing action). This is evidenced by the 1996 publication of Kaelbling et al.’s “Reinforcement learning: A survey” which “surveys the historical basis of reinforcement learning and some of the current work from a computer science perspective” (See section 1). Therefore, Examiner comfortably concludes that the invocation of “reinforcement learning neural network” as found in the claims represents an additional element that comprises well-understood, routine, and conventional techniques within the relevant arts.
Declarant, in sub-section (a) of section 11 of the Declaration, argues that using “retina-based gaze data” simultaneously as a “rendering control input” and “as a behavioral feedback signal” would be recognized by PHOSITA “as a specific technical integration that goes beyond the routing use of eye-tracking in commercial AR hardware”. Declarant then presents two references pertaining to “commercial” AR hardware that “Together, these establish eye-tracked foveated rendering as a deployed VR capability…not as a commercial wearable AR glasses capability”. Examiner notes that commercial viability is not a relevant inquiry when considering whether additional elements are routine or conventional (See MPEP 2106.05). Additionally, as noted above, the technique of foveated rendering was well-understood, routine, and conventional at the time the invention was filed. Similarly, using gaze information to determine user interest was a well-understood, routine, and conventional technique as detailed in at least Shimonishi and Kawashima and Tracy Harwood and Martin Jones. The combination of the two techniques does not add significantly more than utilizing the techniques individually as there is no significant interaction in doing so.
Declarant, in sub-section (b) of section 11 of the Declaration, argues that “The dual-use architecture as a non-obvious integration of two distinct technical subsystems”. This argument is misplaced as it confuses subject matter eligibility analysis under 35 U.S.C. § 101 with prior art (i.e., obviousness) analysis under 35 U.S.C. § 102/103. A finding of obviousness or non-obviousness is not especially relevant to analysis under 35 U.S.C. § 101 as the analysis under this statute is based on the claims themselves. Although the Court in Alice indicates examples or illustrations of the abstract idea found there, the Examiner notes that the court bases their decision on analogy to other cases (“It follows from our prior cases, and Bilski in particular, that the claims at issue here are directed to an abstract idea", Alice, page 9) and that the claims are found “[o]n their face” to be directed to the abstract idea. The Alice Court does not appear to conflate 102 or 103 analysis with the 101 analysis they perform, the Court appears to merely use cited references to illustrate the idea, not base their finding on the references - in fact, two of the references cited appear to post-date the patents at question in Alice by some time. As further support for this, the Examiner notes that Ultramercial, Inc. v. Hulu, LLC, 112 USPQ2d 1750, 1754 (Fed. Cir. 2014) indicates that Ultramercial argued that evidentiary support was required as a basis for an abstract idea ("[i]n other words, Ultramercial argues that the Supreme Court directs us to use a type of 103 analysis..."); however, the court agrees with WildTangent that analysis is based on the claims themselves.
Declarant, in sub-section (c) of section 11 of the Declaration, argues that “A POSITA would not find the complete ordered combination…to have been a routine or conventionally assembled system in commercial AR platforms as of June 22, 2021”. Applicant then references the Ex parte Desjardins decision. Examiner disagrees that the claims in the instant application are analogous to the Desjardins decision. Here, the claims combine a number of well-understood, routine, and conventional techniques to achieve a routine, expected outcome, with at least the technique of foveated rendering lying outside the abstract idea as extra-solution activity. In contrast, in Desjardins, the finding was based on “improving the functioning of the machine learning model itself, citing reduced storage requirements, lowered system complexity, and the prevention of ‘catastrophic forgetting’”. This is quite different from the claimed invention that invokes, but does not improve, such technologies as foveated rendering, eye-tracking, reinforcement learning machine learning, wearable AR/VR headsets, creating a user profile, using the user profile to perform a marketing action, receiving feedback to said marketing action, using the feedback to select personalized content to send to the user, using the feedback to modify the marketing action, using a quantum computer, and performing A/B testing of marketing actions. While numerous, the elements are combined in a straight-forward manner with each element specified at a high level of generality. Thus, the claims are found to be directed towards an abstract idea that is not integrated into a practical application and with additional elements that do not amount to significantly more than the abstract idea itself.
Examiner notes that Declarant has referenced several references withing section 11, but Examiner does not find an IDS filing within the application that pertains to these references. In order for the Office to properly consider these references, they should be filed in an IDS.
Declarant, in section 12 of the Declaration, argues that the amended claims “are not mental steps and cannot be performed by the human mind alone”. This argument is spurious as the grounds of rejection under 35 U.S.C. § 101 presented in the previous Office action and herein are not based on a finding that the claims are directed towards a mental process. The claims are found to fall 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.
This argument is similar to the argument advanced in the Cyberfone decision. Cyberfone argued that the claimed subject matter was not an abstract idea because a human, unaided by devices, could not perform the steps recited in the claim. The Federal Circuit, after reminding us that the “category of patent-ineligible abstract ideas is not limited to methods that can be performed in the human mind” went onto consider whether the claim includes “additional substantive limitations … [that] narrow, confine, or otherwise tie down the claim so that, in practical terms, it does not cover the full abstract idea itself.”
On this issue Cyberfone argued that the claim was “sufficiently limited by the machinery it requires and transformations it effects.” However, the Federal Circuit explained that for “a machine to impose a meaningful limit … it must play a significant part in permitting the claimed method to be performed.” If a claim “simply [implements] an abstract concept on a computer, without meaningful limitations to that concept, does not transform a patent-ineligible claim into a patent eligible one.”
In this case, the Federal Circuit explained that the recited telephone only acts as a device to obtain data and “adds nothing of significance to the claimed abstract idea.” The Court also rejected Cyberfone’s assertion that the claim recitation of sending exploded data transactions over a channel “requires an additional specific machine,” noting the absence of any particular machine that is required to perform the function of the recited channel.
Furthermore, any argument that relies upon a line of reasoning that the claims are not abstract simply because, as Declarant alleges, are not performable "in the human mind or by a human using pen and paper" is not persuasive. This rationale oversimplifies the analysis performed under 35 U.S.C. § 101 and is logically erroneous. This line of rationale follows the "affirming the consequent" logical fallacy as while the courts have found that because steps of a method claim can be performed "by a human using pen and paper" to be patent ineligible this does not mean that the converse is true. Planet Bingo, LLC, v VKGS LLC (U.S. Patent No. 6,398,646). As the courts did not state that a method not being performable in the human mind causes the method to be patent eligible, this rationale is insufficient to show patent eligibility under 35 U.S.C. § 101.
Declarant, in section 13 of the Declaration, provides a summary of the argument and asserts that under their “professional opinion” a PHOSITA “would recognize it [the invention] as describing a specific, hardware-grounded technical solution to a known problem in wearable AR display systems, not as a marketing workflow applied to a generic computer”. As detailed in the previous paragraphs, Examiner is not persuaded by Declarant’s argument and 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, wherein performing the at least one marketing action comprises rendering and presenting augmented reality content in an augmented reality environment on augmented reality glasses of a wearable device,
the prospective client being recognized using biometric recognition,
the biometric recognition including at least one of biometric authentication or biometric tracking;
performing eye-tracking with the 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 the 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 generating retina gaze-derived data using retina-based eye-tracking and using the retina gaze-derived data to optimize a resolution of what the prospective client sees in the augmented reality environment and saves computing resources by rendering high definition content of the augmented reality 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,
the feedback including the retina gaze-derived data indicating what and where the prospective client is looking in the augmented reality environment;
using the feedback for prediction of the prospective client's interactions, using the feedback to identify the prospective client as a frequent customer, a baby boomer, a millennial, or a social traffic user, and using 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,
wherein modifying the at least one marketing action includes updating the augmented reality content presented by the augmented reality glasses by rendering high definition content only where the prospective client is looking in the augmented reality environment to save computing resources;
wherein a portion of data is in qubit form, the qubit having the superposition and entanglement properties and the machine learning technique includes 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; an augmented reality environment on 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: retina gaze-derived data using retina-based 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 of the augmented reality 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, and by rendering high definition content only where the prospective client is looking in the augmented reality environment to save computing resources: 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:
Wetzstein et al., in “State of the Art in Perceptual VR Displays”, describes a process of improving the performance of wearable augmented reality systems by using foveated rendering.
Shimonishi and Kawashima, in “A Two-step Approach for Interest Estimation from Gaze Behavior in Digital Catalog Browsing”, describes techniques for determining a user’s interest in products based upon detection of a user’s gaze behavior.
Tracy Harwood and Martin Jones, in “Mobile Eye-Tracking in Retail Research”, discloses systems for tracking user’s “audio-visual attention” within retail environments in order to assess consumer behavior.
Kaelbling et al., in “Reinforcement learning: A survey”, discloses a variety of reinforcement learning techniques and their applications.
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
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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/S.S/Examiner, Art Unit 3621
/WASEEM ASHRAF/Supervisory Patent Examiner, Art Unit 3621
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